HomeMy WebLinkAbout07/21/2009Diamond Bar
City Council Agenda
Tuesday, July 21, 2009
6:30 p.m. — Regular Meeting
The Government Center
South Coast Air Quality Management District/
Main Auditorium
21865 Copley Drive, Diamond Bar, CA 91765
Ron Everett Carol Herrera
Mayor Mayor Pro Tem
Wen P. Chang Jack Tanaka Steve Tye
Council Member Council Member Council Member
City Manager James DeStefano City Attorney Michael Jenkins • City Clerk Tommye Cribbins
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D OND BAR
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CITY OF DIAMOND BAR
CITY COUNCIL AGENDA
July 21, 2009
CALL TO ORDER:
PLEDGE OF ALLEGIANCE:
INVOCATION:
ROLL CALL:
APPROVAL OF AGENDA:
Next Resolution No. 2009-35
Next Ordinance No. 02 (2009)
6:30 p.m.
Mayor
Ahmad H. Sakr, Ph.D
Islamic Education Center
Council Members Chang, Tanaka,
Tye, Mayor Pro Tem Herrera, Mayor
Everett
Mayor
SPECIAL PRESENTATIONS, CERTIFICATES, PROCLAMATIONS:
NEW BUSINESS OF THE MONTH:
1.1 Presentation of City Plaque to Shabu Shabu Restaurant, 2803 S.
Diamond Bar Blvd., as New Business of the Month, July, 2009.
2. CITY MANAGER REPORTS AND RECOMMENDATIONS:
3. PUBLIC COMMENTS: "Public Comments" is the time reserved on each
regular meeting agenda to provide an opportunity for members of the public to
directly address the Council on Consent Calendar items or matters of interest to
the public that are not already scheduled for consideration on this agenda.
Although the City Council values your comments, pursuant to the Brown Act, the
Written materials distributed to the City Council within 72 hours of the City Council
meeting are available for public inspect on immediately upon distribution in the City
Clerk's Office at 218:25 Copley Dr., Diamond Bar, California, during normal business
hours.
July 21, 2009 PAGE 2
Council generally cannot take any action on items not listed on the posted
agenda. Please complete a Speaker's Card and give it to the City Clerk
(completion of this form is voluntary). There is a five-minute maximum time limit
when addressing the City Council.
4. RESPONSE TO PUBLIC COMMENT: Under the Brown Act, members of the
City Council may briefly respond to public comments but no extended discussion
and no action on such matters may take place.
5. SCHEDULE OF FUTURE EVENTS:
5.1 Concerts in the Park — July 22, 2009 - 6:30 — 8:00 p.m., Upstream
(Caribbean) — Sycamore Canyon Park, 22930 Golden Spgs. Dr.
5.2 Movies Under the Stars - July 22, 2009 — Igor —Immediately following
Concerts in the Park, Sycamore Canyon Park, 22930 Golden Spgs. Dr.
5.3 Planning Commission Meeting — July 28, 2009 — 7:00 p.m.
AQMD/Government Center Auditorium, 21865 Copley Dr.
5.4 Concerbs in the Park — July 29, 2009 - 6:30 — 8:00 p.m., Present Tense
(Jazz) — Sycamore Canyon Park, 22930 Golden Spgs. Dr.
5.5 Movies Under the Stars - July 29, 2009 — Stuart Little —Immediately
following Concerts in the Park, Sycamore Canyon Park, 22930 Golden
Spgs. Dr.
5.6 Parks and Recreation Commission Study Session — Presentation of Draft
Parks Master Plan — July 30, 2009 — 7:00 — 9:00 p.m., City Hall
Conference Room B, 21825 Copley Dr.
5.7 Site D Draft EIR Public Forum — August 3, 2009 — 7:00 — 8:30 p.m.,
Heritage, Park Community Room, 2900 S. Brea Canyon Rd.
5.8 City Council Meeting — August 4, 2009 - 6:30 p.m., AQMD/Government
Center Auditorium, 21865 Copley Dr.
5.9 Community Workshop — Presentation of Draft Parks Master Plan — August
8, 2009 — 9:00 a.m. — 11:00 a.m., D.B. Center Grandview Ballroom, 1600
S. Grand Ave.
6. CONSENT CALENDAR:
6.1 City Council Minutes — Regular Meeting of July 7, 2009 — Approve as
submitted.
July 21, 2009 PAGE 3
6.2 Traffic and Transportation Commission Minutes — Regular Meeting of
June 11, 2009 — Receive and file.
6.3 Ratification of Check Register — Dated July 1, 2009 to July 15, 2009
totaling $505,097.17.
Requested by: Finance Department
6.4 Adopt Resolution No. 2009 -XX: Approving Program Supplement No.
009-N Administering Agency -State Agreement No. 07-5455R for
Utilization of Federal Funds in the Amount of $1,770,000 on the
Preventative Street Maintenance Program (Zone 3 & 4 Arterial Street
Rehabilitation Project) Federal Project No. ESPL-5455(013).
Recommended Action: Adopt.
Requested by: Public Works Department
6.5 Approval of A Contract with Blackboard Connect for
Government/Connect-CTY to Provide an Emergency Mass
Notification for One Year in the Amount of $38,709.97 and
Adoption of the Associated System Use Policy.
Recommended Action: Approve.
Requested by: City Manager
6.6 Approval of Contract Amendment No. 8 to Extend License
Agreement with Coca Cola for the Operation of Beverage -Serving
Machines in City Parks for the Period of August 1, 2009 through
January 31, 2010.
Recommended Action: Approve.
Requested by: Community Services Department
7. PUBLIC HEARINGS: None.
8. COUNCIL CONSIDERATION:
8.1 Approval of Modifications for Diamond Ride (Dial -A -Cab) Program.
Recommended Action: Approve.
Requested by: Public Works Department
July 21, 2009 PAGE 4
8.2 Approval of Solid Waste Contract with Waste Management for
Residential Trash Hauling Services.
Recommended Action: Approve.
Requested by: Public Works Department
8.3 Approval of Commercial Refuse and Recycling Franchise Agreement
with Valley Vista Services.
Recommended Action: Approve.
Requested by: Public Works Department
9. COUNCIL SUB -COMMITTEE REPORTS/COUNCIL MEMBER COMMENTS:
10. ADJOURNMENT:
Agenda No. 6.1
MINUTES OF THE CITY COUNCIL
REGULAR MEETING OF THE CITY OF DIAMOND BAR
J U LY 7, 2009
CALL TO ORDER: Mayor Everett called the Regular City Council
meeting to order at 6:32 p.m. in The Government Center/SCAQMD Auditorium, 21865
Copley Dr., Diamond Bar, CA.
PLEDGE OF ALLEGIANCE: C/Chang led the Pledge of Allegiance.
INVOCATION: Pastor Randy Lanthripe, Church in the Valley, led the
Invocation.
ROLL CALL: Council Members Chang, Tanaka, Tye, Mayor Pro
Tem Herrera, and Mayor Everett.
Staff Present: James DeStefano, City Manager; David Doyle,
Assistant City Manager; Michael Jenkins, City Attorney; Bob Rose, Community Services
Director; David Liu, Public Works Director; Greg Gubman, Acting Community
Development Director; Ryan McLean, Assistant to the City Manager; Rick Yee, Senior
Civil Engineer; Kimberly Molina, Associate Engineer; Patrick Gallegos, Management
Analyst; Anthony Santos, Management Analyst; Cecilia Arellano, Public Information
Coordinator; and, Tommye Cribbins, City Clerk.
APPROVAL OF AGENDA: CM/DeStefano requested that the City Council
remove Consent Calendar Item 6.9 and 6.10 for an updated staff report.
1. SPECIAL PRESENTATIONS, CERTIFICATES, PROCLAMATIONS:
1.1 M/Everett proclaimed July 2009 as Parks and Recreation Month and
presented the Proclamation to Parks and Recreation Commission Vice
Chairman Dave Grundy.
BUSINESS OF THE MONTH:
1.2 MPT/Herrera presented a City Tile to Gupreet Virk, Owner of Peacock
Gardens Restaurant, 23347 Golden Springs Dr., as Business of the Month
for July 2009.
2. CITY MANAGER REPORTS AND RECOMMENDATIONS:
CM/DeStefano reported that last week he met with Congressman Miller to follow
up on the zip code issue and the ongoing efforts to seek additional funding for
improvements to the SR57/60 freeway. Congressman Miller indicated continuing
support for the City's effort on these issues.
3. PUBLIC COMMENTS:
Desiree Lee, Diamond Bar Library, spoke about the Summer Reading
Program for which nearly 700 children have enrolled. She thanked the Friends of
the Library for their continued support for these types of programs.
JULY 7, 2009 PAGE 2 CITY COUNCIL
John Long, President of D.B. Pony Baseball, 530 Charmingdale, spoke about
the Diamond Bar Family Festival sponsored by D.B. Pop Warner and D.B. Pony
Baseball that will be held from July 23 through July 26, 2009. He reported that
after discussing the matter with City staff he left the meeting believing that the
event would be able to remain open until 11:00 p.m. However, when he attended
the Planning Commission on June 23 both he and the President of Pop Warner
after giving testimony before the Planning Commission discovered that staff was
recommending a closing time of 10:00 p.m. Following discussion the Planning
Commission voted to approve staff's recommendation. Mr. Long was attending
tonight's Council meeting to request that the City Council allow the festival to
remain open until 11:00 p.m. on Friday and Saturday evening, July 24 and 25.
Mr. Long went on to advise Council that residents within 1000 ft. of the festival
had been noticed and that none of the residents appeared at the meeting or had
called the City to contest the festival details. He presented a petition to the City
Council signed by about 30 residents who live on Big Falls and Sunset Crossing
indicating they had no problem with the festival remaining open until 11:00 p.m.
This is a first time event and the organizations would like to appeal to the
community to participate in this event on an annual basis in order to raise money
for youth organizations in D.B. After the Planning Commission made its ruling he
was advised that the matter could be appealed to the City Council by filing a form
with the City Clerk. The next day the President of Pop Warner went to City Hall
to complete the form and was advised that there was no form and that a letter
would have to be addressed to the City which he was not able to complete that
day. He received a phone call later that day asking for the letter and was
advised that the City required a $500 fee to file the appeal. When he asked if the
organization would get the $500 refunded if it won the appeal he was told No. It
is not possible for the organizations to start out by being $500 in the hole when it
is attempting to raise funds for the youth of D.B. Mr. Long then discussed the
fees required to put an event such as this on and asked that the City waive the
fees. He stated that they had been denied the waiver of fees with the exception
of $25. Mr. Long also asked Council to authorize use of the stage without a fee
and agreed to transport the stage to and from the field.
Greg McKnight, 324 S. Diamond Bar Blvd. President of Pop Warner
Football stated he too attended the Planning Commission meeting on June 23
and was very disappointed about how the meeting had been conducted. He said
that he and Mr. Long were never given an opportunity for rebuttal which he
brought up during the meeting. He reported that the Chairman of the Planning
Commission deferred to the City Attorney and that the City Attorney said the
hearing could not be reopened for further public comment. Following conclusion
of the meeting, the City Attorney said that generally, public hearings are not
reopened for public comment and it appeared to him that the Commission was
not interested in hearing from the speakers. One of the Commissioners left the
meeting unhappy that he could not speak on the matter. Mr. McKnight felt that
the Commissioners should be educated to give speakers an opportunity for
rebuttal. One of the Commissioners indicated he could appeal the matter and
that information was inaccurate. More importantly, he felt the
JULY 7, 2009 PAGE 3 CITY COUNCIL
Chairman did not know there would be a $500 charge. This Festival effort is an
all -volunteer event and while he appreciates all of the work the City does it is
frustrating when 35 individuals attend the Planning Commission to support the
event and the 11:00 p.m. hour and not get the opportunity for rebuttal. The
Brown Act was cited as an issue. He researched the Brown Act and could not
find anything that stated that a rebuttal could not be heard. Basically, the door
was closed and that for his organizations to get on an agenda and appeal the
ruling it would take until the latter part of July. The Festival is slated to begin on
the 23rd and that is why he and Mr. Long attended this evening.
Mary McCormick, 21455 Ambushers St., asked why the Draft EIR for Site D was
not on tonight's agenda. The letter indicating the opportunity to respond to the
EIR between June 25 and July 7 arrived at her home today, the last day to
respond.
4. RESPONSE TO PUBLIC COMMENTS:
CM/DeStefano, in response to Ms. McCormick's comments, stated that the
Environmental Impact Report for the proposed Site D Development is out and
available for public review and comment. Apparently, he felt there might be a
breakdown in communication because the public comment period does not close
until August 10, 2009. The EIR is available at City Hall, online through the City's
website and at the D.B. Library. Additionally, a community meeting has been
scheduled at Heritage Park on August 3 to discuss the document.
CM/DeStefano pointed out to the Council that with respect to the D.B. Family
Festival as reported by Mr. Long and Mr. McKnight, that the City Council has no
authority regarding the Conditional Use Permit that the City Planning
Commission granted a few weeks ago. The Planning Commission held a duly
noticed Public Hearing as the speakers have referenced. The Planning
Commissioners took public comment on the matter before them, deliberated on
the action, and approved the proposal as staff recommended with a 10:00 p.m.
termination period for the days of the event as outlined in the staff presentation
that evening to the Planning Commission. The speakers and in particular, Mr.
Long, were provided a copy of the staff report and the process for participation in
the Planning Commission meeting. CM/DeStefano said he was not present at
the meeting and does not know all of the details but can say that it was, from his
understanding, a very typical Planning Commission meeting wherein
presentation was made by staff, comments were received by the applicant and
any others who may have been interested in speaking, deliberation occurred and
ultimately a decision was rendered by the Planning Commission. The Planning
Commission decision stands. The matter was not appealed and therefore,
conclusion of the event at 10:00 p.m. is a decision that stands. The City Council
does not have the ability to weigh in on that matter and make any changes. The
Festival is scheduled to commence July 23 and not only does the decision stand
because it was not timely appealed but there is no ability to open that door for a
JULY 7, 2009 PAGE 4 CITY COUNCIL
potential appeal or change by the Planning Commission or any input
modifications by the City Council. This item is concluded for this year. The
proposed festival is rather unprecedented in City history. Even when the multi -
day ranch festival took place it did not extend over four days. City staff and law
enforcement was very concerned about this project because of the length of the
event, the time period, and, quite frankly the location of the event that offers
minimal parking outside of public streets and immediately adjacent residential
neighborhood streets. He said he believed this was a time period wherein the
promoters need to put on a good show for themselves and for the proceeds they
hope to achieve from it, to work well with the neighbors and if they are successful
seek this type of venue in the future where there is an opportunity to look at
additional timeframes that might be more appropriately based on what is known
at that time. 10:00 p.m. is the closing time and that closing time stands. With
respect to waiver of fees, the City has a user pay-as-you-go fee system. If the
speakers chose to appeal the Planning Commission's decision it was the
applicants who were required to make the appeal statement, not the City of D.B.
For costs and services required to have been performed a public hearing before
the City Council and to pay for all associated staff costs associated with that
appeal. The modest fee of $500 does not cover the cost of advertising the Public
Hearing. That modest fee is meant to encourage appropriate appeals and to
dissuade individuals from frivolous appeals. This fee has been in place for many
years in the City and has often been used for those who feel a decision was not
reached in a favorable manner for them. With respect to a waiver of fees or
costs associated with the use of public property, those applications are looked at
very carefully on a case-by-case basis when received. There are certain pieces
of public property that the City absolutely will not rent to anyone because of
potential damage. The stage that is used for Concerts in the Park is very
expensive. The City spent a great deal of time a year ago in the pursuit of
purchasing that system and requires City staff to install it and tear it down. The
timeframe that was proposed for the festival does not coincide well with the
Concerts in the Park program because it occurs between two scheduled concerts
and would require multiple tearing down and setting up by staff. CM/DeStefano
said he made the decision that it was not an appropriate use of City's property
and therefore unable to be rented.
5. SCHEDULE OF FUTURE EVENTS:
5.1 Concerts in the Park — July 8, 2009 — 6:30 — 8:00 p.m. The Answer
(Classic Rock) — Sycamore Canyon Park, 22930 Golden Springs Dr.
5.2 Movies under the Stars — July 8, 2009 — Open Season 2 — immediately
following concerts in the Park, Sycamore Canyon Park, 22930 Golden
Springs Dr.
5.3 Traffic and Transportation Commission Meeting — July 9, 2009 — 7:00
p.m., AQMD/Government Centra Hearing Board Room, 21865 Copley Dr.
JULY 7, 2009 PAGE 5 CITY COUNCIL
5.4 Planning Commission Meeting — July 14, 2009 — 7:00 p.m.,
AQMD/Government Center Auditorium, 21865 Copley Dr.
5.5 Concerts in the Park — July 15, 2009 — 6:30 — 8:00 p.m., Thornbird
(Contemporary Rock) — Sycamore Canyon Park, 22930 Golden Springs
Dr.
5.6 Movies Under the Stars — July 15, 2009 — Journey to the Center of the
Earth — Immediately following Concerts in the Park, Sycamore Canyon
Park, 22930 Golden Springs Dr.
5.7 City Council Meeting — July 21, 2009 — 6:30 p.m., AQMD/Government
Center Auditorium, 21865 Copley Dr.
6. CONSENT CALENDAR: C/Chang moved, MPT/Herrera seconded, to approve
the Consent Calendar as presented with the exception of Item 6.9 and 6.10
requested to be withdrawn by staff. Motion carried by the following Roll Call:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
6.1 CITY COUNCIL MINUTES
Chang, Tanaka, Tye, MPT/Herrera
M/Everett
None
None
6.1.1 Study Session of June 16, 2009 — Approved as submitted.
6.1.2 Regular Meeting of June 16, 2009 — Approved as amended.
6.2 PLANNING COMMISSION MINUTES:
6.2.1 Study Session of April 28, 2009 — Received and filed.
6.2.2 Regular Meeting of April 28, 2009 — Received and filed.
6.2.3 Regular Meeting of May 12, 2009 — Received and filed.
6.2.4 Regular Meeting of May 26, 2009 — Received and filed.
6.3 PARKS AND RECREATION COMMISSION MINUTES — Regular Meeting
of May 28, 2009 — Received and filed.
6.4 TRAFFIC AND TRANSPORTATION COMMISSION MINUTES — Regular
Meeting of May 14, 2009 — Received and filed.
6.5 RATIFIED CHECK REGISTER — Dated June 11, 2009 to July 1, 2009
totaling $1,979,416.72.
6.6 APPROVED TREASURER'S STATEMENT — Month of May 2009.
JULY 7, 2009 PAGE 6 CITY COUNCIL
6.7 AWARDED CONTRACT TO DAVID VOLZ DESIGN IN AN AMOUNT
NOT -TO -EXCEED $47,500 FOR THE DESIGN OF CONSTRUCTION
DOCUMENTS FOR THE DEVELOPMENT OF WASHINGTON STREET
MINI -PARK; AMOUNT INCLUDES A 10 PERCENT CONTINGENCY OF
$4,150 AND $2,000 FOR REIMBURSABLES.
6.8 APPROVED CONSENT TO INDIRECT TRANSFER OF CONTROL OF
NEXTG NETWORKS OF CALIFORNIA, INC.
6.11 AWARDED CONTRACT TO SJC 3 CONSULTING TO ADMINISTER THE
CITY'S HOME IMPROVEMENT PROGRAM (HIP) IN AN AMOUNT NOT
TO EXCEED $20,000 FOR FY 2009-10.
6.12 APPROVED AMENDMENT NO. 3 TO THE CONSULTING SERVICES
AGREEMENT WITH DIANA CHO AND ASSOCIATES FOR COMMUNITY
DEVELOPMENT BLOCK GRANT (CDBG) LABOR AND CONTRACT
COMPLIANCE SERVICES $21,600) FOR FY 2009/10.
ITEMS WITHDRAWN FROM CONSENT CALENDAR:
6.9 APPROVAL OF AMENDMENT NO. 10 TO CONTRACT WITH
VALLEYCREST TO ADD PURCHASE AND INSTALLATION OF A
CENTRALIZED IRRIGATION CONTROL SYSTEM AT THE CITY'S
PARKS, DIAMOND BAR CENTER, FOOTBALL FIELD AND SLOPE AT
LORBEER MIDDLE SCHOOL, AND THE TRAIL/TRAIL HEAD AT
SYCAMORE CANYON PARK, IN THE AMOUNT OF $133,400, PLUS A
CONTINGENCY OF $5,000 FOR A TOTAL AUTHORIZATION OF
$138,400; AND APPROPRIATED $138,400 FOR THE FY 2009/10
BUDGET FROM GENERAL FUND RESERVES.
6.10 APPROVAL OF AMENDMENT NO. 10 TO CONTRACT WITH EXCEL TO
ADD PURCHASE AND INSTALLATION OF A CENTRALIZED
IRRIGATION CONTROL SYSTEM AT LLAD NO'S 38, 39 AND 41, IN
THE AMOUNT OF $390,500, PLUS A CONTINGENCY OF $47,100 FOR
A TOTAL AUTHORIZATION OF $437,000; AND APPROPRIATED
$437,600 FOR THE FY 2009/10 BUDGET FROM GENERAL FUND
RESERVES; AND, AUTHORIZED FOR USE OF THE REMAINING
CONTINGENCY FUNDS TO REPLACE TURF HEADS WITH ROTATING
NOZZLES ON MEDIANS IN LLAD NO 38.
CSD/Rose reported that this item is for consideration of awarding a
contract for the purchase and installation of a centralized irrigation control
system for the landscaped areas maintained by the City of D.B. Originally,
there were two contractors that were assigned to this project; however,
Excel Landscape notified staff that they were withdrawing their bid due to
a $69,000 error. Staff immediately contacted ValleyCrest Landscape to
see if they would be willing to handle the entire project for the original
JULY 7, 2009 PAGE 7 CITY COUNCIL
7.
price of $576,000 including the contingency which they agreed to do.
Therefore, staff recommends that the City Council award the entire
contract for the purchase and installation of the centralized irrigation
control system to ValleyCrest Landscape in the amount of $516,647.14
plus a contingency of $59,352.86 for a total authorization of $576,000 and
an appropriation of $576,000 from General Fund Reserves. The City
received a grant from the Metropolitan Water District in the amount of
$166,800. The City is also eligible for a $41,700 grant from Walnut Valley
Water District after the controllers are installed. This results in a net cost
to the City for this project of $367,500 and with a centralized irrigation
system, it is anticipated that the annual water savings of about 32% will
result in the City recovering its General Fund investment in about four
years.
M/Everett opened the item for public comments. However, no one was
present who wished to speak on this matter.
MPT/Herrera felt it was outstanding that the City would change out its
system to save the City 32% of its current usage.
CSD/Rose responded to MPT/Herrera that ValleyCrest had the capacity to
complete the entire job.
C/Chang said he too supported this improvement project and appreciated
that ValleyCrest stepped up to take on this project for the same cost.
MPT/Herrera moved, C/Chang seconded, to approve Consent Calendar
Item 6.9 as amended and to accept Excel Landscapes' withdrawal of their
bid. Motion carried by the following Roll Call vote:
AYES: COUNCIL MEMBERS: Chang, Tanaka, Tye,
MPT/Herrera, M/Everett
NOES: COUNCIL MEMBERS: None
ABSENT: COUNCIL MEMBERS: None
PUBLIC HEARINGS:
7.1 PUBLIC HEARINGS FOR LIGHTING AND LANDSCAPE DISTRICTS
NOS. 38, 39 AND 41.
(a) ADOPT RESOLUTION NO. 2009-32 LEVYING AN ASSESSMENT ON
THE CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT
DISTRICT NO. 38 FOR FY 2009/10.
JULY 7, 2009 PAGE 8 CITY COUNCIL
(b) ADOPT RESOLUTION NO. 2009-33 — LEVYING AN ASSESSMENT
ON THE CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT
DISTRICT NO. 39 FOR FY 2009/10.
(c) ADOPT RESOLUTION NO. 2009-34 — LEVYING AN ASSESSMENT
ON THE CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT
DISTRICT NO. 41 FOR THE FY 2009/10.
PWD/Liu stated that District 38 levy rate of $15 per parcel generates
approximately $268,000 in assessment revenue. This $15 rate has
remained the same since the date of incorporation. As a result, there
are insufficient funds collected to maintain and improve the District
without utilizing the General Fund. For FY 2009/10 to maintain the
current level of service the total annual budget of the District is
approximately $329,000 which does not include personnel service
costs of about $27,000. Landscape improvements to be maintained by
District 38 are the parkways and medians throughout the City. The
estimated number of parcels within the District is 17,854.
PWD/Liu explained that the levy rate for District 39 is proposed to be
$130 per parcel and generates $164,000 in assessment revenue. The
per parcel rate of $130 has remained the same since Incorporation and
is inadequate to maintain and improve the District without using
General Funds. For FY 2009/10 to maintain the current level of
service the District's budget totals $234,332 which does not include
personnel service of approximately $27,000. The landscaping
improvements to be maintained by District 39 are the mini parks,
slopes and the open space area within the District. This reflects a total
maintenance area of approximately 61 acres. The estimated number
of parcels within the District is 1,253.
PWD/Liu said that the proposed levy rate of $220.50 for District 41
generates approximately $122,000 in assessment revenue and the
$220.50 rate has remained the same since Incorporation and is also
inadequate to maintain and improve the District without utilizing the
General Fund. For FY 2009/10 to maintain the current service level,
the required District budget totals almost $168,000. The landscape
improvements to be maintained by District 41 are the slopes and open
space areas within the District. This reflects a total maintenance area
of almost 16 acres. The estimated number of parcels within the District
is 554.
Staff recommends that the assessment of each parcel within each of
the three districts be confirmed and adopt the respective resolution
levying the assessments for FY 2009/10.
JULY 7, 2009 PAGE 9 CITY COUNCIL
PWD/Liu reported that during the City Council meeting of June 16 the
Council approved a contract with SCI to analyze the issues and
opportunities for revenue enhancements within these districts.
M/Everett opened the Public Hearing.
With no one present who wished to speak on this item, M/Everett
closed the Public Hearing.
C/Chang moved, MPT/Herrera seconded, to adopt Resolution No. 32
for District No. 31. Motion carried by the following Roll Call vote:
AYES: COUNCIL MEMBERS: Chang, Tanaka, Tye
MPT/Herrera, M/Everett
NOES: COUNCIL MEMBERS: None
ABSENT: COUNCIL MEMBERS: None
C/Chang moved, MPT/Herrera seconded, to adopt Resolution No. 33
for District No. 32. Motion carried by the following Roll Call vote:
AYES: COUNCIL MEMBERS: Chang, Tanaka, Tye
MPT/Herrera, M/Everett
NOES: COUNCIL MEMBERS: None
ABSENT: COUNCIL MEMBERS: None
C/Chang moved, C/Tye seconded, to approve Resolution No. 34 for
District No. 41. Motion carried by the following Roll Call vote:
AYES: COUNCIL MEMBERS: Chang, Tanaka, Tye
MPT/Herrera, M/Everett
NOES: COUNCIL MEMBERS: None
ABSENT: COUNCIL MEMBERS: None
7.2 ADOPT ORDINANCE NO. 04B (2009): EXTENDING ORDINANCE NO.
04(2008) PROHIBITING CERTAIN GROUP RESIDENTIAL USES
INCONSISTENT WITH RESIDENTIAL ZONES AND PROVIDING
REASONABLE ACCOMMODATION PROVISIONS FOR THE DISABLED,
PURSUANT TO GOVERNMENT CODE SECTION 65858(d).
ACDD/Gubman stated that on July 15, 2008 the City Council adopted an
Interim Urgency Ordinance instituting a ban on the establishment of
certain group residential uses in residential zones. This was done after it
was determined that a potential proliferation of such facilities would and
did pose an immediate threat to public health, safety and welfare. The
initial term of the ordinance is set to expire on July 15 of this year. Staff
has begun researching and preparing standards for a permanent
ordinance to supersede the urgency ordinance and does require additional
JULY 7, 2009 PAGE 10 CITY COUNCIL
time to craft the regulations. Therefore, staff recommends that the City
Council extend the Urgency Ordinance for the maximum allowable time
period of one year which would extend the Ordinance to July 15, 2010 in
order to allow staff to complete its research. He reviewed the redline
changes provided to City Council at the dais.
M/Everett opened the Public Hearing.
With no one present to speak on this matter, M/Everett closed the Public
Hearing.
C/Tye moved, C/Chang seconded, to adopt Ordinance No. 04B (2009)
with changes as recommended by staff. Motion carried by the following
Roll Call vote:
AYES: COUNCIL MEMBERS: Chang, Tanaka, Tye
MPT/Herrera, M/Everett
NOES: COUNCIL MEMBERS: None
ABSENT: COUNCIL MEMBERS: None
8. COUNCIL CONSIDERATION: None
9. COUNCIL SUBCOMMITTEE REPORTS/COUNCIL MEMBER COMMENTS:
C/Tye spoke regarding the Verizon bill he received and pointed out that for the
past two months he had been billed for additional services he had not authorized.
He suggested that residents scrutinize their bills for services that had not been
authorized and to contact the provider immediately. He thanked CSD/Rose and
his staff for their great effort on the 4th of July bash. It was an outstanding event
and a great day. He invited everyone to attend tomorrow night's first of the year
Concerts in the Park event. C/Tye commended C/Chang and his wife for what
they have given to the D.B. community and the many lives they have touched.
C/Tanaka said that over the past couple of weeks he attended the joint board
meeting between the California Contract Cities Association, the Independent
Cities Association and the League of California Cities LA County Division
meeting held at the Gas Company's Energy Resource Center in Downey. He
also attended the San Gabriel Council of Governments and the San Gabriel
Valley Economic Partnership who co -hosted the Jack Phillips awards event this
year and a Community Leaders Breakfast meeting with Senator Huff where water
issues were discussed. C/Tanaka attended an Eagle Scout Court of Honor; the
California Contract Cities Association's Executive Board Planning session;
Pacific Crest Drum and Bugle competition held at Mt. SAC; Pomona Unified
School District Board meeting; Tiny Tots graduation; Inland Valley Humane
Society's 60th Anniversary Gala; Lanterman Development Center's annual
Independence Day parade celebration and the 4th of July blast. He congratulated
JULY 7, 2009 PAGE 11 CITY COUNCIL
CSD/Rose and his staff for an outstanding show. This morning he attended the
Community Hero Day meeting for D.B. Day at the LA County Fair scheduled for
Thursday, September 17 and congratulated Lowanna Owens on the occasion of
her retirement.
C/Chang congratulated the City on a wonderful 4th of July blast on the occasion
of 233 years of independence. He stated that this event is free and that there
are many staff volunteers working behind the scenes to make it happen. He
thanked C/Tye for the kind words about his retirement. He announced that he
would retire from City Council and not seek re-election this year. The newspaper
referred to his resignation from the City Council; however, he is not resigning but
retiring. He has served for 12 years and feels it is time to bow out. As a firm
believer in term limits new blood should be allowed to help bring a new voice to
innovation and help the City continue to thrive. As an immigrant from Taiwan in
1981 he never imagined or planned to become involved in politics nor the
opportunity and honor of acting as mayor of such a great City. With confidence,
encouragement and overwhelming support extended to him he has been very
humbled and honored to have the opportunity to serve the community for the
past 12 years. Together we have made D.B. a City that everyone is proud of and
wants to live in and work in and to enjoy life. Most of the people in Southern
California admire D.B. and D.B. is one of the top 10 cities in which to live in the
United States. With all of the achievements that the City Council has
accomplished it is time for him to hand off the baton to the next person and
continue the legacy for the betterment of D.B. He encouraged anyone who had
the passion and capability to serve to run in the coming election to help provide
the best interest to the residents of D.B. When he ran for Council in 1997 his
youngest son Howard was only nine years old. Today he is 21 and graduating in
December from UC Irvine and plans to become an attorney in the international
business law field. He felt that with his attention to business and community
affairs he had not spent enough time with his family but he is very proud that his
dear wife has taken the reigns and raised Howard to be a son of whom he is very
proud. Upon his retirement from public service he will have more time to be with
his family and will especially be able to travel with his wife. He enjoys working for
his family and his community. He thanked his colleagues for their cooperation
and dedication in making D.B. such a wonderful City in which to live. He said he
will continue to serve until his term expires on December 1, 2009. After
retirement from the Council he will still serve as a volunteer for the community.
He thanked the public for their understanding and support for the past 12 years.
God bless America, God bless D.B., and God bless all of the residents and staff.
MPT/Herrera thanked CSD/Rose and his staff for all of the great and hard work
in putting together the 4th of July event. A lot of cities are having tough economic
times and many cities canceled their 4th of July celebrations because it was too
costly and they could not afford a celebration. She is proud that D.B. has not
made any cuts in its programs such as the 4th of July celebration and the
Concerts in the Park series. D.B. made cuts internally so that the residents
would not feel the pain. As a result, 8000 attended the 4th of July celebration at
JULY 7, 2009 PAGE 12 CITY COUNCIL
D.B.High School many from surrounding communities that did not have
celebrations to attend in their own areas and D.B. was pleased to have all of
them present. She was pleased that the Council took action changing out its
irrigation system which is important in light of the water crisis. Many
organizations that D.B. belongs to and participates with recognize that cities are
having tough times and she is proud the SCAG has voted to reduce their dues by
10 percent in order to help cities. LAFCO has also reduced their dues and she
appreciates the organizations' efforts to help cities where they can. She said that
she was surprised by C/Chang's announcement of his retirement from the City
Council. She thanked him for his service to the City and for the great business
advice he has passed along to the City Council. C/Chang's contributions to the
City have been tremendously valuable and she thanked him for that.
M/Everett said he appreciated his colleague's input. Saturday night's event was
terrific and appreciated by at least 8000 people. Local talent Jamie Beaman
added a great deal to the festivities of the evening. There is such a breadth of
programs and services available to the residents during the summer such as the
Tiny Tot program. He thanked the Tiny Tot leaders and the families who are so
involved. Tonight he was reminded by Mr. McKnight that communication is very
important and it seems that at almost every Council meeting there are rough
edges in interface. He wanted to make sure that he was available. Everyone
should have the City News available in their mailbox and everyone should read
the City News so that they know what is going on in the City. In addition, there is
a wealth of information on the City's website. And if someone needs something
they cannot find or is not connected, please call him but please call him in time to
give the Council time to react. The Council was rightly educated by
CM/DeStefano this evening that there are timelines and responsibilities and
everyone has a part in that and there is only so much that the Council can do.
So please do not let things sit too long — let us communicate early on. He invited
everyone to join him and others tomorrow night for the start of this year's
Concerts in the Park series at 6:30 at Sycamore Canyon Park and stay for the
movie that immediately follow the concerts. C/Chang is one of his hero's and
models and he relates to every reference of service by Mr. Chang and his wife in
the community. They have touched many lives. In the past two and one-half
years he has felt a new connection and seen a new face with the professionalism
and business acumen and a perception that is helpful at every single Council
meeting. C/Chang is here for Council meetings in spite of his many business
responsibilities and he highly regards that sense of responsibility and most of all
about how he is engaged in bringing important matters to the table for Council's
discussion. C/Chang is always wishing to represent all constituents of D.B.
ADJOURNMENT: With no further business to conduct, M/Everett
adjourned the regular City Council meeting at 8:00 p.m.
TOMMYE CRIBBINS, CITY CLERK
JULY 7, 2009 PAGE 13 CITY COUNCIL
The foregoing minutes are hereby approved this day of , 2009.
RON EVERETT, MAYOR
Agenda No. 6.2
CITY OF DIAMOND BAR
MINUTES OF THE TRAFFIC AND TRANSPORTATION COMMISSION MEETING
JUNE 11, 2009
CALL TO ORDER:
Chairman Lin called the meeting to order at 7:01 p.m. in the South Coast Air Quality
Management/Government Center Hearing Board Room, 21865 Copley Drive, Diamond Bar,
California 91765.
PLEDGE OF ALLEGIANCE: Commissioner Pincher led the Pledge of Allegiance.
ROLL CALL: Kenneth Mok, Liana Pincher, Michael Shay, Kevin
House, Vice -Chairman, and Jimmy Lin, Chairman
Also Present: David Liu, Public Works Director; Rick Yee, Senior
Civil Engineer; Kimberly Molina, Associate
Engineer; Erwin Ching, Assistant Engineer;
Christian Malpica-Perez, Associate Engineer, and
Stella Marquez, Senior Administrative Assistant.
I. APPROVAL OF MINUTES:
A. Minutes of the May 14, 2009 regular meeting.
C/Shay moved, VC/House seconded, to approve the May 14, 2009 minutes as
presented. Motion carried by the following Roll Call vote:
AYES: COMMISSIONERS
NOES: COMMISSIONERS
ABSENT: COMMISSIONERS
PUBLIC COMMENTS: None.
ITEMS FROM STAFF:
Pincher, Mok, Shay, VC/House
Chair/Lin
None
None
A. Received and Filed Traffic Enforcement Updates for:
1. Citations:
2. Collisions:
3. Street Sweeping
IV. OLD BUSINESS: None
March, April & May 2009
March, April & May 2009
March, April & May 2009
JUNE 11, 2009 PAGE 2 T&T COMMISSION
V. NEW BUSINESS:
A. Request for "No Parking Vehicles Over 6' High" signs to be installed between
the intersection of Winterwood Lane/Amberwick Place and 1362 Winterwood
Lane.
AE/Molina presented staff's report and recommended that the Traffic and
Transportation Commission receive public comments and concur with staff to
forward the proposed installation of signage prohibiting parking of vehicles
over 6 feet in height to City Council for approval.
AE/Ching reported that staff received four letters and one telephone call from
concerned residents. He read excerpts from each communication and all
indicated that they supported staff's recommendation.
Chair/Lin asked in which residence the truck owner lived and AE/Ching
responded that the owner lives at 1403 Winterwood Lane.
VC/House said he concurred with staff's recommendation and asked if the City
could red zone the area close to the intersection. He wanted to know if the
problem was the width of the vehicle or the length of the vehicle. AE/Molina
responded that residents who have brought this matter to staff's attention have
complained about the height of the vehicle.
PWD/Liu explained that the current municipal code does not have provisions
for the City to deal with oversized vehicles, only the height of a vehicle or
trailer, hence staff's recommendation.
C/Mok asked whether the truck was a commercial vehicle. AE/Ching
responded that it is a semi -trailer and not considered to be a commercial
vehicle. Although the photos do not indicate such, residents stated that at
times there are commercial vehicles parked in the same area. C/Mok asked if
there is a home-based business operated from the residence. AE/Ching
replied that residents believe it is, based on what they observed. Staff has
checked with the Planning Department to see if the resident has a business
license. PWD/Liu explained to C/Mok that once the City Council approves the
Commission's recommendation, the legal authority will be in place and the
signage would offer warning that violators can immediately be cited.
PWD/Liu acknowledged that the trailer could be moved to a different location
on the street causing the same concerns. Staff is attempting, on an
incremental approach, to force the trailer owner to cooperate with his
neighbors. In addition, red curbing would tend to penalize the very individuals
who are seeking the City's help.
AE/Molina read Municipal Code Section 10.16.490 for C/Shay. C/Shay
believed this was a citywide problem and that one solution would be to put
JUNE 11, 2009
PAGE 3 T&T COMMISSION
signs up throughout the City or, to simply have law enforcement give a warning
ticket to anyone in violation of the code and subsequently, a ticket with a fine.
PWD/Liu said that D.B. has been dealing with this issue since inception.
There has been no final decision about how to deal with oversized vehicles.
Other cities struggle with this problem as well and at this time, there is no firm
solution about how to address oversized vehicles in residential neighborhoods.
C/Shay said that if this law is on the books it should be enforced.
AE/Molina explained that the code says that Council must find that there is an
intersection or situation that exists that would constitute erecting the signs.
PWD/Liu said that according to the code, staff would have to investigate every
intersection throughout the City before the signs can go up.
C/Mok agreed that enforcement is probably the answer but on the June P
memorandum, Page 2, at the top, it states that "in order for the Sheriff's
Department to enforce Municipal Code Section 10.16.490, signs must be
properly posted indicating that vehicles over six feet in height are prohibited."
C/Shay felt the Council should look at rewriting the code to enforce this
throughout the City.
Chair/Lin said that he agreed with PWD/Liu that this is probably the best
solution to deal with the problem at hand. He also agreed with C/Pincher that
once the signs are erected, the owner of the vehicle will likely move to another
spot on the street. When that happens, further action may be required.
VC/House moved, C/Shay seconded, to recommend that the City Council
concur with staff to approve installation of signage prohibiting parking of
vehicles over 6 feet in height. Motion carried by the following Roll Call vote:
AYES: COMMISSIONERS: Pincher, Mok, Shay, VC/House
Chair/Lin
NOES: COMMISSIONERS: None
ABSENT: COMMISSIONERS: None
VI. STATUS OF PREVIOUS ACTION ITEMS:
PWD/Liu reported that at its June 2nd meeting, the City Council reviewed and adopted
FY 2009/10 budget that includes the Capital Improvement Projects listed in tonight's
packet with funding from a variety of sources, the most significant of which is $1.77
million from the federal government's stimulus money. Yesterday, staff received
notification that Caltrans authorized the project to proceed and staff will be advertising
the project for bids.
PWD/Liu stated that on June 2nd, the City Council also approved a three-year
crossing guard services contract with All -City Management Services. On June 16tH
JUNE 11, 2009 PAGE 4 T&T COMMISSION
the City Council will consider removal of the northerly crosswalk on Diamond Bar
Boulevard at Mountain Laurel Way.
VII. ITEMS FROM COMMISSIONERS:
C/Pincher stated that with the installation of east/west left turn arrows at the
intersection of Evergreen Springs and Pathfinder, the traffic moves more smoothly but
is still very congested. In addition, during school hours the crossing guard allows
students to use the entire intersection so that no car could queue into the intersection
to make a left and, of course, no cars could make a right turn which stops all traffic.
PWD/Liu said.that staff would speak with the Sheriff's Department to make certain
that there is regular communication between them and the school administration. A
new crossing guard company has been employed since May which has a good
training program and staff will bring to their attention that there are problem locations
that need to be appropriately managed by the crossing guards. Staff will continue to
pursue the matter.
Vlll. INFORMATIONAL ITEMS:
A. Diamond Bar TMS/Traffic Signal Interconnect Links — Phase II — SE/Yee
reported that staff will receive a full week of training from the City's consultant
on use of the system. The City is awaiting the system acceptance test which
is scheduled for the second week of July before implementation of Phase I.
Staff opened bids for Phase I I last week and received a low bid from CT&F in
the amount of $356,000, well under the engineer's estimate of $680,000
resulting in substantial savings in funding sources set aside for this CIP.
B. Lycoming Street Rehabilitation Project - SE/Yee stated that staff is awaiting
the signed contract and insurance with an anticipated start date of early July.
C. Sunset Crossing Road and Prospectors Road Traffic Calming Project —
SE/Yee reported that the project is 99 percent complete.
D. Industry's Grand Avenue Bridge Widening/Interchange Project — PWD/Liu
reported that the City of Industry has split the project into two phases. Phase[
will be the westbound on-ramp and Phase Il, the balance of the project.
E. Lemon Avenue On/Off-Ramps Project — PWD/Liu indicated that the design
team continues with the plans to be completed by July 1st along with 50
percent of the specifications. There are issues with this project and the
significant issues range from the City's desire to phase the project to
landscaping the area as an entry statement.
F. SR -57/60 Feasibility Study - PWD/Liu stated that last week staff received the
final draft from MTA which is currently being reviewed with the City's
consultant.
G. Residential -Area 5 Slurry Seal Project - AE/Molina reported that on May 20th
the City Clerk opened bids. Six (6) bids were received. The low bidder was
Doug Martin to whom a contract was awarded on June 2"d. The bid was
$743,562. Construction should begin within the first part of July.
H. Arterial—Zone 3/Zone 4 Slurry Seal Project (American Recovery &
Reinvestment Act) — AE/Molina reiterated that this project is being funded
through the American Recovery & Reinvestment Act. Staff received
JUNE 11, 2009 PAGE 5 T&T COMMISSION
authorization to proceed with advertising the project for bids and hopes to have
a contract to Council for award in August with construction to commence in
September.
I. Chino Hills Parkway Street Rehab Project —AE/Molina reported that this week
staff received the different design alternatives with cost estimates. Staff will
review and discuss the alternatives with the City's design consultant within the
next couple of weeks.
J. NTMP—Cleghorn Drive and Maple Hill Neighborhood —AE/Molina stated that
a concept has been developed that will be reviewed by staff prior to taking it
back to the neighborhood for consideration. The Commission will be notified
about the meeting. With respect to the Maple Hill Neighborhood, this week
staff received the results of the speed and traffic volume data specific to the
neighborhood. Staff will review the data and put together a concept for this
neighborhood as well.
K. Items from May 14'' T&T Commission Meeting — SENee reported the
following:
1. Diamond Bar Library Parking Issue — The City Manager's office has
taken this matter under advisement and staff will continue to monitor
the area and report back to the Commission when a conclusion is
reached.
2. Golden Springs Elementary—The principal is expecting 120 additional
7th grade students this coming fall. The fall of 2010 he expects an
additional 100 8th grade students. The principal requests that parents
of upper grade level students drop off and pick up their children at the
rear of the school off of Encino Drive.
3. Skyline Drive/Highcrest Gate — Staff confirmed that per the project
conditions of approval Crestview Drive is intended to be the primary
access to the community. There is no plan to use the gate except for
emergency access.
4. Diamond Bar Boulevard/Morning Canyon Signal Request— In 2004, the
City conducted a traffic signal warrant for the location. Based on the
information at the time, no warrants were met for a signal. Recently,
staff collected data for the intersection and the number of accidents do
not meet the threshold for the City to consider another signal warrant.
Staff continues to monitor the area for changes.
5. Street Sweeping Citation Enforcement — The City has two sweepers
and one CSO. Due to time split and constraint on resources, each area
gets ticketed on a monthly basis only. VC/House said there has been
no enforcement on his street this year. If the City is paying the Sheriff's
Department for this service it should be getting the service and the
revenue from the tickets. PWD/Liu said his understanding is that the
City pays for only one CSO, not two. For the last two years the Sheriff's
Department was not able to hire a second CSO.
6. Verizon Overhead Lines — Staff met with Verizon to discuss this and
other issues. Verizon acknowledges deficiencies with their contractors
and agreed that sagging lines and leaning poles should be corrected.
7. Caltrans Follow-up — Staff brought up the issue of maintenance along
JUNE 11, 2009 PAGE 6 T&T COMMISSION
the freeways and they have a lot of constraints on what work they can
perform at this time. Caltrans has recorded staff's concerns and staff
will continue to follow up regarding maintenance and underpass
lighting. Maintenance work is done as requested or as time allows. In
addition, Caltrans reiterated that budget cuts are affecting manpower.
IX. SCHEDULE OF FUTURE CITY EVENTS: As listed in the Agenda.
ADJOURNMENT: There being no further business to come before the Traffic and
Transportation Commission, Chair/Lin adjourned the meeting at 8:25 p.m.
The foregoing minutes are hereby approved this 9 -rd day of -fU1,
Respectfully,
//-,X
Dakrd G. Liu, Secretary
Attest:
Chairm Jimmy Li
2009.
CITY COUNCIL
TO: Honorable Mayor and Members of the City Council
Agenda # 6.3
Meeting Date: July 21, 2009
AGENDA REPORT
FROM: James DeStefano, City Mana
TITLE: Ratification of Check Register date July 1, 2009 through July 15, 2009
totaling $505,097.17.
RECOMMENDATION:
Ratify.
FINANCIAL IMPACT:
Expenditure of $505,097.17 in City funds.
BACKGROUND:
The City has established the policy of issuing accounts payable checks on a weekly
basis with City Council ratification at the next scheduled City Council meeting.
DISCUSSION:
The attached check register containing checks dated July 1, 2009 through July 15, 2009
for $505,097.17 is being presented for ratification. All payments have been made in
compliance with the City's purchasing policies and procedures. Payments have been
reviewed and approved by the appropriate departmental staff and the attached Affidavit
affirms that the check register has been audited and deemed accurate by the Finance
Director.
PREPARED BY:
Linda G. Magnuson
Finance Director
REVIEWED BY:
Finan6eeADirector Assistant City Manager
Attachments: Affidavit and Check Register — 07/01/09 through 07/15/09.
CITY OF DIAMOND BAR
CHECK REGISTER AFFIDAVIT
The attached listings of demands, invoices, and claims in the form of a check register
including checks dated July 1, 2009 through July 15, 2009 has been audited and is
certified as accurate. Payments have been allowed from the following funds in these
amounts:
Description
General Fund
Community Organization Support Fd
Prop A - Transit Fund
Int. Waste Mgt Fund
Park & Facility Dev Fund
CDBG Fund
LLAD 38 Fund
LLAD 39 Fund
LLAD 41 Fund
Capital Improvement Projects Fund
Self Insurance Fund
Computer Replacement Fund
Signed:
knd-. ` .,rt.4LB-r---/
Li da G Mag son
Finance Director
Amount
$385,693.48
100.00
16,716.21
9,597.13
14,050.00
31,586.64
1,475.11
1,275.96
213.48
566.96
1,419.00
42,403.20
$505,097.17
City of Diamond Bar - Check Register 07/01/09 thru 07/15/09
Check Date
Check Number
Vendor Name
Transaction Description
Fund/ Dept
Acct #
Amount
Total Check Amount
7/9/2009
09 -PP 14
PAYROLL TRANSFER
PIR TRANSFER-09/PP 14
001
10200
156,921.99
$170,180.18
7/9/2009
85662
PAYROLL TRANSFER
P/R TRANSFER-09/PP 14
112
10200
8,552.88
$350.00
7/9/2009
PAYROLL TRANSFER
P/R TRANSFER -09/1313 14
115
10200
3,901.17
7/9/2009
1PAYROLLTRANSFER
IROBIN ADORABLE
IPIR TRANSFER-09/PP 14 1125
001
1 10200
804.14
$50.00
7/2/2009 1
85661
JA AMERICAN SELF STORAGE
IFACILITY RENTAL-JUL 09
0014090
1 42140 1
179.231
$179.23
7/2/2009
1
JAPRIL
APRIL I BATSON
IREIMB-MTG
1 0015350
42330
1
12.00
7/2/2009 1
85662
ISAKINA ABOWATH
IFACILITY REFUND -DBC
001
1 23002 1
350.001
$350.00
7/2/2009 1
85663
IROBIN ADORABLE
IFACILITY REFUND -HERITAGE
001
1 23002 1
50.001
$50.00
7/2/2009 1
85664
JAGRICULTURAL COM WGHTS & MEASURES
ICOYOTE CONTROL SVCS -MAY
0014431
1 45406 1
647.40
$647.40
7/2/2009 1
85665
JALLIANT INSURANCE SERVICES INC
ICRIME INS RENEWAL-FY09/10
5104081
1 47200 1
1,419.001
$1,419.00
7/2/2009
85666
I BATSON
REIMB-SUPPLIES
0015333
41200
5.48
$17.48
7/2/2009
1
JAPRIL
APRIL I BATSON
IREIMB-MTG
1 0015350
42330
1
12.00
7/2/2009
85667
ICRISTIAN ARAYA
FACILITY REFUND-SYC CYN
1 001
1 23002 1
50.00
$50.00
7/2/2009
ICA
1
JARROWHEAD
SUPPLIES -WATER DBC
0015333
1 41200
44.03
7/2/2009 1
85668
1JENNIFER ARCED
IFACILITY REFUND -DBC
1 001
1 23002 1
100.001
$100.00
7/2/2009
85669
ARROWHEAD
EQ RENTAL -DBC
0015333
42130
10.81
$54.84
7/2/2009
ICA
1
JARROWHEAD
SUPPLIES -WATER DBC
0015333
1 41200
44.03
7/2/2009 1
85670
IJENNY ASMUS
FACILITY REFUND-SYC CYN
001
23002 1
50.00
$50.00
7/2/2009
ICA
1
BONTERRA CONSULTING INC.
ADMIN FEE -FPL 2002-65
001
23010
75.60
7/2/2009 1
85671
JAT&T MOBILITY
ICELL CHRGS-POOL VEH
0014090
42125 1
33.511
$33.51
7/2/2009
85672
BONTERRA CONSULTING INC.
PROF.SVCS-FPL 2002-65
001
1 23010
420.00
$420.00
7/2/2009
ICA
1
BONTERRA CONSULTING INC.
ADMIN FEE -FPL 2002-65
001
23010
75.60
7/2/2009
BONTERRA CONSULTING INC.
ADMIN FEE -FPL 2002-65
001
34430
-75.60
7/2/2009 1 85673 IBULK TRANSPORTATION FACILITY REFUND -PETERSON 1 001 1 23002 1 50.00 $50.00
7/2/2009
85674
ASSOCIATION OF CODE ENFRMNT OFFC
TRNG-E FLACKS
0014440
42340
65.00
$0.00
7/2/2009
ICA
1
CA ASSOCIATION OF CODE ENFRMNT OFFC
ITRNG-E FLACKS
0014440
42340
1
-65.00
1
Page 1
City of Diamond Bar - Check Register 07/01/09 thru 07/15/09
7/2/2009
85678
CDW GOVERNMENT INC.
COMP EQ-I.T.
0014070
46235
1,047.71
Check Date
Check Number Vendor Name
Transaction Description
Fund! Dept
Acct # I
Amount I
Total Check Amount
7/2/2009
1 85675 ICA PARK & RECREATION SOCIETY
CPRS TRNG-C MURPHEY
0015310 1
42330 1
1,315.00
$1,315.00
46230
27,414.09
$200.00
7/2/2009
CDW GOVERNMENT INC.
COMPUTERS-I.T.
7/2/2009
1 85676 ICAPRCBM
MEMBERSHIP DUES -FY 09/10
0015310 1
42315 1
175.00
$175.00
PRINT SVCS-NEWSLTTR JUL
0015350
42110
45.891
1
7/2/2009
1 85677 IMELISSA CARRASCO
FACILITY REFUND-SYC CYN
001
23002 1
50.00
$50.00
7/2/2009
85678
CDW GOVERNMENT INC.
COMP EQ-I.T.
0014070
46235
1,047.71
$44,800.14
7/2/2009
1
CDW GOVERNMENT INC.
COMP EQ-I.T.
0014070
46230
1,349.23
7/2/2009
85683
CDW GOVERNMENT INC.
COMPUTERS-I.T.
5304070
46230
27,414.09
$200.00
7/2/2009
CDW GOVERNMENT INC.
COMPUTERS-I.T.
5304070
46235
14,989.11
7/2/2009
85679
ROBERT CHILI
FACILITY REFUND-REAGAN
001
23002
50.00
$100.00
7/2/2009
1
ROBERT CHILI
FACILITY REFUND-REAGAN
001
23002
50.00
7/2/2009 85680 DAPEER ROSENBLIT & LITVAK LLP LEGAL SVCS -MAY 09 0014020 1 44023 1 1,387.92 $1,387.92
7/2/2009
85681
DAY & NITE COPY CENTER
PRINT SVCS -COMM SVCS
0015350
42110
162.78
$2,971.34
7/2/2009
1
DAY & NITE COPY CENTER
PRINT SVCS -COMM SVCS
0015350
42110
114.71
7/2/2009
85683
DAY & NITE COPY CENTER
PRINT SVCS -SITE D DRAFT
0015210
42110
404.02
$200.00
7/2/2009
DAY & NITE COPY CENTER
PRINT SVCS -SITE D DRAFT
0015210
42110
2,243.94
7/2/2009
85684
DAY & NITE COPY CENTER
PRINT SVCS-NEWSLTTR JUL
0015350
42110
45.891
1
7/2/2009 1
85682
IDELTA DENTAL
JULY 09 -DENTAL PREMIUMS
1 001
21104 1
3,135.15
$3,135.15
7/2/2009
1
DIAMOND BAR INTERNATIONAL DELI
MTG SUPPLIES -PK MASTER PL
0015310
42325
95.00
7/2/2009 1
85683
ICAROL DENNIS
PROF.SVCS-SS/CC MTG
1 0014030
1 44000 1
200.00
$200.00
7/2/2009 1
85684
DIAMOND BAR GIRLS SOFTBALL LEAGUE
ICOMM ORG SUPPORT FUND
1 0114010
1 42355 1
100.001
$100.00
7/2/2009 1
85685
IDIAMOND BAR IMPROVEMENT ASSOCIATION
AD -JULY 4TH/PHOTO CNTST
1 0014095
1 42115 1
900.001
$900.00
7/2/2009
85686
DIAMOND BAR INTERNATIONAL DELI
MTG SUPPLIES -FOUR CRNS
0014090
42325
150.00
$245.00
7/2/2009
1
DIAMOND BAR INTERNATIONAL DELI
MTG SUPPLIES -PK MASTER PL
0015310
42325
95.00
7/2/2009 1
85687
IDISCOVERY SCIENCE CENTER
EXCURSION -DAY CAMP
1 0015350
1 42410 1
925.00
$925.00
7/2/2009 1
85688
IFRED DURAN
DEP-TEEN NIGHT OUT
0015350
1 45300 1
250.001
$250.00
Page 2
Check Date [Check Number
City of Diamond Bar - Check Register 07/01/09 thru 07/15/09
Vendor Name
Transaction Description I Fund/ Dept I Acct # I Amount I Total Check Amount
7/2/2009 1 85689 IEVERGREEN ELEMENTARY IFACILITY REFUND -HERITAGE 1 001 1 23002 1 200.00 $200.00
7/2/2009
85690
EVERGREEN INTERIORS
PLANT MAINT-CITY HALL
0014090
42210
230.00
$649.00
7/2/2009
EVERGREEN INTERIORS
PLANT MAINT-DB LIBRARY
0014090
42210
107.00
7/2/2009
85695
EVERGREEN INTERIORS
PLANT SVCS -DBC JUN
0015333
45300
177.00
$200.00
7/2/2009
EVERGREEN INTERIORS
PLANT SVCS -HERITAGE
0015340
45300
135.00
7/2/2009 1 85691 JEWING SAN DIMAS SUPPLIES -PARKS 1 0015340 1 41200 1 152.95 $152.95
7/2/2009
85692
EXCEL LANDSCAPE
ADDL MAINT-DIST 38
1385538
42210
307.86
$1,208.23
7/2/2009
EXCEL LANDSCAPE
ADDL MAINT-DIST 39
1395539
42210
172.47
7/2/2009
85695
EXCEL LANDSCAPE
ADDL MAINT-DIST 39
1395539
42210
727.90
$200.00
7/2/2009
85693
EXPRESS MAIL CORPORATE ACCOUNT
PROF SVCS -FPL 2009-347
001
23010
16.63
$130.66
7/2/2009
EXPRESS MAIL CORPORATE ACCOUNT
PROF SVCS -FPL 2009-347
001
23010
16.63
7/2/2009
85695
EXPRESS MAIL CORPORATE ACCOUNT
PROF.SVCS-FPL 2009-348
001
23010
16.63
$200.00
7/2/2009
EXPRESS MAIL CORPORATE ACCOUNT
PROF.SVCS-FPL 2009-346
001
23010
16.63
7/2/2009
85696
EXPRESS MAIL CORPORATE ACCOUNT
PROF.SVCS-FPL 2009-348
001
23010
16.63
$350.00
7/2/2009
IHALL
EXPRESS MAIL CORPORATE ACCOUNT
EXPRESS MAIL -GENERAL
0014090
42120
47.51
7/2/2009 1
85694
1EXTERMINETICS OF SO CAL INC
FIRE ANT REMOVAL-SYC CYN
1 0015340
1 42210 1
125.001
$125.00
7/2/2009
HALL & FOREMAN, INC.
ADMIN FEE -EN 09-635
001
23012
93.75
7/2/2009 1
85695
JEILEEN FINAU
IFACILITY REFUND-PANTERA
001
1 23002 1
200.001
$200.00
7/2/2009
HALL & FOREMAN, INC.
ADMIN FEE -EN 08-626
001
23012
33.75
7/2/2009 1
85696
JDALE GARNER
IFACILITY REFUND -DBC
1 001
1 23002 1
350.001
$350.00
7/2/2009
IHALL
& FOREMAN, INC. JADMIN
FEE -EN 03-363
001
23012
249.69
7/212009 1
85697
IGO LIVE TECHNOLOGY INC
PROF.SVCS-CITY VIEW 6/26
001
1 23005 1
3,300.00
$3,300.00
7/212009 1
85698
IGRAFFITI CONTROL SYSTEMS
IGRAFFITI REMOVAL -MAY
0015230
1 45520 1
5,200.00
$5,200.00
7/212009
85700
HALL & FOREMAN, INC.
PROF.SVCS-EN 09-635
001
23012
375.00
$5,007.19
7/2/2009
HALL & FOREMAN, INC.
ADMIN FEE -EN 09-635
001
23012
93.75
7/2/2009
HALL & FOREMAN, INC.
PROF.SVCS-EN 08-626
001
23012
135.00
7/2/2009
HALL & FOREMAN, INC.
ADMIN FEE -EN 08-626
001
23012
33.75
7/2/2009
HALL & FOREMAN, INC.
PROF.SVCS-EN 03-363
001
23012
998.75
7/2/2009
IHALL
& FOREMAN, INC. JADMIN
FEE -EN 03-363
001
23012
249.69
Page 3
City of Diamond Bar - Check Register 07/01/09 thru 07/15/09
Check Date
Check Number
Vendor Name
Transaction Description
Fund/ Dept
Acct #
Amount
Total Check Amount
7/2/2009
85700...
HALL & FOREMAN, INC.
PROF.SVCS-EN 05-479
001
23012
210.00
$5,007.19 ...
7/2/2009
85702
HALL & FOREMAN, INC.
ADMIN FEE -EN 05-479
001
23012
52.50
$2,462.00
7/2/2009
HALL & FOREMAN, INC.
PROF.SVCS-EN 04-453
001
23012
375.00
7/2/2009
HALL & FOREMAN, INC.
ADMIN FEE -EN 04-453
001
23012
93.75
7/2/2009
HALL & FOREMAN, INC.
PROF.SVCS-EN 06-514
001
23012
183.75
7/2/2009
HALL & FOREMAN, INC.
ADMIN FEE -EN 06-514
001
23012
45.94
7/2/2009
HALL & FOREMAN, INC.
PROF.SVCS-EN 05-496
001
23012
210.00
7/2/2009
HALL & FOREMAN, INC.
ADMIN FEE -EN 05-496
001
23012
52.50
7/2/2009
HALL & FOREMAN, INC.
PROF.SVCS-EN 06-516
001
23012
656.25
7/2/2009
HALL & FOREMAN, INC.
ADMIN FEE -EN 06-516
001
23012
164.06
7/2/2009
HALL & FOREMAN, INC.
PROF.SVCS-EN 07-578
001
23012
210.00
7/2/2009
HALL & FOREMAN, INC.
ADMIN FEE -EN 07-578
001
23012
52.50
7/2/2009
HALL & FOREMAN, INC.
PROF.SVCS-EN 07-559
001
23010
579.00
7/2/2009
HALL & FOREMAN, INC.
ADMIN FEE -EN 07-559
001
23012
144.75
7/2/2009
HALL & FOREMAN, INC.
PROF.SVCS-EN 06-541
001
23012
236.25
7/2/2009
HALL & FOREMAN, INC.
ADMIN FEE -EN 06-541
001
23012
59.06
7/2/2009
HALL & FOREMAN, INC.
PROF.SVCS-EN 05-500
001
23012
655.00
7/2/2009
HALL & FOREMAN, INC.
ADMIN FEE -EN 04-453
001
34650
-93.75
7/2/2009
HALL & FOREMAN, INC.
ADMIN FEE -EN 06-514
001
34650
-45.94
7/2/2009
HALL & FOREMAN, INC.
ADMIN FEE -EN 05-496
001
34650
-52.50
7/2/2009
HALL & FOREMAN, INC.
ADMIN FEE -EN 06-516
001
34650
-164.06
7/2/2009
HALL & FOREMAN, INC.
ADMIN FEE -EN 07-578
001
34650
-52.50
7/2/2009
HALL & FOREMAN, INC.
ADMIN FEE -EN 07-559
001
34650
-144.75
7/2/2009
HALL & FOREMAN, INC.
ADMIN FEE -EN 06-541
001
34650
-59.06
7/2/2009
HALL & FOREMAN, INC.
ADMIN FEE -EN 05-500
001
34650
-163.75
7/2/2009
HALL & FOREMAN, INC.
ADMIN FEE -EN 05-479
001
34650
-52.50
7/2/2009
HALL & FOREMAN, INC.
ADMIN FEE -EN 03-363
001
34650
-249.69
7/2/2009
HALL & FOREMAN, INC.
ADMIN FEE -EN 08-626
001
34650
-33.75
7/212009
HALL & FOREMAN, INC.
ADMIN FEE -EN 09-635
001
34650
-93.75
7/212009
HALL & FOREMAN, INC.
PROF.SVCS-PLAN CHECK
0015551
45223
183.19
7/2/2009
HALL & FOREMAN, INC.
JADMIN FEE -EN 05-500
1 001
1 23012
1 163.75
7/2/2009 1
85701
IPAM HEATON
IRECREATION REFUND
1 001
1 34780 1
125.001
$125.00
7/2/2009 1
85702
JINLAND EMPIRE STAGES
EXCURSION -PASADENA
1 0015350
1 45310 1
1,591.001
$2,462.00
Page 4
City of Diamond Bar - Check Register 07/01/09 thru 07/15/09
Check Date
Check Number
Vendor Name Transaction Description
Fund/ Dept
Acct #
Amount
Total Check Amount
7/2/2009
1 85702...
JINLAND EMPIRE STAGES TRANSPORTATION -SR EXCRSN
1125350
45310
871.00
$2,462.00 ...
7/2/2009
85703
INLAND VALLEY DAILY BULLETIN
LEGAL AD -FPL 2008-337
001
23010
327.50
$2,173.65
7/2/2009
1
INLAND VALLEY DAILY BULLETIN
LEGAL AD -FPL 2007-259
001
23010
311.25
7/2/2009
85705
INLAND VALLEY DAILY BULLETIN
LEGAL AD -FPL 2009-350
001
23010
321.25
$3,000.00
7/2/2009
INLAND VALLEY DAILY BULLETIN
LEGAL AD -SITE D
0015210
42115
436.25
7/2/2009
85706
INLAND VALLEY DAILY BULLETIN
LEGAL AD -PONY CARNIVAL
0015210
42115
292.75
$50.00
712/2009
JINLAND VALLEY DAILY BULLETIN
AD -JULY BLAST
0014095
1 42115
1 484.65
1 1
7/2/2009 1
85704
KATHY IP
RECREATION REFUND
1 001
34780
135.001
$135.00
7/2/2009
1
ILDM,",SSOCIATES
LDM ASSOCIATES INC.
HIP PROG-MAY 09
1255215
44000
1,050.00
7/2/2009
85705
IJOE A. GONSALVES & SON INC.
ILEGISLATIVE SVCS-JUL 09
1 0014030
44000
3,000-001
$3,000.00
7/2/2009
LEIGHTON & ASSOCIATES, INC.
ADMIN FEE -EN 07-585
001
23012
118.92
7/2/2009 1
85706
JKRISTIE KAO
FACILITY REFUND-REAGAN
001
23002
50.00
$50.00
7/2/2009
LEIGHTON & ASSOCIATES, INC.
ADMIN FEE -EN 09-646
001
23012
238.99
7/2/2009 1
85707
IWILLIAM KAO
IFACILITY REFUND -DBC
001
23002
600.00
$600.00
7/2/2009
LEIGHTON & ASSOCIATES, INC.
ADMIN FEE -EN 07-585
001
34650
-118.92
7/2/2009 1
85708
ILA MIRADA SPLASH
EXCURSION -DAY CAMP
0015350
42410
366.501
$366.50
7/2/2009
85709
INC.
HIP PROG-APR 09
1255215
44000
3,232.50
$4,282.50
7/2/2009
1
ILDM,",SSOCIATES
LDM ASSOCIATES INC.
HIP PROG-MAY 09
1255215
44000
1,050.00
7/2/2009 1
85710
ILEAGUE OF CALIFORNIA CITIES
MEMBERSHIP DUES -FY 09110
1 0014090
1 42315 1
1,250.00
$1,250.00
7/2/2009
LEIGHTON & ASSOCIATES, INC.
ADMIN FEE -EN 07-576
001
23012
71.10
7/2/2009 1
85711
ILEARNING RESOURCES NETWORK
IMEMBERSHIP DUES -STAFF
1 0015350
1 42315 t
395.001
$395.00
7/2/2009
85712
LEIGHTON & ASSOCIATES, INC.
PROF.SVCS-EN 07-576
001
23012
395.00
$12,183.34
7/2/2009
LEIGHTON & ASSOCIATES, INC.
ADMIN FEE -EN 07-576
001
23012
71.10
7(2!2009
LEIGHTON & ASSOCIATES, INC.
PROF.SVCS-EN 07-585
001
23012
660.64
7/2/2009
LEIGHTON & ASSOCIATES, INC.
ADMIN FEE -EN 07-585
001
23012
118.92
7/2/2009
LEIGHTON & ASSOCIATES, INC.
PROF.SVCS-EN 09-646
001
23012
1,327.70
7/2/2009
LEIGHTON & ASSOCIATES, INC.
ADMIN FEE -EN 09-646
001
23012
238.99
7/2/2009
LEIGHTON & ASSOCIATES, INC.
ADMIN FEE -EN 07-576
001
34650
-71.10
7/2/2009
LEIGHTON & ASSOCIATES, INC.
ADMIN FEE -EN 07-585
001
34650
-118.92
7/2/2009
LEIGHTON & ASSOCIATES, INC.
ADMIN FEE -EN 09-646
001
34650
-238.99
712/2009
ILEIGHTON & ASSOCIATES, INC.
PROF.SVCS-ESA PHASE 1
0014096
1 44000
1 9,800.00
Page 5
City of Diamond Bar - Check Register 07/01/09 thru 07/15/09
Check Date
Check Number
Vendor Name
Transaction Description
Fund/ Dept
Acct # Amount
Total Check Amount
7/2/2009
85713
LIEBERT CASSIDY WHITMORE
EMP TRNG WORKSHOP
0014060
42315 3,229.00
$3,229.00
7/2/2009 1
85714
ILIVESOUND CONCEPTS
ISOUND EQ -JULY 4TH BLAST
0015350
1 42130 1
1,490.00
$1,490.00
7/2/2009
1
JOLYMPIC
OLYMPIC STAFFING SERVICES
ITEMP SVCS -CMM SVC WK 6/14
0015310
1 44000
1 754.68
$50.00
7/2/2009 1
85715
ILOS ANGELES COUNTY FIRE DEPARTMENT
IFIRE PROTECTION -FY 09/10
0014421
1 45404 1
7,359.001
$7,359.00
$77.09
7/2/2009 1
7/2/2009 1
85716
ILOS ANGELES COUNTY SHERIFF'S DEPT.
HELICOPTER SVCS -APR
0014411
1 45401 1
779.551
$779.55
7/2/2009 1
85717
JALICE E LYONS
BALLOONS -JULY 4TH BLAST
1 0015350
1 45300 1
338.681
$338.68
7/2/2009 1
85718
IMAGIC AND VARIETY ENTERTAINMENT
ENTERTAINMENT-JUL 4TH
1 0015350
1 45300 1
1,495.001
$1,495.00
7/2/2009 1
85719
IMANAGED HEALTH NETWORK
IJUL 09 -EAP PREMIUMS
1 001
1 21115 1
157.301
$157.30
7/2/2009 1
85720
JED MEZA
IRECREATION REFUND
1 001
1 34740 1
79.001
$79.00
7/2/2009 1
85721
IMOBILE RELAY ASSOCIATES INC
IREPEATER SVCS-JUL 09
1 0014440
1 42130 1
78.751
$78.75
7/2/2009 1
85722
JAMY MOODY
IFACILITY REFUND-PANTERA
1 001
1 23002 1
50.00
$50.00
7/2/2009 1
85723
ILORI MORALES
IFACILITY REFUND -DBC
1 001
1 23002 1
200.001
$200.00
7/2/2009 1
85724
IMOUSA MUSTAFA
IFACILITY REFUND -DBC
1 001
1 23002 1
500.00
$500.00
712/2009 1
85725
INEXTEL COMMUNICATIONS
ICELL CHRGS-MAY 09
1 0014090
1 42130 1
509.491
$509.49
7/2/2009 1
85726
IHOI NG
RECREATION REFUND
1 001
1 34780 1
38.00
$38.00
7/2/2009 1
85727
JOAK TREE LANES INC
ADS -JUN -JULY -AUG
1 0014095
1 42115 1
400.001
$400.00
7/2/2009
85728
STAFFING SERVICES
TEMP SVCS -COM SVC WK 6/21
0015310
44000
476.64
$1,231.32
7/2/2009
1
JOLYMPIC
OLYMPIC STAFFING SERVICES
ITEMP SVCS -CMM SVC WK 6/14
0015310
1 44000
1 754.68
$50.00
7/2/2009 1
85729
IJOSE ORTIZ
FACILITY REFUND-SYC CYN
1 001
1 23002 1
50.001
$50.00
$50.00
7/2/2009 1
85730
ISUN HEE KIM PARK
FACILITY REFUND-REAGAN
1 001
1 23002 1
50.001
$77.09
7/2/2009 1
85731
1PRIORITY MAILING SYSTEMS INC
SUPPLIES -GENERAL
1 0014090
1 41200 1
77.091
Page 6
City of Diamond Bar - Check Register 07/01/09 thru 07/15/09
Check Date Check Number Vendor Name Transaction Description Fund/ Dept Acct # Amount Total Check Amount
7/2/2009
85732
PROTECTION ONE INC
ALARM SVCS -DBC
0015333 1
42210
52.50
$242.04
7/2/2009
1
PROTECTION ONE INC
ALARM SVCS-SYC CYN
0015340 1
42210
97.20
7/2/2009
85734
PROTECTION ONE INC
ALARM SVCS -HERITAGE
0015340
1 42210
92.34
$100.00
7/2/2009 1
85733
IPYRO SPECTACULARS INC
FIREWORKS -JULY 4TH BLAST
0015350
45300
6,150.001
$6,150.00
7/2/2009
1
REINBERGER PRINTWERKS
PRINT SVCS -ENVELOPES
0014090
42110
1
265.60
7/2/2009 1
85734
IMARY ANNE RABO
IFACILITY REFUND -DBC
001
23002
100.001
$100.00
7/2/2009 1
85735
IRAVI RAJANI
RECREATION REFUND
001
34760
135.001
$135.00
7/2/2009 1
85736
IREGIONAL CHAMBER OF COMMERCE
JSVCS CONTRACT-JUL 09
0014096
1 45000 1
1,000.001
$1,000.00
7/2/2009
85737
REINBERGER PRINTWERKS
PRINT SVCS -BUS CARDS/DBC0014095
0015350
42110
1,196.28
$1,461.88
7/2/2009
1
REINBERGER PRINTWERKS
PRINT SVCS -ENVELOPES
0014090
42110
1
265.60
7/2/2009 1
85738
IROBERT J SCHUSTER
ENTERTAINMENT -JULY 4TH
0015350
45300
2,500.001
$2,500.00
7/2/2009
1
SASAKI TRANSPORTATION SVCS.
ADMIN FEE -EN 06-514
001
23012
67.50
7/2/2009 1
85739
FRANCIS SABADO
ICONTRACT CLASS -WINTER
0015350
4532D
1,500.00
$1,500.00
7/2/2009 1
85740
IDIANA SANAPANYA
IFACILITY REFUND -DBC
001
23002
100.001
$100.00
7/2/2009
85741
SASAKI TRANSPORTATION SVCS.
PROF.SVCS-EN 06-514
001
23012
375.00
$375.00
7/2/2009
1
SASAKI TRANSPORTATION SVCS.
ADMIN FEE -EN 06-514
001
23012
67.50
7/2/2009
85743
SASAKI TRANSPORTATION SVCS.
ADMIN FEE -EN 06-514
001
34650
-67.50
$100.00
7/2/2009 1
85742
ISOUTHERN CALIFORNIA PUBLIC LABOR
IMEMBERSHIP DUES-FY09/10
0014060
1 42315 1
100.001
$100.00
7/2/2009
1
SILVER STATE COACH INC
ITRANSPORTATION-S/DIEGO
1 1125350
45310
1
352.971
1
7/2/2009 1
85743
JVIBHUTI SHARMA
FACILITY REFUND-PANTERA
001
1 23004 1
100.001
$100.00
7/2/2009 1
85744
ISIGN CONTRACTORS INC
INSTALL -BANNER
0015350
1 45300 1
225.00
$225.00
712!2009
85745
SILVER STATE COACH INC
TRANSPORTATION-S/DIEGO
0015350
45310
407.74
$760.71
1
7/2/2009
1
SILVER STATE COACH INC
ITRANSPORTATION-S/DIEGO
1 1125350
45310
1
352.971
1
7/2/2009 1 85746 IPATRICK J SIMMONS BAND -CONCERT IN PARKS 1 0015350 1 45305 1 1,500.00 $1,500.00
Page 7
City of Diamond Bar - Check Register 07/01/09 thru 07/15/09
Check Date Check Number
Vendor Name
Transaction Description Fund/ Dept i
Acct #
Amount
Total Check Amount
7/2/2009 85747
SIMPSON ADVERTISING INC
DESIGN SVCS -BANNERS 0014095
1 44000
343.68
$343.68
7/2/2009 1
85748
SO COAST AIR QUALITY MGT DISTRICT
LEASE -CITY HALL JUL
1 0014090
1 42140 1
22,416.45
$22,416.45
7/2/2009
THE SAN GABRIEL VALLEY NEWSPAPER GR
LEGAL AD -FPL 2009-346
001
23010
290.50
1
7/2/2009 1
85749
ISOS SURVIVAL PRODUCTS INC
GENERATORS -TRAILERS
0014440
1 46250 1
1,629.131
$1,629.13
7/2/2009
VERIZON WIRELESS -LA
CELL CHRGS-DESFORGES
0014070
42125
49.21
7/2/2009 1
85750
ISOUTHERN CALIFORNIA ASSC OF GOVNMNT
IMEMBERSHIP DUES -09/10
0014090
1 42315 1
5,194.00
$5,194.00
7/2/2009
IVERIZON WIRELESS -LA
CELL CHRGS-LASD MODEM
0014411
1 42125
49.21
7/2/2009 1
85751
ISOUTHERN CALIFORNIA EDISON
ELECT SVCS -TRAFFIC CONTRL
0015510
1 42126 1
625.13
$625.13
7/2/2009 1
85752
ITHE ANSWERBAND INC
BAND -CONCERT IN PARKS
1 0015350
1 45305 1
1,200.00
$1,200.00
7/2/2009 1
85753
ITHE COMDYN GROUP INC
PROF.SVCS-GIS SPPRT
1 0014070
1 44000 1
1,557.201
$1,557.20
7/2/2009
85754
THE SAN GABRIEL VALLEY NEWSPAPER GR
LEGAL AD -FPL 2009-348
00123010
1 42320 1
283.00
$573.50
7/2/2009
THE SAN GABRIEL VALLEY NEWSPAPER GR
LEGAL AD -FPL 2009-346
001
23010
290.50
1
7/2/2009 1
85755
THOMSON WEST
PUBLICATIONS -CA CODES
0014030
1 42320 1
344.161
$344.16
7/2/2009
VERIZON WIRELESS -LA
CELL CHRGS-EOC
0014440
42125
43.40
7/2/2009 1
85756
ITIME WARNER
IMODEM SVCS -COUNCIL
0014010
1 42130 1
46.95
$46.95
7/2/2009
VERIZON WIRELESS -LA
CELL CHRGS-DESFORGES
0014070
42125
49.21
7/2/2009 1
85757
JUS HEALTHWORKS MEDICAL GROUP PC
PRE-EMPLOYMENT PHYSICAL
1 0014060
1 42345 1
157.001
$157.00
7/2/2009
85758
VERIZON WIRELESS -LA
CELL CHRGS-CMGR
0014030
42125
69.15
$260.34
7/2/2009
VERIZON WIRELESS -LA
CELL CHRGS-EOC
0014440
42125
43.40
7/2/2009
85760
VERIZON WIRELESS -LA
CELL CHRGS-EOC
0014090
42125
0.16
$50.00
7/2/2009
VERIZON WIRELESS -LA
CELL CHRGS-DESFORGES
0014070
42125
49.21
7/2/2009
VERIZON WIRELESS -LA
CELL CHRGS-AZIZ
0014070
42125
49.21
7/2/2009
IVERIZON WIRELESS -LA
CELL CHRGS-LASD MODEM
0014411
1 42125
49.21
7/2/2009 1
85759
IVISION SERVICE PLAN
JULY 09 -VISION PREMIUMS
1 001
1 21107 1
1,272.04
$1,272.04
7/2/2009
WILLDAN GEOTECHNICAL
ADMIN FEE -EN 07-578
001
23012
166.50
7/2/2009 1
85760
MARCIA WALL
FACILITY REFUND -HERITAGE
1 001
1 23002 1
50.00
$50.00
7/2/2009
85761
WILLDAN GEOTECHNICAL
PROF.SVCS-EN 07-578
001
23012
925.00
$2,035.00
7/2/2009
WILLDAN GEOTECHNICAL
ADMIN FEE -EN 07-578
001
23012
166.50
7/2/2009
WILLDAN GEOTECHNICAL
PROF.SVCS-EN 07-578
001
23012
370.00
Page 8
City of Diamond Bar - Check Register 07/01/09 thru 07/15/09
Check Date
Check Number
Vendor Name
Transaction Description
Fund/ Dept
Acct #
Amount
Total Check Amount
7/2/2009
85761...
WILLDAN GEOTECHNICAL
ADMIN FEE -EN 07-578
001
23012
66.60
$2,035.00 ...
7/2/2009
85763
WILLDAN GEOTECHNICAL
PROF.SVCS-EN 08-628
001
23012
370.00
$200.00
7/2/2009
WILLDAN GEOTECHNICAL
ADMIN FEE -EN 08-628
001
23012
66.60
7/2/2009
85764
WILLDAN GEOTECHNICAL
PROF.SVCS-EN 09-640
001
23012
370.00
$50.00
7/2/2009
WILLDAN GEOTECHNICAL
ADMIN FEE -EN 09-640
001
23012
66.60
7/2/2009
85765
WILLDAN GEOTECHNICAL
ADMIN FEE -EN 07-578
001
34650
-166.50
$6,700.00
7/2/2009
WILLDAN GEOTECHNICAL
ADMIN FEE -EN 07-578
001
34650
-66.60
7/2/2009
- 85766
WILLDAN GEOTECHNICAL
ADMIN FEE -EN 08-628
001
34650
-66.60
$1,591.62
7/2/2009 1
IWILLDAN
GEOTECHNICAL JADMIN
FEE -EN 09-640
001 1
34650
1 -66.601
1
7/2/2009 1
85762
IKIRSTI WONG
IRECREATION REFUND
J 001
1 34760 1
310.001
$310.00
7/9/2009
1
JAMERICOMP
AMERICOMP GROUP INC
SUPPLIES -TONERS
0014070
45000
1 435.91
7/2/2009
85763
IJOHN XING
IFACILITY REFUND-REAGAN
001
1 23002 1
200.00
$200.00
7/2/2009 1
85764
IFAISAL ZAHIDI
FACILITY REFUND -MAPLE HLL
001
23002
50.001
$50.00
7/9/2009 1
85765
JA & B BUS COMPANY INC
TRANSPORTATION-EXCURSN
1125350
1 45310
6,700.001
$6,700.00
7/9/2009 1
- 85766
JDAN ALBRECHT
IDEP REFUND -EN 08-628
001
1 23012
1,591.621
$1,591.62
7/9/2009
85767
GROUP INC
SUPPLIES -TONERS
0014070:[45000
42125
2,984.51
$3,420.42
7/9/2009
1
JAMERICOMP
AMERICOMP GROUP INC
SUPPLIES -TONERS
0014070
45000
1 435.91
7/9/2009
85768
& T
PH.SVCS-GENERAL
0014090
42125
25.06
$54.42
7/9/2009
1
IAT
AT & T
IPH.SVCS-GENERAL
0014090
1 42125
29.36
7/9/2009 1
85769
IBENESYST
07/10/09-P/R DEDUCTIONS
1 001
1 21105 1
691.071
$691.07
7/9/2009
85770
ICALIFORNIA COMMERCIAL LIGHTING SPPL
MAINT-PANTERA PK
0015340
1 42210 1
376.911
$376.91
7/9/2009 1
85771
ICALIFORNIA CONTRACT CITIES ASSOC.
MTG-CMGR/DOYLE
0014030
1 42325 1
38.501
$38.50
7/9/2009 1
85772
ICALIFORNIA CONTRACT CITIES ASSOC.
IMEMBERSHIP DUES -FY 09/10
0014030
1 42315 1
3,640.001
$3,640.00
7/9/2009 1
85773
ICATALINA BALLAST BULB COMPANY
SUPPLIES -PARKS
0015340
41200
117.831
$117.83
7/9/2009 1
85774
ICENTER ICE SKATING ARENA
EXCURSION -DAY CAMP
0015350
42410
460.001
$460.00
Page 9
City of Diamond Bar - Check Register 07/01/09 thru 07/15/09
Check Date Check Number Vendor Name Transaction Description Fund/ Dept Acct # Amount Total Check Amount
7/9/2009
85775
CM SCHOOL SUPPLY
SUPPLIES -TINY TOTS
0015350
41200
47.78
$47.56
7/9/2009
1CM
SCHOOL SUPPLY
USE TAX
001
1 20710
-0.22
7/9/2009 1 85776 ICOMLOCK SECURITY GROUP SUPPLIES -DBC 1 0015333 1 41200 1 48.241 $48.24
7/9/2009
85777
CRUZ CONSTRUCTION
HIP PROG-1165 CLEAR CREEK
1255215
44000
15,000.00
$0.00
7/9/2009
1
CRUZ CONSTRUCTION
HIP PROG-509 CROOKED ARRW
1255215
44000
11,500.00
7/9/2009
85781
CRUZ CONSTRUCTION
RETENTION PAYABLE
125
20300
-1,500.00
$375.81
7/9/2009
CRUZ CONSTRUCTION
HIP PROG-1165 CLEAR CREEK
1255215
44000
-15,000.00
7/9/2009
85782
CRUZ CONSTRUCTION
HIP PROG-509 CROOKED ARRW
1255215
44000
-11,500.00
$150.00
7/9/2009
CRUZ CONSTRUCTION
RETENTION PAYABLE
125
25500
1,500.00
7/9/2009
85778
CRUZ CONSTRUCTION
PROG-1165 CLEAR CREEK
1255215
44000
1,500.00
$0.00
7/9/2009
1
CRUZ CONSTRUCTION
JHIP
HIP PROG-1165 CLEAR CREEK
1255215
44000
-1,500.00
7/9/2009
85779
CRUZ CONSTRUCTION
HIP PROG-1165 CLEAR CREEK ___[71255,2215
11255215
44000
15,000.00
$13,500.00
7/9/2009
CRUZ CONSTRUCTION
RETENTION -1165 CLEAR CRK
20300
-1,500.00
7/9/2009 1
85780
ICRUZ CONSTRUCTION
IHIP PROG-1165 CLEAR CREEK
11255215
1 44000 1
1,500.00
$17500.00
7/9/2009 1
85781
IDELTA CARE USA
IJULY 09 -DENTAL PREMIUMS
1 001
1 21104 1
375.81
$375.81
7/9/2009 1
85782
jCARbL DENNIS
PROF.SVCS-T&T MTG
0015510
1 44000 1
150.001
$150.00
7/9/2009 1
85783
IDIVERSIFIED PARATRANSIT INC
ISHUTTLE SVCS -DBC
11125350
1 45310 1
239.361
$239.36
7/9/2009 1
85784
1EQUILON ENTERPRISES LLC
IDEP REFUND -EN 09-634
1 001
1 23012 1
1,810.001
$1,810.00
7/9/2009 1
85785
JESRI INC
ARCVIEW LICENSES-I.T.
10014070
1 46235 1
2,957.421
$2,957.42
7/9/2009 85786 FRAZEE INDUSTRIES SUPPLIES -DBC 0015333 1 41200 1 347.40 $502.10
7/9/2009 1FRAZEE INDUSTRIES SUPPLIES -DBC 0015333 1 41200 1 154.70
7/9/2009 1 85787 IGM BUSINESS INTERIORS SUPPLIES-PIWORKS 1 0015510 1 41200 1 750.111 $750.11
7/9/2009 1 85788 1HASLERINC RENTAL -POSTAGE MACHINE 1 0014090 1 42121 1 147.491 $147.49
Page 10
City of Diamond Bar - Check Register 07/01/09 thru 07/15/09
7/9/2009
85798
MATLOCK ASSOCIATES INC
IMATLOCK
PROF.SVCS-MASTER PLAN
1245310
R44300
13,676.40
$14,050.00
Check Date
Check Number
Vendor Name
Transaction Description
Fund/ Dept
Acct #
Amount
Total Check Amount
7/9/2009
7/9/2009
85789
IKEVIN HOUSE
IT & T COMM -6/11
0015510 1
44100 1
45.001
$45.00
7/9/2009 1
7/9/2009
1 85790
JINLAND VALLEY DAILY BULLETIN
I LEGAL AD -BIDS SYC CYN
2505310 1
46415 1
137.501
$137.50
7/9/2009
1 85791
KNOTT'S BERRY FARM
EXCURSION -DAY CAMP
0015350 1
42410 1
2,298.851
$2,298.85
7/9/2009
1 85792
ILA DATA SECURITY
DATA STORAGE SVCS -JUN 09
0014070 1
45000 1
620.001
$620.00
7/9/2009
1 85793
ILIANA PINCHER
T & T COMM -6/11
0015510
44100
45.001
$45.00
7/9/2009
1 85794
IJIMMY LIN
IT & T COMM -6111
0015510
44100
45.00
$45.00
7/9/2009
1 85795 ILIVESOUND
CONCEPTS
SOUND -CONCERT IN PARK
0015350
45305
640.001
$640.00
7/9/2009
1 85796 JLOS
ANGELES COUNTY PUBLIC WORKS
ISUMP PUMP MAINT-MAY 09
0015340 1
42210 1
357.431
$357.43
7/9/2009
1 85797 IMAINTENANCE
SUPERINTENDENTS ASSN
IMEMBERSHIP DUES -J GARCIA
0015551 1
42315 1
75.00
$75.00
7/9/2009
85798
MATLOCK ASSOCIATES INC
IMATLOCK
PROF.SVCS-MASTER PLAN
1245310
R44300
13,676.40
$14,050.00
7/9/2009
ASSOCIATES INC
IPROF.SVCS-MASTER PLAN
1245310
R44300
373.60
7/9/2009 1 85799 IMERCURY DISPOSAL SYSTEMS INC RECYCLING FEE -BATTERIES 1155515 1 44000 1 276.211 $276.21
7/9/2009
85800
MINUTEMAN PRESS R & D BLUEPRINT
PRINT SVCS-P/WORKS
0015510
42110
92.88
$1,008.83
7/9/2009
MINUTEMAN PRESS R & D BLUEPRINT
PRINT SVCS-P/WORKS
0015510
42110
486.49
7/9/2009
85802
MINUTEMAN PRESS R & D BLUEPRINT
PRINT SVCS -COMM SVCS
2505310
46415
429.46
$635.52
7/9/2009 1
85801
KENNETH MOK
T& T COMM -6/11
0015510
1 44100 1
45.001
$45.00
7/9/2009
PERS RETIREMENT FUND
RETIRE CONTRIB-EE
001
21109
9,721.22
7/9/2009 1
85802
JOLYMPIC STAFFING SERVICES
TEMP SVCS -CMM SVCS WK6/26
0015310
44000 1
635.52
$635.52
7/9/2009 1
85803
JPAETEC COMMUNICATIONS INC.
LONG DIST CHRGS-JUN/JUL
0014090
42125 1
769.181
$769.18
7/9/2009
85804
PERS RETIREMENT FUND
SURVIVOR BENEFIT
001
21109
46.50
$24,349.49
7/9/2009
PERS RETIREMENT FUND
RETIRE CONTRIB-EE
001
21109
9,721.22
7/9/2009
PERS RETIREMENT FUND
RETIRE CONTRIB-ER
001
21109
14,581.77
Page 11
City of Diamond Bar - Check Register 07/01/09 thru 07/15/09
Check Date
Check Number
Vendor Name
Transaction Description
Fund/ Dept
Acct #
Amount
1
Total Check Amount
7/9/2009
85805
1POMONA UNIFIED SCHOOL DISTRICT
IFACILITY RENTAL -JAN -MAR
0015350
42140
3,525.00
$3,525.00
7/9/2009 1
85806
ISAN GABRIELA VALLEY MUNICIPAL ASST
MEMBERSHIP DUES -09110
0014030
42315
50.001
$50.00
7/9/2009
SHIN SHIN CONSTRUCTION CORP
RETENTION PAYABLE
125
20300
-1,150.00
7!9/2009
85807
ISCAN NATOA
MEMBERSHIP DUES -D DOYLE
0014030
42315
75.001
$75.00
7/9/2009
SHIN SHIN CONSTRUCTION CORP
RETENTION PAYABLE
125
20300
1,150.00
7/912009 1
85808
IMICHAEL SHAY
T & T COMM -6111
0015510
44100
45.001
$45.00
7/9/2009
85809
SHIN SHIN CONSTRUCTION CORP
RETENTION PAYABLE
125
20300
-1,150.00
$0.00
7/9/2009
SHIN SHIN CONSTRUCTION CORP
RETENTION PAYABLE
125
20300
-1,150.00
7/9/2009
85815
SHIN SHIN CONSTRUCTION CORP
HIP PROG-509 CROOKED ARRW
1255215
44000
11,500.00
$46.95
7/9/2009
SHIN SHIN CONSTRUCTION CORP
RETENTION PAYABLE
125
20300
1,150.00
7/9/2009
85816
SHIN SHIN CONSTRUCTION CORP
RETENTION PAYABLE
125
20300
11150.00
$18,000.00
7/9/2009
SHIN SHIN CONSTRUCTION CORP
HIP PROG-509 CROOKED ARRW
1255215
44000
-11,500.00
7/9/2009
85810
SHIN SHIN CONSTRUCTION CORP
HIP PROG-509 CROOKED ARRW
1255215
1 44000
11,500.00
$10,350.00
7/9/2009
SHIN SHIN CONSTRUCTION CORP
RETENTION -509 CROOKED ARR
125
20300
-1,150.00
7/912009 1 85811 ISHIN SHIN CONSTRUCTION CORP IHIP PROG-509 CROOKED ARRW 1 1255215 1 44000 1 1,150.001 $1,150.00
7/9/2009
85812
SIMPSON ADVERTISING INC
AD -GREEN BUS OUTREACH
1155515
42110
1 3,000.00
$5,226.31
7/912009
ISIMPSON ADVERTISING INC
AD -GREEN BUS OUTREACH
1155516
1 41200
2,226.31
719/2009
85813
SOUTHERN CALIFORNIA EDISON
ELECT SVCS -TRAFFIC CONTRL
0015510
42126
235.13
$7,288.76
7/912009
SOUTHERN CALIFORNIA EDISON
ELECT SVCS -PARKS
0015340
42126
3,894.99
7/912009
85815
SOUTHERN CALIFORNIA EDISON
ELECT SVCS -DIST 38
1385538
42126
470.69
$46.95
7/912009
SOUTHERN CALIFORNIA EDISON
ELECT SVCS -DIST 39
1395539
42126
375.59
7/912009
85816
SOUTHERN CALIFORNIA EDISON
ELECT SVCS -DIST 41
1415541
42126
213.48
$18,000.00
7/9/2009
SOUTHERN CALIFORNIA EDISON
ELECT SVCS -TRAFFIC CONTRL
0015510
42126
21098.88
7/912009 1
85814
ITHE SAN GABRIEL VALLEY NEWSPAPER GR
ILEGAL AD -NOT OF P/HEARING
1 0014030
1 42115
482.50
$482.50
7/9/2009 1
85815
ITIME WARNER
IMODEM SVCS -COUNCIL
1 0014010
1 42130 1
46.95
$46.95
7/912009 1
85816
JUNITED STATES POSTAL SERVICE
IFIRST CLASS MAIL -#3339
1 0014095
1 42120
18,000.001
$18,000.00
7/9/2009 1
85817
IVANTAGEPOINT TRNSFR AGNTS-303248
7/10/09-P/R DEDUCTIONS
1 001
1 21108
25,209.391
$25,209.39
Page 12
City of Diamond Bar - Check Register 07/01/09 thru 07/15/09
Check Date
Check Number
Vendor Name
SUPPLIES -DBC
Transaction Description
41200
Fund/ Dept
Acct #
Amount
Total Check Amount
WAKE SANITARY SUPPLY
SUPPLIES -DBC
0015333
41200
163.69
7/9/2009
7/9/2009
1 85818 IWALNUT
VALLEY WATER DISTRICT
IWATER SVCS -DIST 38
1385538 1
42126 1
696.561
$696.56
7/9/2009
85819
WAXIE SANITARY SUPPLY
SUPPLIES -DBC
0015333
41200
1,730.10
$1,912.79
7/9/2009
1
WAKE SANITARY SUPPLY
SUPPLIES -DBC
0015333
41200
163.69
7/9/2009
WAXIE SANITARY SUPPLY
SUPPLIES -DBC
0015333
41200
19.00
7/9/2009
85820
SHARPS SVCS -MAY 09
1155515
44000
144.96
$193.44
7/9/2009
1
JWELLDYNERX
WELLDYNERX
SHARPS SVCS -JUN 09
1155515
1 44000
1 48.48
$505,097.17
Page 13
CITY COUNCIL
Agenda # 6.4
Meeting Date: July 21, 2009
AGENDA REPORT
TO: Honorable Mayor and Members of the City Council
VIA: James DeStefano, City Mang
TITLE: A RESOLUTION APPROV NG PROGRAM SUPPLEMENT
AGREEMENT NO. 009-N TO ADMINISTERING AGENCY -STATE
AGREEMENT NO. 07-5455R FOR UTILIZATION OF FEDERAL FUNDS
IN THE AMOUNT OF $1,770,000 ON THE PREVENTATIVE STREET
MAINTENANCE PROGRAM (ZONE 3 & ZONE 4 ARTERIAL STREET
REHABILITATION PROJECT) FEDERAL PROJECT # ESPL-5455(013).
RECOMMENDATION:
Adopt.
FINANCIAL IMPACT:
The adoption of the Resolution and the execution of the Program Supplement
Agreement will allow the City to be reimbursed $1,770,000 in total funds for the
construction and construction administration services of the arterial pavement
rehabilitation project. The reimbursable federal funds are being provided by the
American Recovery and Reinvestment Act (ARRA) funds.
The FY 2009-2010 CIP incorporated the federal funds approved for the Preventative
Street Maintenance Program (Zone 3 & Zone 4 Arterial Street Rehabilitation Project) in
the amount of $1,770,000 of ARRA Funds and $450,000 of Prop 1B, for a total budget
of $2,220,000.
DISCUSSION:
This street rehabilitation project will consist of pavement rehabilitation as well as chip
and slurry seal application on the following roadways:
• Diamond Bar Blvd. from Pathfinder Road to Brea Canyon Cut -Off
• Brea Canyon Cut -Off Road from Diamond Bar Blvd. to City Limit (Only the
northbound lanes within Diamond Bar City Limits)
• Pathfinder Road from Diamond Bar Blvd. to Peaceful Hills Road
• Golden Springs Drive from Brea Canyon Road to the Westerly City Limit
• Brea Canyon Road from Pathfinder Road to Northerly City Limit
• Lemon Avenue from Golden Springs to Northerly City Limit
Before federal funds can be made available for a programmed project, the City is
required to enter into a supplemental agreement with the California Department of
Transportation (Caltrans) and provide a resolution which authorizes a designated official
of the City to execute the supplemental agreement. The existing agreement, commonly
referred to as Administering Agency -State Agreement No. 07-5455, allows the City to
administer Federally Funded Projects, whereas the supplemental agreement
establishes conditions specific to an individual project.
PREPARED BY:
Kimberly Molina, Associate Engineer
REVIEWED
G. 1266, Director of Public Works
DATE PREPARED:
July 13, 2009
Attachment: Resolution No. 2009 -XX
Program Supplement Agreement No. 009-N
Pa
RESOLUTION NO. 2009 -XX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF DIAMOND BAR APPROVING PROGRAM
SUPPLEMENT NO. 009-N TO ADMINISTERING
AGENCY -STATE AGREEMENT NO. 07-5455R FOR
UTILIZATION OF FEDERAL FUNDS ON THE
PREVENTATIVE STREET MAINTENANCE PROGRAM
(ZONE 3 & 4 ARTERIAL STREET REHABILITATION
PROJECT)
RECITALS
(i) The United States Congress enacted the American Recovery and
Reinvestment Act of 2009;
(ii) The City is eligible to receive Federal funding for the Preventative Street
Maintenance Program (Zone 3 & Zone 4 Arterial Street Rehabilitation
Project), through the California Department of Transportation; and
(iii) The Program Supplement Agreement No. 009-N to Administering Agency -
State Agreement No. 07-5455R shall be fully executed by the City and
State of California Department of Transportation (Caltrans) prior to
processing of the City's requests for reimbursement of the federal funds
for the Preventative Street Maintenance Program (Zone 3 & Zone 4
Arterial Street Rehabilitation Project).
RESOLUTION
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF DIAMOND BAR
DOES HEREBY FIND, DETERMINE AND RESOLVE AS FOLLOWS:
Approve the Program Supplement No. 009-N to Administering Agency -
State Agreement No. 07-5455R for Federal Funds to be utilized for the
construction of the Preventative Street Maintenance Program (Zone 3 &
Zone 4 Arterial Street Rehabilitation Project).
2. Certifies that said Project will be constructed in accordance with the
Program Supplement No. 009-N and federal procedures outlined in the
Local Assistance Program Manual and Guidelines.
3. Appoints James DeStefano, City Manager, as agent of the City of
Diamond Bar to conduct all negotiations, execute and submit all
documents, including, but not limited to applications, agreements,
amendments, payment requests and so on, which may be necessary for
the completion of the aforementioned project.
PASSED, APPROVED AND ADOPTED this 21St day of July, 2009.
Ron Everett, Mayor
I, TOMMYE CRIBBINS, City Clerk of the City of Diamond Bar do hereby certify that the
foregoing Resolution was passed, adopted and approved at a regular meeting of the
City Council of the City of Diamond Bar held on the 21st day of July, 2009 by the
following vote:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
ABSTAIN: COUNCIL MEMBERS:
ATEST:
CITY CLERK OF THE
CITY OF DIAMOND BAR
PROGRAM SUPPLEMENT NO. N009 Date -.June 22, 2009
to Location: 07-LA-0-DMBR
ADMINISTERING AGENCY -STATE AGREEMENT Project Number:ESPL-5455(013)
FOR FEDERAL -AID PROJECTS NO. 07-5455R E. A. Number: 07-933412
This Program Supplement hereby incorporates the Administering Agency -State Agreement for Federal Aid which was entered into
between the Administering Agency and the State on 06/05/08 and is subject to all the terms and conditions thereof This Program
Supplement is executed in accordance with Article I of the aforementioned Master Agreement under authority of Resolution No.
, approved by the Administering Agency on (See copy attached).
The Administering Agency further stipulates that as a condition to the payment by State of any funds derived from sources noted
below obligated to this project, the Administering Agency accepts and will comply with the Special covenants or Remarks setforth
on the following pages.
PROJECT LOCATION:
Various Locations
TYPE OF WORK: Resurfacing
LENGTH: O(MILES)
Estimated Cost
Federal Funds
Matching Funds
$2,203,874.00
C200 $1,770,000.00
LOCAL
$433,874.00
$0.00
OTHER
$0.00
CITY OF DIAMOND BAR STATE OF CALIFORNIA
Department of Transportation
By By
Chief, office of Project Implementation
Date Division of Local Assistance
Attest
Date
Title
I hereby certify upon my personal kno ledge t at budgeted funds are available for this encumbrance:
Accounting Officer Date / $1,770,000.00
Chapter I Statutes Item Year Program BC Category Fund Source AMOUNT
268 2008 2660-603-890 2008-2009 20.30.010.810 F 262040 898-F 1,770,000.00
Program Supplement 07 -5455R -N009- ISTEA Page 1 of 5
07-LA-0-DMSR
ESPL-5455(013)
SPECIAL COVENANTS OR REMARKS
06/22/2009
1. The ADMINISTERING AGENCY will advertise, award and administer
this project in accordance with the current published Local
Assistance Procedures Manual.
2. Award information shall be submitted by the ADMINISTERING AGENCY
to the District Local Assistance Engineer within 60 days after
the project contract award. A copy of the award package shall
also be included with the submittal of the ADMINISTERING AGENCY's
first invoice for the construction contract to:
Department of Transportation
Division of Accounting
Local Programs Accounting Branch•, MS #33
P. O. Box 942874
Sacramento, CA 94274-0001.
Failure to do so will cause a delay in the State processing
invoices for the construction phase. Please refer to Section
15.7 "Award Package" of the Local Assistance Procedures Manual.
3. ADMINISTERING AGENCY agrees that it will only proceed with work
authorized for specific phase(s) with an "Authorization to
Proceed" and will not proceed with future phase(s) of this
project prior to receiving an "Authorization to Proceed" from the
STATE for that phase(s) unless no further State or Federal funds
are needed for those future phase(s).
4. Any State and Federal funds that may have been encumbered for
this project are only available for disbursement for a period of
five (6) years and seven (7) years, respectively, from the start
of the fiscal year(s) that those funds were appropriated within
the State Budget Act. All project funds not liquidated within
these periods will revert unless an executed Cooperative Work
Agreement extending these dates is requested and is approved by
the California Department of Finance per Government Code Section
16304. The exact date of each fund reversion will be reflected
in the approved finance letter(s) issued for this project.
Notwithstanding the unliquidated sums of project specific State
and Federal funding remaining and available to fund project work,
any invoice for reimbursement that is not submitted to the
Department on or before 60 days after that applicable fixed fund
Program Supplement 07-5455R-NO09- ISTEA Page 2 of 5
07-LA-0-DMBR
ESPL-5455(013)
SPECIAL COVENANTS OR REMARKS
06/22/2009
reversion date will not be paid from that fiscal year's
encumbered funds because all of these unexpended funds will be
irrevocably reverted by the Department's Division of Accounting
on that date.
Pursuant to a directive from the State Controller's Office and
the Department of Finance, the last date to submit invoices for
reimbursed work in each fiscal year is May 15th in order for
payment to be made -out of those then current appropriations.
Project work performed and invoiced after May 15th will be
reimbursed only out of available funding that might be encumbered
in the subsequent fiscal year, and then only when those funds are
actually allocated and encumbered as authorized by the California
Transportation Commission and the Department's Accounting Office.
S. ADMINISTERING AGENCY agrees, as a minimum, to submit invoices at
least once every six months commencing after the funds are
encumbered for each phase by the execution of this Project
Program Supplement Agreement, or by STATE's approval of an
applicable Finance Letter. STATE reserves the right to suspend
future authorizations/obligations, and invoice payments for any
on-going or future federal -aid project by ADMINISTERING AGENCY if
PROJECT costs have not been invoiced by ADMINISTERING AGENCY for
a six-month period.
If no costs have been invoiced for a six-month period,
ADMINISTERING AGENCY agrees to submit for each phase a written
explanation of the absence of PROJECT activity along with target
billing date and target billing amount.
ADMINISTERING AGENCY agrees to submit the final report documents
that collectively constitute a "Report of Expenditures" within
one hundred eighty (180) days of PROJECT completion. Failure of
ADMINISTERING AGENCY to submit a "Final Report of Expenditures"
within 180 days of PROJECT completion will result in STATE
imposing sanctions upon ADMINISTERING AGENCY in accordance with
the current Local Assistance Procedures Manual.
6. The Administering Agency shall not discriminate on the basis of
race, religion, age, disability, color, national origin, or sex
in the award and performance of any Federal -assisted contract or
in the administration of its DBE Program Implementation
Program Supplement 07-5455R-NO09- ISTEA Page 3 of 5
07-LA-D-DMBR
ESPL-5455(013)
SPECIAL COVENANTS OR REMARKS
06/22/2009
Agreement. The Administering Agency shall take all necessary and
reasonable steps under 49 CFR Part 26 to ensure nondiscrimination
in the award and administration of Federal -assisted contracts.
The Administrating Agency's DBE Implementation Agreement is
incorporated by reference in this Agreement. Implementation of
the DBE Implementation Agreement, including but not limited to
timely reporting of DBE commitments and utilization, is a legal
obligation and failure to carry out its terms shall be treated as
a violation of this Agreement. Upon notification to the
Administering Agency of its failure to carry out its DBE
Implementation Agreement, the State may impose sanctions as
provided for under 49 CFR Part 26 and may, in appropriate cases,
refer the matter for enforcement under 18 U.S.C. 1001 and/or the
Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801 et
seq.) .
7. As a condition for receiving federal -aid highway funds for the
PROJECT, the Administering Agency certifies that NO members of
the elected board, council, or other key decision makers are on
the Federal Government Excluded Parties List System (EPLS).
8. This project is financed, in whole or in part, with federal funds
from the American Recovery and Reinvestment Act of 2009 (Recovery
Act). ADMINISTERING AGENCY agrees:
1) Statutory provisions contained in Chapter 1 of Title 23
United States Code (U.S.C.) are applicable to all Recovery Act
funded projects,
2) Costs incurred prior to the date of authorization are NOT
eligible for reimbursement with federal Recovery Act funds,
3) Federal Prevailing Wage Rate requirements apply to all
Recovery Act funded construction projects regardless of location
(including projects on local roads and rural minor collectors,
and Transportation Enhancement projects outside the highway right
of way). ADMINISTERING AGENCY agrees to include the appropriate
wage rate information in the contract and also include a contract
provision that overrides the general applicability provisions in
form FHWA-1273, Sections IV and V,
4) To expend and invoice for all Recovery Act funds prior to
Program Supplement 07 -5455R -N009- ISTEA Page 4 of 5
07-LA-0-DMBR
ESPL-5455(013)
SPECIAL COVENANTS OR REMARKS
using other funds, and
06/22/2009
5) To comply with the reporting requirements, terms and
conditions set forth in Sections 1201 and 1512 of the Recovery
Act and as designated by the STATE. Failure to comply will
result in retentions from progress payments due ADMINISTERING
AGENCY and/or other sanctions,
6) Recovery Act funds are available for liquidation only until
September 30, 2015 when the remaining balance of Recovery Act
funds will expire. ADMINISTERING AGENCY agrees to submit an
invoice for the balance of project Recovery Act funds (if any) to
the STATE prior to July 1, 2015.
Program Supplement07-5455R-N009- ISTEA Page 5 of 5
CITY COUNCIL
Agenda # 6.5
Meeting Date: July 21, 200
AGENDA REPORT
TO: Honorable Mayor and Memb rs of the City Council
VIA: James DeStefano, City Ma 41
TITLE: APPROVAL OF A CONTRACT WITH BLACKBOARD CONNECT FOR
GOVERNMENT/CONNECT-CTY TO PROVIDE AN EMERGENCY
MASS NOTIFICATION FOR ONE YEAR IN THE AMOUNT OF
$38,709.97 AND ADOPTION OF THE ASSOCIATED SYSTEM USE
POLICY
RECOMMENDATION:
Approve the contract.
FISCAL IMPACT:
The cost to implement the system for a one year term is $38,709.97. If approved, there are
sufficient funds in the City's approved FY 09-10 Emergency Preparedness budget.
BACKGROUND:
In the event of a significant regional emergency such as earthquake or wildfire, or even an
isolated event within the community, the rapid release of accurate information to residents and
businesses is essential. The Connect-CTY system is an integrated communications suite that
provides the City with the ability to quickly notify thousands of individuals with the latest
information via landline telephones, cellular phones, or text message, all within minutes.
Sometimes known as a "reverse 911" or "mass notification system", Connect-CTY is a powerful
communications tool that would enhance the City's emergency preparedness efforts.
Messages can be created via phone or internet, making it easy to use and implement for
authorized staff, even from locations outside City Hall. This capability is particularly useful
during events that occur during off -hours or weekends. The system also includes a map -based
Geo -Calling feature that allows for targeted calling based on location, which allows the City to
send messages to a specific neighborhood/area in the event of an isolated incident or evacuation.
The system also includes unlimited use of the system, complete user training, and 24/7/365 client
care support.
Connect-CTY is a fully hosted and managed system, meaning that the program is not reliant
upon the City's servers, infrastructure, or staff for storage capacity or maintenance and will not
require investment in new City -owned equipment.
DISCUSSION:
Continuous improvement of the City's emergency preparedness and public communication
abilities is a priority of the City Council and City Manager. The Connect-CTY system provides
an additional dimension of readiness to the City's arsenal while improving communication
capabilities in emergency situations. Staff recommends that the Council approve the contract
and appropriate the funds.
Following approval and execution of the agreement, the system should be in place and
operational within three weeks and no later than September 1.
Should the Council approve the purchase of the system, staff has crafted a use policy. The
attached policy limits the use of the system only to significant emergency events such as
earthquakes, wildfires, landslides, terrorist attacks, or any other incident with an imminent threat
to public safety or property as determined by the City Manager. The policy also establishes
guidelines for system access and the recording of public messages distributed by the system.
These clearly defined rules ensure the City's communications remain effective to the public in
the event of an emergency without diluting the message.
Prepared by:
�. 0,
Rya cLean, Assistant to the City Manager
Attachment: 1. Connect-CTY GSA Proposal
2. Connect-CTY System Use Policy
Blackboard Connect for Government
GSA PRICING PROPOSAL — (f/k/a Connect-CTY)
Unlimited Use Service Proposal for Diamond Bar, CA
Blackboard Connect for Government (f/k/a Connect-CTY) GSA Proposal
A Service of Blackboard, Inc.
GSA Contract #: GS -35F -0554M
DUNS #: 01-613-1430
Tax ID #: 52-2081178
CAGE #: 1 QLN4
SIN #: 132-32
Service Summary: The Blackboard Connect for Government (f/k/a Connect-CTY) service allows government leaders to
provide notices, direction, and reassurance to reach thousands of constituents in minutes without having to invest in or
maintain hardware, software, or additional phone lines. Now, you can reach your entire constituency—quickly and reliably—
with voice, text, and email messages. Services include:
• An integrated communications suite, including Community Outreach, Priority Communication, and Interactive Survey
• Voice and text/SMS delivery to multiple communication devices
• Geo -Calling feature lets you target recipients using a map
• 24/7/365 proactive Client Care support
• Unlimited use for a fixed, annual fee
• Initial set-up, training and refresher training sessions included
• Delivery to up to three phones, two email addresses and one SMS phone per contact
• Superior call routing, throttling, and load balancing expertise
• Fully hosted and managed Software as a Service (SaaS) -- no maintenance required
• Message delivery tracking with comprehensive reporting
Quote Summary: All products and services quoted are available through Blackboard Inc. GSA Schedule GS -35F -0554M and
pursuant to the Terms and Conditions negotiated therein. Please include the following in your purchase order: state the SIN#,
Product Description, list price, GSA price, and extended price; reference Blackboard GSA Schedule #GS -35F -0554M;
reference and attach this price quote
132-32 Blackboard Connect for Initial Term – 20,267 addresses $1.91/ $38,709.97'
Government (f/k/a Connect- Sept. 1, 2009 – August 31, 2010 address
CTY) Service
Questions? Please call:
Blackboard Inc: 1. Issue Purchase Order, Attach Signed Proposal, and return to Sales Rep.
James Price 2. Import staff data Blackboard Connect provides resident and business data).
Blackboard Connect: 3-4860 x2791 3. Implementation of service and orientation for all designated system users.
Black
Robin Roller 4. Begin sending Outreach, Priority and Interactive Survey communications.
801.599.5957
' 20,267 addresses @ $1.91/address = $15,757.50 Total Service Fee.
Blackboard Connect for Government (f/k/a Connect-CTY) is a service of Blackboard Connect Inc., a wholly-owned subsidiary of Blackboard
Inc. (NASDAQ:BBBB)
• Proprietary and Confidential • www.blackboardconnect.com • U.S. Patent No. 6,816,878
Diamond Bar, CA
Authorized Signatory:
Name & Title:
Execution Date:
City of Diamond Bar
231925 Copley Drive,
Diamond Bar, CA 91765
Ryan McLean
ryan.mclean@ci.diamond-bar.ca.us
BLACKBOARD CONNECT INC.
Authorized Signatory:
Name & Title:
Execution Date:
Address: Blackboard Connect Inc.
15301 Ventura Blvd., Building B, Suite 300
Sherman Oaks, CA 91403
Name: Phillip Huff, Controller
Tel: (818) 808-1722 Fax: (818) 450-0425
Email: Phillip.huff@blackboardconnect.com
Blackboard Connect for Government (f/k/a Connect-CTY) is a service of Blackboard Connect Inc., a wholly-owned subsidiary of Blackboard
Inc. (NASDAQ:BBBB)
• Proprietary and Confidential • www.blackboardconnect.com • U.S. Patent No. 6,816,878
Connect-CTY Use Policy
The City's Connect-CTY mass notification system is a tool that is to be used to alert, warn, or provide
timely essential information to Diamond Bar residents or businesses only in the event of an incident
presenting an imminent danger to public safety or property. Such incidents include, but are not limited
to: regional or localized natural disasters such as earthquakes, wildfires, or landslides; terrorist attacks;
significant public safety incidents; or other major emergencies as determined by the City Manager. The
system shall not be used for routine notifications or public service/community announcements.
System access is granted only to individuals authorized by the City Manager. Recorded announcements
or messages for public distribution will be made only by the City Manager or his/her designee.
CITY COUNCIL
Agenda # 6.6
Meeting Date: 07/21 /09
AGENDA REPORT
TO: Honorable Mayor and Members of the City Council
VIA: James DeStefano, City Ma 4a
TITLE: APPROVAL OF AMENDMENT #t80 EXTEND LICENSE AGREEMENT WITH
COCA-COLA FOR THE OPERATION OF BEVERAGE -SERVING MACHINES IN
CITY PARKS FOR THE PERIOD OF AUGUST 1, 2009 THROUGH JANUARY
31, 2010.
RECOMMENDATION: Approve.
FINANCIAL IMPACT: City's share of annual revenue has averaged about $5,886 for the
past year. Estimated revenue for 2009/10 FY is $6,284. Estimated electrical cost for 2009/10
FY is $2,300.
BACKGROUND: Coca-Cola has provided beverage -serving machines in the City's
parks for the past ten years. The City Council first approved a one-year license agreement
beginning August 1, 1999. The City Council has approved extensions of the agreement
between the years of 2000 and 2009. The current two-year agreement is scheduled to expire
on July 31, 2009. Coca Cola presented a new agreement format to staff for consideration of
two year contract extension on Tuesday, July 14, 2009. The City Attorney needs more time to
negotiate the appropriate contract language for this extension. In the meantime, contract
language on a new six month extension has been agreed to. This six month extension will
allow time for the parties to negotiate a new two year agreement acceptable to both the City
and Coca Cola.
DISCUSSION: Section two of the agreement authorizes the City Council to extend the
term. The proposed extension is for the period of August 1, 2009 through January 31, 2010.
Staff intends to bring this contract back within six months for consideration of a two-year
extension.
This agreement authorizes Coca Cola to operate 10 beverage -serving machines in six City
parks:
Parks with Beverage -Serving Machines
Peterson Pantera
Maple Hill Heritage
Ronald Reagan Sycamore Canyon
PR R D ND REVIEWED BY:
B b o e
Community Services Director
Attachments: Original License Agreement dated August 1, 1999
Amendment #8 to License Agreement for period of 8/1/09 — 1/31/10
AMENDMENT #8 to LICENSE AGREEMENT
This Amendment #8, made and entered into effective as of August 1 2009 (the "Amendment #8"),
is to amend that certain License Agreement dated effective August 1, 1999 (the "Agreement"), by and between
BCI Coca-Cola Bottling Company of Los Angeles d/b/a Coca-Cola Bottling Company of Southern California, a
Delaware corporation (the "Licensee"), and the City of Diamond Bar, a municipal corporation of the State of
California (the "City"). All capitalized terms not defined herein shall have the meanings ascribed to them in the
Agreement.
WITNESSETH:
WHEREAS, the initial term of the Agreement commenced August 1, 1999 and was scheduled to end July
31, 2000 ("Initial Term"); and
WHEREAS, Term of the Agreement was revised per Amendment #1 to extend the Agreement from
August 1, 2000 through July 31, 2001; and
WHEREAS, Term of the Agreement was revised per Amendment #2 to extend the Agreement from
August 1, 2001 through July 31, 2002; and
WHEREAS, Term of the Agreement was revised per Amendment #3 to extend the Agreement from
August 1, 2002 through July 31, 2003; and
WHEREAS, Term of the Agreement was revised per Amendment #4 to extend the Agreement from
August 1, 2003 through July 31, 2005; and
WHEREAS, Term of the Agreement was revised per Amendment #5 to extend the Agreement from
August 1, 2005 through July 31, 2006; and
WHEREAS, Term of the Agreement was revised per Amendment #6 to extend the Agreement from
August 1, 2006 through July 31, 2007; and
WHEREAS, Term of the Agreement was revised per Amendment #7 to extend the Agreement from
August 1, 2007 through July 31, 2009; and
NOW THEREFORE, in consideration of the promises made herein, the parties hereto agree as follows:
A. The parties hereby agree to extend the Term of the Agreement for an additional six (6) months, beginning
August 1, 2009 and ending January 31, 2010 ("Extended Term"). The Initial Term and Extended Term
are sometimes collectively referred to as the "Term".
B. Except as modified herein, all other terms and conditions of the Agreement shall remain in full force and
effect. In the event of a conflict between this Amendment #8 and the Agreement, this Amendment #8
shall control. Each party represents, warrants and covenants to the other as follows:
Authority. It has full power and authority to enter into this Amendment #8 and to grant and
convey the rights set forth herein.
2. Binding _Obli ag tion. All necessary approvals for the execution, delivery and performance of this
Amendment #8 by it have been obtained, and this Amendment #8 has been duly executed and
delivered by it and constitutes the legal and binding obligation of it enforceable in accordance
with its terms.
IN WITNESS WHEREOF, the undersigned have caused this Amendment #8 to be duly executed as of
the date first above written.
Licensee:
By:
City:
Printed Name: Printed Name
Title:
Date: Date:
CITY OF DIAMOND BAR
COMMERCIAL OUTDOOR VENDING MACHINE LICENSE AGREEMENT
RECITALS
A. The Coca Cola Bottling Company of Los Angeles (hereinafter
"Licensee") seeks to vend its beverage products from vending machines located in certain
parks owned and operated by the City of Diamond Bar (hereinafter "City").
B. City desires to place beverage -serving vending machines at specified
locations within certain of its parks as a service to park users.
C. This Agreement sets forth the terms and conditions under which
Licensee may install its vending machines in City parks.
LICENSE
1. License. A revocable non-exclusive license (hereinafter the "License"
or "Agreement") is hereby granted to Licensee to install the number of beverage -serving
vending machines in accordance with the specifications and in the precise locations and
configurations all as described in Exhibit A attached hereto and incorporated herein by this
reference, and subject to the terms and conditions of this License.
2. Term. This License shall take effect on August 1, 1999 and shall
remain in effect for a period of twelve (12) months through July 31, 2000, unless earlier
revoked by City pursuant to Paragraph 3 herein or voluntarily relinquished or abandoned
by the Licensee. The parties may prior to its expiration mutually agree to extend this
License for an additional period of time.
3. Termination. This revocable License may be revoked by City at any
time, with or without cause, in City's sole discretion, upon giving Licensee thirty (30) days'
advance notice of revocation.
4. Fee. Licensee shall pay to City in consideration of the use of its property
for the above-described purposes a commission of 35% of the price charged for each unit
of beverage sold from the licensed vending machines. The commission shall be paid
quarterly, in arrears, in accordance with the following schedule:
City of Diamond Bar Page 1 Agreement -
Commercial Outdoor Vending Machine License
PAYMENT DUE • FOR
July 15
April, May and June
October 15
July, August and September
January 15
October, November and December
April 15
January, February and March
5. Beverage selection and pricing. Licensee shall vend the following
products from its vending machines: carbonated beverages (20 oz. bottle), PowerAde
Beverages (20 oz. bottle), Fruitopia Beverages (20 oz, bottle) and Naya Water (16.9 oz.
bottle). Beverage pricing shall not exceed One Dollar ($1.00) per bottle during twelve
month term of this License.
6. Installation and maintenance of vending machines. Licensee shall at its
own cost and expense install its vending machines at the approved locations identified in
Exhibit A and maintain them in an attractive, clean and operable condition. Licensee shall
be responsible for providing its machines with routine maintenance, service, cleaning and
collections so as to avoid creation of a nuisance. Licensee shall repair malfunctioning or
inoperative machines, remove graffiti, and repair any damage to machines within twenty-
four hours of receipt of notice of same from the City; provided, however, that Licensee
may respond on Monday to any such notice received after 12:00 Noon on the preceding
Friday.
7. Lockdown of machines during events. Licensee agrees to lock down its
vending machines so that they are unavailable for use: i) during the school day in Paul C.
Grow Park; ii) when concession stands are operating during sporting events in Peterson
and Pantera Parks; iii) during the City's annual birthday celebration and concerts -in -the
park; and iv) during community events designated by City in writing at least ten (10) days
in advance of the event.
8. Assignment. This License shall not be assigned or transferred without
the written consent of City. Any such purported assignment or transfer shall be void and of
no effect. In the event that the Licensee sells, transfers, leases or otherwise conveys a
controlling interest in the above-described business as an ongoing concern, the Licensee
shal I provide any such purchaser, lessee or transferee with a copy of this instrument and
with notice that it is not assignable without written consent of City.
9. Indemnification. Licensee shall indemnify and hold harmless City,
its officers, employees and agents from and against all claims, causes of action, liabilities
and damages for injuries to persons and property, including reasonable costs of defense
and attorney fees, arising from Licensee's activities on City property pursuant to this
License, including but not limited to Licensee's negligent or wrongful acts, errors or
omissions in the installation, continued maintenance and use of the vending machines in
their location. Licensee shall promptly pay the amount of any judgment rendered against
City of Diamond Bar Page 2 Agreement -
Commercial Outdoor Vending Machine License
City, its officers, employees and agents for any such indemnified claims, and reasonable
costs and attorney fees incurred by City in the defense of such claims.
10. City's right of entry. Licensee acknowledges the City's absolute right
to enter upon the area in which the vending machines are located for purposes of
inspection, replacement, repair, or maintenance of public facilities above, on or under the
area.
11. Damage to. vending machines and property. Licensee assumes
responsibility for all damage to its vending machines caused by third parties and to City's
property caused by Licensee's placement and maintenance of the vending machines, and
shall reimburse City for correction of any such damage. City shall have no responsibility
or liability for damage to Licensee's vending machines caused by third parties.
12. Restoration of premises. Within thirty (30) days of expiration of
this License, whether upon its expiration or earlier termination, Licensee shall at its
expense remove its vending machines and restore the property to its condition prior to
placement of the machines. In the event Licensee fails to do so, City shall have the option
of removing the machines at Licensee's expense and Licensee waives all claims for damage
to the machines resulting from such removal. Any cost incurred by City in so doing shall
constitute a debt of the Licensee to the City, and recoverable by City in any manner
provided by law.
13. Possessory interest. Licensee acknowledges that this permit may
create a taxable possessory interest subject to property taxation, and that Licensee shall be
solely responsible forsatisfaction of any property taxes levied on the property.
14. Compliance with codes. Licensee shall perform all work in full
compliance with all applicable codes, ordinances and laws, and obtain all necessary
permits.
15. Promotional support. Licensee shall provide to City: i) one PowerAde
Parks and Recreation Athletic Kit (with a fetail value of $500) for every PowerAde vending
machine placed pursuant to this License; and ii) a one-time donation of 25 free cases of 12
oz. Coca Cola products.
16. Records and audit. Licensee shall maintain accounts and records
adequate to identify and account for all beverage product sales made pursuant to this
License for a period of three (3) years after the expiration of this License. All such records
shall be made available to City for inspection or audit at any time upon reasonable notice
and during regular business hours.
17. Responsible parties and notice. Unless otherwise designated in writing,
the City's Community Services Director shall serve as City's representative for
City of Diamond Bar Page 3 Agreement -
Commercial Outdoor Vending Machine License
administration of this License. All activities performed by Licensee shall be coordinated
with him, and all notices shall be delivered or directed to him at:
City of Diamond Bar
21660 E. Copley Drive
Suite 100
Diamond Bar, CA 91763
ATTN: Community Services Director
Unless otherwise designated in writing, Kimberly Curtis shall serve as
Licensee's representative on all matters pertaining to this License, and any/all agreements
made by her shall be binding on Licensee. All notices to Licensee shall be delivered or
directed to:
Coca Cola Bottling Company of Los Angeles
13255 E. Amar Road
City of Industry, CA 91746
ATTN: Kimberly Curtis
18, Entire Agreement; Modification. This License supersedes any and all
other agreements, either oral or written, between the parties and contains all of the
covenants and agreements between the parties. Each party to this License acknowledges
that no representations, inducements, promises, or agreements, oral or otherwise, have
been made by or relied upon by any party which are not embodied herein. Any
modification to this License shall be effective only if in writing and signed by both parties.
City of Diamond Bar Page 4 Agreement -
Commercial Outdoor Vending Machine License
IN WITNESS WHEREOF, the parties have executed this Commercial
Outdoor Vending Machine License Agreement on the date first written above.
COCA COLA BOTTLING COMPANY OF LOS ANGELES
By:
Kimberly Curtis, Branch Manager
CITY OF DIAMOND BAR
By. + ci �._
Mayor Wen Chang
ATTEST:
4'1TCLERK
Signature(s) must be acknowledged before a Notary Public:
STATE OF CALIFORNIA
1 ss
COUNTY OF LOS -ANG E LES )
n 1 klefore me, the undersigned, a Notary Public in and
for sai tate, personally appe red
1 ( i S , known to me to be
the person ^ whose name _ was/were subscribed to the within instrument and
acknowledged that `�� zi-y __ executed the same.
Witness hand an fficial seal.
Sig t� u re ��%
---C—T—
City of Diamond Bar Page 5 ( Agreement -
Commercial Outdoor Vending Machine License
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
I ss.
County
before me, LL-)
-'
Daly �- Name and Title i
personally appeared
_ personally known to me
.proved to me on the basis of satisfactory
evidence
to be the persorr(sj- whose name(ejisFL
subscribed to the within instrument and
acknowledged to me that h he/ executed
t, the same in hieftir authorized
fi capacity(ics), and that by r/ eir-
h 1= signatures) on the instrument the personN, or
i the entity upon behalf of which the persoa(st-
i�aUxArgic-COOlort�d acted, executed the instrument.
� Lrs Arpeies Calt�
AMY ���iresl1pr17,�2
WIT ESS my -and official seal.
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Place Notary Seal Above signature of Notary Public
OPTI NAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached ume�nt
Title or Type of Document:fZ2.�
Document Date: (r� �� Number of Pages:
Signer(s) Other Than Named Above: l
Capacity(ies) Claimed by Signer
Signer's Name:
Individual Top of thumb here
Corporate Officer — Titie(s):
Partner Limited :1 General
Attorney in Fact
Trustee
S' Guardian or Conservator
Other:
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Signer Is Representing:
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d 1097 National NolaryAssociation - 9350 De Solo Ave.. P.O. Box 2402 • Chatsworth. CA 91313-2402 Prod. No. 5907 Reorder: Call Tall -Free 1.800-876-6827
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
,n State of California //�� �/,,
County of Uz cW�Cf _ ss.
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MA7A SOMENZI
Crxnn•'r.,lon # 12d0696
w Notary Pubic - California
Las Angeles County
My [ orrnn.6IPffmNov29,2IX3
to be theerso .4) whose ,names} %slake
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acted, executed the instrument.
WITNESS my hand and official seal,
Place Notary Seal Above Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document ,
Title or Type of Document: L, Yl►"if- L At<_ c-- n , a LtICC
fil� UL1►un.-+ `—
Document Date: CC ilYjaC'�• �I i Number of Pages: —�
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Signer(s) Other Than Named Above: l� l; {"l 1) l i L LLl i
Capacity(ies) Claimed by Signer
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Trustee
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1' Signer Is Representing: •-•>�.�
0 1997 National Notary Association - 9350 De Soto Ave.. P.O. Box 2402 • Chatsworth, CA 91313.2402 Prod, No. 5907 Reorder: Call Toll -Free 1.800.870$827
CITY COUNCIL
Agenda # g .1
Meeting Date: July 21, 2009
AGENDA REPORT
TO: Honorable Mayor and Members f the City Council
VIA: James DeStefano, City Man e `Y
TITLE: APPROVAL OF MODIFICATIONS FOR DIAMOND RIDE (DIAL -A -CAB)
PROGRAM
RECOMMENDATION:
Approve the following modifications to the Diamond Ride Program:
1. Transition from 24/7 service to fixed hours (7a.m. — 8p,m.);
2. Transition from demand, same-day service to scheduled, 24-hour advance
service;
3. Restrict users from requesting specific drivers to prevent misuse of the program.
FINANCIAL IMPACT:
The City receives Proposition A Transit Funds which are funded by a portion of the '/2
cent sales tax measure which was passed by Los Angeles County voters in 1980. Prop
A Funds are to be used towards the development and implementation of transit related
programs. In Fiscal Year 2008-2009, the adjusted budget for the Dial -A -Cab Program
was $560,000.
For Fiscal Year 2009-2010, the City Council has appropriated $550,000 for the
Diamond Ride Program. In previous years the City has allocated Proposition A Funds
to be exchanged for General Fund dollars. The exchange assisted and funded capital
improvement and transportation projects. The following projects/programs were paid for
with Prop A Funds in the past:
• SR 57/60 Feasibility Study/Congestion Relief Strategy
• Illuminated Street Name Sign Program
• Neighborhood Traffic Management Program
• Various Speed Hump Installations/Sidewalk Repairs
• Diamond Bar/Maple Hill Traffic Signal
For Fiscal Year 2009-10, the City is expected to receive approximately $981,900 in
Prop A Funds. In addition to funding the Diamond Ride Program, Prop A Funds will be
used to fund other personnel costs and contract services, including the Transit Subsidy
Program. For Fiscal Year 2009-10, the fund balance reserve for Prop A Funds will be
$25,947. Hence, the City will be unable to exchange Proposition A Funds for FY 2009-
10 due to the rising cost of the Diamond Ride Program.
BACKGROUND:
In April 1995, to augment the available public transportation services, the City
established the Diamond Ride (Dial -A -Cab) and the Transit Subsidy Programs to
provide a reliable, secondary transportation option for the elderly (60 year of age and
older) and physically challenged residents of Diamond Bar. Diamond Ride is a curb -to -
curb program where eligible residents may obtain rides at a substantially discounted
rate. The Transit Subsidy Program offers transit passes for Foothill Transit, Metrolink,
and MTA (Metro) at a discounted rate for residents. These discounts are 20% for
residents and 50% for seniors/disabled residents. The Diamond Ride (Dial -A -Cab)
Program operates seven (7) days a week, 24 hours a day, within a designated
geographic boundary (See Exhibit A for Service Guidelines and Boundaries).
SENIOR POPULATION
According to the 2000 Census, there are 6,320 seniors who reside in Diamond Bar,
comprising 11.23% of Diamond Bar's population of 56,287. Of these seniors,
approximately 1,400 are registered with Diamond Ride.
PROGRAM REPORTING
For your information we have prepared (Exhibit B) a summary of the Fiscal Year 2008-
2009 activities and annual comparisons (Exhibit C) from Fiscal Year 2001-2002 to
Fiscal Year 2008-2009.
As shown in Exhibit B for FY 2008-2009, the average number of monthly riders was
2,228 and the average monthly contract expense was $43,994.11. The average cost
per trip was $22.32 and the average cost per passenger was $19.74.
The monthly average cost of the program has increased by 63% since the program
inception in 2001. With a successful program comes an increased cost to the City. As
demonstrated in Exhibit C, Fiscal Year 2008-2009 experienced the highest monthly cost
of $43,994.11. It is expected that ridership will continue to increase as the economic
slump remains and the program budget will continue to increase without targeted and
necessary modifications.
DISCUSSION
The City Council approved the following Diamond Ride modifications on August 5,
2008:
2
I . Approve unlimited medical trips within the 20 -mile medical facilities boundary
(note: medical trips are counted towards the thirty (30) maximum allowable trips
peruser per month);
2. Grant ten (10) additional non-medical trips within the 20 -mile medical facilities
boundary to qualified participants (i.e. visually -impaired users who do not have
the ability to drive);
3. Eliminate special trip request authorizations;
4. Review the Diamond Ride program within 12 months.
Since the implementation of these modifications the budget to operate the program has
grown significantly. At the beginning of Fiscal Year 2008-09 the budget for the program
was $400,000. During this fiscal year, the Council approved a $160,000 budget
increase that brought the program budget to $560,000, marking a 40% (or $160,000)
increase for FY 2008-09. The program budget for FY 2009-10 is also representative of
the increasing cost to manage Diamond Ride with an approved budget of $550,000.
Please see Exhibit B and C for a complete status report of the program.
A portion of this increase may be attributed to the slumping economy, which may have
played a role in the number of residents registering for this economical mode of
transportation. The weakened economy coupled with unparalleled program boundaries
and increased participation has been the most obvious reasons for the program's
expanding costs.
Staff has been reviewing a number of options to help reduce the Diamond Ride cost,
gathering information from professionals in the transportation industry as well as
analyzing data from past fiscal years to develop a plan that sustains the program's high
level of service while reducing overall costs.
As a first step, staff recommends the following initial modifications for your
consideration. These initial recommendations will serve to quickly reduce programs
costs with minimal disruption to users and include the following:
MODIFICATIONS
A. Transition from 24/7 service to fixed hours (7a.m. — 8p.m.).
B. Transition from demand, same-day service to scheduled, 24-hour advance
service.
C. Restrict users from requesting specific drivers to prevent misuse of the program.
A. Transition from 24/7 service to fixed hours (7a.m. — 8p.m.):
The Diamond Ride program is currently available 24 hours per day, seven days a
week.
Recommendation: For Fiscal Year 2008-09, 93% of users placed trips during the
hours of 7a.m. — 8p.m and only 7% of users scheduled trips outside those hours.
Most cities and County operated Dial -A -Cab programs have fixed hours to reduce
costs. The Diamond Ride program was developed to provide seniors and persons
with disabilities an economical, secondary mode of transportation to medical and
shopping destinations. The overwhelming majority of participants utilize the program
to reach medical and shopping locations within the designated boundaries. For
Fiscal Year 2008-09, more than 60% of trips were taken to medical and shopping
areas. Other cities and County Dial -A -Cab programs in the region, including the City
of Covina and the County -run LA Access have successfully transitioned from
demand service to fixed hours. Staff recommends implementing fixed hours from
7a.m. — 8p.m. to accommodate the overwhelming amount of users that utilize the
program for its intended purpose (i.e. medical and shopping destinations).
B. Transition from demand, same-day service to scheduled, 24-hour advance
service: The Diamond Ride Program participants are currently able to place a trip
request the same-day within the designated service and medical boundaries. Once
the trip request is made, drivers have up to 40 minutes to pick-up participants or the
fare is free of charge.
Recommendation: Participants have become accustomed to having such an
extremely tailored service. However, same-day service does not allow the cab
company to effectively increase the amount of shared rides. As shown in Exhibit C,
the average number of shared rides has decreased drastically from a high of 427 in
FY 2001-02 to a low of 6 shared rides in 2008-09. 24-hour advance service allows
the cab company to increase the number of shared rides by allowing them to plan
ahead for the next day's trip requests. Shared rides are an excellent means to
reduce costs, especially for the more costly trip requests outside of the City. The
City of Covina recently changed from demand to scheduled service and the
feedback received from Covina's personnel has been positive, particularly in respect
to cost savings. The data shows that Diamond Ride users predominantly use the
Diamond Ride program for scheduled medical appointments and shopping and thus,
for most users the change to scheduled service would be very minimal. The change
to scheduled service would require users to be more cognizant of their scheduling of
trips but they would still be able to meet their medical and shopping needs. Staff
recommends transitioning from demand, same-day service to scheduled, 24-hour
advance service.
C. Restrict users from requesting specific drivers to prevent misuse of the
program: Diamond Ride participants have been able to request specific drivers
when a trip is requested.
Recommendation: Most Dial -A -Cab providers that supply taxi services for cities in
this region do not allow program participants to choose specific drivers when
requesting a trip. The provider for the Diamond Ride Program has, on occasion,
allowed users to request a specific driver. Most Dial -A -Cab providers prohibit users
from choosing particular drivers to safeguard the cab company and cities from any
misconduct that may arise between a driver and user. The cab company has
already taken steps to make certain that users do not have the ability to request
specific drivers nor allow drivers to place trip requests on a rider's behalf. Staff
recommends restricting all participants of the Diamond Ride Program from
requesting specific drivers to thwart any misuse of the program.
4
Based on industry professional experiences, the aforementioned initial
recommendations are projected to result in program savings between 10-20%. Staff
also believes that there are other opportunities to reduce program costs including, but
not limited to:
a) Changes to boundaries based on specific trip analysis.
b) Increase fares for trips outside City limits.
c) Increase the number of shared trips.
d) Generate a targeted list of designated medical facilities.
e) Increase fares for trips to Ontario Airport and Fullerton Amtrak Station.
f) Use of shuttle buses to frequently traveled to destination points.
Staff proposes a phased approach for any new modifications that will follow the initial
set of recommendations and take place within the next several months.
SUMMARY
Staff is working diligently to develop modifications that will reduce costs while
maintaining a high level of service. Within several months, staff intends to bring to
Council modifications that will ensure the Diamond Ride Program remains a reliable and
affordable means of transportation for seniors and persons with disabilities.
PREPARED BY:
Patrick Gallegos, Management Analyst
Attachments:
REVIEWED
;?�
David G. iu, Director o ublic Works
Exhibit A: Current Service Guidelines and Boundaries Brochure
Exhibit B: Status Report for FY 2008-2009
Exhibit C: Annual Comparison Report
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01 of Diamond Ba,
11525 Copley Dliye
Diamond Bar, G 91765
909.639.7065
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Approved Recommendations at August 5, 2008 Council
Meeting:
Approve unlimited medical trips within the 20 -mile medical
facilities boundary (note: medical trips are not counted
towards the thirty (30) maximum allowable trips per user
per month);
Grant ten (10) additional non-medical trips within the 20 -
mile medical facilities boundary to qualified users (i.e.
visually -impaired users who do not have the ability to
drive);
Eliminate special trip request authorizations.
DIAMOND RIDE (DIAL -A -CAB) PROGRAM BUDGET FOR 2008-09
FISCAL YEAR
APPROVED BUDGET
FINAL APPROVED BUDGET
2008-2009
$400,000
$560,000
- 40% Increase in FY 2008-09.
Approved Budget for FY 2009-10 = $550,000.
Reasons for Increased Budgetary Costs
- Weakened Economy.
-Unparalleled Program Boundaries.
-Increased Participation (30% Increase in ridership in FY 2008-
09 versus previous Fiscal Year).
DIAMOND RIDE (DIAL -A -CAB) ANNUAL COMPARISON REPORT
FISCAL YEAR
MONTHLY AVERAGE TOTAL
RIDERS
MONTHLY AVERAGE
MONTHLY COST
2001-2002
1,903
$26,943.47
2002-2003
1,611
$22,104.33
2003-2004
1,469
$20,656.60
2004-2005
1,075
$16,758.66
2005-2006
1,414
$24,878.62
2006-2007
1,521
$28,766.92
2007-2008
1,719
$35,467.46
2008-2009
2,228
$43,994.11
• 63% Monthly Average Cost Increase From FY 2001-02 to FY 2008-09
• 24% Monthly Average Increase from FY 2007-08 to FY 2008-09
DIAMOND RIDE (DIAL -A -CAB) PROP A FUNDS 2009-2010
FISCAL YEAR
PROP A FUND
ALLOCATION
PROP A FUND RESERVE
BALANCE
2009-2010
$981,900
$25,947
FY 2009-10, Prop A Funds will fund:
• Contract Services
- Diamond Ride
- Senior Group Excursions
- Special Event Shuttle (i.e. Concerts in the Park)
- Holiday Ride
- Transit Subsidy Program
❖ Foothill, Metro and MTA
• Operating Expenditures
- Traffic Signal Management System
- Personnel Costs
PROPOSED MODIFICATIONS
A. Program Hours
Recommendation:
1. Transition From 24/7 Service to Fixed Hours (7a.m. — 8p.m.)
93% of users utilize the program between 7a.m. — 8p.m.
• Diamond Bar remains the only city in the San Gabriel Valley
area with 24/7 service.
• The majorit of trivs before 7a.m. are to the Ontario Airport
and to retaiers wi hin the designated program boundaries.
• The majority of trips fter 8 .m. are to residen ial homes (i.e.
the home of a user s i I rrelative) nd out-o�-city retailers
within the designated program boundaries.
PROPOSED MODIFICATIONS
B. 24 -Hour Advance Service
Recommendation:
1. Transition From Demand, Same -Day Service to Scheduled,
24 -Hour Advance Service
• Opportunity to Increase the Number of Shared Rides.
• FY 2001-02 = 427 shared rides per month.
• FY 2008-09 = 6 shared rides per month
• Most cities and County -run Dial -A -Cab programs have
transitioned to 24-hour advance service to reduce costs.
• Scheduled service would not prohibit users from traveling to
locations within the program boundaries.
PROPOSED MODIFICATIONS
C. Request for Specific Driver
Recommendation:
1. Restrict Users From Requesting Specific Drivers to Prevent
Misuse of the Program
• Cab company dispatch will no longer allow special requests
for drivers and will not allow drivers to place trip request on
behalf of users.
• Helps safeguard the City and cab company from misconduct
that may arise between user and driver.
• All Dial -A -Cab programs within the San Gabriel Valley area
prohibit requests for specific drivers.
POTENTIAL ALTERNATIVES FOR THE FUTURE
1. Changes to boundaries based on specific trip analysis.
2. Increase fares for trips outside City limits.
3. Generate a targeted list of designated medical facilities.
4. Increase fares for trips to Ontario Airport and Fullerton
Amtrak Station.
5. Use of shuttle buses to frequently traveled to destination
points.
RECOMMENDATIONS FROM STAFF
1. Transition from 24/7 service to fixed hours (7a.m. — 8p.m.);
2. Transition from demand, same-day service to scheduled, 24-hour
advance service;
3. Restrict users from requesting specific drivers to prevent misuse
of the program.
Savings to the program estimated between 10-20% ($55,000 -
$110,000).
Staff recommends implementing the aforementioned changes
within the next 60-90 days.
!9rq'Ae_
Crty of D.—M Bar
21625 Copley Drive
Du dBar, CA 91]65
909 049.7035
Diamondide
curb to curb transportation for Diamond Bar residents 60+ years of age andlor with disabilities
The ride just got
smoother...
ince 1995, the Diamond Ride
program has provided residents
with a convenient and reliable curb to
curb transportation option.
The versatile program is not just
for doctor visits, it is designed to allow
for quick trips to the bank, cleaners,
grocery store or for a fun afternoon of
bingo at the Diamond Bar Center.
To ensure the program continues
to meet the needs of its residents, the
City recently completed a review and
implemented modifications based on
user input and ridership trends.
The result is an easier to use
program without any reduction in
quality. Guidelines remain largely the
same with the exception of the newly
expanded medical facilities service
boundary area. Now you can visit any
medical facility of your choice within
service area #3 without prior approval.
No more delays or additional paperwork.
It's the City's intention to
continuously review and modify the
Diamond Ride program, ensuring the
program will benefit residents now and in
the future.
Remember, we all need a little
assistance every now and then, and it's
nice to know Diamond Ride is only a
phone call away.
Look what's new...
The following modifications have been recently
adopted and are now in effect:
• Expanded medical facilities service area
New medical facilities service area doubled to
allow greater flexibility and convenience (see
map for details).
• Expanded choice of medical facilities and physician providers
Travel to medical facilities is no longer restricted to a designated list. Any medical
facility or physician office located within the medical service area is already
approved (see page 2 for medical facilities definition).
Inside...
• Prior approval is no longer necessary for
special trips to medical facilities Guidelines &Policies
Travel to any medical facility or physician office Service area boundaries
located within the medical services area is Making the most of
allowed (see map for details).
your membership
Sign►ng up
s easy...
Ffirst of all, the program is
available to Diamond Bar
residents over the age of sixty (60)
and/or with disabilities.
The remaining steps are easy,
take the following items to City
Hall:
• Completed application
(available at City Hall or @
www.cityofdiamonbar.com).
• Proof of residency
(valid Driver's License or DMV
Identification Card and current
utility bill)
• Proof of age
(valid Driver's License, DMV
Identification Card or Birth
Certificate),
OR
• Proof of disability
(verification by physician
with written diagnosis (meets
requirements of CVC 295.5), or
disability card/document issued
by the Veterans Administration,
Dept. of Motor Vehicles, or Social
Security Dept.).
Once approved, you will be
issued a photo identification card.
Be ready to have your picture
taken, ID cards are usually issued
the same day.
How to use
Diamond Ride...
How many trips
am 1 allowed per month?
A maximum of thirty (30) one-way trips
or fifteen (15) round -trips per month.
This includes travel in town, to the
airport, train station, medical and non-
medical trips outside Diamond Bar city
limits.
What are the fares?
All trips must begin within Diamond Bar
city limits and fares vary by destination.
All fares listed are based on one-way
travel.
• within Diamond Bar city limits #1
$0.50 ($1.00 round-trip)
• medical visits within
the medical service area #3
$1.50 ($3.00 round-trip)
• trips (non-medical) within the
service area #2 (see map)
$3.00 ($6.00 round-trip)
• shopping centers/malls
beyond city limits
$3.00 ($6.00 round-trip)
limited to eight (8) per month
• Ontario Airport or
Fullerton Amtrak Station
$10.00 (limited to six (6) per year)
What types of medical
facilities are approved?
Medical facilities are defined as those
with licensed medical physicians,
including optometrists, dentists, and
physical therapist.
Where can I travel?
Travel is limited to within three (3)
designated service areas (see map for
boundaries).
When is the
service available?
Service is available 24 hours per day,
seven days a week.
Are guests allowed?
There is no additional charge to travel
with a guest or companion (only one per
card holder).
Is there a baggage limit?
Grocery bags and packages are limited
to the number you can carry, normally
three to four.
How long will it
take for my taxi to arrive?
Be ready for travel when scheduling
your pick-up, since taxi may arrive
anytime within five (5) to forty (40)
minutes. if the wait is longer than 40
minutes, the trip is free of charge. /f
this occurs, please be sure to notify
City staff at 909.839.7040.
Can I travel beyond
service area boundaries?
Travel to destinations beyond medical
facilities service area #3 and non-
medical trips beyond service area #2
are charged an additional $2.50 per
mile rate after initial fare (see map for
boundaries).
How do I
schedule pick-up?
Call 800.578.6555 to schedule your trip.
Be prepared to provide:
• Name
• Addresses for pick-up location and
destination
• Telephone number
• Number of passengers
• Diamond Ride Identification number
• Special needs request, such as a
wheelchair -accessible vehicle.
Remember to allow ample time to reach
your destination and make sure to
remain on the look out for the taxi since
the driver will not come to your door.
Where can I go?
Service area boundaries
Meet our users..
Nina & Joe
Foothill Fwy (210)
Arrow Hwy, 3'
�
m
v
lop ` n 10 F
t3
m
Q)
y
v D #2 6o Fwy
m
c m
iu in
m
J A +
Z
a
These two may look familiar to you
�a
if you're a frequent visitor to the
Riverside Fwy (91)
Diamond Bar Center, they are both
Imperial Hwy.
members of the Diamond Bar Senior
Club and avid bingo players.
Q?
lb
Nina and Joe Fenech have lived
N Map not to scale
San Diego Fwy (405)
in the area since 1961, long before
Diamond Bar incorporated, and both
City Service Area #1
are longtime Diamond Ride members.
Fare $0.50 one-way
Nina rarely uses her membership,
within Diamond Bar city limits
but likes knowing she has it for short
shopping trips in town.
Service Area #2
Joe, on the other hand, uses the
Fare $3.00 one-way
service on a regular basis. A planner
at heart, he likes to schedule errands
Non-medical trips within limited area bounded by Hacienda Blvd. to the
and trips wisely, allowing plenty of time
west, Arrow Highway to the north, Central Avenue to the east and Imperial
to relax and enjoy other activities. For
Highway to the south
example, he utilizes Diamond Ride
to take care of both his banking and
Medical Facilities Service Area #3
shopping needs in one trip, saving him
Fare $1.50 one-way
time, money, and a trip count.
Medical facilities within limited area bounded by the Foothill Fwy (210) to the
OnTuesdays,NinajoinsJoeforatrip
north, Sierra Avenue to the east, San Diego Fwy (405), State Route 133,
to the Diamond Bar Center. They attend
and Riverside Fwy to the south and the Long Beach Fwy (710) to the west
their weekly club meeting and Joe even
helps with the club's fundraising efforts
and distribution of take-home bread.
'
/
After the meeting, they enjoy a game
.000 Best times to travel
of Bingo with friends before heading
Wait times vary and taxis may take longer to
home. Since they shared a ride, it only
arrive during peak travel times between 8am
counts as one trip.
o�a1
0100
10 f%00 to 10am and 4pm to bpm. Allow ample time to
When possible, Joe makes certain
IA ein arrive at your destination, actual travel times
to schedule visits to both his doctor and
1r{oe
t0 kep vary depending on traffic. If possible, you may
d� ,
specialist on the same day. Every now
wish to schedule your trips during non -peak
and then, Nina too needs to visit the
hours for best response time.
doctor, so they plan ahead and schedule
their appointments on the same day.
Travel with a friend
The Fenech's story is just one of
It's fun, good for the environment, saves trip counts and money! All
many examples of individuals helping
eligible riders must be picked -up and dropped -off at the same location
create a more efficient, reliable
and only one fare for the trip will be charged.
supplemental transportation system for
all Diamond Ride members.
Making the rnost of your month
Y taps
tips
tricks
ere is a
who no 1 ekample of the
friends and family. onger drive but eaverage piamon
subsidy. These w Both ParticinioYate running errands "i: Mary & Be,
two are very Savvy in the Program errands, out, and are. retirees
the money, Each month, the whit m take advantage
Y spend their time... y start off nit comeS to making antage of the transit
Ar
s with sWY (60) trips (30 ea molt If thseir time
IffDining out at their favorite restaurant on Monday nights
They ride Diamond Ride together, using one trip - 8 trips
F" Special Mom & Daughter Beauty Day at out of town mall
t,�Onetime her daughter drives, the other Mary takes her along for a ride, at
no additional cost because Diamond Ride allows her to travel with a guest
- 2 trips ($6.00 round-tripiArea #2)
F" Visit to barber with fellow Diamond Ride user twice a month
Each alternates using their membership, so only one trip is charged
- 2 trips
Combining grocery shopping and banking needs once a week
Both ride Diamond Ride, charging one trip - 8 trips
(� Mary meets up with girlfriends every Sunday afternoon at a
�1 local coffee shop
Mary and her friend take a taxi together even though her friend is nc
a member, only one trip is charged - 8 trips
Regular Sunday tee off time at the Diamond Bar Golf Course
MI Ben takes diamond Ride to meet his friends at the course - 8 trips
Imo( Mary and Ben visit the doctor's office once a week
LJ They plan ahead so that their appointment falls on the same day,
and ride Diamond Ride together, using up only one trip - 8 trips
($3.00 round-trip/Area #3)
is Movies on a weekday afternoon
h� They take Diamond Ride together to a neighboring community
movie theater - 2 trips ($6 round -b ip/Area #2)
Lets I i
see ho
At the end of the W they did,,,
for the 44 tri MOnth, Mary used
Access P ps In addition to pia 18 trips and Be
a�transit and rel Mond Ride, n used 26
Y on family and frie ary and Ben alsoor.l total cost of $41
ods to meet utilize Foothill
their travel Transit,
needs.
Residents are encouraged s
our local busines couraged to s1, hip Coca/r
Such Cit y Programs ses increa pin town when
Possible S
operation of slawe for msales � revenue
evstrnomet ' which s usedportrng
City
facilities and Maintenanceto fund
Programs.
' and the
Travel ®pti®
.s...
1Y considering all Your
transportation options,
gain greater Inde
You can
flexibility, pendence and
Ccess
800,827. p8tatransit
or TDD 0829
800.827.1359
Provides curb to curb transportation services in Los Angeles County,
roothil! 800 Transit
Fixed 43.3463
Fixed route bus service for the
Gabriel and P
62+ and i F30 service
Valley,San
ndividuals with . seniors
Pay $0.50 (transfersdisabilities
one-time riders or dicost $0.25) for
Pa ss for $?0. Month) punted 31 -day
for purchase at Cit -1 passes available
Y Hatt.
40.266.6883
Los
bus'
u
s and rail service operator in
Angeles County piscoOpe
for seniors 65+ and i '$c
disabilitie d fare
s individuals with
Metrolink all
800.266,6883
Southern Californias Com
withrte• Seniors 65+ muter train
disabilitiesand individuals
fare at all tfine pay 50% off regula
available for s. Monthly Passer
s
Purchase at City,all.
Amtrak Rail
800.872 7245 or
DrD�Y 800.523.6590
unted rates for seniors 60+
RIDEINFp
800.431 7882
F DD efe or
800.431.9731
Individualreferral service to
available fransportatio match
accessible n needs with
options• transportation
Discount bt,
09839.7045 and rail passes
Diamond Bar
Farr residents 60+
subsidy on transitreceive
Foothill, MTA and Passes for
Under 60 receive Metoolink(residents
a 20% dis
count).
�tlifi� g�ea
CITY COUNCIL
Agenda # a . 2
Meeting Date: Jul
v 21, 2009
AGENDA REPORT
TO: Honorable Mayor and Members of the City Council
VIA: James DeStefano, City Ma
TITLE: APPROVE RESIDENTIAL REFISE AND RECYCLING FRANCHISE
AGREEMENT WITH WASTE MANAGEMENT, INC.
RECOMMENDATION:
Approve contract agreement.
FINANCIAL IMPACT:
The City will collect fees from Waste Management throughout the term of the
agreement, specifically:
• 4.7% of gross receipts for AB 939 Fees
5% of gross receipts for Franchise Fees
• $85,000 annually for Street Sweeping Fees (adjusted annually by CPI)
$115,000 annually for Solid Waste Vehicle Impact/Road Maintenance Fees
(adjusted annually by CPI)
The total annual City Fees will amount to 13.88% of gross receipts.
During the first year of the contract the City will collect the following fees:
$221,000 in AB 939 Fees
• $235,000 in Franchise Fees
$85,000 in Street Sweeping Fees
• $115,000 in Solid Waste Vehicle Impact/Road Maintenance Fees
The total annual City Fees will amount to $656,000 in the first year of the contract.
BACKGROUND:
Waste Management (WM) has been the City's exclusive residential refuse hauler since
August 2000. The current contract is due to expire on August 15, 2010. Since that
time, Diamond Bar has maintained competitive refuse rates while providing one of the
most comprehensive city-wide refuse and recycling programs in the San Gabriel Valley.
As the exclusive residential refuse hauler, Waste Management has consistently
provided excellent service for the past nine (9) years. In addition to providing waste
hauling services, Waste Management administers the following refuse programs for the
convenience of residents as part of the monthly refuse rate:
• Mail -It -Back Recycling for Ink Cartridges/Cell Phones
• Christmas Tree Recycling
• Bulky Waste Pick -Up
• Senior/Person with Disabilities Discount
Waste Management and their programs have assisted Diamond Bar in achieving a
diversion rate which exceeds the 50% diversion rate mandated by AB 939. With current
legislation (AB 1390) pending to increase the mandatory diversion rate to 75% by 2020,
a partnership with a responsible waste hauler can facilitate the ongoing process of
increasing recycling in the City. Waste Management has demonstrated the ability to
assist the City in achieving such mandated goals, as was the case in 2000 when the
City had not yet met the required 50% diversion rate. With the aid of Waste
Management, the City was able to increase its diversion rate to meet the mandated
diversion rate by instituting a number of recycling programs as well as increasing
awareness about the importance of recycling.
On December 2, 2008, the City Council directed staff to begin a 6 -month negotiations
process for the residential refuse and recycling contract with Waste Management. In an
effort to secure the most cost-effective, customer friendly integrated solid waste
management contract possible, the City secured the services of HF&H Consultants
(HF&H) to assist in.. the City's negotiation process with Waste Management. HF&H has
a long history of successful negotiations of solid waste service agreements on behalf of
other jurisdictions and audited Waste Management in 2005 on behalf of the City. They
are familiar with the solid waste rates, services, and programs implemented throughout
Southern California and are experts in the procurement of service agreements for
refuse, recycling and green waste collection, material processing services, and
disposal.
Earlier this month and with the assistance of HF&H and the City Attorney, staff
completed negotiations for an integrated solid waste management contract with Waste
Management for the residential sector. The agreement is attached as Exhibit A for
Council consideration.
DISCUSSION:
The proposed contract term is for eight (8) years, commencing on August 16, 2010 and
expiring on August 15, 2018, with a provision for a 1 -year extension at the City's sole
discretion.
Included in the proposed contract are various program enhancements that ensure that
the solid waste management services in Diamond Bar will be customer friendly, offered
at competitive rates, and effective at meeting the AB 939 diversion requirement. The
program enhancements include:
Page 2 of 5
Residential Program Enhancements
• Door -to -Door Household Hazardous Waste Collection — Contractor shall provide
door-to-door collection of household hazardous waste from residents at no
additional cost to customer or City (currently, customer pays a co -pay and City
funds the remaining costs)
• Sharps Recovery Program — Contractor shall establish a no -cost mail -back
and/or drop-off program for syringes and other medical waste known as
"Sharps."
• Alternative Fuel Vehicles — Contractor shall use all alternative fuel collection
vehicles within 17 months.
• Recycling Rebate Credit — Contractor to share recyclables revenue with
customers when recyclables markets recover.
• Minimum Overall Recycling Requirement — Contactor shall divert 45% of all
waste collected from landfilling versus reported 2008 levels of 40%.
• Minimum C&D Recycling Requirements — Contractor shall divert 75% of
construction and demolition debris from landfilling.
• Mulch Give -a -Way — Contractor shall distribute free mulch to residents twice per
year.
• Rate Adjustment Method — Refined rate adjustment method better tracks actual
contractor costs and may limit extraordinary rate increases.
• Confiscation of Illegal Hauler Containers — Contractor shall assist the City by
issuing warnings and confiscating containers placed for use by unauthorized
haulers.
Proposed Residential Fee Description
Staff is recommending the following fees be incorporated into the franchise agreement.
AB 939 Fee — The current AB 939 fee is $1.25 per month. It is recommended that the
AB 939 fee be converted to 4.7% of the monthly bill which equates to $1.10 per month
for most residents or a reduction of $0.15 per month. These funds are used to pay for
the City's environmental programs including public outreach and promotion of the City's
various recycling programs, storm drain cleaning program, and the City's environmental
newsletter.
Franchise Fee — The new contract includes a 5% franchise fee. A franchise fee is a
common fee charged by most cities that offer an exclusive waste hauler franchise. For
most residents, the franchise fee will equate to approximately $1.17 per month. These
funds are used to offset the cost of administering the franchise and to support General
Fund expenditures such as increased law enforcement contract costs, Concerts in the
Park, and other city-wide programs that benefit all residents and businesses.
Street Sweeping Fee — This fee will be used to pay approximately 50% of the City's
street sweeping costs. The monthly cost to most residential customers for this fee is
$0.41. The City is required to provide a street sweeping program to be in compliance
Page 3 of 5
with Best Management Practices related to the Clean Water Act and the National
Pollutant Discharge Elimination System (NPDES) Storm Water Permit.
Solid Waste Vehicle Impact/Road Maintenance Fee — In February 2008, the City
conducted a study to determine the cost impact of waste hauler vehicles on City streets
relative to road maintenance. It was determined that the increase costs of road
maintenance on residential streets directly attributed to waste hauler vehicles is
$115,000. The funds generated by this fee will offset the increased road maintenance
costs and pay for road maintenance services such as a portion of the City's slurry seal
program, crack sealing services, and general road maintenance. The monthly cost to
the majority of residential customers is $0.56.
For residential customers utilizing a standard 64 -gallon size cart (the majority of
residential customers), the following fees and rate increases are being recommended:
Residential Fee Impact on Customer Rate
RESIDENTIAL FEE
DESCRIPTION
% OF CUSTOMER
RATE
MONTHLY DOLLAR AMOUNT
PER MONTH
AB 939
4.7%
$1.10
Franchise Fee
5%
$1.17
Street Sweeping
1.77%
$0.41
Solid Waste Vehicle Impact/Road
Maintenance
2.41%
$0.56
Total Annual City Fees
13.88%
$3.24
Less Existing AB 939
$1.25
Net Monthly Cost Increase
$1.99
Proposed Residential Rate Increase
As part of the rate proposal, Waste Management will increase rates to account for the
total cost of providing enhanced services to the City as well as to pay for City Fees. The
overall net increase in annual contractor compensation after City fees is 2.5%. Fees for
different services offered by Waste Management were adjusted at different rates. The
majority of residents will see a $2.31 increase in monthly rates, consisting of $1.99 in
City fees and $0.32 (1.5%) in increased contractor revenue. Below is a chart of the
City's current rate and proposed rate for the start of the new contract:
*Current 2009-10 Monthly
Collection Rate
*Proposed 2010-11 Monthly
Collection Rate
$21.03
$23.34
Both current and proposed rates are based on a 64 -gallon refuse cart which is
the majority of residential customers.
Even after the contract rate increase and the addition of City fees, the City's residential
rates will remain one of the lowest in the region while continuing to provide one of the
Page 4 of 5
most comprehensive city-wide refuse and recycling programs in the San Gabriel Valley
region. The chart below shows a comparison of selected cities and their 2009-10 rates
for a 64 -gallon refuse cart:
64 -Gallon Refuse Cart Rates for 2009-2010 (Selected Cities)
City
Monthly Rate
Walnut
$20.04
Diamond Bar — Current Rate
$21.03
Diamond Bar — Proposed 8-16-10
$23.34
Baldwin Park
$23.43
Asuza
$23.52
Covina
$24.84
San Dimas
$25.53
West Covina
$25.92
The City of Diamond Bar's current rate is the lowest of the cities selected. When
considering the proposed rate of $23.34 for 2010-11, which includes higher disposal
costs to be charged next year, Diamond Bar still ranks the lowest in comparison to the
other cities listed above.
SUMMARY
With the impending closure of Puente Hills Landfill in October 2013 and more stringent
state mandates that regulate the waste stream, it is the City's responsibility to ensure
the proper disposal and recycling of refuse and hazardous waste in the community.
Staff believes it is extremely important to secure a responsible and resourceful waste
hauler that will guarantee recycling levels and ensure that the City disposes waste and
maintains a diversion rate in compliance with state mandates. A continued partnership
with Waste Management can facilitate the ongoing process of increasing recycling in
the City to meet any new proposed diversion rates in the future.
PREPARED BY:
Patrick Gallegos, Management Analyst
REVIEWE
Da d G. Liu David Doyle
Director of Public Works Assistant City Manager
Attachments:
Exhibit A; Contract Agreement
Page 5 of 5
,fXh`�&r 4
DRAFT
AGREEMENT
BETWEEN
CITY OF DIAMOND BAR
AND
USA WASTE OF CALIFORNIA, DBA
WASTE MANAGEMENT OF SAN GABRIEL/ POMONA VALLEY
FOR
RESIDENTIAL CART CUSTOMER SOLID WASTE
MANAGEMENT SERVICES
July 13, 2009
AGREEMENT
BETWEEN
CITY OF DIAMOND BAR
AND
USA WASTE OF CALFORNIA dba
WASTE MANAGEMENT OF SAN GABRIEL/POMONA VALLEYFOR
RESIDENTIAL CART CUSTOMER SOLID WASTE
MANAGEMENT SERVICES
TABLE OF CONTENTS
RECITALS
Pale
ARTICLE1.......................................................................................................................................... 3
DEFINITIONS.................................................................................................................................................................. 3
1.1
AB 939.......................................................................................................................................................
1.2
AFFILIATE..........................................................................................................................................................3
1.3
BILLINGS...........................................................................................................................................................4
1.4
BIN....................................................................................................................................................................4
1.5
BIN SERVICE...................................................................................................................................................... 4
1.6
BULKY ITEMS......................................................... .......... ........................................................................ .......... 4
1.7
CART.................................................................................................................................... .............................
1.8
CITY.................................................................................................................................................................. 5
1.9
...........................
COLLECT/COLLECTION..................................................................................................... ....5
1.10
COMMERCIAL SF.RVICES................................................................................................................................5
1.11
COMMERCIAL PREMISES.........................................................................................•.....................................5
1.12
CONTRACTOR............................................................................................................................................... 6
1.13
CONTRACTOR COMPENSATION..................................................................................................................... 6
1.14
CONSTRUCTION AND DEMOLITION DEBRIS...................................................................................................6
1.15
CONTAINER .................................................................................................................................................. 6
1.16
CPI...............................................................................................................................................................6
1.17
CUSTOMER ................................ ................................. ........ .......... ................ .......................................... ....... 6
1.18
DISPOSAL......................................................................................................................................................6
1.19
DISPOSAL SITE(S)..........................................................................................................................................6
1.20
DIVERSION....................................................................................................................................................7
1.21
ENVIRONMENTALLAWS...............................................................................................................................7
1.22
FACILITY.......................................................................................................................................................7
1.23
GREEN WAS'FE..............................................................................................................................................7
1.24
GREEN WASTE PROCESSING FACILITY ................ ............ ......... ......... ..... ............................................. I......... 8
1.25
GROSS RECEIPTS........................................................................................................................................... 8
1.26
HAZARDOUS SUBSTANCE.............................................................................................................................. 8
1.27
HAZARDOUS WASTE.....................................................................................................................................9
1.28
HOUSEHOLD HAZARDOUS WASTE ("HHW").............................................................................................. 9
1.29
MATERIALS RECOVERY FACILITY (.,MRF")...................................................................................................9
1.30
MULTI -FAMILY DWELLING........................................................................................................................... 9
1.31
PERSON.........................................................................................................................................................9
July 13, 2009, DRAFT City of Diamond Bar - Residential
1.32
PREMISES.....................................................................................................................................................9
1.33
RATE YEAR.................................................................................................................................................
10
1.34
RECYCLING.................................................................................................................................................10
3.2.1 Franchise Fee..........................................................................................................................................21
1.35
RECYCLABLE MATERIALS............................................................................................................................10
1.36
REFUSE........................................................................................................................................................10
3.2.4 Residential Collection Vehicle Road Maintenance Cost Reimbursement...................................................22
1.37
RESIDENTIAL SERVICES...............................................................................................................................
I0
1.38
RESIDEN"1IAL CUSTOMERS...........................................................................................................................
10
1.39
RESIDENTIAL PREM15ES...............................................................................................................................
10
1.40
ROLL -OFF Box............................................................................................................................................11
1.41
SINGLE FAMILY DWELLING.........................................................................................................................
11
1.42
SOLID WASTE..............................................................................................................................................
11
1.43
SOLID WASTE COLLECTION SERVICES.........................................................................................................
11
1.44
SOURCE SEPARATED...................................................................................................................................
11
1.45
STATE.........................................................................................................................................................11
1.46
TEMPORARY SERVICE..................................................................................................................................12
1.47
TRANSFORMATION.....................................................................................................................................
12
1.48
TRANSFER STATION....................................................................................................................................
12
1.49
WASTE GENERATOR...................................................................................................................................
12
ARTICLE2.........................................................................................................................................13
GRANT AND ACCEPTANCE OF FRANCHISE........................................................................................................13
2.1 GRANT AND ACCEPTANCE OF FRANCHISE, INDEMNITY OF AWARD................................................................ 13
2.2 SECTION DELETED........................................................................................................................................... 13
2.3 EFFECTIVE DATE..............................................................................................................................................13
2.4 TERM OF AGREEMENT..................................................................................................................................... 13
2.5 CITY'S OPTION TO EXTEND TERM.................................................................................................................... 14
2.6 REPRESENTATIONS AND WARRANTIES OF CONTRACTOR................................................................................ 14
2.7 CONDITIONS TO EFFECTIVENESS OF AGREEMENT............................................................................................ 16
2.8 DELEGATION OF AUTHORITY.......................................................................................................................... 16
2.9 LIMITATIONS TO SCOPE................................................................................................................................... 17
2.10 CITY'S RIGHT TO DIRECT' CHANGES............................................................................................................ 19
2.10.1 General..............................................................................................................................................19
2.10.2 New Diversion Programs................................................................................................................... 19
2.11 OWNERSHIP OF SOLID WASTE.....................................................................................................................20
2.12 PERMITS AND LICENSES.............................................................................................................................. 20
ARTICLE3.........................................................................................................................................21
FEESPAID TO THE CITY............................................................................................................................................
21
3.1 CONTRACTING FEE..........................................................................................................................................
21
3.2 OTHER CITY FEES............................................................................................................................................
21
3.2.1 Franchise Fee..........................................................................................................................................21
3.2.2 AB 939 Fee.............................................................................................................................................21
3.2.3 Street Sweeping Funding........................................................................................................................22
3.2.4 Residential Collection Vehicle Road Maintenance Cost Reimbursement...................................................22
3.2.5 Late Payment of Fees...............................................................................................................................22
3.3 FUTURE FEES ........................................................................................................................................
22
ARTICLE4.........................................................................................................................................24
DIRECTSERVICES.......................................................................................................................................................24
4.1 REFUSE............................................................................................................................................................ 24
4.1.1 General...................................................................................................................................................24
4.1.2 Residential Cart Refuse Collection.......................................................................................................... 24
July 13, 2009, DRAFT City of Diamond Bal, - Residential
4.1.3
Refuse Cart Overage...............................................................................................................................25
4.1.4
Backyard Service.....................................................................................................................................
25
4.1.5
Backyard Service for the Disabled............................................................................................................
25
4.1.6
Section Deleted.......................................................................................................................................26
4.1.7
Determination of Service Type................................................................................................................
26
4.1.8
Overflowing Containers.................................................................._.......................................................26
4.1.9
Section Deleted .... ................................... ..... ___ ....... ....... ............ ..................................... .....................
27
4.1.10
Temporary Roll -Off and Temporary Bin Services ............ ................... ......... .......... ....... ........... ............
27
4.1.11
Section Deleted...................................................................................................................................28
4.1.12
Section Deleted...................................................................................................................................
28
4.1.13
Section Deleted...................................................................................................................................
28
4.1.14
Section Deleted...................................................................................................................................28
4.1.15
On -Call Bulky Item Pickup...............................................................................................................
28
4.1.16
Bulky Item Diversion.........................................................................................................................29
4.1.17
Disposal of Electronic and Other Special Wastes.................................................................................
29
4.1.18
Door -to -Door HHW Collection..........................................................................................................
29
4.1.19
Curbside Used Oil and Oil Filter Collection.......................................................................................
30
4.1.20
Service Exceptions, Hazardous Waste Notifications............................................................................30
4.1.21
Sharp's Mail Back Program................................................................................................................
30
4.1.22
FreeCycle.com....................................................................................................................................31
4.2 RECYCLING......................................................................................................................................... ...31
..........
4.2.1
Recycling Collection...............................................................................................................................
31
4.2.2
Section Deleted.......................................................................................................................................
32
4.2.3
Contaminated Loads, Warning Notice. ...... ............................................................... .............................
32
4.2.4
Marketing and Sale of Recyclable Materials............................................................................................32
4.2.5
Minimum Recycling Requirements.........................................................................................................32
4.2.6
Construction and Demolition Debris Diversion.......................................................................................33
4.2.7
Optional Food Waste Diversion Program................................................................................................
33
4.3 GREEN WASTE PROGRAM................................................................................................................................
34
4.3.1
Single Family Green Waste Collection....................................................................................................
34
4.3.2
Holiday Tree Collection Program ..... ............... ........... ............... ............. ............. ......... ...................... ....
34
4.3.3
Section Deleted.......................................................................................................................................
35
4.3.4
End Uses for Green Waste......................................................................................................................
35
4.3.5
MulchGive-a-Way.................................................................................................................................35
4.4 CART
SELECTION, DISTRIBUTION, EXCHANGES AND REMOVAL.......................................................................
35
4.4.1
Cart Selection and Distribution..............................................................................................................
35
4.4.2
Cart Exchanges .... ............ ____ .... ___ ........ ....... ...... .... .............. ,.................. ....................... ..............
35
4.4.3
Removal of Carts Distributed Under the Previous Contract.....................................................................
36
4.5 CITY SERVICES.................................................................................................................................................36
4.5.1
Section Deleted.......................................................................................................................................36
4.5.2
City Sponsored Events............................................................................................................................36
4.5.3
Emergency Collection and Disposal Service.............................................................................................
37
4.5.4
Abandoned Item Collection from City Right -of -Way or Other Public Property........................................37
4.5.5
Community Development Review Services..............................................................................................37
4.5.6
Large Venue Event Assistance, Event Recycling.....................................................................................
37
4.5.7
Confiscation of Unauthorized Containers................................................................................................37
4.5.8
Provision of Storage Containers..............................................................................................................
38
4.6 OPERATIONS....................................................................................................................................................38
4.6.1
Schedules, Missed Pickups.....................................................................................................................38
4.6.2
Vehicles .................................. ......................................................................... .......................... .............
39
4.6.3
Containers..............................................................................................................................................
43
4.6.3.1
Carts..................................................................................................................................................43
4.6.3.2
Cart Maintenance and Replacement Responsibilities...........................................................................
44
July 13, 2009, DRAFT City of Diamond Ba1- - Residential
4.6.3.3 Bins................................................................................................................................................... 45
4.6.3.4 Roll -off Boxes..................................................................................................................................... 46
4.6.4 Litter Abatement..................................................................................................................................... 46
4.6.5 Personnel................................................................................................................................................47
4.6.6 Identification Required............................................................................................................................ 47
4.6.7 Unauthorized Fees and Gratuities........................................................................................................... 48
4.6.8 Non-Discrimination.............................................................................................................................. 48
4.6.9 Report of Accumulation of Solid Waste; Unautlwrized Dumping............................................................ 48
4.7 TRANSPORTATION OF SOLID WASTE................................................................................................................ 48
4.8 APPROVED FACILITIES.....................................................................................................................................49
4.9 STATUS OF DISPOSAL SITE............................................................................................................................... 49
4.10 DEDICATED ROUTES................................................................................................................................... 49
4.11 ROUTE AUDIT............................................................................................................................................. 49
ARTICLE5
.........................................................................................................................................51
OTHERSERVICES........................................................................................................................................................51
5.1 CUSTOMER BILLING AND CONTRACTOR COMPENSATION...............................................................................
51
5.1.1
Billing....................................................................................................................................................51
5.1.2
Contractor's Invoices..............................................................................................................................51
5.1.3
Yard Waste Reduction Discount.............................................................................................................
51
5.1.4
Disabled Customer Discount..................................................................................................................
52
5.1.5
Senior Discount.. .......... ...... ....... ..................... ................................ ............ .........
2
5.1.6
Non -Payment; Suspension of Service......................................................................................................
S2
5.1.6.1
Quarterly Cart Billings......................................................................................................................
52
5.1.6.2
Temporary Bin and Roll -Off Box Service............................................................................................
53
5.1.6.3
Collection Proceedings........................................................................................................................
53
5.1.6.4
Continued Provision of Service...........................................................................................................
53
5.2 CUSTOMERSERVICE........................................................................................................................................53
5.2.1
Local Office.............................................................................................................................................5.3
5.2.2
Complaint Documentation......................................................................................................................53
5.2.3
Customer Service Standards...................................................................................................................
54
5.2.4
Resolution of Customer Complaints........................................................................................................
55
5.2.5
Contract Liaison.....................................................................................................................................56
5.2,6
Service Liaison........................................................................................................................................56
5.3 EDUCATION AND PUBLIC AWARENESS............................................................................................................
56
5.3.1
General...................................................................................................................................................56
5.3.2
Implementation and On-going Education Requirements.........................................................................
56
5.3.3
Contractor Representative.......................................................................................................................
58
5.3.4
Community Events.................................................................................................................................58
5.4 WASTE
GENERATION/CHARACTERIZATION STUDIES.....................................................................................
59
ARTICLE6.........................................................................................................................................60
COMPANY COMPENSATION AND RATES............................................................................................................ 60
6.1 GENERAL.........................................................................................................................................................60
6.2 INITIAL RATES................................................................................................................................................. 60
6.3 SCHEDULE OF FUTURE ADJUSTMENTS............................................................................................................. 60
6.4 METHOD OF ADJUSTMENTS............................................................................................................................. 60
6.4.1 General...................................................................................................................................................60
6.4.2 Cost Components for Rate Adjustment Indices........................................................................................ 61
6.4.3 Rate Adjustment Steps....................................................................................... ............................... 62
6.4.4 Temporary Service Rate Adjustment. .. . ................... _ ........ .............. ___ ............................ .................. 62
6.5 EXTRAORDINARY ADJUSTMENTS..................................................................................................................... 63
July 13, 2009, DRAFT City of Diamond Bar - Residential
6.6 EFFECT' OF PROPOSITION 218........................................................................................................................... 64
6.7 RESIDENTIAL RECYCLABLES REBATE TO CUSTOMERS...................................................................................... 64
ARTICLE7...................................................................................................................................................................... 66
REVIEW OF SERVICES AND PERFORMANCE....................................................................................................... 66
7.1 PERFORMANCE REVIEW MEETING................................................................................................................... 66
7.2 PERFORMANCE SATISFACTION SURVEY........................................................................................................... 67
ARTICLE8.........................................................................................................................................68
RECORDS, REPORTS AND INFORMATION REQUIREMENTS......................................................................... 68
8.1 GENERAL.........................................................................................................................................................68
8.2 RECORDS.........................................................................................................................................................68
8.2.1 General, Right to Inspect........................................................................................................................ 68
8.2.2 Financial Records................................................................................................................................... 69
8.2.3 Solid Waste Records................................................................................................................................ 69
8.2.4 CERCLA Defense Records...................................................................................................................... 70
8.2.5 Section Deleted....................................................................................................................................... 71
8.2.6 Other Programs' Records........................................................................................................................71
8.2.7 Audit......................................................................................................................................................71
8.2.8 Payments and Refunds........................................................................................................................... 71
8.3 REPORTS..........................................................................................................................................................72
8.3.1 Report Formats and SclTedule.................................................................................................................. 72
8.3.2 Monthly Reports..................................................................................................................................... 72
8.3.3 Annual Report........................................................................................................................................ 73
8.3.4 Financial Report ..... ................. ...... .................................................................. ....................................... 74
8.4 REPORTING ADVERSE INFORMATION.............................................................................................................. 74
8.5 FAILURE TO REPORT.........................................................................................:.............................................. 75
ARTICLE9.........................................................................................................................................76
9.1 INDEMNIFICATION ........................................................................................................................................... 76
9.2 HAZARDOUS SUBSTANCES INDEMNIFICATION................................................................................................ 77
9.3 AB 939 INDEMNIFICATION AND GUARANTEE................................................................................................. 79
9.4 INSUP.ANCE..................................................................................................................................................... 79
9.5 FAITHFUL PERFORMANCE BOND..................................................................................................................... 83
9.6 FAITHFUL PERFORMANCE LETTER OF CREDIT................................................................... 84
9.7 FORFEITURE OF PERFORMANCE BOND............................................................................................................. 84
9.8 FORFEITURE OF LETTER OF CREDIT................................................................................................................. 84
9.9 PERFORMANCE SECURITY BEYOND SERVICE TERM.......................................................................................... 85
ARTICLE10.......................................................................................................................................86
CITY'S RIGHT TO CONTRACT WITH THIRD PARTIES TO PERFORM FRANCHISED SERVICES ............ 86
ARTICLE11.......................................................................................................................................87
DEFAULT, REMEDIES AND LIQUIDATED DAMAGES....................................................................................... 87
11.1 EVENTS OF DEFAULT................................................................................................................................... 87
11.2 RIGHT TO TERMINATE UPON DEFAULT AND RIGHT TO SPECIFIC PERFORMANCE ........................................ 90
11.3 LIQUIDATED DAMAGES...................................................................._......................................................... 90
11.4 SUSPENSION OF PERFORMANCE.................................................................................................................. 95
11.4.1 Force .....
Majeure................................................................ ............ .... 95
...............................................
11.4.2 Labor Unrest......................................................................................................................................96
11.5 DISPUTE RESOLUTION; ADMINISTRATIVE REMEDIES; TERMINATION........................................................... 96
11.5.1 Negotiation and Mediation ............... .............. .......... ..:......... ......... ................. --- ..... .... ........ ............. 96
11.5.2 Confidentiality ....................................................... ..................................... ........................ 97
July 13, 2009, DRAFT City of Diamond Bar - Residential
11.5.3 Injunctive Relief.................................................................................................................................97
11.5.4 Continuing Obligation.......................................................................................................................97
11.5.5 Failure of Mediation...........................................................................................................................97
11.6 ASSURANCE OF PERFORMANCE.................................................................................................................. 98
ARTICLE12.......................................................................................................................................99
OTHER AGREEMENTS OF THE PARTIES...............................................................................................................
99
12.1
RELATIONSHIP OF PARTIES.........................................................................................................................
99
12.2
COMPLIANCE WITH LAW............................................................................................................................
99
12.3
GOVERNING LAW.......................................................................................................................................
99
12.4
JURISDICTION ..............................................................................................................................................99
12.5
ASSIGNMENT............................................................................................................................................
100
12.6
CONTRACTING OR SUBCONTRACTING......................................................................................................
102
12.7
BINDING ON ASSIGNS...............................................................................................................................
102
12.8
COOPERATION IN PREPARATION FOR TERMINATION OR EXPIRATION OF CONTRACT ...............................
102
12.9
PARTIES IN INTEREST.................................................................................................................................
103
12.10
WAIVER....................................................................................................................................................
103
12.11
CONTRACTOR'S INVESTIGATION...............................................................................................................
103
12.12
SECTION DELETED....................................................................................................................................
104
12.13
NOTICE.....................................................................................................................................................
104
12.14
REPRESENTATIVES OF THE PARTIES...........................................................................................................
104
12.15
CITY FREE TO NEGOTIATE WITH THIRD PARTIES.......................................................................................
105
12.16
COMPLIANCE WITH MUNICIPAL CODE.....................................................................................................
105
12.17
PRIVACY...................................................................................................................................................
105
12.18
PROPRIETARY INFORMATION. PUBLIC RECORDS.......................................................................................
105
12.19
GUARANTEE OF CONTRACTOR'S PERFORMANCE......................................................................................
106
ARTICLE13.....................................................................................................................................107
MISCELLANEOUS PROVISIONS............................................................................................................................107
13.1 ENTIRE AGREEMENT................................................................................................................................. 107
13.2 SECTION HEADINGS.................................................................................................................................. 107
13.3 REFERENCES TO LAWS AND OTHER AGREEMENTS.................................................................................... 107
13.4 INTERPRETATION...................................................................................................................................... 107
13.5 AGREEMENT..................................................................................................................107
. ...........................
13.6 SEVERABILITY......................................................................................................._................................... 108
13.7 EXHIBITS................................................................................................................................................... 108
13.8 ATTORNEYS' FEES..................................................................................................................................... 108
Exhibits
1. Public Education Plan
2. Initial Maximum Rates
3. Rate Adjustment Formula
4. Corporate Guarantee
5. Faithful Performance Bond
6 Notary Certification
July 13, 2009, DR4FT City of Diamond Bar - Residential
AGREEMENT
This Agreement for Integrated Solid Waste Management Services (hereinafter the
"Agreement") is entered into this day of , 2009, by and between the City of
Diamond Bar, California, ("City") and USA Waste of California, dba Waste
Management of San Gabriel/Pomona Valley ("Contractor"), for the collection,
transportation, recycling, processing, and disposal of residential solid waste and other
services related to meeting the goals and requirements of the California Integrated
Waste Management Act.
RECITALS
WHEREAS, the Legislature of the State of California, by enactment of the California
Integrated Waste Management Act of 1989 (AB 939) (California Public Resources Code
Sections 49100 et seq.), has declared that it is in the public interest to authorize and
require local agencies to make adequate provisions for solid waste handling within
their jurisdictions; and,
WHEREAS, pursuant to California Public Resources Code Section 49300 and 49500-49524,
the City of Diamond Bar has determined that the public health, safety, and well-being
require that an exclusive franchise for residential solid waste collection services be
awarded to a qualified company for the collection, transfer and transportation,
recycling, processing, and disposal of solid waste and other services related to meeting
the diversion goals required by AB 939, and other requirements of the California
Integrated Waste Management Act; and,
WHEREAS, City desires to maintain reasonable rates and quality service related to the
collection, transfer and transportation, recycling, processing, and disposal of solid waste
and other services; and,
WHEREAS, Contractor is the current residential solid waste hauler for the City and the
current agreement under which it operates in the City will expire on August 16, 2010;
and,
WHEREAS, City and Contractor ("Parties") have negotiated, and desire to enter into this
Agreement in order that Contractor continue to serve as the City's exclusive residential
cart customer solid waste hauler for the term hereof; and,
July 93, 2009, DRAFT -1- City of Diamond Bar - Residential
WHEREAS, City and Contractor are mindful of the provisions of the laws governing the
safe collection, transport, recycling, processing and disposal of solid waste, including
AB 939, the Resource Conservation and Recovery Act ("RCRA"), and the
Comprehensive Environmental Response, Compensation and Liability Act
("CERCLA"). City and Contractor desire to leave no doubt as to their respective roles
and to memorialize that by entering into this Agreement, City is not thereby becoming
an "arranger" or a "generator" as those terms are used in CERCLA, and that it is
Contractor, not City, that is "arranging for" the collection from premises in the City,
transport for disposal, composting or other processing, and recycling of municipal solid
waste which may contain hazardous substances; and further to confirm that as a
material inducement to City entering into this Agreement, Contractor has agreed to
fully indemnify City in connection with any claims, losses, liabilities, lawsuits or actions
relating to the inadvertent or intentional collection, transportation and/or disposal of
hazardous materials that may occur in connection with Contractor's performance under
this Agreement; and,
WHEREAS, Contractor has agreed, as part of this Agreement, acting as an independent
contractor to provide such personnel, equipment and supplies as are necessary to
ensure City complies with the requirements of Public Resources Code Section 49100, et
seq.
NOW, THEREFORE, in consideration of the premises above stated and the terms,
conditions, covenants and agreements contained herein, the Parties do hereby agree as
follows:
July 93, 2009, DRAFT -2- City of Diamond Bar - Residential
ARTICLE 1
DEFINITIONS
The terms used in this Agreement shall have the meaning set forth in this Article 1. In
the event a term is not defined in this Article 1, then it shall have the meaning set forth
in the Diamond Bar Municipal Code or in Division 30, Part 1, Chapter 2 of the
California Public Resources Code (with precedence given to definitions in the Diamond
Bar Municipal Code over conflicting definitions contained in the Public Resources
Code). Except as provided in Article 1, words beginning with lower case letters are
being used with their common ordinary meanings, not as defined terms. Otherwise, the
following capitalized words and terms shall have the following meanings:
1.1 AB 939
"AB 939" means the California Integrated Waste Management Act of 1989 (California
Public Resources Code Section 40000 et seq.), as it may be amended from time to time.
1.2 Affiliate
"Affiliate" means all businesses (including corporations, limited and general
partnerships and sole proprietorships) which are directly or indirectly related to
Contractor by virtue of direct or indirect ownership interest or common management.
These shall be deemed to be "Affiliated with" Contractor and included within the term
"Affiliates" as used herein. An Affiliate shall include a business in which Contractor
owns a direct or indirect ownership interest, a business which has a direct or indirect
ownership interest in Contractor and/or a business which is also owned, controlled or
managed by any business or individual which has a direct or indirect ownership
interest in Contractor. For purposes of determining whether an indirect ownership
interest exists, the constructive ownership provisions of Section 318(a) of the Internal
Revenue Code of 1986, as in effect on the date of this Agreement, shall apply; provided,
however, that (i) "ten percent (10%)" shall be substituted for "fifty percent (50%)" in
Section 318(a)(2)(C) and in Section 318(a)(3)(C) thereof; and (ii) Section 318(a)(5)(C) shall
be disregarded. For purposes of determining ownership under this paragraph and
constructive or indirect ownership under Section 318(a), ownership interest of less than
ten percent (10%) shall be disregarded and percentage interests shall be determined on
July 13, 2009, DRAFT -3- City of Diamond Bar - Residential
the basis of the percentage of voting interest or value which the ownership interest
represents, whichever is greater.
1.3 Billings
"Billings" or 'Billing" or 'Bill" means the statements of charges provided to Customers
for services rendered by Contractor.
1.4 Bin
"Bin" means a metal Container with hinged lids and wheels with a capacity of less than
ten (10) cubic yards.
1.5 Bin Service
"Bin Service" means Solid Waste Collection Services in which a Bin is used for the
Collection of Solid Waste.
1.6 Bulky Items
"Bulky Items" means Solid Waste that cannot and/or would not typically be
accommodated within a Cart including specifically: furniture (including chairs, sofas,
mattresses, and rugs); appliances (including refrigerators, ranges, washers, dryers,
water heaters, dishwashers, plumbing, small household appliances and other similar
items, commonly known as "white goods"); unusually large amounts of yard debris
and Green Waste and small pieces of wood limited to one cubic yard of contained
material; electronic equipment (including stereos, televisions, computers and monitors,
VCRs, microwaves and other similar items commonly known as "brown goods" and "e -
waste"); and clothing. Bulky Items do not include car bodies, tires, Construction and
Demolition Debris or items requiring more than two persons to remove. Other items
not specifically included or excluded above will be Collected provided that they are not
more than eight feet in length, four feet in width, or more than 150 pounds. In the event
a question ever arises as to whether a specific item or category of items meets the
definition of Bulky Items, City shall be responsible to determine whether said definition
shall apply, which determination shall be final and binding on the Parties.
July 13, 2009, DRAFT -4- City of Diamond Bar - Residential
1.7 Cart
"Cart" means a plastic Container with a hinged lid and wheels serviced by an
automated or semi -automated truck with a capacity of no less than 32- and no greater
than 101 -gallons.
1.8 City
"City" means City of Diamond Bar, California, a municipal corporation, and all the
territory lying within the municipal boundaries of City as presently existing or as such
boundaries may be modified during the term of this Agreement.
1.9 Collect/Collection
"Collect" or "Collection" means to take physical possession, transport, and remove Solid
Waste within and from City.
1.10 Commercial Services
"Commercial Services" refer to Solid Waste Collection Services performed at or for
Commercial Premises.
1.11 Commercial Premises
"Commercial Premises" means Premises upon which business activity is conducted,
including but not limited to retail sales, services, wholesale operations, manufacturing
and industrial operations, but excluding Residential Premises upon which business
activities are conducted when such activities are permitted under applicable zoning
regulations and are not the primary use of the property. Notwithstanding any
provision to the contrary herein, in the Diamond Bar Municipal Code, or otherwise, for
purposes of this Agreement, Premises upon which the following uses (as defined in the
Diamond Bar Municipal Code) are occurring shall be deemed to be Commercial
Premises: Assisted Living Facilities, Convalescent Homes, Dormitories, Extended Stay
Motels, Hotels, and Motels.
July 93, 2009, DRAFT -5- City of Diamond Bar - Residential
1.12 Contractor
"Contractor" means USA Waste of California, a corporation organized and operating
under the laws of the State of Delaware and its officers, directors, employees, agents,
companies and subcontractors.
1.13 Contractor Compensation
"Contractor Compensation" means the revenue received by the Contractor from
Customers in return for providing services in accordance with this Agreement.
1.14 Construction and Demolition Debris
"Construction and Demolition Debris" means Solid Waste generated at a Premises that
is directly related to construction or demolition activities occurring thereon.
1.15 Container
"Container" means any and all types of Solid Waste receptacles, including Carts, Bins
and Roll -off Boxes.
1.16 CPI
"CPP" means the Consumer Price Index for All Urban Consumers (CPI -U), all items
index less food and energy - Los Angeles -Riverside -Orange County, CA,
CUURA421SAOLIE.
1.17 Customer
"Customer" means a Person receiving Solid Waste Collection Services from Contractor
pursuant to the terms of this Agreement.
1.18 Disposal
"Disposal" means the ultimate disposition of Solid Waste Collected by Contractor at a
landfill or otherwise in full regulatory compliance.
1.19 Disposal Site(s)
"Disposal Site(s)" means the Solid Waste handling Facility or Facilities utilized for the
ultimate Disposal of Solid Waste Collected by Contractor.
July 13, 2009, DRAFT -6- City of Diamond Bar - Residential
1.20 Diversion
"Diversion" means any combination of waste prevention (source reduction), recycling,
reuse, composting and Transformation activities that reduces waste disposed at
landfills, provided such activities are recognized by the California Integrated Waste
Management Board ("CIWMB") as Diversion in its determination of the City's
Diversion rate and compliance with AB 939. Transformation tonnage that will be
considered toward the 45% Diversion goal under this Agreement may be limited by the
City to 10% of Solid Waste Collected by Contractor each calendar year under this
Agreement to the extent total tonnage transformed by Contactor, the City's Bin and
Roll -Off Box service provider, and other sources within the City exceeds 10% of City-
wide Disposal.
1.21 Environmental Laws
"Environmental Laws" means all federal and state statutes, county, local and City
ordinances concerning public health, safety and the environment including, by way of
example and not limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980,42 USC §9601 et seq.; the Resource
Conservation and Recovery Act, 42 USC §6902 et seq.; the Federal Clean Water Act, 33
USC §1251 et seq.; the Toxic Substances Control Act, 15 USC §1601 et seq.; the California
Hazardous Waste Control Act, California Health and Safety Code §25100 et seq.; the
California Hazardous Substance Account Act, California Health and Safety Code
§25300 et seq.; the Porter -Cologne Water Quality Control Act, California Water Code
§13000 et seq.; the Safe Drinking Water and Toxic Enforcement Act, California Health
and Safety Code §25249.5 et seq.; as currently in force or as hereafter amended, and all
rules and regulations promulgated thereunder.
1.22 Facility
"Facility" means any plant or site, owned or leased and maintained, operated or used by
Contractor for purposes of performing under this Agreement.
1.23 Green Waste
"Green Waste" means tree trimmings, small pieces of wood, grass cuttings, dead plants,
leaves, branches, flowers, plant stocks, and dead trees (not more than four (4) inches in
diameter or 48 inches in length) and similar materials.
July 93, 2009, DRAFT -7- City of Diamond Bar - Residential
1.24 Green Waste Processing Facility
"Green Waste Processing Facility" means a permitted Facility where Green Waste is
sorted, mulched or separated for the purposes of Recycling, reuse or composting.
1.25 Gross Receipts
"Gross Receipts" means any and all revenue received from Billings, and compensation
in any form, of Contractor or subsidiaries, parent companies or other Affiliates of
Contractor, for the Collection and transportation of Solid Waste pursuant to this
Agreement, in accordance with Generally Accepted Accounting Principals, including,
but not limited to, Customer fees for Collection of Solid Waste, without subtracting
Disposal fees, City fees or other fees or any other cost of doing business. Gross Receipts
does not include revenue from the sale of Recyclables.
1.26 Hazardous Substance
"Hazardous Substance" shall mean any of the following: (a) any substances defined,
regulated or listed (directly or by reference) as "Hazardous Substances", "hazardous
materials", "Hazardous Waste", "toxic waste", "pollutants" or "toxic substances" or
similarly identified as hazardous to human health or the environment, in or pursuant to
(i) the Comprehensive Environmental Response, Compensation and Liability Act of
1980,42 USC §9601 et seq. (CERCLA); (ii) the Hazardous Materials Transportation Act,
49 USC §1802, et seq.; (iii) the Resource Conservation and Recovery Act, 42 USC §6901 et
seq.; (iv) the Clean Water Act, 33 USC §1251 et seq.; (v) California Health and Safety
Code §§25115-25117,25249.8, 25281, 25316, 25501 and 25501.1; (vi) the Clean Air Act, 42
USC §7901 et seq.; and (vii) California Water Code §13050; (b) any amendments, rules or
regulations promulgated thereunder to such enumerated statutes or acts currently
existing or hereafter enacted; and (c) any other hazardous or toxic substance, material,
chemical, waste or pollutant identified as hazardous or toxic or regulated under any
other applicable federal, state or local Environmental Laws currently existing or
hereinafter enacted, including, without limitation, friable asbestos, polychlorinated
biphenyl's ("PCBs"), petroleum, natural gas and synthetic fuel products, and by-
products.
July 13, 2009, DRAFT -8- City of Diamond Bar - Residential
1.27 Hazardous Waste
"Hazardous Waste" means all substances defined as Hazardous Waste, acutely
Hazardous Waste, or extremely Hazardous Waste by the State of California in Health
and Safety Code §25110.02, §25115, and §25117 or in the future amendments to or
recodifications of such statutes or identified and listed as Hazardous Waste by the US
Environmental Protection Agency (EPA), pursuant to the Federal Resource
Conservation and Recovery Act (42 USC §6901 et seq.), all future amendments thereto,
and all rules and regulations promulgated thereunder.
1.28 Household Hazardous Waste ("HHW")
"Household Hazardous Waste" means Hazardous Waste generated at Residential
Premises.
1.29 Materials Recovery Facility ("MRF")
"Materials Recovery Facility" means a permitted Solid Waste Facility where Solid
Wastes or Recyclable Materials are sorted or separated for the purposes of Recycling,
processing or composting.
1.30 Multi -Family Dwelling
"Multi -Family Dwelling" means any building or lot containing two or more dwelling
units. Multi -Family Dwelling units generally receive Refuse Collection service through
the use of shared Bins, but may use Carts. Multi -Family Dwelling Units receiving Cart
Refuse Collection are included in this Agreement.
1.31 Person
"Person" means any individual, firm, association, organization, partnership, limited
liability company, corporation, business trust, joint venture, the United States, the State
of California, the County of Los Angeles, cities, and special purpose districts.
1.32 Premises
"Premises" means any land, or building in City where Solid Waste is generated or
accumulated.
July 13, 2009, DRAFT -9- City of Diamond Bar - Residential
1.33 Rate Year
"Rate Year" means the period July 1 to June 30, for each year during the Term of this
Agreement. For the first year of this Agreement, the Rate Year is August 16 to June 30.
1.34 Recycling
"Recycling" means the processing of Recyclable Materials for the purpose of returning
them to the economy in the form of raw materials for new, reused, or reconstituted
products. The Collection, transportation or Disposal of Solid Waste not intended for, or
capable of, reuse is not Recycling. Recycling does not include use of Solid Waste for
conversion to energy.
1.35 Recyclable Materials
"Recyclable Materials" means Solid Waste that is Source Separated, has some potential
economic value, and is set aside, handled, packaged, or offered for Collection in a
manner different from Refuse in order to allow it to be processed for Recycling.
1.36 Refuse
"Refuse" means putrescible and non-putrescible Solid Waste.
1.37 Residential Services
"Residential Services" refer to Solid Waste Collection Services performed at and for
Residential Premises that are included under this Agreement.
1.38 Residential Customers
"Residential Customer" means all Customers on Residential Premises that are included
under this Agreement.
1.39 Residential Premises
"Residential Premises" means Premises upon which dwelling units exist, including,
without limitation, Single Family and Multi -Family Dwellings, apartments, boarding or
rooming houses, condominiums, mobile homes, efficiency apartments, second units,
and Group Residential Facilities, Group Care Facilities. Notwithstanding any provision
to the contrary herein, in the Diamond Bar Municipal Code, or otherwise, for purposes
July 13, 2009, DRAFT -10- City of Diamond Bar - Residential
of this Agreement, Premises upon which the following uses are occurring shall not be
deemed to be Residential Premises, and rather shall be deemed to be Commercial
Premises: Assisted Living Facilities, Convalescent Homes, Dormitories, Extended Stay
Motels, Hotels, Motels, and any other businesses not specifically listed at which
residency is transient in nature and hence should be classified as Commercial Premises
as determined by City on a case by case basis.
1.40 Roll -off Box
"Roll -off Box" means Solid Waste Collection Containers of 10 cubic yards or larger.
1.41 Single Family Dwelling
"Single Family Dwelling" means a Residential Premises that includes only one dwelling
unit. Single Family Dwellings may receive either Cart or Bin Refuse Service.
1.42 Solid Waste
"Solid Waste" means all discarded putrescible and non-putrescible solid, semisolid, and
liquid wastes, including Refuse, Construction and Demolition Debris, Bulky Items,
Recyclable Materials, and Green Waste, or any combination thereof which are permitted
to be disposed of in a Class III landfill, and which are included in the definition of
"Non -hazardous Solid Waste" set forth in the California Code of Regulations.
1.43 Solid Waste Collection Services
"Solid Waste Collection Services" means the Collection, transfer, transport, Recycling,
processing, and Disposal of Solid Waste placed for Collection pursuant to this
Agreement.
1.44 Source Separated
"Source Separated" means the segregation by the Waste Generator of individual
components of Solid Waste, which otherwise would become Refuse (such as glass
bottles, metal cans, newspapers, plastic containers, etc.) into separate Container(s) for
the purpose of allowing the Recycling of such materials.
1.45 State
"State" means the State of California.
July 13, 2009, DRAFT _11- City of Diamond Bar - Residential
1.46 Temporary Service
"Temporary Service" means Solid Waste Collection Services provided to a Premises on
a temporary, as needed basis to any Premises within the City in conjunction with
construction, demolition, cleanup or other projects, and by use of temporarily placed
Bins or Roll -off Boxes
1.47 Transformation
"Transformation" means incineration, pyrolysis, distillation, gasification, or biological
conversion other than composting.
1.48 Transfer Station
"Transfer Station" means a Facility that received Solid Waste from collection vehicles
and transfers the material to larger vehicles for transport to landfills and other facilities.
Transfer Stations may or may not also include MRFs, transferring residual Refuse
(Refuse left after the sorting of Recyclable Materials) to landfills and Recyclable
Materials (including, for example, Green Waste and/or Construction and Demolition
debris), to processors, brokers or end-users.
1.49 Waste Generator
"Waste Generator" means any Person whose act or process produced Solid Waste as
defined in the Public Resources Code, or whose act first causes Solid Waste to become
subject to regulation.
July 13, 2009, DRAFT -12- City of Diamond Bar - Residential
ARTICLE 2
GRANT AND ACCEPTANCE OF FRANCHISE
2.1 Grant and Acceptance of Franchise, Indemnity of Award
Subject to the terms and conditions of this Agreement (including but not limited to the
exclusions set forth in Section 2.9 hereof) and applicable State laws, and to the rights of
State, county and school district facilities to use a Solid Waste enterprise other than
Contractor, City hereby grants to Contractor and Contractor hereby accepts from City,
for the Term hereof, the exclusive franchise, right and privilege to provide Solid Waste
Collection Services at all Residential Premises within the City that receive Residential
Cart style Solid Waste Collection service (the "Franchise").
Contractor agrees to and shall timely take all actions that are reasonably necessary to
defend the validity and enforceability of this Agreement and shall pay all costs related
to such defense. Contractor shall defend, indemnify, protect and hold harmless, the
City, its officers, agents and employees from any and all claims, actions or proceedings
to attack, set aside, void, annul or seek monetary damages resulting from an approval
by the City of this Agreement. The City shall promptly notify Contractor of any such
claim, action, or proceeding. The City and Contractor shall meet in good faith in an
effort to come to a mutual agreement for a joint defense; provided that the City shall be
entitled to select legal counsel of its choice to conduct the defense if an agreement
cannot be reached. Contractor's obligations to pay all costs, defend, indemnify, protect
and hold harmless under this section shall not be altered in the event City retains
separate counsel.
2.2 Section Deleted
2.3 Effective Date
The "Effective Date" of this Agreement shall be the date on which the City Council
approves this Agreement.
2.4 Term of Agreement
The term of this Agreement (the "Term") shall be eight (8) years, commencing on
August 16, 2010, and expiring August 15, 2018, subject to extension as provided herein.
July 13, 2009, DRAFT -13- City of Diamond Bar - Residential
Notwithstanding the foregoing, the unexcused failure or refusal of Collector to perform
any material term, covenant, obligation or condition contained in this Agreement shall
give rise to the right, in favor of City, for earlier termination of this Agreement for cause
in accordance with the procedures elsewhere contained herein.
2.5 City's Option to Extend Term
City shall have the sole option to extend the Term of this Agreement for up to twelve
(12) months following expiration of the initial contract Term under Section 2.4. The City
may, upon at least ninety -days (90 -days) advance written notice to the Contractor prior
to the expiration of the Term of this Agreement, exercise this extension option. If City
provides this extension notice, this Agreement will automatically renew up to a
maximum of twelve (12) months. This extension period shall terminate, upon the
earlier of: (i) the expiration of the aforementioned twelve (12) months, or (ii) ninety (90)
days following the date upon which City gives Contractor written notice of final
termination.
2.6 Representations and Warranties of Contractor
Contractor hereby covenants, represents, and warrants the following to City for the
purpose of inducing City to enter into this Agreement and to consummate the
transaction contemplated hereby, all of which shall be true as of the date of this
Agreement and as of the Effective Date:
a) Contractor is wholly owned by Waste Management Inc., which is duly organized
and validly existing as a corporation under the laws of the State of Delaware.
b) Neither the execution of this Agreement nor the delivery by Contractor of
services nor the performance by Contractor of its obligations hereunder: (1)
conflicts with, violates or results in a breach of any applicable law; (2) conflicts
with, violates or results in a breach of any term or condition of any judgment,
decree, agreement (including, without limitation, the certificate of incorporation
of Contractor) or instrument to which Contractor is a party or by which
Contractor or any of its properties or assets are bound, or constitutes a default
under any such judgment, decree, agreement or instrument; or (3) will result in
the creation or imposition of any encumbrance of any nature whatsoever upon
any of the properties or assets of Contractor.
July 93, 2009, DRAFT -14- City of Diamond Bar - Residential
c) There is no action, suit or other proceeding as of the date of this Agreement, at
law or in equity, or to the best of Contractor's knowledge, any investigation,
before or by any court or governmental authority, pending or threatened against
Contractor or Waste Management Inc. which is likely to result in an unfavorable
decision, ruling or finding which would materially and adversely affect the
validity or enforceability of this Agreement or any such agreement or instrument
entered into by Contractor or Waste Management Inc. in connection with the
transactions contemplated hereby, or which could materially and adversely
affect the ability of Contractor to perform its obligations hereunder or which
would have a material adverse effect on the financial condition of Contractor or
Waste Management Inc.
d) Contractor has no knowledge of any applicable law in effect as of the date of this
Agreement that would prohibit the performance by Contractor of this
Agreement and the transactions contemplated hereby.
e) Contractor has made an independent investigation, satisfactory to it, of the
conditions and circumstances surrounding this Agreement and the work to be
performed by it, and is satisfied that those conditions and circumstances will not
impair its ability to perform the work and provide the Collection services
required by this Agreement.
f) The information supplied by Contractor in all submittals made in connection
with negotiation and execution of this Agreement, including all materials in
Exhibits to this Agreement, and all representations and warranties made by
Contractor throughout this Agreement are true, accurate, correct and complete in
all material respects on and as of the Effective Date of this Agreement.
g) Contractor's representative, designated in Section 5.2.5, shall have authority in
all daily operational matters related to this Agreement. City may rely upon
action taken by such designated representative as action of Contractor unless the
actions taken are not within the scope of this Agreement.
h) That it is duly organized, validly existing and in good standing under applicable
laws. It is qualified to transact business in the State of California and has the
power to own its properties and to carry on its business as now owned and
operated and as required by this Agreement.
July 93, 2009, DRAFT -15- City of Diamond Bar - Residential
i) That it has the authority to enter into and perform its obligations under this
Agreement. The Board of Directors or partners of Contractor (or the
shareholders, if necessary) have taken all actions required by law, its articles of
incorporation, its bylaws or otherwise to authorize the execution of this
Agreement. The Persons signing this Agreement on behalf of Contractor have
authority to do so. Contractor shall authorize one employee for the City as a
single point of contact for issues arising under this Agreement, and Contractor
acknowledges and agrees that City may expect and assume that this employee's
actions are taken on behalf of and with the full approval of the Contractor.
2.7 Conditions to Effectiveness of Agreement
The satisfaction of each and all of the conditions set out below, each of which may be
waived in whole or in part by City in writing, is a condition precedent to the
effectiveness of this Agreement, and a condition of Contractor's continued right to the
benefits conveyed herein:
a) Accuracy of Representations. All representations and warranties made by
Contractor and set forth in this Agreement shall be accurate, true and correct on
and as of the Effective Date.
b) Absence of Litigation. There shall be no litigation pending in any court
challenging the award of this Franchise to Contractor or the execution of this
Agreement or seeking to restrain or enjoin its performance.
c) Furnishing of Insurance, Bond, and Letter of Credit. Contractor shall have
furnished evidence of the insurance, bonds and letter of credit required by
Article 9, and shall comply with all ongoing requirements relating thereto.
d) Contractor shall have paid the contracting fee to City, as provided in Section 3.1.
2.8 Delegation of Authority
The administration of this Agreement by City shall be under the supervision and
direction of City Manager's office and the actions specified in this Agreement, unless
otherwise stated, shall be taken by the City Manager, or his or her designee.
July l3, 2009, DRAFT -16- City of Diamond Bar - Residential
2.9 Limitations to Scope
Notwithstanding any provision to the contrary contained herein, the exclusive
franchise, right and privilege to provide Solid Waste Collection Services at Premises
within City granted to Contractor by this Agreement (Residential Premises that receive
weekly Refuse Collection using Carts) specifically excludes the following services,
which services may be provided by Persons other than Contractor and which may be
the subject of other permits, licenses, franchises or agreements issued or entered by
City:
a) The sale or donation of source -separated Recyclable Material by the Waste
Generator to any Person or entity other than Contractor; provided, however, if
the Generator is required to pay any monetary or non -monetary consideration,
directly or indirectly, for the Collection, transportation, transfer, or processing of
Recyclable Material, it shall not be considered a sale or donation and shall not be
exempt;
b) Solid Waste, including Recyclable Materials and Green Waste, that is removed
from any Premises by the Waste Generator by means of "self -hauling (as
described in the Diamond Bar Municipal Code), and that is transported
personally by such Generator (or by his or her full-time employees) to a
processing or Disposal Facility in a manner consistent with all applicable laws
and regulations;
c) Green Waste removed from a Premises by a gardening, landscaping, or tree
trimming Contractor, utilizing its own equipment, as an incidental part of a total
service offered by that Contractor rather than as a hauling service;
d) The Collection, transfer, transport, Recycling, processing, and disposal of animal
remains from slaughterhouse or butcher shops for use as tallow;
e) The Collection, transfer, transport, Recycling, processing, and disposal of by-
products of sewage treatment, including sludge, sludge ash, grit and screenings;
f) The Collection, transfer, transport, Recycling, processing, and disposal of
Hazardous Substances, Hazardous Waste, Household Hazardous Waste and
radioactive waste regardless of its source;
July 13, 2009, DRAFT -17- City of Diamond Bar - Residential
g) Construction and Demolition Debris which is removed by a duly -licensed
construction or demolition company or as part of a total service offered by said
licensed company or by the City, where the licensed company utilizes its own
equipment in compliance with Construction and Demolition Debris
requirements of the Diamond Bar Municipal Code;
h) Collection services provided exclusively by City's Commercial contractor under
the City's exclusive Bin and Roll -Off Box Customer Solid Waste Management
Services Agreement, including servicing any Commercial premises, and
Residential Premises that receive Bin service. Contractor shall service Single
Family Dwellings that receive Cart Refuse service under this Agreement and the
City's Commercial contractor shall provide service to Single Family Customers
that request regularly scheduled Bin service pursuant to the Bin and Roll -Off Box
Customer Solid Waste Management Services Agreement;
i) The Collection, transfer, transport, Recycling, processing, and Disposal of Solid
Waste by City through City officers or employees in the normal course of their
City employment; and,
j) Solid Waste Collection Services for governmental agencies other than City, which
may have facilities in City, but over which City has no jurisdiction in connection
with the regulation of Solid Waste, such as State, county and school district
facilities.
The exclusive franchise, right and privilege to provide Solid Waste Collection Services
within City granted to Contractor by this Agreement shall be interpreted to be
consistent with all applicable state and federal laws, now in effect and adopted during
the term of this Agreement, and the scope of this Agreement shall be limited by all
applicable current and developing laws and regulations. In the event that future
interpretations of current law, future enactments or developing legal trends limit the
ability of City to lawfully grant Contractor the scope of services as specifically set forth
herein, Contractor agrees that the scope of this Agreement will be limited to those
services and materials which may be lawfully provided, and that City shall not be
responsible for any lost profits claimed by Contractor as a result thereof.
July 93, 2009, DRAFT -18- City of Diamond Bar - Residential
2.10 City's Right to Direct Changes
2.10.1 General
City may direct Contractor to perform additional services (including new Diversion
programs, etc.) or modify the manner in which it performs existing services or Bills for
services. Pilot programs and innovative services which may entail new Collection
methods, and different kinds of services and/or new requirements for Waste
Generators are included among the kinds of changes which City may direct. Contractor
acknowledges that State law may increase the Diversion requirement during the term of
this agreement and Contractor agrees to propose services to meet such Diversion
requirements. Contractor shall be entitled to an adjustment in its Contractor
Compensation for providing such additional or modified services, including a profit
factor equal to ten percent (10%) of the incremental cost of such additional or modified
services. City may utilize cost components included in the Contractor's Proposal in
calculating equitable rate adjustments. Agreed upon rates and service enhancements
require approval of the City Council. If City and Contractor cannot agree on
compensation for new or additional services, then City may contract with other parties
for such services, which shall be considered exempt from the exclusivity provisions of
Section 2.1.
Contractor shall not receive a rate increase to provide additional services implemented
to bring Contractor into compliance with contractually -required minimum diversion
rates per Section 4.2.5 or as a remedy for failure to perform under Section 7.1.
Additional or modified services shall be included in written amendment and shall
require approval of the City Council.
2.10.2 New Diversion Programs
Contractor shall present, within thirty (30) business days of a request to do so by City, a
proposal to provide additional or expanded Diversion services. The proposal shall
contain a complete description of the following:
• Collection methodology to be employed (equipment, manpower, etc.).
• Equipment to be utilized (vehicle number, types, capacity, age, etc.).
• Labor requirements (number of employees by classification).
July 13, 2009, DRAFT -19- City of Diamond Bar - Residential
• Type(s) of Containers to be utilized.
• Type(s) of material to be Collected.
• Provision for program publicity/education/marketing.
• Annual projection of the financial results of the program's operations in an operating
statement format including documentation of the key assumptions underlying the
projections and the support for those assumptions.
2.11 Ownership of Solid Waste
City and Contractor understand and agree that it is Contractor, and not City, who will
arrange to Collect Solid Waste; that City has not, and, by this Agreement does not,
instruct Contractor on its Collection methods, nor supervise the Collection process; nor
do the Parties intend to place title to Solid Waste Collected by Contractor in City.
Rather, the Parties intend that whatever, if any, title in and to the Solid Waste that is
Collected by Contractor which otherwise might exist in or with City in the absence of
this Agreement is hereby transferred to Contractor; and further that if Contractor gains
title to such Solid Waste it is by operation of law and agreement with its Customers and
is not the result of this Agreement. Subject to the provisions of this Agreement, and
unless City exercises its rights to direct the location for Disposal and processing of Solid
Waste, Contractor shall have the right to retain, Recycle, process, dispose of, and
otherwise use Solid Waste Collected pursuant to the terms hereof in any lawful fashion
or for any lawful purpose; and, further, shall have the right to retain any benefit
resulting from its right to retain, Recycle, process, dispose of, or reuse the Solid Waste
which it Collects. Ownership of Solid Waste properly placed for Collection shall
transfer to Contractor when Customer places it at point of Collection.
2.12 Permits and Licenses
Contractor shall acquire and maintain all necessary permits and licenses for the
Collecting, transporting, processing, and storing of Solid Waste and Recyclables,
disposing of Solid Waste, and the Recycling of Recyclables as required under this
Agreement. Failure to maintain all required permits shall be deemed a material breach
of contract for which City may terminate this Agreement as provided in Section 11.2.
Contractor must follow requirements of the Diamond Bar Municipal Code, including,
but not limited to, obtaining a City of Diamond Bar business license.
July 13, 2009, DRAFT -20- City of Diamond Bar - Residential
ARTICLE 3
FEES PAID TO THE CITY
In addition to any other consideration set forth herein, as part of its consideration for
entering into this Agreement, and for the exclusive franchise, right and privilege to
provide Solid Waste Collection Services as specified herein, Contractor shall provide
the following:
3.1 Contracting Fee
Contractor shall pay to City a Contracting Fee in a one-time lump sum payment of
seventy five thousand dollars ($75,000) within seven days of execution of this
Agreement to reimburse the City for costs it incurred in connection with entering this
Agreement.
3.2 Other City Fees
3.2.1 Franchise Fee
In consideration of the exclusive right to Collect provided in Section 2.1 of this
Agreement, throughout the Term of this Agreement Contractor shall pay to City a
Franchise Fee in an amount equal to five percent (5%) of the Gross Receipts received by
Contractor for all services provided in City pursuant to the terms of this Agreement.
Payments shall be made quarterly. The initial payment shall be due by October 30, 2010,
covering the period August 16 to September 30, and each subsequent payment shall be
due within 30 days of the end of the calendar quarter (January 30, April 30, July 30,
October 30), for the prior calendar quarter.
3.2.2 AB 939 Fee
In support of the City's outreach and administration of various Solid Waste programs
and public education efforts, Contractor shall pay an amount equal to four and seven -
tenths percent (4.7%) of the Gross Receipts received by Contractor for all services
provided in City pursuant to the terms of this Agreement.
July 93, 2009, DRAFT -21- City of Diamond Bar - Residential
Payments shall be made quarterly. The initial payment shall be due by October 30, 2010,
covering the period August 16 to September 30, and each subsequent payment shall be
due within 30 days of the end of the calendar quarter (January 30, April 30, July 30,
October 30), for the prior calendar quarter.
3.2.3 Street Sweeping Funding
Contractor shall pay $85,000 during the first contract year, and an adjusted amount
annually thereafter. The amount shall be adjusted by the twelve-month change in CPI
through the December prior to the start of each rate year. Payments shall be made
quarterly, with $21,250 due each quarter for the first contract year. The initial payment
shall be due August 16, 2010, and each subsequent payment due within 30 days of the
end of the calendar quarter (October 30, January 30, April 30, and July 30).
3.2.4 Residential Collection Vehicle Road Maintenance Cost Reimbursement
To reimburse the City for road maintenance due to the use of Contractor's Collection
vehicles on City streets, Contractor shall pay $115,000 during the first contract year, and
an adjusted amount annually thereafter. The amount shall be adjusted by the twelve-
month change in CPI through the December prior to the start of each rate year.
Payments shall be made quarterly, with $28,750 due each quarter for the first contract
year. The initial payment shall be due August 16, 2010, and each subsequent payment
due within 30 days of the end of the calendar quarter (October 30, January 30, April 30,
and July 30).
3.2.5 Late Payment of Fees
If any of the fees provided for in this Section 3.2 are not paid on or before the due date,
Contractor shall pay to City a penalty in an amount equal to ten percent (10%) of the
amount owing for that month, plus interest at a rate of one and one-half (1.5%) per
month.
3.3 Future Fees
In the event that City implements a new fee not included in Section 3.2, or increases the
amount of an existing fee, Contractor shall be entitled to a rate adjustment in an amount
sufficient to recover the fee from Customers. City may elect to have Contractor pay in
July 93, 2009, DRAFT -22- City of Diamond Bar - Residential
accordance with the requirements of fee payments made in Section 3.2, or on another
schedule as City identifies with associated deadlines and late fees.
July 93, 2009, DRAFT -23- City of Diamond Bar - Residential
ARTICLE 4
DIRECT SERVICES
4.1 Refuse
4.1.1 General
The work to be done by Contractor pursuant to this Agreement shall include, but not be
limited to, the furnishing of all labor, supervision, equipment, materials, supplies, and
all other items necessary to perform the services required. The enumeration of, and
specification of requirements for, particular items of labor or equipment shall not
relieve Contractor of the duty to furnish all others, as may be required, whether
enumerated elsewhere in this Agreement or not.
The work to be done by Contractor pursuant to this Agreement shall be accomplished
in a thorough and professional manner so that all Customers are provided reliable,
courteous and high-quality Solid Waste Collection Services at all times. The
enumeration of, and specification of requirements for, particular aspects of service
quality shall not relieve Contractor of the duty of accomplishing all other aspects in the
manner provided in this section, whether such other aspects are enumerated elsewhere
in this Agreement or not.
4.1.2 Residential Cart Refuse Collection
Contractor shall provide all Customers at Residential Dwellings without But Service
one Refuse Cart ("Refuse Cart(s)"), and shall Collect all Refuse placed therein for
Collection not less than once per week. If Residential units share Refuse Carts due to
space constraints or otherwise, each unit shall still be assessed the full Residential Cart
service rate.
Customers that regularly require more than one Refuse Cart may request additional
Carts for an additional charge per Cart per month in accordance with the approved rate
schedule.
July 13, 2009, DRAFT -24- City of Diamond Bar - Residential
4.1.3 Refuse Cart Overage
Residential Cart Customers may periodically generate more Refuse than will fit in the
Refuse Cart(s). Residential Customers are therefore entitled to two annual pickups per
calendar year and an end -of -year pickup of material that does not fit in the Refuse
Cart(s) at no additional cost, as provided in this Section 4.1.3. A pickup shall consist of
up to the equivalent of three (3) large bags, boxes or barrels of Refuse and placement of
more than that amount at any one time shall constitute two pickups. In addition to the
two (2) free pickups, Contractor shall Collect all additional Refuse placed out for
Collection in the Residential Customer's own Containers (bags, boxes, barrels, etc.) at
no additional charge for two weeks beginning each December 26. This service is limited
to Refuse that could otherwise be placed in the Refuse Cart, and not Bulky Items which
are Collected in accordance with Section 1.6 and 4.1.15. Contractor shall Collect, and
Customers may be charged an extra fee per pickup (in accordance with the approved
rate schedule for overage pickups) of, all Refuse put out for Collection that does not fit
in the Refuse Cart(s) above and beyond the free pickups described above.
Customer shall be instructed to call in both free and additional overages. However, if
not called in, Contractor shall Collect and record pickup per Section 4.1.8.
4.1.4 Backyard Service
Backyard service means the Contractor removes all Collection Carts, Green Waste
bundles and Refuse Cart Overages per Section 4.1.3 from a Cart Customer's designated
Collection location other than curbside, such as backyard, side yard, or drive, for
Collection, and returns Carts and other containers when Collection is complete.
Contractor may charge customers requesting backyard service in accordance with the
approved rate schedule, unless the Customer falls under the exception described in
Section 4.1.5 below.
4.1.5 Backyard Service for the Disabled
Contractor shall provide disabled Customers with backyard service at no additional
charge. Contractor will remove Refuse, Recyclable and Green Waste Containers, Green
Waste bundles and Refuse Cart Overages per Section 4.1.3 from Customer's storage
area, place them out for Collection, and return Containers to Customer's storage area
after Collection, ensuring that all doors or gates are closed securely. In order to qualify
as disabled under this section, Customers must have been issued a handicap placard
July 13, 2009, DRAFT -25- City of Diamond Bar - Residential
from the Department of Motor Vehicles or otherwise obtain approval to receive such
service from the City. Additionally, walk -out service need not be provided if an able-
bodied adult resides with the disabled Customer.
4.1.6 Section Deleted
4.1.7 Determination of Service Type
Contractor may not transition a Customer from Bin to Cart service without prior
advance written approval of the City. If Contractor and Customer have a disagreement
as to whether a Refuse Cart is appropriate, or if City determines the Collection in a
Refuse Cart causes health and safety or other concerns, or if the City determines Bin
service is more appropriate, City shall make the final determination as to whether
Refuse Collection shall be from a Cart, or from a Bin. In all cases, City retains absolute
discretion in the determination of which type of service a Customer shall receive, and
therefore which with hauler will provide service.
4.1.8 Overflowing Containers
Customers that regularly produce more Solid Waste than their current level of service
can accommodate may have their service level increased in accordance with the
following procedure:
First Incident in Three Month Period - If more material is placed for Collection than fits
in a Cart (unless Collection of the overage has been properly arranged under Section
4.1.3), Contractor shall photograph the overflowing Cart, Collect the Solid Waste, and
send to the Customer (at both the service and billing addresses) the picture and a letter
instructing that further instances of an overflowing Cart may result in a charge, and
possibly in an increase in the level of service.
Second Incident in Three Month Period - Upon the second event of an overfilled Cart
(unless Collection of the overage has been properly arranged under Section 4.1.3) in a
three-month period, Contractor shall photograph the overflowing Cart, Collect the
Solid Waste, and send to the Customer the picture and a letter instructing that a third
incident in that same three month period may result in an increase in the level of
service. If Refuse was left beside the Cart for Collection other than as permitted under
Section 4.1.3, Contractor may charge the Cart Overage Fee in the approved Rate
Schedule.
July 93, 2009, DRAFT -26- City of Diamond Sar - Residential
Third Incident in Three Month Period - Upon the third event of an overfilled Cart
(unless Collection of the overage has been properly arranged under Section 4.1.3) in a
three-month period, Contractor shall photograph the overflowing Cart, Collect the
Solid Waste, and send to the Customer the picture and a letter requesting that Customer
increase its service level. If the Customer declines, Contractor may petition City to
permit Contractor to increase the service level to accommodate the higher demand for
service. If Refuse was left beside the Cart for Collection other than as permitted under
Section 4.1.3, Contractor may charge the Cart Overage Fee in the approved Rate
Schedule.
Each incident shall be counted as one of the Customer's free pickups or, if Customer has
used the annual free pickups, Contractor shall Bill Customer for the additional pickups
per the approved rate schedule.
Contractor shall send City via e-mail or U.S. mail a copy of each letter and picture sent
to a Customer under this Section 4.1.8.
4.1.9 Section Deleted
4.1.10 Temporary Roll -Off and Temporary Bin Services
Contractor shall provide temporary Roll -off Box and temporary Bin Collection service
upon request only to existing Residential Customers (Customers to whom Contractor
provides weekly Solid Waste Collection service using Carts) for cleanup or construction
work performed at their existing residences. The provision of temporary Collection
services for the Construction of new residences, and all work on Commercial premises,
and Residential Premises that receive Bin service, are excluded from this franchise, and
exclusivity is further limited by Section 2.9. In the event Temporary Services are
required for a project involving multiple Customers that receive service under both the
City's Residential Cart and Commercial Bin and Roll -Off franchisees, this service is not
included under this Agreement. In the event there is a dispute as to whether a
particular service is included in the franchise, City shall make the final determination.
Contractor must deliver a temporary Roll -Off Box or temporary Bin to its existing
Residential Customer within forty-eight (48) hours of request (Sundays excluded).
Contractor will provide Roll -off Boxes and Bins for Temporary Services. There will be
no charges other than the specific charges identified in the approved rate schedule,
attached as Exhibit 2.
July 93, 2009, DR4FT -27- City of Diamond Bar - Residential
Contractor shall confirm that Customer has obtained an encroachment permit from the
City prior to Contractor placing a Container in the public right-of-way.
4.1.11 Section Deleted
4.1.12 Section Deleted
4.1.13 Section Deleted
4.1.14 Section Deleted
4.1.15 On -Call Bulky Item Pickup
Contractor shall provide Bulky Item pickup service to all Residential Customers. Each
Residential Dwelling Unit shall be entitled to four Bulky Item pickups per calendar year
at no additional charge.
Residential Customers may put out up to three (3) cubic yards of material at each
pickup. Contractor may instruct Customers to provide Contractor with a minimum of
one business day's notice for the items, which shall be Collected on the Customer's
regular Collection day. Contractor shall Collect all Bulky Items as defused in Section 1.6
including items referred to as electronic waste or "e -waste." The following provisions
shall apply to this program:
• No single item that cannot be handled by two workers will be accepted.
• The following items will not be picked up: Hazardous Substances, Hazardous
Waste, including waste oil or anti -freeze, with the exception of Bulky Items per
Section 1.6 (including without limitation, universal wastes such as fluorescent bulbs,
household batteries, and televisions, monitors and other items commonly referred to
as "e -waste" that will be Collected by and disposed of by Contractor in accordance
with this section as well as Sections 4.1.16 and 4.1.17.)
• Contractor shall record by class and weight (in tons) the Solid Waste Collected from
Bulky Item pickups. Contractor shall record the kinds and weights (in tons) of this
Solid Waste that is diverted from the landfill through Recycling, reuse,
Transformation or other means of Diversion. Contractor shall include this
information in its monthly reporting per Section 8.3.2(a).
July 93, 2009, DRAFT -28- City of Diamond Bar - Residential
Residential Customers that exceed the number of free pickups and Commercial
business Customers may receive Bulky Item Collection for a fee, in accordance with the
approved rate schedule in Exhibit 2.
4.1.16 Bulky Item Diversion
Bulky Items Collected by Contractor in accordance with Section 4.1.15, or otherwise
Collected under this Agreement, may not be landfilled or disposed of until the
following hierarchy of Diversion efforts has been followed by Contractor:
1) Reuse as is
2) Disassemble for reuse or Recycling
3) Recycle
4) Disposal
This hierarchy is intended to preclude the use of front or rear loading packer vehicles
for Bulky Items unless the compaction mechanism is not used to compact the Bulky
Items. An exception maybe made for items that have been designated for Disposal.
4.1.17 Disposal of Electronic and Other Special Wastes
Contractor shall divert waste requiring special handling, such as universal or electronic
waste, or "e -waste," Collected in accordance with Sections 4.1.15, 4.1.16 or 4.5.4, or by
other means under this Agreement, by taking these goods to a properly permitted
Facility, and not by landfilling.
4.1.18 Door -to -Door HHW Collection
Contractor shall provide Residential Customers with door-to-door call-in HHW
Collection service at no additional cost. Items to be Collected include, at a minimum:
syringes and other Sharps; paint and paint products including but not limited to
thinners, glues, caulking, stains, wood preservatives and strippers; household cleaners;
automotive wastes; swimming pool chemicals; garden chemicals; fluorescent tubes;
thermometers; household batteries; and electronic wastes.
Contractor may direct Residential Customers to use the Bulky Item pickup option for
televisions, computers and other HHW that may safely and legally be Collected as
Bulky Items.
July 13, 2009, DRAFT -29- City of Diamond Bar - Residential
4.1.19 Curbside Used Oil and Oil Filter Collection
Contractor shall Collect used oil placed curbside beside Refuse Collection Cart on
regular Collection day at no additional charge. Contractor shall educate Customers to
place used oil in clean containers and used oil filters in clean zip -lock bags.
4.1.20 Service Exceptions; Hazardous Waste Notifications
A. Failure to Collect. When Solid Waste is not Collected from any Solid Waste
service recipient, Contractor shall notify its service recipient in writing, at the time
Collection is not made, through the use of a "red tag" or otherwise, of the reasons why
the Collection was not made, such as the placement of Hazardous Waste in the
Container or the Recycling Container including non-Recyclables.
B. Hazardous Waste Inspection and Reporting. Contractor reserves the right to
inspect Solid Waste put out for Collection and to reject Solid Waste observed to be
contaminated with Hazardous Waste and the right not to Collect Hazardous Waste put
out with Solid Waste. Contractor shall notify all agencies with jurisdiction, if
appropriate, including the California Department of Toxic Substances Control and
Local Emergency Response Providers and the National Response Center of reportable
quantities of Hazardous Waste, found or observed in Solid Waste anywhere within
City. In addition to other required notifications, if Contractor observes any substances
which it or its employees reasonably believe or suspect to contain Hazardous Wastes
unlawfully disposed of or released on any City property, including storm drains, streets
or other public rights of way, Contractor will immediately notify City Manager or City
Manager's designee. Contractor shall implement and maintain a training program that
will assist its employees in identifying and properly disposing of any Hazardous Waste
that may come into their possession.
C. Hazardous Waste Diversion Records. Contractor shall maintain records
showing the types and quantities, if any, of Hazardous Waste found in Solid Waste and
which was inadvertently Collected from service recipients within City, but diverted
from landfilling.
4.1.21 Sharp's Mail Back Program
Within six months of the effective date of this Agreement, Contractor will implement a
program for Collection and safe processing of Sharps generated by its Customers,
July 13, 2009, DRAFT -30- City of Diamond Bar - Residential
through a mail -based program and/or a drop-off program. Through a mail -based
program, Residential Customers requesting Sharps services may apply to Contractor to
participate in this program, and Sharps containers will be delivered directly to them at
no cost to the Customer or City. Through a drop-off program, Contractor would make
arrangements with pharmacies and/or other locations throughout the City for residents
to drop-off Sharps at no cost to the Customer or City. This is in addition to the provision
of door-to-door HHW Collection provided under Section 4.1.18, which also provides for
Sharps Collection.
4.1.22 FreeCycle.com
Within six (6) months of the Effective Date, Contractor will make available to
Residential Customers its free materials exchange/ gifting program, known as
FreeCycle.org, and shall promote FreeCycle.org in public education materials.
4.2 Recycling
4.2.1 Recycling Collection
Contractor shall provide all Customers with a Cart for Recyclable Materials ("Recycling
Cart(s)"), and shall Collect all Recyclable Materials placed therein for Collection not less
than once per week. Contractor shall Collect Recyclable Material placed in Recycling
Carts for Collection from each Customer on the same day as Customers' Refuse Cart is
Collected.
Contractor shall have a Recycling program whereby it, at a minimum, Collects all
materials that can be recovered at the local processing Facility used by Contractor.
Contractor will update public education materials accordingly as new items are added
to those recovered by the Facility.
Customers may request one additional Cart at no additional charge. Residents with
carts beyond two per dwelling unit may be charged in accordance with the approved
rate schedule.
Contractor shall take whatever actions may be appropriate, lawful and effective to
discourage the unauthorized removal of Recyclable Materials from the Solid Waste
stream, commonly referred to as scavenging.
July 13, 2009, DRAFT -31- City of Diamond Bar - Residential
4.2.2 Section Deleted
4.2.3 Contaminated Loads, Warning Notice
Contractor shall place a red tag or other warning notice approved by the City on all
Recyclable Material or Green Waste loads that are contaminated, indicating to the
Customer why the load was not Collected and diverted, and providing Contractor's
phone number. For Cart Customers with off-site management such as small apartment
buildings, Contractor shall also mail a copy of the warning to the Customer's Billing
address. Contractor shall notify City on a monthly basis of any warning notices issued
pursuant to this section, and shall provide copies of such warnings to City upon
request. With prior written City authorization, Contractor may remove Recycling and
Green Waste Cart s from habitual contaminators that have received a total of three
warnings on either or both Cart s in any six-month period. Residential Recycling and
Green Waste Carts will be returned only after six months, or upon direction of the City,
or if there is a change of occupancy.
4.2.4 Marketing and Sale of Recyclable Materials
Contractor shall be responsible for marketing and sale of all Recyclable Materials
Collected pursuant to this Agreement. Revenue from the sale of materials Collected,
and tonnage sold, shall be reported to the City on an annual basis by March 31 of each
year for the previous calendar year (by March 312011, Contractor shall report for the
period August 16, 2010 to December 31, 2010). If Recyclable Materials are delivered to a
Material Recovery Facility (MRF), reported revenue from the sale of materials Collected
shall be defined as the revenue received from selling the materials to a Contractor shall
rebate to Customers a portion of Recyclable Materials revenue once per year in
accordance with Section 6.7. Contractor shall report the amount of such revenues to
City on an annual basis per Section 6.7 and upon request.
4.2.5 Minimum Recycling Requirements
Contractor shall divert from landfilling a minimum of 45% of all Solid Waste Contractor
Collects under this Agreement.
Contractor shall divert from landfilling a minimum of 75% of all Construction and
Demolition Debris loads Contractor Collects under this Agreement. Construction and
Demolition Debris tonnage shall be included in the overall 45 % diversion calculation.
July 13, 2009, DRAFT -32- City of Diamond Bar - Residential
Compliance with each of these minimums will be measured, initially, for the first
period from August 16, 2010 to December 31, 2010, and subsequently on a calendar year
basis. Recycling or Diversion of materials not Collected by the Contractor is not to be
counted towards meeting this requirement. If Contractor fails to comply with these
diversion rate requirements, Contractor must submit a plan for compliance, including
without limitation implementation of applicable portions of City's Source Reduction
and Recycling Element, within sixty (60) days of the end of the calendar year.
Contractor's plan is subject to approval by the City Manager, and to be approved must
constitute a good faith plan to implement applicable portions of City's Source
Reduction and Recycling Element and be reasonably likely to achieve compliance with
the above requirement. Costs for providing the services in the compliance plan to meet
this existing obligation will be borne by Contractor and shall not be the subject of a rate
adjustment.
If, following implementation of the plan for compliance, Contractor does not achieve
compliance with the above requirement for the calendar year in which the plan was
submitted, liquidated damages shall be assessed under Section 11.3 for failure to meet
this requirement.
In the event the State increases diversion rate goals, City may require Contractor to
implement programs to meet the goal, and parties shall negotiate a rate adjustment.
Should parties fail to reach a mutually acceptable agreement, City may hire a third
party to provide those services or terminate this Agreement.
4.2.6 Construction and Demolition Debris Diversion
Contractor will bring all loads of mixed Construction and Demolition Debris to a C&D
processing facility designated per Section 4.8 for separation and recovery of this
material. Contractor may deliver separated loads of Construction and Demolition
Debris, such as clean dirt, concrete or rebar, to facilities specializing in the reuse of such
materials, provided this material is diverted from landfilling. Contractor shall divert
from landfilling a minimum of 75% of all Construction and Demolition Debris
Collected.
4.2.7 Optional Food Waste Diversion Program
City reserves the right to require Contractor to implement a program to divert food
waste, either co -collected with Green Waste or separately Collected. Contractor would
July 13, 2009, DRAFT -33- City of Diamond Bar - Residential
be entitled to a rate adjustment for the reasonable additional costs incurred in
processing the waste and in transporting the waste in accordance with Section 2.10.
Transportation costs may increase or decrease, depending upon the location of the food
waste processing facility to be used.
4.3 Green Waste Program
4.3.1 Single Family Green Waste Collection
Contractor shall provide all Customers with a Cart for Collection of Green Waste
("Green Waste Cart(s)"), unless the Customer has qualified for the yard waste reduction
discount described under Section 5.1.3. Contractor shall Collect all Green Waste placed
in Green Waste Carts, as well as all Green Waste bundled as set forth below, and put
out for Collection by Customers not less than once per week on the same day as Refuse
Collection. Contractor shall have a Green Waste Recycling program whereby it, at a
minimum, Collects the types of Green Waste defined in Section 1.23.
Contractor shall only be obligated to Collect Green Waste set out for Collection in
bundles if it is a maximum of four (4) feet long and eighteen (18) inches in diameter.
Customers may request one additional Cart at no additional charge. Residents with
carts beyond two per dwelling unit may be charged in accordance with the approved
rate schedule.
4.3.2 Holiday Tree Collection Program
Contractor shall operate an annual holiday tree Collection program from December 26
through the second Sunday in January. During this period all holiday trees placed out
for Collection by Residential Customers shall be Collected by Contractor. After this
period, trees will be Collected as Bulky Items under Section 1.6. Trees up to seven (7)
feet in length will be Collected and diverted without Customers needing to cut them.
Contractor may request that Customers with larger trees cut the trees to pieces no
longer than seven (7) feet. Contractor will divert all holiday trees from landfilling.
July 13, 2009, DRAFT -34- City of Diamond Bar - Residential
4.3.3 Section Deleted
4.3.4 End Uses for Green Waste
Contractor shall divert Green Waste materials Collected through weekly Cart and
bundle Collection, holiday tree Collection, Roll -off Box Collection and mixed waste
processing from Disposal. Contractor must provide end uses for Green Waste that
maximize Diversion credit for City according to regulations established by the
California Integrated Waste Management Board. Green Waste may be used as
alternative daily cover ("ADC") only to the extent that the City will get full Diversion
credit for its use. Contractor is responsible for monitoring how the Green Waste will be
diverted at selected facilities and for selecting alternative facilities if necessary to ensure
full Diversion credit. Failure to do so places the Contractor in default. City has the
option, but not obligation, to direct Contractor where to deliver the material.
4.3.5 Mulch Give -a -Way
Contractor shall distribute free mulch to Residential Customers. Contractor shall
distribute coupons through quarterly Billings entitling Residential Customers to receive
two bags per event at two community events per year to be identified by City.
4.4 Cart Selection, Distribution, Exchanges and Removal
4.4.1 Cart Selection and Distribution
Contractor shall provide Residential Cart Customers with the option of 35, 64 and 96 -
gallon Cart sizes for Refuse Collection, and 35 and 64 -gallon Cart sizes for Recycling
and Green Waste.
Residential Customers may request different sizes for each waste stream. In the event a
Residential Customer does not indicate a preference, the standard, default size for each
wastestream shall be 64 -gallons.
4.4.2 Cart Exchanges
Customers may each request one free exchange in cart sizes beginning 60 days after the
initial cart is delivered and ending six months after the initial cart is delivered. One
exchange includes all Cart size changes included in the same Customer request and
may include changes being made to one, two or three of the Customer's Carts. If a
July 13, 2009, DRAFT -35- City of Diamond Bar - Residential
second request is made, or if a request is made following the initial six-month period,
Contractor may charge for each request, regardless of the number of carts exchanged, in
accordance with the approved rate schedule.
New Customers shall be granted the same no -charge exchange period.
4.4.3 Removal of Carts Distributed Under the Previous Contract
Contractor shall Collect and Recycle or Dispose of Carts distributed under the previous
franchise agreement at no additional charge to City or Customers.
4.5 City Services
4.5.1 Section Deleted
4.5.2 City Sponsored Events
Contractor shall provide Solid Waste and Recycling Collection and Disposal/ processing
service for City -sponsored events. This shall include providing Containers (Bins, Roll-
off Boxes, clearly labeled Recycling Containers and cardboard waste boxes with liners)
to Collect and dispose of, or process, all Solid Waste and Recyclable Materials. The
Contractor shall provide these services at City -sponsored events upon City request, at
no cost to City or ratepayers. The City's intent will be to alternate events assigned to
Contractor with those events it assigns to the City's bin and roll -off customer services
franchisee; however, City does not guarantee that events will be evenly distributed
based upon either level of effort or number of events. City -sponsored events include,
but are not limited to:
• Concerts in the Park
• City Birthday Celebration
• Fourth of July
• Fall Fun Festival
• Winter Snow Festival
• Arbor Day
• Easter Egg Hunt
July 13, 2009, DRAFT -36- City of Diamond Bar - Residential
4.5.3 Emergency Collection and Disposal Service
Contractor will assist City at the City's request with emergency Collection and Disposal
service (in the event of major disaster, such as an earthquake, storm, riot or civil
disturbance), or as otherwise determined necessary by the City, by providing Collection
equipment and drivers normally assigned to City. Contractor may charge City for
actual Disposal costs plus service rates per the approved rate schedule.
4.5.4 Abandoned Item Collection from City Right -of -Way or Other Public Property
Contractor will Collect and dispose of, at no additional charge, within one business day
of notification from City, all items left in the City's right-of-way, such as sidewalks,
alleys, streets, and parkways. Contractor will properly divert from landfilling or
Dispose of such items in accordance with Sections 4.1.16 and 4.1.17. City will contact
either the residential Cart or the Bin and Roll -Off Box franchisee to provide this service,
depending on the location of the abandoned item.
4.5.5 Community Development Review Services
Upon City request and at no additional charge, Contractor will review building permit
applicants' plans and advise regarding adequacy of Container storage space and access,
particularly to accommodate Recycling containers.
4.5.6 Large Venue Event Assistance, Event Recycling
Contractor will assist planners of large venue events with reporting and planning needs
as may be useful in meeting the requirements of AB 2176, found at California Public
Resources Code 42648 et seq. at no additional charge. Contractor shall provide Recycling
services upon request to special event planners.
4.5.7 Confiscation of Unauthorized Containers
City authorizes Contractor to confiscate illegal Collection Containers located within the
City's public rights-of-way. Upon notification from City, or Contractor's locating of an
illegally placed Container, Contractor shall begin the following procedure within 24
hours:
1. Contractor shall first place a notice on Container, directing the illegal hauler or its
Customer to remove the Container within 24 -hours of notice, citing relevant sections
July 93, 2009, DRAFT -37- City of Diamond Bar - Residential
of the City's municipal code, indicating where the Container may be retrieved,
impound and storage costs, and warning that, should a second Container belonging
to that company be found in the City in violation of the City Municipal Code, that
Container may be removed without warning. If the company can be identified and
its address ascertained, Contractor shall mail the warning as well.
2. Notify City of the notice and request authorization to impound the Container.
3. With City approval, impound the Container if it has not yet been removed by the
illegal hauler.
4. For subsequent violations by the same company after the initial notice has been
posted, and after Contractor has mailed a warning to the company, Contractor may
request approval from City to remove company's Containers immediately, mailing a
notice if address is known as to where the Container may be retrieved and impound
and storage costs. If address is unknown, Contractor shall place the notice as close as
feasible to where the Container was located.
4.5.8 Provision of Storage Containers
Contractor will provide the City with eleven 40 -cubic -yard portable storage containers
(two currently in use and up to nine more at City's request) to be used for storage at
City facilities and schools for the duration of this Agreement, and will maintain them in
a condition satisfactory to the City. Contractor may transfer ownership of these storage
containers to City, provided Contractor will remove and Dispose of these containers
when requested to by City.
4.6 Operations
4.6.1 Schedules, Missed Pickups
To preserve peace and quiet, Solid Waste shall only be Collected between 6:30 a.m. and
6:30 p.m. Collection is only permitted Monday through Friday, with Saturday
Collection permitted during holiday weeks. Contractor may not make exceptions to
these Collection days and times without advance written approval from the City. If the
regularly scheduled Collection day falls on New Year's Day, Memorial Day, Fourth of
July, Labor Day, Thanksgiving Day, or Christmas Day, Collection days for the
remainder of that week shall all be postponed one Collection day.
July 13, 2009, DRAFT -38- City of Diamond Bar - Residential
Contractor shall review its operations plan outlining the Collection routes, intervals of
Collection and Collection times for all materials Collected under this Agreement with
City upon thirty (30) days written notice requesting said review. Contractor shall
submit a copy of its schedule and route map within seven (7) business days if requested
by City. If the plan is determined to be inadequate by City, Contractor shall revise it
incorporating any changes reasonably necessary to make it satisfactory to City within
thirty (30) days. Change in schedules and routing shall not be implemented without
City approval and not until at least fifteen (15) business days following notification to
Customers. The City may restrict the timing and frequency of any route changes based
upon the City's Municipal code or any other applicable law or requirements.
When notified of a missed pickup (which was not justified under the provisions of this
Agreement) prior to 12:00 p.m., Contractor shall Collect the Refuse, Recyclable
Materials, and/or Green Waste that was not Collected the same day. If notified after
12:00 p.m., Collection must take place no later than the next business day. If Contractor
determined that the missed pickup was justified under this Agreement, Contractor will
notify Customer as to the reason within this same time period.
4.6.2 Vehicles
A. General. Contractor is responsible for providing all vehicles that may be
required for the Collection of Solid Waste that are sufficient in number and capacity to
efficiently perform the work required by this Agreement in strict accordance with its
terms. Contractor is expressly obligated to provide such Collection Vehicles and routes
as are required to meet the service standards set forth herein. Contractor shall have
available on Collection days sufficient back-up vehicles for each type of Collection
Vehicle used to respond to complaints and emergencies. All equipment of Contractor
used to provide the services set forth in this Agreement shall be subject to inspection by
City upon request.
B. Specifications. At the start of service under this Agreement, 50% of Collection
vehicles used to provide service under this Agreement, excluding spares, shall use
exclusively liquefied natural gas (LNG) or compressed natural gas (CNG). By December
31, 2011,100% of Collection vehicles used to provide service under this Agreement,
excluding spares, shall use exclusively liquefied natural gas or compressed natural gas.
Spares that do not use exclusively LNG or CNG shall not be used for more than thirty
(30) days per calendar year per route. No Collection vehicle, including spares, used in
July 93, 2009, DRAFT -39- City of Diamond Bar - Residential
the City shall be more than 10 years old at any time during this Agreement Term. Up to
four Collection vehicles refurbished to like -new condition will be considered new for
purposes of this provision as of the date the refurbishment is completed. Contractor
and City Manager, or his designee, shall meet within six (6) months of the Effective
Date and periodically thereafter to review vehicle performance and determine the
specific improvements (such as painting, sealing truck bodies, or mechanical systems)
required as part of the refurbishment to allow the Collection vehicle to be considered
like -new. The fuel and vehicle age requirements set forth above apply only to those
automated front -loading and side -loading Collection vehicles used routinely to provide
services, and do not apply to Collection vehicles used for special purposes or on a non-
routine basis, including spare vehicles used for no more than thirty (30) days per year
per route, scout vehicles, flat-bed Bulky Item vehicles or vehicles not used for
Collection. All vehicles used in the City must be registered with the California
Department of Motor Vehicles and, where used for Collection, shall have water -tight
bodies designed to prevent leakage, spillage or overflow. At all times during the term
of this Agreement, Contractor's Collection vehicles shall comply with South Coast Air
Quality Management District Requirements and the California Air Resource Board
requirements as they are currently in force and as they may be approved for Refuse
removal vehicles, as well as other Federal, State and local laws and regulations that may
be enacted during the term of this Agreement.
C. Vehicle Identification and Labeling. Each Collection vehicle shall be marked
with Contractor's name, toll free phone number, and a vehicle identification number
designated by Contractor for each Collection Vehicle which shall be prominently
displayed on all such Vehicles, in lettering at least six inches in height. City must
approve truck labeling.
D. Cleaning and Maintenance
1) Contractor shall maintain all vehicles and equipment used in providing service
under this Agreement in a good, safe, neat, clean and operable condition at all
times.
2) Collection Vehicles shall be painted, thoroughly washed, and thoroughly steam
cleaned on a regular basis so as to present a clean appearance. Contractor shall
make all Collection Vehicles available to the County of Los Angeles for
inspection regarding health concerns and requirements at any frequency it
July 13, 2009, DRAFT -40- City of Diamond Bar - Residential
requests. Contractor agrees to replace or repair to the City's satisfaction, any
Collection Vehicle which City determines to be of unsightly appearance, leaking,
or in unsatisfactory operating condition.
3) Contractor shall repaint any or all Collection Vehicles within thirty (30) days'
notice from City, if City determines that their appearance warrants painting.
City may not require a vehicle to be repainted if it has been repainted within the
previous thirty (36) months.
4) Contractor shall inspect each Collection Vehicle daily to ensure that all
equipment is operating properly. Collection Vehicles which are not operating
properly shall be removed from service until repaired and operating properly.
Contractor shall perform all scheduled maintenance functions upon Collection
Vehicles in accordance with the manufacturer's specifications and schedule.
Contractor shall keep accurate records of all Collection Vehicle maintenance,
recorded according to date and shall make such records available to City upon
request.
5) Contractor shall repair, or arrange for the repair of, all of its vehicles and
equipment for which repairs are needed because of accident, breakdown or any
other cause so as to maintain all equipment in a safe and operable condition.
Contractor shall maintain accurate records of repair, which shall include the
date, nature of repair and the verification by signature of a maintenance
supervisor that the repair has been properly performed.
6) Upon request, Contractor shall furnish City a written inventory of all equipment,
including Collection Vehicles, used in providing service pursuant to this
Agreement. This inventory shall list all equipment by manufacturer, year of
production, ID number, date of acquisition, type, capacity, and whether the
vehicle is a spare.
7) All vehicles used to provide services under this Agreement shall at all times have
in the cab the registration of the truck, a certificate of insurance and an
identification card with the name of whom to telephone in case of an accident or
emergency. Each truck shall be equipped with a minimum of a 20 -pound fire
extinguisher that has been certified by the state fire marshal. This fire
July >3, 2009, DRAFT -41- City of Diamond Bar - Residential
extinguisher shall be recharged as needed, but not less than once annually.
Vehicles shall be equipped with a shovel and broom to clean up any spillage.
8) All trucks used to provide services under this Agreement in the City shall be
required to be completely enclosed with a nonabsorbent cover while
transporting refuse, recyclables or compostable materials or other solid waste
materials in or through the city. "Completely enclosed with a nonabsorbent
cover" means that refuse, trash, recyclable or compostable materials shall not be
visible from the public highway, nor shall any of the substances be permitted to
leak, spill or become deposited along any public highway.
E. Operation. Vehicles shall be operated in compliance with the California Vehicle
Code, and all applicable safety and local ordinances. Contractor shall not load vehicles
in excess of the manufacturer's recommendations or limitations imposed by state or
local weight restrictions on vehicles.
Contractor's equipment shall comply with US EPA noise emission regulations,
currently codified at 40 CFR Part 205 and other applicable noise control regulations, and
such noise control features shall be incorporated throughout the entire fleet of
Collection Vehicles. Noise levels of equipment used for Collection shall comply with
Diamond Bar Municipal Code Chapter 8.12 and in no event shall the noise level exceed
75 dba when measured at a distance of 25 feet from the vehicle, five feet from the
ground. Contractor shall store all equipment in safe and secure locations in accordance
with City's applicable zoning regulations.
Contractor shall be responsible for any damage, normal wear and tear excepted,
resulting from or directly attributable to any of its operations, and which it causes to:
City's driving surfaces, whether or not paved, public or private; associated curbs,
gutters and traffic control devices; and all other public and private improvements.
F. City Inspection Per Code. City may cause any vehicle used in performance of
this Agreement to be inspected and tested at any commercially reasonable time and in
such manner as may be appropriate to determine that the vehicle is being maintained in
compliance with the provisions of the State Vehicle Code, including, but not limited to,
California Vehicle Code Sections 27000(b), 23114, 23115, 42030, 42032, and all Vehicle
Code Sections regarding smog equipment requirements. City may direct the removal of
any vehicle from service if that vehicle is found not to be in conformance with
July 93, 2009, DRAFT -42- City of Diamond Bar - Residential
applicable codes. No vehicle directed to be removed from service shall be returned to
service until it conforms with, and its return to service has been approved by City.
G. Vehicle Inspections. Upon City request, Contractor shall submit the Safety
Compliance Report/Terminal Record Update from its Biennial Inspection of Terminal,
or BIT. If Contractor receives a terminal rating below satisfactory, Contractor shall
notify the City, and Contractor is in violation of this Agreement. Contractor has the
time allowed by the Department of California Highway Patrol ("CHP") to cure
violations and bring the terminal rating up to satisfactory. If the CHP does not adjust
the rating to satisfactory or better within six (6) months, then the Contractor shall be
considered in default of the contract and the City may terminate this Agreement.
H. Correction of Defects. Following any inspection, the City Manager shall have
the right to cause Contractor, at its sole cost and expense, to recondition or replace any
vehicle or equipment found to be unsafe, unsanitary or unsightly. The City Manager's
determination may be appealed to the City Council, whose decision shall be final.
4.6.3 Containers
Contractor will provide Containers to be used under this Agreement.
4.6.3.1 Carts
A. Cart Design Requirements
Carts and Cart lids must meet color, size, uniformity and quality requirements of the
City. Existing Carts in good working order and meeting all Agreement requirements
will not be required to be replaced at the start of service under this Agreement.
However, the City will not permit Carts and Cart lids with inconsistent colors or in
poor condition to be used in the City at any time during the term of this Agreement,
and may require Contractor to replace such Carts.
All Carts provided by Contractor utilized in the performance of this Agreement shall be
manufactured by injection or rotational molding and meet the Cart design and
performance requirements as specified below. All Carts selected shall be subject to
City's approval prior to Contractor placing the order.
July 13, 2009, DRAFT -43- City of Diamond Bar - Residential
B. Capacity
The references in Section 4.4 to Cart sizes of 96, 64 and 35 -gallons may be approximate.
The Cart size, excluding lid capacity, may fall within the following range:
• 30 - 35 gallons
• 60 - 70 gallons
• 90 -101 gallons
The selected sizes must be consistent throughout the City for a uniform appearance.
C. Cart Color and Appearance
The Refuse, Recycling and Green Waste Carts will be differentiated by color. The colors
shall be colorfast and resistant to fading as a result of weathering or ultraviolet
degradation. Color must be approved in advance by the City. Cart and Cart lid colors
shall be consistent throughout the City.
D. Cart Labeling and Hot Stamping
Labels used on Carts shall be placed on the inside of the Cart lid, and hot stamps shall
be on the top of the lid and/or on the body of the Cart. Each Cart shall be hot stamped
"Refuse," "Recycling" or "Green Waste" in English, Mandarin and Korean. Design for
both the labels and the hot stamps must be approved by City prior to ordering labels or
Carts. City shall approve what information is included on the label and in the hot
stamp, as well as approve design and quality. Labels shall be replaced when worn, and
when information on the label is in need of updating, but no later than 90 days of
request from City. Information on the Carts shall include the telephone number to can
for Contractor, Bulky Item pickups and HHW disposal information, and an anti -
scavenging warning.
4.6.3.2 Cart Maintenance and Replacement Responsibilities
Contractor shall be responsible for Cart repair and maintenance, graffiti removal and
replacing lost, stolen or damaged Carts within three (3) business days, at no additional
charge to the Customer or to City, unless Contractor can demonstrate to the City
Manager beyond a reasonable doubt that the damage or loss was due exclusively to
Customer's intentional or negligent behavior. City Manager shall make the final
July 93, 2009, DRAFT -44- City of Diamond Bar - Residential
determination. If City permits a repair or replacement charge to be assessed against a
Customer, charge shall be no more than the actual cost of repair or the Contractor's
purchase price for a new Cart, whichever is lower. All repairs must restore the Cart to
its full functionality. Unsightly/ worn-out Carts shall be replaced by Contractor upon
Customer request at no additional charge.
4.6.3.3 Bins
A. Cleaning. Contractor shall maintain Bins in a clean, sound condition free from
putrescible residue. All Bins in use shall be constructed of heavy metal, or other
suitable, durable material, and shall be watertight and well painted. Wheels, forklift
slots, and other apparatuses, which were designed for movement, loading, or unloading
of the Bin shall be maintained in good repair.
Upon Customer or City request, or if required to maintain the Containers in a clean
condition, Contractor shall clean all Bins once per year at no additional charge.
Contractor shall perform cleaning or replacement of Bins more frequently if necessary
to prevent a nuisance caused by odors or vector harborage, or if requested by Customer
or City, for an additional fee in accordance with the approved rate schedule. When a
Bin is removed for cleaning, Contractor shall replace the Bin, either temporarily or as a
change -out, with another Container. Contractor shall remove graffiti from any
Container within three (3) business days of request by City or Customer. Contractor is
required to proactively look for graffiti when Collecting Bins, with all graffiti removed
from Containers in no later than three (3) business days after any Collection without
notification.
B. Bin Identification and Color. Each Bin placed in City by Contractor shall be
clearly labeled on the front of the Bin with the Bin type (Refuse, Recycling, Cardboard,
Green Waste) and the name of Contractor and phone number in letters not less than
three (3) inches high on the exterior of the Bin so as to be visible when the Bin is placed
for use. Alternatively, the Bin type (Refuse, Recycling, Cardboard, Green Waste) may be
identified with an affixed sign. Labels shall also be placed on the inside of the Bin lid.
Labels shall include English, Mandarin, Korean and graphic instruction on what
materials should and should not be placed in each Bin, and an anti -scavenging warning.
Contractor shall have labels approved by City prior to ordering and placement on Bins.
Labels shall be replaced when worn, and when information on the label is in need of
July 13, 2009, DRAFT -45- City of Diamond Bar - Residential
updating, but no later than 90 days of request from City. Contractor shall repaint Bins
upon City's request if the City deems it necessary to maintain a neat appearance.
4.6.3.4 Roll -off Boxes
Contractor shall provide Roll -off Boxes clean, free from graffiti, equipped with
reflectors, and with the name and phone number of Contractor in letters not less than
three (3) inches high on the exterior of the Roll -off Box so as to be visible when the Roll-
off Box is placed for use. Contractor shall properly cover all open Roll -off Boxes during
transport as required by the State Vehicle Code.
4.6.4 Litter Abatement
A. Minimization of Spills. Contractor shall use due care to prevent Solid Waste or
fluids from leaking, being spilled and/or scattered during the Collection or transporta-
tion process and shall clean up any leaks or spills from its vehicles per the National
Pollutant Discharge Elimination System (NPDES) permit in effect at the time. No fluids
shall be washed into storm drains at any time. All NPDES dry-cleaning measures shall
be complied with. All Collection Vehicles must be equipped with absorbent for such
cleanup efforts and shall carry a broom, shovel, absorbent, and containment materials at
all times for this purpose. See Section 11.3.B.2.d.
Contractor shall not transfer loads from one vehicle to another on any public street,
unless it is necessary to do so because of mechanical failure, accidental damage to a
vehicle, or a pre -approved method of Solid Waste transfer between vehicles, without
prior written approval by City.
B. Clean Up. During the Collection or transportation process, Contractor shall
clean up all litter spilled during Collection or otherwise caused by Contractor.
Contractor shall leave a "red tag" notice for Customer if litter not caused by Contractor
is found in Container enclosure or around Containers. Contractor may charge
Customers in accordance with the approved rate schedule for the cleaning of Container
enclosures or around the Container if it is littered due to overflowing Containers.
Contractor may address habitual offenders in accordance with Section 4.1.8.
In the event of a spill of materials (vehicle fluids, Green Waste leachate, etc.), Contractor
shall provide a cleanup of the spill to the satisfaction of City and other governing
July 93, 2009, DRAFT -46- City of Diamond Bar - Residential
agencies. Cleanup methods may include pressure washing (Contractor must capture
and reclaim water) or other similar clean-up methods.
C. Covering of Loads. Contractor shall properly cover all open debris boxes during
transport to the Disposal Site or processing facility.
4.6.5 Personnel
A. Qualified Personnel. Contractor shall furnish such qualified drivers,
mechanical, supervisory, clerical, management and other personnel as may be
necessary to provide the services required by this Agreement in a satisfactory, safe,
economical and efficient manner. All drivers shall be trained and qualified in the
operation of vehicles they operate and must possess a valid license, of the appropriate
class, issued by the California Department of Motor Vehicles.
B. Hazardous Waste Employee Training. Contractor shall establish and vigorously
enforce an educational program which will train Contractor's employees in the
identification of Hazardous Waste. Contractor's employees shall not knowingly place
such Hazardous Waste in the Collection Vehicles, nor knowingly dispose of such
Hazardous Wastes at the processing Facility or Disposal Site.
C. Unauthorized Material Removal. Contractor shall dismiss or discipline
employees who remove documents or any other material from Containers, other than
specifically for the purposes of Disposal and Diversion as described in this Agreement.
D. Training. Contractor shall provide suitable operations, health and safety
training for all of its employees who use or operate equipment or who are otherwise
directly involved in Collection or other related operations.
4.6.6 Identification Required
Contractor shall provide its employees, companies and subcontractors with
identification for all individuals who may make personal contact with residents or
businesses in City. City may require Contractor to notify Customers yearly of the form
of said identification. Contractor shall provide a list of current employees, companies,
and subcontractors to City upon request.
City reserves the right to perform a security and identification check through the City's
Police Department on the Contractor and all their present and future employees
July 13, 2009, DRAFT -47- City of Diamond Bar - Residential
employed by Contractor to work in the City, in accordance with accepted procedures
established by City, or for probable cause.
4.6.7 Unauthorized Fees and Gratuities
Contractor shall not, nor shall it permit any agent, employee, or subcontractors
employed by it to request, solicit or demand, either directly or indirectly, any
compensation or gratuity for services authorized to be performed under this Agreement
except as described in this Agreement, in accordance with Exhibit 2 as updated and
approved by City throughout the Term of this Agreement.
4.6.8 Non -Discrimination
Contractor shall not discriminate in the provision of service or the employment of
persons engaged in performance of this Agreement on account of race, color, religion,
sex, sexual orientation, age, physical handicap or medical condition in violation of any
applicable federal or State law.
4.6.9 Report of Accumulation of Solid Waste; Unauthorized Dumping
Contractor shall direct its drivers to note (1) the addresses of any Premises serviced
under this Agreement at which they observe that Solid Waste is accumulating and
which is not being placed out for Collection; and (2) the address, or other location
description, at which Solid Waste has been dumped in an apparently unauthorized
manner. Contractor shall deliver the address or description to City within one (1)
working day of such observation.
4.7 Transportation of Solid Waste
Contractor shall transport all Refuse Collected to a City -approved Facility (e.g. Transfer
Station, Waste -to -Energy Facility, Green Waste Processing Facility, MRF, Disposal Site).
Contractor agrees to make all reasonable efforts to separate Recyclable Materials from
Refuse for Diversion from landfill Disposal.
Contractor shall maintain accurate records of the quantities of Solid Waste transported
to all Facilities utilized and will cooperate with City in any audits or investigations of
such quantities.
July 93, 2009, DRAFT -48- City of Diamond Bar - Residential
Contractor shall cooperate with the operator of any Facility it uses with regard to
operations therein, including, for example, complying with directions from the operator
to unload Collection vehicles in designated areas, accommodating to maintenance
operations and construction of new facilities, cooperating with its Hazardous Waste
exclusion program, and so forth.
4.8 Approved Facilities
The Contractor shall dispose of Refuse Collected that is not required to be processed at
the approved Disposal Site. Contractor must receive written advance approval from
City to use each transfer station, transformation facility, processing facility or other
Facility used by Contractor in the fulfillment of this Agreement. Contractor is
responsible for ensuring that each Facility it uses is properly permitted prior to
requesting City approval to use such Facility. Unless and until the City instructs
otherwise, the designated Disposal Site and other Facilities are: Puente Hills Landfill, El
Sobrante Landfill, Allan Company and Waste Management Recycle America Recycling
Park in Azusa (scheduled to open 2011).
4.9 Status of Disposal Site
Any Disposal Site utilized by Contractor, shall be designed and constructed in
accordance with 23 California Code of Regulations Section 2510 et seq. ("Subchapter 15"),
Any such landfill shall have been issued all permits from federal, state, regional, county
and city agencies necessary for it to operate as a Class III Sanitary Landfill and is in full
regulatory compliance with all such permits.
4.10 Dedicated Routes
Solid Waste Collected in the City shall not be comnungled in Collection vehicles with
Solid Waste from other jurisdictions. All routes shall be dedicated exclusively to City of
Diamond Bar Solid Waste.
4.11 Route Audit
Once during the first year, and subsequently upon request by the City, but in no event
more than once per year, Contractor shall conduct an audit of its Collection routes in
the City. In setting these audit dates, City will establish due dates for Contractor
providing routing and account information, and later, the report, to City.
July 13, 2009, DRAFT -49- City of Diamond Bar - Residential
The route audit, at minimum, shall consist of an independent physical observation by
person(s) other than the route driver of each Customer in City. This person(s) is to be
approved in advance by City. The route audit information shall include, as a minimum,
the following information for each account:
• Route Number;
• Truck Number;
• Number and size of Carts/ Bins by waste stream (Refuse, Recycling, Green Waste).
Within forty-five (45) days after the completion of the route audit, Contractor shall
submit to City a report summarizing the results of the audit. This summary shall
include:
• Identification of the routes;
• Route map;
• Truck numbers;
• Number of accounts, by route and in total;
• Confirmation that all routes are dedicated exclusively to City Customers;
• Number and type of exceptions observed;
• Total monthly service charge, pre -audit;
• Total monthly service charge, post -audit (subsequent to corrections of identified
exceptions).
The report shall include a description of the procedures followed to complete the route
audit. This description shall include the names and titles of those supervising the route
audits and the name and titles of those performing the observations.
The report shall also include a description of the changes and Contractor's plans to
resolve the exceptions. The results of the audit, and supporting back-up data, shall be
available for review by City or its representative.
July 13, 2009, DRAFT -50- City of Diamond Bar - Residential
ARTICLE 5
OTHER SERVICES
5.1 Customer Billing and Contractor Compensation
5.1.1 Billing
Contractor shall Bill Customers quarterly in accordance with the approved rate
schedule attached as Exhibit 2.
Cart customers shall be Billed quarterly, with invoice dated no sooner than the first day
of the quarter Billed for, and payment shall be due no sooner than 30 days after invoice
date. The quarters shall begin on February 1, May 1, August 1 and November 1. Extra
Bulky Item pickups or extra overage pickups may be added to quarterly Billing, or may
be Billed at time of service.
Customers' temporary Bin and Roll -Off Box services may be Billed at the time of, or in
advance of, service, or on a monthly or bi-monthly Billing cycle.
Contractor Compensation is exclusively derived from revenue received as a result of
the Billings for services listed on the approved rate schedule, and Contractor shall
charge no additional fees unless approved in advance by the City. Contractor shall be
responsible for bad debt.
5.1.2 Contractor's Invoices
Bills must be itemized by Container size, frequency of service and period billed for. City
must approve the format of Contractor billing invoices. All bills must carry a due date,
not "due upon receipt." Bills will not carry an itemization of fees remitted to the City.
5.1.3 Yard Waste Reduction Discount
Customers may apply for a yard waste reduction discount under the following
conditions:
A. Customer borrows and watches instructional DVD from City regarding backyard
composting or attends a City -sponsored composting class;
B. Customer obtains composting bin from Contractor; and,
July 93, 2009, DRAFT -51- City of Diamond Bar - Residential
C. Contractor removes yard waste Cart from Customer after Customer applies to City
for reduction in green waste services pursuant to Diamond Bar Municipal Code
Chapter 8.16.
5.1.4 Disabled Customer Discount
Customers determined to be disabled, either by the issuance of a handicap placard from
the Department of Motor Vehicles or by otherwise obtaining approval from the City
under City -established guidelines, will receive a 15% discount off the standard monthly
rate for one Refuse, Recycling and Green Waste Cart service or, the Single Family
monthly Bin rate. The disabled party must be the Customer named on the Billing.
5.1.5 Senior Discount
Customers entitled to the senior rates included in the approved rate schedule are
Customers that are listed on the Bill, reside at the Premises where service is received
and are 60 years of age or older.
5.1.6 Non -Payment, Suspension of Service
5.1.6.1 Quarterly Cart Billings
The following procedures apply to Customer accounts that are Billed quarterly for
weekly Cart service:
1. For balances outstanding for 60 days after due date, Contractor shall send a
reminder notice to Customer that payment is overdue. Notice should include a
warning that balances outstanding after 75 days shall be assessed a late fee, and that,
if balance remains outstanding after 90 days, service shall be suspended.
2. For balances outstanding for 75 days after due date, Contractor shall send a notice
that that service may be discontinued if overdue balance is not received within 15
days. Contractor shall provide list of these Customers to the City the time these
notices have been sent. Contractor may charge a late fee equal to 10% of balance
outstanding for at least 75 days after due date.
3. For balances outstanding for 90 days, Contractor may provide Customer with notice
that service has been suspended until outstanding balance is paid in full, including
late payment fee, provided Contractor has completed steps 1 and 2 above and has
provided City with a list of Customers being so notified.
July 93, 2009, DRAFT -52- City of Diamond Bar - Residential
5.1.6.2 Temporary Bin and Roll -Off Box Service
1. Contractor may request advance payment for temporary services.
2. Contractor may require outstanding temporary services balances be paid prior to
providing subsequent temporary services.
3. Weekly Cart Collection services shall not be suspended due to outstanding balances
for Bin or Roll -Off Box Services.
5.1.6.3 Collection Proceedings
Contractor may pursue independent collections against Customers. City will not pursue
collections on behalf of Contractor.
5.1.6.4 Continued Provision of Service
In the event of a Billing dispute or to avoid an immediate threat to public health or
safety, Contractor shall continue to provide service to Customers if requested in writing
by City, without regard to the status of said Customer account and at no expense to
City.
5.2 Customer Service
5.2.1 Local Office
Contractor shall maintain a local office. Said office shall be open ("Office Hours"), at a
minimum, from 7:00 A.M. to 5:00 P.M., Monday through Friday, exclusive of holidays.
A responsible and qualified representative of Contractor shall be available during
Office Hours for personal communication with the public at the local office. Contractor
shall have either a representative, a message machine, or an answering service available
outside of Office Hours. Calls received outside of Office Hours shall be responded to
on the next business day. Contractor shall provide City with a twenty-four (24) hour
emergency number to a live person, not voice -mail.
5.2.2 Complaint Documentation
Service complaints received by City will be directed to Contractor. Contractor shall
keep daily logs of complaints forwarded to it for a minimum of three (3) years.
July 13, 2009, DRAFT -53- City of Diamond Bar - Residential
Contractor shall log all complaints received and said log shall include the date and time
the complaint was received, the name, address and telephone number of the
caller/ complainant, a description of the complaint, the name of the employee recording
the complaint and the action taken by Contractor to respond to and remedy the
complaint. The log shall also include each instance that Solid Waste and/or Recyclables
are not Collected and the form of notification used to inform the participants of the
reasons for non -Collection and the end result or means of resolution of the incident.
All written Customer complaints and inquiries shall be date-stamped when received.
All complaints shall be initially responded to within one (1) business day of receipt.
Contractor shall use best efforts to resolve complaints within two (2) business days.
Contractor shall log action taken by Contractor to respond to and remedy the
complaint.
All Customer service records and logs kept by Contractor shall be available to City
upon request. City shall, at any time during regular Office Hours, have access to
Contractor's Customer service department for purposes that may include monitoring
the quality of Customer service or researching Customer complaints.
5.2.3 Customer Service Standards
Customer care is among the most important aspects of the services to be required of the
Contractor. Contractor shall perform customer service at a level that can be measured
by the following two standards:
A. The number of complaints in any one month period totaling no more that 1% of the
number of residential customers served. In Diamond Bar, there are an estimated
15,475 residential cart customers, meaning that in any given month, there must not
be more than 154 complaints. Any compliant level in excess of this measure will be
considered a separate violation of this Agreement.
B. Sufficient telephone line capacity during normal office hours to ensure that all calls
will be answered in less than an average of thirty (30) seconds.
Contractor shall insure that all incoming calls are answered courteously and
promptly during the office hours stated above. Calls will be answered in less than an
average of thirty (30) seconds, and thereafter will not be placed on hold longer than
an average of one (1) minute before talking to a customer service representative of
July 13, 2009, DRAFT -54- City of Diamond Bar - Residential
the Contractor. This standard must be measured quarterly, and the Contractor shall
not exceed this standard or it will be considered a separate violation of the
Agreement.
Contractor shall track complaints and call ringing and hold requirements, and include
results in its quarterly report to the City. In any 12 -month period, accumulation by the
Contractor of four or more separate customer service violations shall be deemed a
material breach of this Agreement and shall subject Contractor to all remedies which
are available to the City under this Agreement or otherwise. A violation is one month in
which the number of complaints exceeds the maximum permitted under Section
5.2.3(A) or one calendar quarter in which fewer than 90% of calls placed by the City and
its Customers to Contractor are answered by a live customer service representative
before the fourth ring under Section 5.2.3(B).
Contractor shall train its employees in Customer courtesy, shall prohibit the use of loud
or profane language, and shall instruct Collection crews to perform the work quietly.
Contractor shall use its best efforts to assure that all employees present a neat
appearance and conduct themselves in a courteous manner. If any employee is found
to be discourteous or not to be performing services in the manner required by this
Agreement, Contractor shall take all necessary corrective measures including, but not
limited to, transfer, discipline or termination. If City has notified Contractor of a
complaint related to discourteous or improper behavior, Contractor will consider
reassigning the employee to duties not entailing contact with the public while
Contractor is pursuing its investigation and corrective action process.
Contractor shall record Customer complaints regarding Customer service personnel in
accordance with Section 5.2.2. Customer service representatives receiving multiple
complaints are to be transferred from Customer service duties or, with City approval,
disciplined and appropriately trained.
5.2.4 Resolution of Customer Complaints
Disputes between Contractor and Customers regarding the services provided in
accordance with this Agreement may be resolved by City. City's decision shall be final
and binding.
July 93, 2009, DRAFT -55- City of Diamond Bar - Residential
Intervention by City is not a condition precedent to any rights or remedies third parties
might otherwise have in any dispute with Contractor. Nothing in this section is
intended to affect the remedies of third parties against Contractor.
5.2.5 Contract Liaison
Contractor shall designate in writing a "Contract Liaison" who shall be responsible for
working with City and/or City's designated representative(s) to resolve Agreement -
related issues. City shall have the right to approve the Contractor's choice for a liaison.
City shall be notified in advance of any change in Contract Liaison.
5.2.6 Service Liaison
Contractor shall designate in writing a field supervisor as "Service Liaison" who shall
be responsible for working with City and/or City's designated representative(s) to
resolve Customer service related complaints. City shall have the right to approve the
Contractor's choice for a liaison. City shall be notified in advance of any change in
Service Liaison.
5.3 Education and Public Awareness
5.3.1 General
Contractor acknowledges and agrees that education and public awareness are critical
elements of efforts to achieve the requirements of AB 939. Accordingly, Contractor
agrees to take direction from City to exploit opportunities to expand public and
Customer knowledge concerning needs and methods to reduce, reuse and Recycle Solid
Waste and to cooperate fully with City in this regard.
Contractor shall maintain its own program of providing information relevant to needs
and methods to reduce, reuse and recycle Solid Waste to be distributed, when
appropriate, along with its Bills. All public education materials shall be subject to
approval in advance by City and shall be printed in English, Mandarin and Korean.
5.3.2 Implementation and On-going Education Requirements
In order to promote public education, in addition to any other materials it develops,
Contractor shall create the following public education materials and programs at its
expense, which will be distributed as indicated below. All of these materials and
July 93, 2009, DRAFT -56- City of Diamond Bar - Residential
programs shall be produced and/or available in English, Mandarin and Korean
languages, including pictures wherever applicable. All brochures, mailings, and other
educational materials are subject to approval by City in advance of distribution. A
Public Education Plan shall be submitted to City for review within sixty (60) days of the
execution of this Agreement. The plan shall address the items described in this section.
The approved plan shall be attached to this Agreement as Exhibit 1.
Initial Mailing -Within forty-five (45) days of the start of Collection service under
this Agreement, Contractor will prepare and mail an initial mailing to all Customers
explaining the transition from the existing Solid Waste Collection Service program
to the new program as defined by this Agreement. The mailing will describe roll-
out of new Carts, program changes, new fees or changes in Collection charges, route
changes if any, dates of program implementation, Recycling and Diversion
programs available, and other pertinent information.
• Instructional "How-to" Packets - An information packet shall be provided to each
Customer at the start of service under this Agreement and to each new Customer
throughout the Agreement term. This packet shall: describe available services,
including available Recycling and Diversion programs; provide instructions for
proper use of the Containers (such as how to place Carts or other permitted items
for Collection, the types of materials to be placed in each Cart and other similar
information); detailed holiday Collection schedules; provide billing and Customer
service telephone numbers; identify who to contact with service or Billing questions;
and who to contact for Bulky Item pickups.
The packet should also clearly indicate what materials, such as syringes and other
Household Hazardous Wastes (HHW), should not be disposed of in the Containers.
The packet shall include instructions on how Customers should dispose of HHW.
• Container Labels and Hot Stamps - Recyclables and Green Waste Containers shall
carry stickers/labels and hot stamps as described in Sections 4.6.3.1.D and 4.6.3.3.B.
• Billing Inserts - City may require Contractor to insert notices in Contractor's
Billings up to four (4) times per year. City may instruct Contractor to prepare such
notices at Contractor's expense, or may choose to provide such notices for insertion.
Additionally, City may periodically request that Contractor include informative
language directly on the invoices it sends.
July 13, 2009, DRAFT -57- City of Diamond Bar - Residential
• Annual Brochures/Mailings - Not less than once per year during each Rate Year,
Contractor shall prepare and distribute to each Customer a mailing to update
Customers regarding program basics, program changes, holiday schedules and
other service related information. Mailings should promote and explain: all Solid
Waste programs offered by City and Contractor (such as Recycling, Green Waste,
Holiday Tree and Bulky Item Collections) described in detail; the environmental,
regulatory, and other benefits of participating in Recycling; how to properly dispose
of Household Hazardous Waste such as syringes, paint, etc.; Collection schedules,
including holiday schedules; Customers service numbers; and the procedures to
begin and terminate services (if moving from Premises). This brochure shall be at
least four (4) pages, and printed in full color. Contractor is responsible for all
associated costs.
• Corrective Action Notice - Contractor shall develop a corrective action notification
form for use in instances where a Customer sets out inappropriate materials for
Collection, that explains the appropriate manner for Disposal of such items.
• Website - Contractor shall develop and maintain a website to display holiday
schedules, explain proper HHW disposal procedures, which materials are to be
placed in Recyclables Containers and other useful information, as well as informing
Customers how to contact Contractor.
5.3.3 Contractor Representative
Contractor shall retain on its staff an individual who shall, as part of his or her job
function, routinely visit civic groups, school assemblies, and homeowners' associations
to promote and explain the Recycling programs Contractor offers, and participate in
demonstrations, and civic events, and coordinate those visits with the City.
5.3.4 Community Events
At the direction of City, Contractor shall participate in and promote Recycling and
other Diversion techniques at community events and local activities. Such participation
would normally include providing, without cost, educational and publicity information
promoting the goals of City's Solid Waste program.
July 93, 2009, DRAFT -58- City of Diamond Bar - Residential
5.4 Waste Generation/Characterization Studies
Contractor acknowledges that City must perform Solid Waste generation and Disposal
characterization studies periodically to comply with the requirements of AB 939.
Contractor agrees to participate and cooperate with City and its agents and to
accomplish studies and data collection and prepare reports, as needed and directed by
City, to determine weights and volumes of Solid Waste Collected and characterize Solid
Waste generated, disposed, transformed, diverted or otherwise handled/ processed, by
Customer type, to satisfy the requirements of AB 939. Contractor will at its sole expense
conduct such a waste generation and characterization study upon request of City, but
not more than once every two years.
July 13, 2009, DRAFT -59- City of Diamond Bar - Residential
ARTICLE 6
COMPANY COMPENSATION AND RATES
6.1 General
The maximum rates set forth in Exhibit 2, and as more fully defined as Contractor
Compensation in this Article, shall be the maximum amount Contractor may charge
Customers as full, entire and complete compensation due pursuant to this Agreement
for all labor, equipment, materials and supplies, taxes, insurance, bonds, letters of
credit, overhead, Disposal, transfer, profit and all other things necessary to perform all
the services required by this Agreement in the manner and at the times prescribed.
Contractor shall impose no other charges for services provided to Customers unless
approved by the City Manager.
6.2 Initial Rates
The maximum rates that Contractor may charge Customers through the Rate Year
ending June 30, 2011, shall not exceed the maximum rates set forth in Exhibit 2.
6.3 Schedule of Future Adjustments
Beginning with the Rate Year starting July 1, 2011 and ending on June 30, 2012 and for
all subsequent Rate Years, Contractor may request an annual adjustment to the
maximum rates shown in Exhibit 2. The Contractor shall submit its request in writing,
to be received by City in Person or via certified mail, by the preceding March 31, and
shall be based on the method of adjustment described in Section 6.4. Failure to submit a
written request by March 31 shall constitute a waiver by Contractor of its right to
request such an increase for the subsequent Rate Year. Adjustment to the maximum
rates is subject to the approval of the City Manager.
6.4 Method of Adjustments
6.4.1 General
Pursuant to Section 6.3, the Contractor may request an adjustment to the maximum
rates for all rates excluding temporary services rates according to the method described
below and the formula shown in Exhibit 3A, subject to review and approval of City. All
July 13, 2009, DRAFT -60- City of Diamond Bar - Residential
future adjustments are to be effective July 1 of the same calendar year, following the
March 31 submission deadline.
6.4.2 Cost Components for Rate Adjustment Indices
The approved rates consist of the following cost component categories. Each cost
component may be adjusted by the change in the corresponding index below. See
Section 6.4.3 for detailed rate adjustment procedures.
Cost Category
s
W8
Rate Adjustment Factor
6hti0n
Hourly Rate
$17.25
$18.15
Change in the "Driver" Classification to be in effect as of the
Rate Adjustment Date
n/a
date the new rates go into effect (July 1) under the
7/01/09
Change to Labor
Component
Agreement between Waste Management of San
5.2%
3.6%
Gabriel/Pomona Valley, Inc. and Teamsters Automotive
Labor
25.6%
Industrial and Allied Workers Local No. 495
Producer Price Index WPU 0531, Fuels and related products
Fuel
5.0%
and power, natural gas
Producer Price Index, PCU336120336120, Heavy duty truck
Equipment
16.5%
manufacturing
The actual change in landfill gate fee per ton at the
approved landfill, inclusive of taxes and fees included in
Disposal
22.8%
gate fee
Consumer Price Index for All Urban Consumers
(CUURA421SAOLIE), all items less food and energy - Los
All Other
30.1%
An eles-Riverside-Oran e County, CA
Total
100.0%
1 For example, under theagreement ter minatin October 1, 2009, these rates are:
Contract Date
10/1/06
10/1/07
10/01/08
Hourly Rate
$17.25
$18.15
$18.80
Rate Adjustment Date
n/a
7/01/08
7/01/09
Change to Labor
Component
n/a
5.2%
3.6%
Comparable rates from subsequent labor agreements will similarly apply. If a
subsequent labor contract has not been executed prior to a rate adjustment calculation,
the percentage change in the labor cost component used in the prior year's adjustment
calculation will be used. In the event that the estimated labor component change is
higher or lower than the actual change after a new labor contract is executed, no
compensation adjustment shall be provided for prior periods.
July 13, 2009, DRAFT -61- City of Diamond Bar - Residential
6.4.3 Rate Adjustment Steps
All rates, excluding temporary service rates, will be adjusted using the same
methodology and cost component weightings. See Exhibit 3A.
Step One - Calculate the percentage increase or decrease in the index for each cost
category listed in Section 6.4.2. The increase or decrease in the published indices for
fuel, equipment and all other (CPI) will be for the change in the average annual
published index between the calendar year ended the December prior to the Rate Year
anniversary date and prior calendar year. (See Exhibit 3B for an example average
annual change in published index year over year.)
Step Two - The weightings of the cost components for the first rate adjustment are
identified in the table in Section 6.4. Components to be used in subsequent years shall
be calculated in Step Four of the rate adjustment. For Step Two of each subsequent rate
adjustment, use the cost components recalculated in Step Four during the previous rate
adjustment.
The hauler may elect to apply for a one-time reset of cost component weightings prior
to the first rate adjustment based upon actual costs from August 16, 2010 through
February 28, 2011. This request and supporting data shall be submitted to the City by
March 31, 2011. The revision of the cost component weightings is subject to approval by
the City Manager, which will review the request and supporting data for
reasonableness.
Multiply the percentage changes for each rate adjustment component by that
component's weighting and add these resulting percentages together to get the total
weighted change to the rates.
Step Three - Multiply the total weighted percent change from Step Two by the existing
Customer rates to calculate the increase or decrease to the maximum rates. Add the rate
increase or decrease to the existing rates to derive the newly adjusted rates.
Step Four - Recalculate weightings for the following year based upon these changes.
6.4.4 Temporary Service Rate Adjustment
Rates for temporary Roll -Off Box service, temporary Bin service and temporary
container rental are equal to the rates for the same services under the City's Bin and
July 93, 2009, DRAFT -62- City of Diamond Bar - Residential
Roll -Off Box Customer Solid Waste Management Services agreement with Valley Vista
Services, and shall remain equal for the duration of the term of the Agreement,
receiving the same rate adjustments as granted under the City's Bin and Roll -Off Box
Customer Solid Waste Management Services agreement.
6.5 Extraordinary Adjustments
Contractor may request an adjustment to maximum rates in the event of extraordinary
changes in the cost of providing service under this Agreement, including changes in a
direct per ton surcharge assessed at the Disposal Site by federal, state or local regulatory
agencies after the Effective Date. These requests, with the exception of changes in a
direct per ton surcharge assessed at the Disposal Site by federal, state or local regulatory
agencies after the Effective Date, if approved, shall only be granted at the time of the
annual July 1 increase per Section 6.3, must be submitted no later than March 31 of each
year, and should be submitted as early as feasible to provide City with sufficient time to
review the request prior to granting the annual July 1 increase. Changes in Disposal
surcharges may be requested at other times. Such changes shall not include changes in
Recyclable Material processing costs, inaccurate estimates by the Contractor of its
proposed cost of operations, or unionization of Contractor's work force. Extraordinary
rate adjustments shall only be effective after approval by City Council and may not be
applied retroactively.
For each request for an adjustment to the maximum rates that Contractor may charge
Customers brought pursuant to this section, Contractor shall prepare a schedule
documenting the extraordinary costs. Such request shall be prepared in a form
acceptable to City with support for assumptions made by Contractor in preparing the
estimate. Contractor shall also submit a schedule showing how its total costs and total
revenues have changed over the past three years for the services provided under this
Agreement.
City may request a copy of the Contractor's annual financial statements in connection
with the City's review of Contractor's extraordinary rate adjustment request. City shall
review the Contractor's request and, in City's sole judgment and absolute, unfettered
discretion, make the final determination as to whether an adjustment to the maximum
rates will be made, and, if an adjustment is permitted, the appropriate amount of the
adjustment. City will confirm receipt of a request for an extraordinary rate adjustment
within sixty (60) days of receipt of Contractor's request and will promptly coordinate
July 13, 2009, DRAFT -63- City of Diamond Bar - Residential
with Contractor to assess the request. City may consider increases or decreases in the
Contractor's total revenues and total cost of services when reviewing an extraordinary
rate adjustment request.
6.6 Effect of Proposition 218
If a rate adjustment approved by the City Manager or City Council is prevented from
implementation due to a protest under Proposition 218, Contractor is permitted to
terminate this Agreement upon one-year notice. Parties do not believe and do not
intend to imply that Proposition 218 applies to Contractor's charges.
6.7 Residential Recyclables Rebate to Customers
By March 31 of each year, Contractor shall provide the City with a report that includes:
1) The number of tons of Residential curbside Recyclables sold under this Agreement
during the preceding calendar year: and,
2) Recyclables revenue received from the sale of recovered materials from Residential
curbside Recyclables under this Agreement for the preceding calendar year.
The reported Recyclables revenue and tonnage shall exclude, for purposes of this
section, Green Waste and Construction and Demolition Debris tonnage, Bulky Items, or
other material not Collected as part of the regularly scheduled Residential curbside
Recycling program.
Fifty percent (50%) of revenue in excess of $45.00 per ton on average for the preceding
calendar year shall be rebated to Customers once per year in the form of a credit on
each Customer's Billing account. The credit will post on the account for the Billing
period that includes July 1 of the year following the calendar year in which the revenue
was received. The $45.00 per ton threshold shall be fixed for the Term of the Agreement.
The rebate shall be calculated per the example calculation below:
July 13, 2009, DRAFT -64- City of Diamond Bar - Residential
Example of Recycling Rebate Credit Calculation
Recyclables Revenue Received in Year 1:
$250,000
Tonnage Sold in Year 1:
5,000
Average Annual Revenue Per Ton in Year 1:
$50.00
Average Annual Revenue per ton Over $45.00:
$5.00
- If less than $0, no rebate shall be distributed.
-
- If greater than $0, multiply by Tonnage Sold in Year 1:
$25,000
Recyclables Revenue to be Rebated - 50%:
$12,500
Number of Customers July 1 Year 2, when rebate is distributed:
15,500
Rebate per Customer (Rebate/ Customers):
$0.81
In this example, each resident billed for service July 1 of Year 2 would receive a credit of
$0.81 on the July 1, Year 2 Billing.
July 93, 2009, DRAFT -65- City of Diamond Bar - Residential
ARTICLE 7
REVIEW OF SERVICES AND PERFORMANCE
7.1 Performance Review Meeting
City may hold a meeting annually to review Contractor's Solid Waste Collection efforts,
source reduction, processing and other Diversion services and overall performance
under this Agreement (the "Solid Waste Services and Performance Review Meeting').
The purpose of the Solid Waste Services and Performance Review Meeting is to provide
for a discussion and review of technological, economic, and regulatory changes in
Collection, source reduction, Recycling, processing and Disposal to achieve a
continuing, advanced Solid Waste Collection, source reduction and Recycling and
Disposal system, and to ensure services are being provided by Contractor with
adequate quality, effectiveness and economy, and in full compliance with the terms of
this Agreement. Topics for discussion and review at the Solid Waste Services and
Performance Review Meeting shall include, but shall not be limited to, services
provided, feasibility of providing new services, application of new technologies,
Customer complaints, amendments to this Agreement, developments in the law, new
initiatives for meeting or exceeding AB 939's goals, regulatory constraints, results of
route audits, and Contractor performance. City and Contractor may each select
additional topics for discussion at any Solid Waste Services and Performance Review
Meeting.
City shall notify Contractor of its intent to hold a Solid Waste Services and Performance
Review Meeting at least sixty (60) days in advance thereof. Thirty (30) days after
receiving notice from City of a Solid Waste Services and Performance Review Meeting,
Contractor shall submit a report to City which may contain such information as it
wishes to have considered, and shall contain the following:
a) Current Diversion rates and a report on Contractor's outreach activities for the
past year.
b) Recommended changes and/or new services to improve City's ability to meet the
goals of AB 939 and to contain costs and minimize impacts on rates. A specific
plan for AB 939 compliance shall be included.
c) Any specific plans for provision for new or changed services by Contractor.
July 13, 2009, DRAFT -66- City of Diamond Bar - Residential
The reports required by this Agreement regarding Customer complaints shall be used
as one basis for review of Contractor's performance, and Contractor may submit other
relevant performance information and reports for consideration at the Solid Waste
Services and Performance Review Meeting. In addition to the above, City may request
Contractor to submit any other specific information relating to its performance for
consideration at the Solid Waste Services and Performance Review Meeting, and any
Customer may submit comments or complaints during or before the Meeting, either
orally or in writing. Contractor shall be present at and participate in the Solid Waste
Services and Performance Review Meeting.
As a result of its findings following any Solid Waste Services and Performance Review
Meeting, City may require Contractor to provide expanded or new services within a
reasonable time and City may direct or take corrective actions for any performance
inadequacies (although nothing contained in this provision should be construed as
requiring City to hold a Solid Waste Services and Performance Review Meeting in order
to enforce any rights or remedies it has pursuant to the terms hereof.) Should City
require expanded or new services as a remedy for Contractor's failure to perform its
obligations hereunder, no additional compensation shall be due for such services.
Otherwise, any new or expanded services required of Contractor shall be subject to the
provisions of Section 2.10.
7.2 Performance Satisfaction Survey
If requested by the City, Contractor will create and conduct a survey at Contractor's
expense. If City would like to present results at a Solid Waste Services and Performance
Review Meeting, City shall notify Contractor of its desire for such a survey at least 90
days in advance of the Solid Waste Services and Performance Review Meeting. The
purpose of the survey is to determine Customer satisfaction with current Collection
services and Customer service provided by Contractor. The Survey will be distributed
to a minimum of ten percent (10%) of the Customers, selected at random. Contractor
shall obtain City's approval of the survey's content, format, and mailing list prior to its
distribution. City may require that Contractor have Customer responses to the survey
returned directly to City. The survey results shall be made available to the City thirty
(30) days prior to the Solid Waste Services and Performance Review Meeting.
July 13, 2009, DRAFT -67- City of Diamond Bar - Residential
ARTICLE 8
RECORDS, REPORTS AND INFORMATION REQUIREMENTS
8.1 General
Contractor shall maintain such accounting, statistical and other records related to its
performance under this Agreement as shall be necessary to develop the financial
statements and other reports required by this Agreement. Also, Contractor agrees to
conduct data collection, information and record keeping, and reporting activities
needed to comply with applicable laws and regulations and to meet the reporting and
Solid Waste program management needs of City. To this extent, such requirements set
out in this and other Articles of this Agreement shall not be considered limiting or
necessarily complete. In particular, this Article is intended to only highlight the general
nature of records and reports and is not meant to define exactly what the records and
reports are to be and their content. Further, with the written direction or approval of
City, the records and reports to be maintained and provided by Contractor in
accordance with this and other Articles of this Agreement shall be adjusted in number,
format, or frequency.
8.2 Records
8.2.1 General, Right to Inspect
Contractor shall maintain records required to conduct its operations, to support
requests it may make to City, and to respond to requests from City in the conduct of
City business. Adequate record security shall be maintained to preserve records from
events that can be reasonably anticipated such as a fire, theft and earthquake.
Electronically maintained data/ records shall be protected and backed up. All records,
with the exception of records to be maintained under Section 8.2.4, shall be maintained
for five (5) years, and shall continue to be available for five (5) years after the expiration
of this Agreement. After minimum holding periods are met, Contractor will notify City
Manager and City Attorney ninety (90) days before destroying records and offer
records to the City.
City shall have the right to inspect or review the specific documents or records required
expressly or by inference pursuant to this Agreement, or any other similar records or
July 13, 2009, DRAFT -68- City of Diamond Bar - Residential
reports of Contractor or its Affiliates that City shall deem, in its sole discretion,
necessary to evaluate annual reports, and Contractor's performance provided for in this
Agreement. Contractor agrees that such records shall be provided or made available to
City and its official representatives. Account histories shall be accessible to the City by
computer for a minimum of five (5) years after termination of the Agreement.
Contractor shall make all records and documents to be reviewed and inspected by City
as a part of any audit or other record review conducted by City, available for City's
review, inspection and copying within five (5) days of receiving written notice from
City requesting the same. Additionally, City may review records at Contractor's local
facility during normal business hours, within five (5) days of request during normal
business hours. Such records include, but are not limited to, financial, Solid Waste,
CERCLA and Disposal records.
8.2.2 Financial Records
Contractor shall maintain financial records relating to its operations pursuant to this
Agreement separate and segregated from such records relating to its other operations.
Contractor shall maintain at least the following records:
• Audited financial statements for Contractor or, if a guarantee was provided, for the
parent company guarantor as a whole;
• Financial statements (compiled, reviewed or audited) of revenue and expense for
this Agreement segregated from the other operations of Contractor (including
without limitation those operations of Contractor in City and surrounding
jurisdictions which are not covered by this Agreement), including a description of
segregation methodology; and
• Complete descriptions of related party transactions (corporate and/or regional
management fees, inter -company profits from transfer, processing or Disposal
operations).
8.2.3 Solid Waste Records
Contractor shall maintain and make available to the City upon request the following
records relating to its operations pursuant to this Agreement:
a) Customer services and Billing/ City payment records;
July 13, 2009, DRAFT -69- City of Diamond Bar - Residential
b) Records of tons Collected, processed, diverted and disposed by waste stream
(Refuse, Recycling, Green Waste), by Customer type (Cart, Bin, Roll -Off Box),
and the Facilities (Transfer Station, MRF, or landfill) where such material was
taken;
c) Quantity of Recyclable Materials recovered by material type, as well as quantity
of material diverted from landfills in compliance with AB 939;
d) Bulky Item results and Special Event tonnages, including tons disposed and
diverted;
e) Routes;
f) Facilities, equipment and personnel used;
g) Facilities and equipment operations, maintenance and repair;
h) Number and type of Refuse, Recycling and Green Waste Containers in service;
i) Complaints; and
j) Missed pickups.
8.2.4 CERCLA Defense Records
City views the ability to defend against the Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA) and related litigation as a matter of great
importance. For this reason, City regards the ability to prove where Solid Waste
Collected in the City was taken for Disposal, as well as where it was not taken, to be
matters of concern. Contractor shall maintain data retention and preservation systems
which can establish where Solid Waste Collected in the City was landfilled (and
therefore establish where it was not landfilled) for not less than twenty-five (25) years
following the termination of this Agreement, and agrees to notify City Manager and
City Attorney before destroying such records thereafter. At any time, including after
the expiration of the Term hereof, Contractor shall provide copies of such records to
City upon request. The requirements of this section shall survive the expiration of the
Term of this Agreement.
July 93, 2009, DRAFT -70- City of Diamond Bar - Residential
8.2.5 Section Deleted
8.2.6 Other Programs' Records
Records for other programs shall be tailored to specific needs. In general, they shall
include:
a) Plans, tasks, and milestones; and,
b) Accomplishments in terms such as dates, activities conducted, quantities of
products used, produced or distributed, and numbers of participants and
responses.
8.2.7 Audit
City may conduct an audit of Contractor at any time. The scope of the audit, and
auditing party, will be determined by City and the scope may include, but is not limited
to, compliance with terms of this Agreement, Customer service levels and Billing, fee
payments, Gross Receipts, tonnage, and verification of Diversion rate. The first audit, to
be performed during calendar year 2012, will be based on the Contractor's reports and
records from the start of the Agreement through calendar year 2011. Audits will be
performed every third year thereafter. Contractor will reimburse to the City the cost of
such audits (including audits conducted by City staff) up to $50,000 for the first audit,
and $35,000 for each subsequent audit in 2012 dollars. After 2012, the $35,000 amount
shall be increased annually by the change in CPI using the formula for the change in the
"all other" component of the rates in Section 6.4.
Should an audit conducted or authorized by the City disclose that fees payable by
Company were underpaid by two percent (2%) or more, that tonnage was mis-reported
by 2% or more, or that more than two percent (2%) of the Customers were inaccurately
billed based on the auditor's sampling, for the period under review, City may expand
the scope of the audit and recover all additional audit costs from the Contractor.
8.2.8 Payments and Refunds
Should an audit disclose that fees payable by the Contractor were underpaid to City or
that Customers were overcharged for the period under review, Contractor shall pay to
City any underpayment of fees and/or refund to Contractor's Customers or to City, as
directed by City, any overcharges within thirty (30) days following the date of the audit.
July 13, 2009, DRAFT -71- City of Diamond Bar - Residential
Contractor shall pay interest to the City for any underpayment or overcharges at an
annual rate of 12%. Undercharges shall not be billed in arrears for more than ninety
(90) days of service, with any remaining undercharges absorbed by Contractor. Should
an audit disclose that fees were overpaid, City shall credit such amounts against future
fees payable by Contractor.
8.3 Reports
8.3.1 Report Formats and Schedule
Records shall be maintained in forms and by methods that facilitate flexible use of data
contained in them to structure reports, as needed. Contractor may propose report
formats that are responsive to the objectives and audiences for each report. The format
of each report shall be approved by City, which may require changes and/or additions
to the format.
Reports shall be submitted within thirty (30) calendar days after the end of the
reporting period. Annual reports shall be submitted within thirty (30) calendar days
after the end of the calendar year. If requested, Contractor's complaint summary,
described in Section 5.2.2, shall be sent to the City within five (5) business days of
request.
All reports shall be submitted in electronic format compatible with City's
software/ computers, at no additional charge, to the Public Works Director and/or
other City staff designated by the Public Works Director at e-mail addresses to be
provided by City. City may additionally request hard copies, which would be delivered
to:
Public Works Director
City of Diamond Bar
21825 Copley Drive
Diamond Bar, CA 91765
8.3.2 Monthly Reports
The information listed below shall be the minimum reported:
a) Solid Waste Collected by Contractor, sorted by type of Solid Waste Collected and
diverted (Refuse, Recycling, Green Waste) in tons, including contamination and
July 13, 2009, DRAFT -72- City of Diamond Bar - Residential
Diversion rates for each wastestream and Customer type (Cart, Bin, Roll -Off Box)
and the Facilities where the tons were processed or disposed. Bulky Item tons
Collected and diverted shall also be reported as a separate line item.
b) Number of warning notices issued for contaminated Recyclable Materials and
Green Waste Containers, and HHW improperly placed for Disposal.
c) Narrative summary of problems encountered and actions taken with
recommendations for City, as appropriate.
d) Quantity of Recyclable Materials recovered by material type, as well as quantity
of material diverted from landfills in compliance with AB 939;
e) Description of Contractor outreach activities and copies of promotional and
public education materials sent during the month.
f) Other information or reports that City may reasonably request or require.
8.3.3 Annual Report
The Annual Report is to be essentially in the form and content of the monthly report,
but shall also include:
a) A summary of the number of Containers in service as of December 31 by size
(number of gallons/yards), service frequency, and type of service (Refuse,
Recycling, Green Waste).
b) Records of tons Collected, processed, diverted and disposed by waste stream
(Refuse, Recycling, Green Waste), by Customer type (Cart Bin, Roll -Off Box), and
the Facilities (Transfer Station, MRF, or landfill) where such material was taken.
c) Gross Receipts by sector (Cart, Bin, Roll -Off Box)].
d) A complete inventory of vehicles used to provide all services, including make,
year, type, fuel used, use, California license number and whether or not it is used
as a spare.
e) Number of routes and route hours per day by type of service as of December 31.
f) General information about the Contractor and its most recent annual report.
g) Other information or reports that City may reasonably request or require.
July 93, 2009, DRAFT -73- City of Diamond Bar - Residential
8.3.4 Financial Report
The City may, at City's option, request and be provided with Contractor's financial
reports/ statements for the most recently completed fiscal year in connection with any
audit, extraordinary rate adjustment request, or verification of other information
required under this Agreement.
Financial statements shall include a supplemental combining schedule showing
Contractor's results of operations, including the specific revenues and expenses in
connection with the operations provided for in this Agreement, separated from others
included in such financial statements. The financial statements and footnotes shall be
prepared in accordance with Generally Accepted Accounting Principles (GAAP).
Financial Statements for the parent company guarantor shall be audited, in accordance
with Generally Accepted Auditing Standards (GARS) by a certified public accountant
(CPA) licensed (in good standing) to practice public accounting in the State of
California as determined by the State of California Department of Consumer Affairs
Board of Accountancy. The cost for preparation of the financial statements and audit
shall be borne by Contractor as a direct cost of service. In addition, Contractor shall
provide to City the supplemental schedule on a compiled basis.
8.4 Reporting Adverse Information
Contractor shall provide City two copies (one to the City Manager, one to the City
Attorney) of all reports, pleadings, applications, notifications, Notices of Violation,
commuiucations or other material relating in any way to Contractor's performance of
services pursuant to this Agreement, submitted by Contractor to, or received by
Contractor from, the United States or California Environmental Protection Agency, the
California Integrated Waste Management Board, the Securities and Exchange
Commission or any other federal, state or local agency, including any federal or state
court. Copies shall be submitted to City within thirty (30) days of receipt by Contractor,
or sooner if reasonably apparent that to do so is time critical, and any responses by
Contractor shall be submitted to City simultaneously with Contractor's filing or
submission of such matters with said agencies. Contractor's routine correspondence to
said agencies need not be routinely submitted to City, but shall be made available to
City promptly upon City's written request.
July 13. 2009, DRAFT -74- City of Diamond Bar - Residential
8.5 Failure to Report
The refusal or failure of Contractor to file any required reports, or to provide required
information to City, or the inclusion of any materially false or misleading statement or
representation by Contractor in such report shall be deemed a material breach of this
Agreement as described in Section 11.1 and shall subject Contractor to all remedies
which are available to the City under this Agreement, the Diamond Bar Municipal Code
or otherwise.
July 13, 2009, DRAFT -75- City of Diamond Bar - Residential
ARTICLE 9
INDEMNIFICATION, INSURANCE, BOND AND LETTER OF CREDIT
9.1 Indemnification
Contractor hereby agrees to and shall indemnify and hold harmless City, its elected and
appointed boards, commissions, officers, employees, consultants and agents
(collectively, "Indemnitees") from and against any and all loss, liability, penalty,
forfeiture, claim, demand, action, proceeding or suit in law or equity of any and every
kind and description (including, but not limited to, injury to and death of any Person
and damage to property, or for contribution or indemnity claimed by third parties)
arising or resulting from and in any way connected with (1) the negligence or willful
misconduct of Contractor, its officers, employees, agents, contractors and/or
subcontractors in performing services under this Agreement; (2) the failure of
Contractor, its officers, employees, agents, contractors and/or subcontractors to comply
in all respects with the provisions of this Agreement, applicable laws (including,
without limitation, the Environmental Laws), ordinances and regulations, and/or
applicable permits and licenses; and (3) the acts of Contractor, its officers, employees,
agents, contractors and/or subcontractors in performing services under this Agreement
for which strict liability is imposed by law (including, without limitation, the
Environmental Laws). The foregoing indemnity shall apply regardless of whether such
loss, liability, penalty, forfeiture, claim, demand, action, proceeding, suit, injury, death
or damage is also caused in part by any of the Indemnitees' negligence, but shall not
extend to matters resulting from the Indemnitees' sole negligence, or willful
misconduct. Contractor further agrees to and shall, upon demand of City, at
Contractor's sole cost and expense, defend (with attorneys acceptable to City) the
Indemnitees against any claims, actions, suits in law or equity or other proceedings,
whether judicial, quasi-judicial or administrative in nature, arising or resulting from
any of the aforementioned events, and to reimburse City for any and all costs and
expenses City incurs in providing any such defense, either before, during or after the
time Contractor elects to provide such defense, including any and all costs incurred in
overseeing any defense to be provided herein by Contractor.
Contractor, upon demand of City, made by and through the City Attorney, shall protect
City and appear in and defend the Indemnitees in any claims or actions by third parties,
July 13, 2009, DRAFT -76- City of Diamond Bar - Residential
whether judicial, administrative or otherwise, including, but not limited to disputes and
litigation over the definitions of "Solid Waste" or "Recyclable Material," the scope of
the rights granted herein, conflicts between the rights granted herein and rights
asserted by other Persons, or the limits of City's authority with respect to the grant of
licenses, or agreements, exclusive or otherwise, or asserting rights under the United
States or California Constitutions or any federal or state law to provide Solid Waste
Collection Services in the City.
THE PROVISIONS OF THIS SECTION SHALL NOT TERMINATE OR EXPIRE,
SHALL BE GIVEN THE BROADEST POSSIBLE INTERPRETATION AND SHALL
SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS
AGREEMENT.
9.2 Hazardous Substances Indemnification
A. Without regard to any insurance coverage or requirements, and without limiting the
above general indemnification obligation in any way, Contractor specifically agrees to
and shall, to the maximum extent permitted by law, defend (with counsel acceptable to
City), reimburse, indemnify, and hold harmless Indemnities from and against any and
all claims, actions, liabilities, damages, demands, judgments, losses, costs, liens,
expenses, suits, actions, attorneys' fees, consultant fees, penalties and any and all other
losses, damages, fees and expenses of whatever kind or nature ("Claims") (including but
not limited to response costs, investigative costs, assessment costs, monitoring costs,
treatment costs, cleanup costs, removal costs, remediation costs, and similar costs,
damages and expenses) that arise out of or are alleged to arise out of or in any way
relate to any action, inaction or omission of Contractor that:
1. results in any demand, claim, notice, order, or lawsuit, asserting that any
Indemnitee is liable, responsible or in any way obligated to investigate, assess,
monitor, study, test, treat, remove, remediate, or otherwise cleanup, any
Hazardous Contaminant (as defined herein); or
2. relates to material Collected, transported, recycled, processed, treated or
disposed of by Contractor.
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B. Contractor's obligations pursuant to this section shall apply, without limitation, to:
1. any Claims brought pursuant to or based on the provisions of any
Environmental Law;
2. any Claims based on or arising out of or alleged to be arising out of the
ownership, use, lease, sale, design, construction, maintenance or operation of
Contractor of any Facility;
3. any Claims based on or arising out of or alleged to be arising out of the
marketing, sale, distribution, storage, transportation, Disposal, processing or use
of any materials recovered by Contractor;
4. any Claims based on or arising out of or alleged to be arising out of any
breach of any express or implied warranty, representation or covenant arising
out of or in connection with this Agreement.
C. The foregoing indemnity and defense obligations shall apply irrespective of the
negligence or willful misconduct of Contractor or any Affiliate of Contractor.
D. The foregoing indemnity shall apply regardless of whether such loss, liability,
penalty, forfeiture, claim, demand, action, proceeding, suit, injury, death or damage is
also caused in part by any of the Indemnitees' negligence, but shall not extend to
matters resulting from the Indemnitees' sole negligence, or willful misconduct.
E. For purposes of this section, the term "Hazardous Contaminant" shall mean any
Hazardous Substance, any Hazardous Waste, any crude oil or refined or unrefined
petroleum product or any fraction or derivative thereof; and any asbestos or asbestos -
containing material. The term "Hazardous Contaminant" shall also include any and all
amendments to any referenced statutory or regulatory provisions made before or after
the date of execution of this Agreement.
F. In the event that the City exercises its right under Sections 2.11 and 4.8 to direct
Contractor to use a facility other than a site approved in this Agreement, and such
facility is not owned and operated by Contractor or any parent, affiliate or guarantor of
the Contractor, this indemnification shall not apply for the tonnage directed by the City
to such facility.
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G. THE PROVISIONS OF THIS SECTION SHALL NOT TERMINATE OR EXPIRE,
SHALL BE GIVEN THE BROADEST POSSIBLE INTERPRETATION AND SHALL
SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS
AGREEMENT.
9.3 AB 939 Indemnification and Guarantee
A. To the extent authorized by law, Contractor agrees to indemnify and hold harmless
City from and against all fines and/or penalties imposed by the California Integrated
Waste Management Board in the event the source reduction and Recycling goals or any
other requirement of AB 939 are not met by City with respect to the waste stream
Collected under this Agreement.
B. Contractor warrants and represents that it is familiar with City's waste
characterization study as set forth in City's Source Recovery and Recycling Element
(SRRE), and that it has the ability to and will provide sufficient programs and services
to ensure City will meet or exceed the Diversion requirements (including, without
limitation, amounts of Solid Waste to be diverted, time frames for Diversion, and any
other requirements) set forth in AB 939, with respect to that portion of the Solid Waste
generated in City that is the subject of this Agreement.
9.4 Insurance
Contractor shall procure and maintain during the entire Term of this Agreement the
following types of insurance, and shall maintain the following minimum levels of
coverage, which shall apply to any claims which may arise from or in connection with
Contractor's performance hereunder or the actions or inactions of any of Contractor's
officers, agents, representatives, employees, or subcontractors in connection with
Contractor's performance. The insurance requirements hereunder in no way limit
Contractor's various defense and indemnification obligations, or any other obligations
as set forth herein.
A. Minimum Scope of Insurance. Coverage shall be at least as broad as:
1. The most recent editions of Insurance Services Office Commercial General
Liability coverage ("occurrence" form CG 00 01).
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2. The most recent editions of Insurance Services Office form number CA 00 01
covering Automobile Liability, code 1 "any auto" and endorsement CA 00 25.
3. Workers' Compensation insurance as required by the Labor Code of the
State of California and Employers Liability insurance.
B. Minimum Limits of Insurance. Contractor shall maintain in force for the term
of this Agreement limits no less than:
1. Comprehensive General Liability: Ten Million Dollars ($10,000,000) limit
aggregate and Ten Million Dollars ($10,000,000) limit per occurrence for
bodily injury, Personal injury and property damage.
2. Automobile Liability: Five Million Dollars ($5,000,000) single limit per
accident for bodily injury and property damage.
3. Workers' Compensation and Employers Liability: Workers' compensation
limits as required by the Labor Code of the State of California or provide
evidence of State approval to be self-insured. Employers Liability in the
minimum amount of $1,000,000.
C. Deductibles and Self -Insured Retentions. Any deductibles or self-insured
retentions must be declared to and approved by City. At the option of City, either: the
insurer shall reduce or eliminate such deductibles or self-insured retention's as respects
City, its officials, employees and agents; or Contractor shall procure a bond
guaranteeing payment of losses and related investigations, claim administration and
defense expenses.
D. Other Insurance Provisions. The policies are to contain, or be endorsed to
contain, the following provisions:
General Liability and Automobile Liability Coverages
a) City, its elective and appointive boards, commissions, officials,
employees, agents and volunteers are to be named as additional
insureds as respects: liability arising out of activities performed by
or on behalf of Contractor; products and completed operations of
Contractor; Premises owned, leased or used by Contractor; or
vehicles owned, leased, hired or borrowed by Contractor. The
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coverage shall contain no special limitations on the scope of
protection afforded to City, its elective and appointive boards,
commissions, officials, employees, agents or volunteers.
b) Contractor's insurance coverage shall be primary insurance as
respects City, its elective and appointive boards, commissions,
officials, employees, agents and volunteers. Any insurance or self-
insurance maintained by City, its officials, elective and appointive
boards, commissions, employees, agents or volunteers shall be
excess of Contractor's insurance and shall not contribute with it.
c) Any failure to comply with reporting provisions of the policies
shall not affect coverage provided to City, its officials, elective and
appointive boards, commissions, employees, agents or volunteers.
d) Coverage shall state that Contractor's insurance shall apply
separately to each insured against whom claim is made or suit is
brought, except with respect to the limits of the insurer's liability.
2. Workers' Compensation and Employers Liability Coverage - The insurer
shall agree to waive all rights of subrogation against City, its officials,
elective and appointive boards, commissions, employees, agents and
volunteers for losses arising from work performed by Contractor for City.
3. All Coverages - Each insurance policy required by this clause shall be
endorsed to state that coverage shall not be suspended, voided, canceled
by either party, reduced in coverage or in limits except after thirty (30)
days' prior written notice (ten (10) days written notice in the event of
cancellation for non-payment) by certified mail, return receipt requested,
has been given to City.
E. Acceptability of Insurers. The insurance policies required by this section shall
be issued by an insurance company or companies authorized to do business in the State
of California and with a rating in the most recent edition of Best's Insurance Reports of
size category VII or larger and a rating classification of A or better.
F. Verification of Coverage. Within thirty (30) days of the execution of this
Agreement, or prior to the start of service under this Agreement, whichever comes first,
July 13, 2009, DRAFT -81- City of Diamond Bar - Residential
Contractor shall furnish City certificates of each policy of insurance required hereunder,
in form and substance satisfactory to City. Such certificates shall show the type and
amount of coverage, effective dates and dates of expiration of policies and shall have all
required endorsements. If City requests, copies of each policy, together with all
endorsements, shall also be promptly delivered to City.
Renewal certificates will be furnished promptly upon renewal to City to demonstrate
maintenance of the required coverage throughout the Term.
G. Required Endorsements
Insurance policies shall contain an endorsement in substantially the
following form:
"Thirty (30) days prior written notice (ten (10) days written notice in the
event of cancellation for non-payment) by certified mail, return receipt
requested, shall be given to City in the event of cancellation, reduction in
coverage, or non -renewal of this policy. Such notice shall be sent to:
City Manager
City of Diamond Bar
21825 Copley Drive
Diamond Bar, CA 91765
2. "This policy shall be considered primary insurance as respects any other
valid and collectible insurance maintained by City, including any self-
insured retention or program of self-insurance, and any other such
insurance shall be considered excess insurance only."
3. "Inclusion of City as an insured shall not affect City's rights as respects
any claim, demand, suit or judgment brought or recovered against
Contractor. This policy shall protect Contractor and City in the same
manner as though a separate policy had been issued to each, but this shall
not operate to increase Contractor's liability as set forth in the policy
beyond the amount shown or to which Contractor would have been liable
if only one party had been named as an insured."
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H. Other Insurance Requirements
1. In the event any services are delegated to another company or
subcontractor, Contractor shall require such Contractor or subcontractor
to provide statutory workers' compensation insurance and employer's
liability insurance for all of the Contractor or subcontractor's employees
engaged in the work in accordance with this Section 9.4. The liability
insurance required by this Section 9.4 shall cover all Contractor or
subcontractors or the Contractor or subcontractor must furnish evidence
of insurance provided by it meeting all of the requirements of this Section
9.4.
2. Contractor shall comply with all requirements of the insurers issuing
policies. The carrying of insurance shall not relieve Contractor from any
obligation under this Agreement. If any claim exceeding the amount of
any deductibles or self-insured reserves is made by any third Person
against Contractor or any Contractor or subcontractor on account of any
occurrence related to this Agreement, Contractor shall promptly report
the facts in writing to the insurance carrier and to City.
If Contractor fails to procure and maintain any insurance required by this
Agreement, City may take out and maintain, at Contractor's expense, such
insurance as it may deem proper and recover costs from the Contractor's
Letter of Credit and/or Performance Bond provided under Sections 9.5
and 9.6.
9.5 Faithful Performance Bond
Concurrently with execution of this Agreement, Contractor shall deliver to City a
performance bond in the sum of the amount of One Hundred Twenty-five Thousand
Dollars ($125,000), similar to the form provided in Exhibit 5, which secures the faithful
performance of this Agreement, including, without limitation, payment of any penalty
and the funding of any work to cure a breach of this Agreement, unless such
requirement is waived by the City Manager. The bond shall contain the original
notarized signature of an authorized officer of the surety and affixed thereto shall be a
certified and current copy of his power of attorney. The bond shall be unconditional
July 13, 2009, DRAFT -83- City of Diamond Bar - Residential
and remain in force during the entire term of the Agreement and shall be released only
upon written release from City per Section 9.9.
9.6 Faithful Performance Letter of Credit
A. In addition to a corporate surety bond as noted in Section 9.5 above, Contractor
shall furnish an irrevocable letter of credit in the amount of One Hundred Twenty-five
Thousand Dollars ($125,000), from a financial institution acceptable to the City and in a
form acceptable to the City Attorney as security for the performance of this Agreement
(the "LOC"). The LOC shall be the sole responsibility of Contractor, shall be
unconditional and remain in force during the entire term of the Agreement and shall be
released only upon written release from City per Section 9.9.
B. As an alternative to providing the performance bond and letter of credit required
under 9.5 and 9.6.A, Contractor may provide a letter of credit in the amount of $250,000.
The letter of credit shall be from a financial institution acceptable to the City in a form
acceptable to the City Attorney as security for the performance of this Agreement. The
LOC shall be the sole responsibility of Contractor, shall be unconditional and remain in
force during the entire term of this Agreement and shall be released only upon written
release from City per Section 9.9.
9.7 Forfeiture of Performance Bond
In the event Contractor shall for any reason become unable to, or fail in any way to,
perform as required by this Agreement, City may declare a portion or all of the
performance bond forfeited to the City up to an amount which is necessary to
recompense and make whole the City. Upon partial or full forfeiture of the
performance bond, Contractor shall restore the performance bond to its face amount
within thirty (30) days of the City's declaration. Failure to restore the performance
bond to its full amount within thirty (30) days shall be a material breach of this
Agreement.
9.8 Forfeiture of Letter Of Credit
Thirty (30) days following City providing Contractor with written notice of its failure to
pay City any amount owing under this Agreement, the LOC may be drawn upon by
City for purposes including, but not limited to:
July 93, 2009, DRAFT -84- City of Diamond Bar - Residential
a. Payment of sums due under the terms of this Agreement which Contractor has
failed to timely pay to City
b. Reimbursement of costs borne by City to correct violations of this Agreement not
corrected by Contractor, including but not limited to the liquidated damages
described in Section 11.3.
City may draw upon the entire LOC and convert it to a cash deposit if Contractor fails
to cause the LOC to be extended or replaced with another satisfactory letter of credit no
later than 60 days prior to its expiration during the term hereof. If City partially draws
down LOC, Contractor must restore it to full amount within 30 days of City's draw.
Failure to restore the LOC to its full amount within thirty (30) days shall be a material
breach of this Agreement.
9.9 Performance Security Beyond Service Term
Some Agreement requirements extend beyond the Term of this Agreement and other
requirements, such as minimum Diversion rates per Section 4.2.5, will not be
substantiated until after the final service date. Therefore, the Contractor shall not
terminate the performance bond or letter of credit, and will renew them to ensure
continuous availability to the City, until receiving a written release from the City or
until the fifth annual anniversary of the end of the Term of this Agreement. Permission
from the City to discontinue holding these performance securities does not relieve
Contractor of payments to the City that may be due, or may become due.
July 93, 2009, DRAFT -85- City of Diamond Bar - Residential
ARTICLE 10
CITY'S RIGHT TO CONTRACT WITH THIRD PARTIES TO PERFORM
FRANCHISED SERVICES
City may contract with another Solid Waste enterprise to Collect and transport Solid Waste in
the event Contractor for any reason (except as provided below regarding Force Majeure)
refuses or is unable to Collect Solid Waste for a period of more than forty-eight (48) hours.
City must provide twenty-four (24) hours prior written notice to Contractor during such time
before contracting with another solid waste enterprise. In such event Contractor must identify
sources from which such substitute solid waste services are immediately available and
reimburse City for all of its expenses for such substitute services during period in which
Contractor does not provide Collection and transportation services required by this
Agreement.
July 13, 2009, DRAFT -86- City of Diamond Bar - Residential
ARTICLE 11
DEFAULT, REMEDIES AND LIQUIDATED DAMAGES
11.1 Events of Default
Each of the following provisions, without limitations, are considered material and shall
constitute an event of default by the Contractor.
A. Fraud or Deceit or Misrepresentation. If the Contractor engages in, or attempts
to practice, any fraud or deceit upon City or makes a misrepresentation regarding
material information to City.
B. Insolvency or Bankruptcy or Financial Irresponsibility. If Contractor becomes
insolvent, unable, or unwilling to pay its debts, files a bankruptcy petition or takes steps
to liquidate its assets.
C. Failure to Maintain Coverage. If Contractor fails to provide or maintain in full
force and effect the Workers' Compensation, liability, or indemnification coverage as
required by this Agreement.
D. Violations of Regulations. If Contractor violates any orders or filings of any
regulatory body having jurisdiction over Contractor relative to this Agreement,
provided that Contractor may contest any such orders or filings by appropriate
proceedings conducted in good faith, in which case no breach of the Franchise and this
Agreement shall be deemed to have occurred until a final decision adverse to the
Contractor is entered.
E. Failure to Perform. If Contractor ceases to provide all or a portion of the
Collection, processing or Recycling services, or any other Solid Waste Collection
Services as required under this Agreement for a period of seven O consecutive days or
more, unless, and only to the extent, performance is excused pursuant to Section 11.4.
F. Failure to Pay. If Contractor fails to make any payments required under this
Agreement and/or refuses to provide City, within ten (10) days of the demand, with
required information, reports, and/or records in a timely manner as provided for in the
Agreement.
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G. Failure to Cooperate with Audits. Failure to complete, perform or cooperate
with any audit as described by this Agreement.
H. Failure to Submit Reports or Documentation. Failure to complete or to provide
required reports or documents to City as required by this Agreement.
I. Acts or Omissions.
1. Any act or omission by Franchisee relative to the services provided under
this Agreement which violates the terms, conditions, or requirements of this
Agreement, or AB 939, or any law, statute, ordinance, order, directive, rule,
or regulation issued pursuant to AB 939 not corrected or remedied within
the time set in the written notice of the violation from the issuing entity or, if
Franchisee cannot reasonably correct or remedy the breach within the time
set forth in such notice, if Franchisee should fail to commence to correct or
remedy such violation within the time set forth in such notice and diligently
effect such correction or remedy.
2. Any situation in which Franchisee or any of its officers, directors or
employees are found guilty of any crime related to the performance of this
Agreement, or of any crime related to anti-trust activities, illegal transport or
Disposal of hazardous or toxic materials, or bribery of public officials. The
term "found guilty" shall be deemed to include any judicial determination
that Franchisee or any of Franchisee's officers, directors or employees is
guilty as well as any admission of guilt by Franchisee or any of Franchisee's
officers, directors or employees including, but not limited to, the plea of
"guilty", "nolo contendere", "no contest", and "guilty to a lesser charge."
J. False or Misleading Statements. Any representation or disclosure made to City
by Contractor in connection with or as an inducement to entering into this Agreement,
or any future amendment to this Agreement, which proves to be false or misleading in
any material respect as of the time such representation or disclosure is made, whether
or not any such representation or disclosure appears as part of this Agreement.
K. Attachment. The seizure of, attachment of, or levy on, the operating equipment
of Contractor, including, without limits, its equipment, maintenance or office facilities,
or any part thereof.
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L. Suspension or Termination of Service. Any termination or suspension of the
transaction of business by Contractor, including, without limitation, due to labor unrest
including strike, work stoppage or slowdown, sick-out, picketing, or other concerted
job action lasting more than seven (7) consecutive days, unless, and only to the extent,
performance is excused pursuant to Section 11.4.
M. Failure to Provide Assurance of Performance. If Contractor fails to provide
reasonable assurances of performance as required under Section 11.6.
N. Commingling of Recyclables With Refuse/Landfilling of Recyclables. If
Contractor empties a Container of properly set out Recyclable Materials or Green Waste
into a Refuse load, or transports Recyclable Materials or Green Waste to a landfill or
other location at which the material will not be diverted from landfilling (with the
exception of Green Waste used as alternative daily cover provided full Diversion credit
is received).
O. Failure to Meet Diversion Goals. Contractor fails to achieve diversion goals
specified in Section 4.2.5, for two consecutive calendar years (the initial calendar year
triggering a compliance plan as described in Section 4.2.5 and a second year in which to
approved compliance plan is implemented), beginning with calendar year 2011.
P. Lapse of Performance Bond and/or Letter of Credit. Contractor fails to restore
the full balance of the Performance Bond and/or Letter of Credit required under
Sections 9.5 and 9.6 to the full required value within 30 days of being depleted due to
payment to City under Sections 9.7 or 9.8, or Contractor allows either security at any
time for any other reason to lapse or fall below required minimums for any period of
time.
Contractor shall have forty-eight (48) hours from the time it is given notification by City
to cure any default arising under subsections E, F, G, H, K, L, M, N and P provided,
however, that City shall not be obligated to provide Contractor with a notice and cure
opportunity if Contractor has committed the same or similar breach within a twenty-
four (24) month period. It is expressly understood that Contractor is not entitled to
receive notice of default, or to cure such default, with respect to those matters listed in
subsections A, B, C, D, I, J and O above.
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11.2 Right to Terminate Upon Default and Right to Specific Performance
If Contractor commits a material breach, including specifically any of the matters listed
in subsections A through P of Section 11.1 above (and, if permitted to cure, does not
cure it within the forty-eight (48) hours), City shall be entitled to unilaterally terminate
this Agreement or impose other such sanctions (which may include financial sanctions,
temporary suspensions or any other conditions it deems appropriate short of
termination) as it shall deem proper pursuant to the provisions in this Agreement or the
Diamond Bar Municipal Code. Should City decide to terminate this Agreement upon a
default by Contractor, City shall have the right to do so upon giving ten (10) days notice
to Contractor, and shall not be required by this Agreement to take any further action
(such as holding any hearing, bringing any suit or taking any other action.)
City's rights to terminate this Agreement and City's termination of this Agreement shall
not constitute an election of remedies. Instead, such remedies shall be in addition to
any and all other legal and equitable rights and remedies which City may have.
By virtue of the nature of this Agreement, the urgency of timely continuous and high-
quality service, the time required to effect alternative service, and the rights granted by
City to Contractor, the remedy of damages for a breach hereof by Contractor is
inadequate and City shall be entitled to seek injunctive relief and/or specific
performance of any breach of this Agreement.
11.3 Liquidated Damages
A. General. City finds, and Contractor agrees, that as of the time of the execution of
this Agreement, it is impractical, if not impossible, to reasonably ascertain the extent of
damages which shall be incurred by City as a result of a breach by Contractor of certain
specific obligations under this Agreement. The factors relating to the impracticability of
ascertaining damages include, but are not limited to, the fact that: (i) substantial
damage results to members of the public who are denied services or denied quality or
reliable service; (ii) such breaches cause inconvenience, anxiety, frustration, and
deprivation of the benefits of the Agreement to individual members of the general
public for whose benefit this Agreement exists, in subjective ways and in varying
degrees of intensity which are incapable of measurement in precise monetary terms; (iii)
that the services that are the subject of this Agreement might be available at
substantially lower costs than alternative services and the monetary loss resulting from
July 93, 2009, DRAFT -90- City of Diamond Bar - Residential
denial of services or denial of quality or reliable services is impossible to calculate in
precise monetary terms; and (iv) the termination of this Agreement for such specific
breaches, and other remedies are, at best, a means of future correction and not remedies
which make the public whole for past breaches.
B. Service Performance Standards, Liquidated Damages for Failure to Meet
Standards. The parties further acknowledge that consistent, reliable Solid Waste
Collection Service is of utmost importance to City and that City has considered and
relied on Contractor's representations as to its quality of service commitment in
entering this Agreement with it The Parties further recognize that some quantified
standards of performance are necessary and appropriate to ensure consistent and
reliable service and performance. The Parties further recognize that if Contractor fails
to achieve the performance standards, or fails to submit required documents in a timely
manner, City and its residents will suffer damages and that it is and will be impractical
and extremely difficult to ascertain and determine the exact amount of damages which
City will suffer. Therefore, without prejudice to City's right to treat such breaches as an
event of default under this Article 11, the Parties agree that the following liquidated
damage amounts represent a reasonable estimate of the amount of such damages for
such specific breaches, considering all of the circumstances existing on the date of this
Agreement, including the relationship of the sums to the range of harm to City that
reasonably could be anticipated and the anticipation that proof of actual damages
would be costly or impractical. In placing their initials at the places provided, each
party specifically confirms the accuracy of the statements made above and the fact that
each party has had ample opportunity to consult with legal counsel and obtain an
explanation of the liquidated damage provisions at the time that the Agreement was
made.
Contractor
Initial Here A�
Contractor agrees to pay (as liquidated damages and not as a penalty) the amounts set
forth below:
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1. Collection Reliability
a) For each failure to commence service to a new Customer account within
seven (7) days after order, which exceeds five (5) such failures annually:
$100.00
b) For each failure, which exceeds ten (10) such failures annually, to Collect
Solid Waste from any established Customer account on the scheduled
Collection day and not make up the Collection within the time allotted per
Section 4.6.1:
$100.00
c) For each instance in which Contractor stops service to a Customer, other
than at Customer request due to Customer vacating premises, without the
advance written approval of the City: $100.00
2. Collection Quality
a) For each occurrence of failure to properly return empty Containers to avoid
pedestrian or vehicular traffic impediments or to place Containers upright
which exceeds ten (10) such occurrences annually: $100.00
b) For each occurrence of excessive noise or discourteous behavior which
exceed ten (10) annually:
$250.00
c) For each occurrence of Collecting Solid Waste during unauthorized hours
which exceeds five (5) such occurrences annually: $250.00
d) For each failure to clean up Solid Waste spilled from Solid Waste Containers
within ninety (90) minutes that exceeds ten (10) such failures annually:
$150.00
3. Customer Responsiveness
a) For each failure to initially respond to a Customer complaint within one (1)
business day, and for each additional day in which the complaint is not
addressed, which exceed five (5) annually: $150.00
b) For each failure to process Customer complaints as required by Article 5,
which exceed five (5) annually: $150.00
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c) For each failure to remove graffiti from Containers, or to replace with
Containers bearing no graffiti, within three (3) business days of request from
City or Customer: $ 50.00 per day
d) For each failure to repair or replace a damaged or missing Container within
two (2) business days of request from City or Customer: $ 50.00 per day
e) For each failure to process a claim for damages within thirty (30) days from
the date submitted to Contractor: $100.00
f) For each additional thirty (30) day increment of time in which Contractor has
failed to undertake good faith efforts to resolve a claim for damages within
thirty (30) days from the claim date: $100.00
g) For each violation under Section 5.2.3 (one month of excessive complaints or
one quarter of excessive delays in answering customer service calls):
$500.00
4. Diversion Efforts
a) For each calendar year (beginning calendar year 2010) in which Contractor
fails to provide support to the City within thirty (30) days of year-end,
documenting that it diverted at least 45% of the Solid Waste Contractor
Collected under this Agreement: $25 for each ton below tonnage level
necessary to meet 45% Diversion goal
b) For every Green Waste Cart Collected as Refuse without issuing a red tag
per Section 4.2.3: $50.00 per Cart
5. Timeliness of Submissions to City
Any report shall be considered late until such time as a correct and complete
report is received by City. For each calendar day a report is late, the daily
liquidated damage amount shall be:
i) Monthly Reports:
ii) Annual Reports:
$100.00 per day
$200.00 per day
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Accuracy of Billing
Each Customer invoice that is not prepared in accordance with the City's
approved rate schedule, in excess of ten (10) annually: $25.00
7. Cooperation with Service Provider Transition
a) For each day routing information requested by City in accordance with
Section 12.8 is received after City -established due dates, both for
preparation of a request for proposals and for new service provider's
implementation of service:
$1,000.00/day
b) For each day delivery of keys, access codes, remote controls, or other means
of access to Solid Waste Containers is delayed beyond one (1) day prior to
new service provider servicing Customers with access issues, as described in
Section 12.8:
$1,000.00/day
c) For delay in not meeting the requirements contained in Sections 4.11 and
12.8 in a timely manner, in addition to the daily liquidated damages for
breach under 7(a) and 7(b) above, liquidated damages of: $35,000.00
8. General Contract Adherence
For each day that Franchisee fails to provide services required under the
Agreement, or comply with terms of the Agreement, five (5) business days after
receipt of written notification from City that such services are not being provided
or terms are not being met: $300.00/day
City may determine the occurrence of events giving rise to liquidated damages through
the observation of its own employees or representative or investigation of Customer
complaints. If any failure is permitted or excused by another section of this Agreement,
such a failure shall not count towards assessment of liquidated damages (such as a
failure to Collect would not apply if it were due to the presence of contamination,
provided Contractor left a warning notice).
Prior to assessing liquidated damages, City Manager shall give Contractor notice of its
intention to do so. The notice will include a brief description of the incident(s)/non-
performance. Contractor may review (and make copies at its own expense) all
information in the possession of City relating to incident(s)/non-performance.
July 13, 2009, DRAFT -94- City of Diamond Bar - Residential
Contractor may, within ten (10) days after receiving the notice, request a meeting with
City Manager. Contractor may present evidence in writing and through testimony at
the meeting of its employees and others relevant to the incidents)/non-performance.
City Manager will provide Contractor with a written explanation of its determination
on each incidents)/non-performance prior to authorizing the assessment of liquidated
damages. The decision of City Manager shall be final.
C. Amount. City may assess liquidated damages for each calendar day or event, as
appropriate, that Contractor is determined to be liable in accordance with this
Agreement.
D. Timing of Payment. Contractor shall pay any liquidated damages assessed by
City within ten (10) days after receipt of notice that liquidated damages are being
assessed. If they are not paid within the ten (10) day period, City may proceed against
the performance bond or letter of credit required by the Agreement or find Contractor
in default and terminate this Agreement pursuant to Section 11.2, or both.
11.4 Suspension of Performance
11.4.1 Force Majeure
The Parties shall be excused from performing their respective obligations hereunder in
the event they are prevented from so performing by reason of floods, earthquakes, other
natural disasters, war, civil insurrection, riots, acts of any government (including
judicial action), and other similar catastrophic events which are beyond the control of
and not the fault of the party claiming excuse from performance hereunder.
The interruption or discontinuance of Contractor's services caused by one (1) or more of
the events excused shall not constitute a default by Contractor under this Agreement
provided that other services delivered to properties in Diamond Bar (such as and
without limitation electricity, gas, water, or commercial solid waste collection services)
have been similarly disrupted as a direct result of the catastrophic event.
Notwithstanding the foregoing, however, if Contractor is excused from performing its
obligations hereunder for any of the causes listed in this section for a period of thirty
(30) days or more, where Diamond Bar is not significantly impacted by the catastrophic
event, City shall nevertheless have the right, in its sole discretion, to terminate this
Agreement by giving ten (10) days' notice, and may contract with another party for
Solid Waste Collection Services.
July 13, 2009, DRAFT -95- City of Diamond Bar - Residential
11.4.2 Labor Unrest
Labor unrest, including work stoppage or slowdown or sick-out conducted by
Contractor's employees or directed at Contractor is excused from performance only to
the extent that the following requirements are met:
Contractor provides a contingency plan to the City prior to the execution of this
Agreement demonstrating how services will be provided. Plan is subject to City
Manager approval and Contractor shall amend plan until it meets City
requirements, including reasonably demonstrating how City's basic Collection and
sanitary needs will be met to the City's satisfaction.
• Contractor shall meet all requirements of this plan; if Contractor does not meet all
requirements, City may choose to revoke this excuse from performance offered
under this Agreement and may choose to use enforcement provisions under this
Agreement, including Sections 11.1, 11.2 and 11.3.
The party claiming excuse from performance shall, within two (2) days after such party
has notice of such cause, give the other party notice of the facts constituting such cause
and asserting its claim to excuse under this section.
The interruption or discontinuance of Contractor's services caused by labor -related
events excused under this Section 4.4.2 shall not constitute a default by Contractor
under this Agreement. Notwithstanding the foregoing, however, if Contractor is
excused from performing its obligations hereunder for any of the causes listed in this
section for a period of thirty (30) days or more, City shall nevertheless have the right, in
its sole discretion, to terminate this Agreement by giving ten (10) days' notice, and may
contract with another party for Solid Waste Collection Services.
11.5 Dispute Resolution; Administrative Remedies; Termination
Except as may otherwise be set forth expressly herein, all disputes arising under this
Agreement shall be resolved as set forth in this section.
11.5.1 Negotiation and Mediation
The Parties shall attempt in good faith to resolve any dispute arising out of or relating
to this Agreement promptly by negotiations between the Parties' authorized
representatives. The disputing Party shall give the other Parties written notice of any
July 93, 2009, DRAFT -96- City of Diamond Bar - Residential
dispute. Within five (5) days after delivery of such notice, the authorized
representatives shall meet at a mutually acceptable time and place, and thereafter as
often as they reasonably deem necessary to exchange information and to attempt to
resolve the dispute. If the matter has not been resolved within ten (10) days of the first
meeting, any Party may initiate a mediation of the dispute. The mediation shall be
facilitated by a mediator that is acceptable to all Parties and shall conclude within thirty
(30) days of its commencement, unless the Parties agree to extend the mediation process
beyond such deadline. Upon agreeing on a mediator, the Parties shall enter into a
written agreement for the mediation services with each Party paying a pro rata share of
the mediator's fee, if any. The mediation shall be conducted in accordance with the
Commercial Mediation Rules of the American Arbitration Association; provided,
however, that no consequential damages shall be awarded in any such proceeding and
each Party shall bear its own legal fees and expenses.
11.5.2 Confidentiality
All negotiations and any mediation conducted pursuant to this section shall be
confidential and shall be treated as compromise and settlement negotiations, to which
Section 1152 of the California Evidence Code shall apply, which Section is incorporated
in this Agreement by reference.
11.5.3 Injunctive Relief
Notwithstanding the foregoing provisions, a Party may seek a preliminary injunction or
other provisional judicial remedy if in its judgment such action is necessary to avoid
irreparable damage or to preserve the status quo.
11.5.4 Continuing Obligation
Each Party shall continue to perform its obligations under this Agreement pending final
resolution of any dispute arising out of or relating to this Agreement.
11.5.5 Failure of Mediation
If after good faith efforts to mediate a dispute under the terms of this Agreement the
parties cannot agree to a resolution of the dispute, any party may pursue whatever legal
remedies may be available to it at law or in equity before a court of competent
jurisdiction and with venue in Los Angeles County.
July 13, 2009, DRAFT -97- City of Diamond Bar - Residential
11.6 Assurance of Performance
City may, at its option and in addition to all other remedies it may have, demand from
Contractor reasonable assurances of timely and proper performance of this Agreement,
in such form and substance as City may require. If Contractor fails or refuses to
provide satisfactory assurances of timely and proper performance in the form and by
the date required by City, such failure or refusal shall be an event of default.
July 93, 2009, DRAFT -98- City of Diamond Bar - Residential
ARTICLE 12
OTHER AGREEMENTS OF THE PARTIES
12.1 Relationship of Parties
The Parties intend that Contractor shall perform the services required by this
Agreement as an independent contractor engaged by City and not as an officer or
employee of City nor as a partner of or joint venture with City. No employee or agent
or Contractor shall be or shall be deemed to be an employee or agent of City. Except as
expressly provided herein, Contractor shall have the exclusive control over the manner
and means of conducting the Solid Waste Collection Services performed under this
Agreement, and all Persons performing such services. Contractor shall be solely
responsible for the acts and omissions of its officers, employees, Affiliates, contractors,
subcontractors and agents. Neither Contractor nor its officers, employees, Affiliates,
contractors, subcontractors and agents shall obtain any rights to retirement benefits,
workers' compensation benefits, or any other benefits which accrue to City employees
by virtue of their employment with City.
12.2 Compliance with Law
In providing the services required under this Agreement, Contractor shall at all times,
at its sole cost, comply with all applicable laws and regulations of the United States, the
State of California, and any federal, state, regional or local administrative and
regulatory agencies, now in force and as they may be enacted, issued or amended.
12.3 Governing Law
This Agreement shall be governed by, and construed and enforced in accordance with,
the laws of the State of California.
12.4 Jurisdiction
Except for those matters where Federal Courts have exclusive jurisdiction, any lawsuits
between the Parties arising out of this Agreement shall be brought and concluded in the
courts of the State of California, which shall have exclusive jurisdiction over such
lawsuits.
July 13, 2009, DRAFT -99- City of Diamond Bar - Residential
With respect to venue, the Parties agree that this Agreement is made in and will be
performed in Los Angeles County.
12.5 Assignment
Contractor shall not assign its rights, nor delegate, subcontract or otherwise transfer its
obligations under this Agreement (collectively referred to as an "assignment") to any
other Person without the prior written consent of City. Any such assignment made
without the consent of City shall be void and the attempted assignment shall constitute
a material breach of this Agreement.
For purposes of this section the term "assignment" shall be given the broadest possible
interpretation, and shall include, but not be limited to (i) a sale, exchange or other
transfer of substantially all of Contractor's assets dedicated to service under this
Agreement to a third party; (ii) a sale, exchange or other transfer of outstanding
common stock of Contractor to a third party provided said sale, exchange or transfer
may result in a change of control of Contractor; (iii) any dissolution, reorganization,
consolidation, merger, re -capitalization, stock issuance or re -issuance, voting trust,
pooling agreement, escrow arrangement, liquidation or other transaction which results
in a change of ownership or control of Contractor; (iv) any assignment by operation of
law, including those resulting from mergers or acquisitions by or of Contractor of any
of its Affiliates, insolvency or bankruptcy, making assignment for the benefit of
creditors, writ of attachment for an execution being levied against this Agreement,
appointment of a receiver taking possession of Contractor's property, or transfer
occurring in the event of a probate proceeding; and (v) any combination of the
foregoing (whether or not in related or contemporaneous transactions) which has the
effect of any such transfer or change of ownership, or change of control of Contractor.
Contractor acknowledges that this Agreement involved rendering a vital service to
City's residents and businesses, and that City has selected Contractor to perform the
services specified herein based on (1) Contractor's experience, skill and reputation for
conducting its Solid Waste Collection Services in a safe, effective and responsible
fashion, at all times in keeping with applicable Environmental Laws, regulations and
best Solid Waste management practices, and (2) Contractor's financial resources to
maintain the required equipment and to support its indemnity obligations to City under
this Agreement. City has relied on each of these factors, among others, in choosing
Contractor to perform the services to be rendered by Contractor under this Agreement.
July 13, 2009, DRAFT -100- City of Diamond Bar - Residential
If Contractor requests City's consideration of and consent to an assignment, City may
deny or approve such request in its sole discretion. Any request for an assignment
must be approved by the City Manager in writing, and no request by Contractor for
consent to an assignment need be considered by City unless and until Contractor has
met (or with respect to matters that would only occur upon completion of the
assignment if approved, made reasonable assurances that it will meet) the following
requirements:
a) Contractor shall pay City its reasonable expenses for attorney's fees and
investigation costs necessary to investigate the suitability of any proposed
assignee, and to review and finalize any documentation required as a condition
for approving any such assignment. An advance payment towards expenses
may be requested by City prior to City consideration of any assignment request
and Contractor shall be responsible to pay all costs incurred by City in
considering a request for assignment, including those in excess of the aforesaid
deposit amount, regardless of whether City consents to the assignment.
b) Except with respect to an assignment to an Affiliate where the parent guaranty is
unchanged, Contractor shall pay the City a transfer fee equal to one percent (1 %)
of the Gross Receipts it, or its assignee, will receive during the remaining term of
the Agreement at rates and service levels in effect at the time of the assignment,
as estimated by City.
c) Except with respect to an assignment to an Affiliate where the parent guaranty is
unchanged, Contractor shall furnish City with audited financial statements for
itself, and the proposed assignee's operations for the immediately preceding
three (3) operating years.
d) Except with respect to an assignment to an Affiliate where the parent guaranty is
unchanged, a proforma financial statement (income statement and balance sheet)
for the proposed assignee with the projected results of operations assuming that
the assignment is completed. Such proforma financial statement shall reflect any
debt to be incurred by the assignee as part of the acquisition of Contractor's
operations.
e) Except with respect to an assignment to an Affiliate where the parent guaranty is
unchanged, Contractor shall furnish City with satisfactory proof: (i) that the
July 13, 2009, DRAFT -101- City of Diamond Bar - Residential
proposed assignee has at least ten (10) years of Solid Waste management
experience on a scale equal to or exceeding the scale of operations conducted by
Contractor under this Agreement; (ii) that in the last five (5) years, the proposed
assignee has not suffered any significant citations or other censure from any
federal, state or local agency having jurisdiction over its Solid Waste
management operations due to any significant failure to comply with state,
federal or local Environmental Laws and that the assignee has provided City
with a complete list of any such citations and censures; (iii) that the proposed
assignee has at all times conducted its operations in an environmentally safe and
conscientious fashion; (iv) that the proposed assignee conducts its Solid Waste
management practices in accordance with sound Solid Waste management
practices in full compliance with all federal, state and local laws regulating the
Collection and Disposal of Solid Waste including Hazardous Substances; and, (v)
of any other information required by City to ensure the proposed assignee can
fulfill the terms of this Agreement in a timely, safe and effective manner.
Under no circumstances shall City be obliged to consider any proposed assignment by
City if Contractor is in default at any time during the period of consideration. Should
City consent to any assignment request, such assignment shall not take effect until all
conditions relating to City's approval have been met in accordance with Chapter 8.16 of
the Diamond Bar Municipal Code, as amended from time to time.
12.6 Contracting or Subcontracting
Contractor shall not engage any contractors or subcontractors for the Collection of Solid
Waste.
12.7 Binding on Assigns
The provisions of this Agreement shall inure to the benefit to and be binding on the
permitted assigns (if any) of the Parties.
12.8 Cooperation in Preparation for Termination or Expiration of Contract
Prior to, and at the end of the Term or in the event this Agreement is terminated for
cause prior to the end of the Term, Contractor shall cooperate fully with City and any
subsequent Solid Waste enterprise it designates to assure a smooth transition of Solid
Waste Collection Services. Contractor's cooperation shall include, but not be limited to,
July 93, 2009, DRAFT -102- City of Diamond Bar - Residential
providing route lists, Billing information and other operating records needed to service
all Premises covered by this Agreement. The failure to cooperate with City following
termination shall be conclusively presumed to be grounds for specific performance of
this covenant and/or other equitable relief necessary to enforce this covenant.
Contractor shall provide a new service provider with all keys, security codes and
remote controls used to access garages and Bin enclosures. Contractor shall be
responsible for coordinating transfer immediately after Contractor's final pickups, so as
not to disrupt service. Contractor shall provide City with detailed route sheets
containing service names and addresses, Billing names and addresses, monthly rate and
service levels (number and size of Containers and pickup days) at least 90 days prior to
the transition date, and provide an updated list two weeks before the transition and a
final list of changes the day before the transition. Contractor shall provide means of
access to the new service provider at least one full business day prior to the first day of
Collection by another party, and always within sufficient time so as not to impede in
any way the new service provider from easily servicing all Containers.
12.9 Parties in Interest
Nothing in this Agreement, whether express or implied, is intended to confer any rights
on any Persons other than the Parties to it and their representatives, successors and
permitted assigns.
12.10 Waiver
The waiver by either party of any breach or violation of any provisions of this
Agreement shall not be deemed to be a waiver of any breach or violation of any other
provision nor of any subsequent breach of violation of the same or any other provision.
The subsequent acceptance by either Party of any moneys which become due hereunder
shall not be deemed to be a waiver of any pre-existing or concurrent breach or violation
by the other Party of any provision of this Agreement.
12.11 Contractor's Investigation
Contractor has made an independent investigation (satisfactory to Contractor) of the
conditions and circumstances surrounding the Agreement and the work to be
performed by it.
July 13, 2009, DRAFT -103- City of Diamond Bar - Residential
12.12 Section Deleted
12.13 Notice
All notices, demands, requests, proposals, approvals, consents and other
communications which this Agreement requires, authorizes or contemplates, unless
otherwise specified in this Agreement, shall be in writing and shall either be personally
delivered to a representative of the Parties at the address below or be deposited in the
United States mail, first class postage prepaid, addressed as follows:
If to City: City Manager
City of Diamond Bar
21825 Copley Drive
Diamond Bar, CA 91765
If to Contractor: Susan Moulton
Director of Public Sector Services, Greater Los Angeles Market
1970 E. 213th
Long Beach CA 90810
The address to which communications may be delivered may be changed from time to
time by a written notice given in accordance with this section.
Notice shall be deemed given on the day it is personally delivered or, if mailed, three
days from the date it is deposited in the mail.
This notice shall also be sent by e-mail to the City Manager.
12.14 Representatives of the Parties
All actions to be taken by City shall be taken by the City Council except as expressly
provided herein. The City Council may delegate authority to the City Manager, and/or
to other City employees and may permit such employees, in turn, to delegate some or
all of such authority to subordinate employees. Contractor may rely upon actions taken
by such delegates if they are within the scope of the authority so delegated to them.
Contractor shall, by the Effective Date, designate in writing a responsible officer who
shall serve as the representative of Contractor in all matters related to this Agreement
and shall inform City in writing of such designation and of any limitations upon his or
July 13, 2009, DRAFT -104- City of Diamond Bar - Residential
her authority to bind Contractor. City may rely upon action taken by such designated
representative as actions of Contractor unless they are outside the scope of the authority
expressly delegated to him/her by Contractor as communicated to City.
12.15 City Free to Negotiate with Third Parties
City may investigate all options for the Collection, transporting, Recycling, processing
and Disposal of Solid Waste for periods during which this Agreement has expired or
been terminated. Without limiting the generality of the foregoing, City may solicit
proposals from Contractor and from third parties for the provision of Solid Waste
Collection Services which are the subject of this Agreement, including without
limitation Collection services, Disposal services, Recycling services, Green Waste
services and processing, and any combination thereof, and may negotiate and execute
agreements for such services which will take effect upon the expiration or earlier
termination of this Agreement pursuant to Section 11.2 or otherwise.
12.16 Compliance with Municipal Code
Contractor shall comply with those provisions of the municipal code of City which are
applicable, and with any and all amendments to such applicable provisions during the
term of this Agreement.
12.17 Privacy
Contractor shall strictly observe and protect the rights of privacy of Customers.
Information identifying individual Customers or the composition or contents of a
Customer's waste stream shall not be revealed to any Person, governmental unit,
private agency, or company, unless upon the authority of a court of law, by statute, or
upon valid authorization of the Customer. This provision shall not be construed to
preclude Contractor from preparing, participating in, or assisting in the preparation of
waste characterization studies or waste stream analyses which may be required by AB
939. This provision shall not apply to reports or records provided to City pursuant to
this Agreement.
12.18 Proprietary Information, Public Records
The City acknowledges that a number of the records and reports of Contractor are
proprietary and confidential. Contractor is obligated to permit City inspection of its
July 93, 2009, DRAFT -105- City of Diamond Bar - Residential
records on demand and to provide copies to City where requested. City will endeavor
to maintain the confidentiality of all proprietary information provided by Contractor.
Notwithstanding the foregoing, any documents provided by Contractor to City that are
public records may be disclosed pursuant to the California Public Records Act.
12.19 Guarantee of Contractor's Performance
Pursuant to a guarantee in substantially the form attached as Exhibit 4, Waste
Management Inc., a corporation which owns all of the issued and outstanding common
stock of Contractor, has agreed to guarantee Contractor's performance of this
Agreement. The Guarantee is being provided concurrently with Contractor's execution
of this Agreement.
July 13, 2009, DRAFT -106- City of Diamond Bar - Residential
13.1
13.2
13.3
13.4
13.5
ARTICLE 13
MISCELLANEOUS PROVISIONS
Entire Agreement
This Agreement contains the entire integrated agreement and understanding
concerning the subject matter herein and supersedes and replaces any prior
negotiations, promises, proposals (including Contractors Proposal), and agreements
between the Parties, whether written or oral. The Parties acknowledges this document
has been executed with the consent and upon the advice of counsel. Each of the Parties
acknowledges that no Party or agent or attorney of any other party has made any
promise, representation, or warranty, express or implied, not contained in this
Agreement, to induce the other Party to execute this instrument.
Section Headings
The article headings and section headings in this Agreement are for convenience of
reference only and are not intended to be used in the construction of this Agreement
nor to alter or affect any of its provisions.
References to Laws and Other Agreements
All references in this Agreement to laws shall be understood to include such laws as
they may be subsequently amended or recodified, unless otherwise specifically
provided.
Interpretation
This Agreement, including the Exhibits attached hereto, shall be interpreted and
construed reasonably and neither for nor against either Party, regardless of the degree
to which either Party participated in its drafting.
Agreement
This Agreement may not be modified or amended in any respect except by a writing
signed by the Parties.
July 13, 2009, DRAFT -107- City of Diamond Bar - Residential
13.6 Severability
Invalidation of any of the provisions contained in this Agreement, or of the application
thereof to any person, by judgment or court order, shall in no way affect any of the
other provisions hereof or the application thereof to any other person or circumstance,
and that same shall remain in full force and effect, unless enforcement of this
Agreement, as so invalidated, would be unreasonable or inequitable under all the
circumstances or would frustrate the purposes of this Agreement and/or the rights and
obligations of the parties hereto.
13.7 Exhibits
Each of Exhibits identified as Exhibit "1" through "6" is attached hereto and
incorporated herein and made a part hereof by this reference.
13.8 Attorneys' Fees
If either Party to this Agreement is required to initiate or defend or made a party to any
action or proceeding between the Parties in any way connected with this Agreement,
the prevailing Party in such action or proceeding, in addition to any other relief which
may be granted, whether legal or equitable, shall be entitled to recover its reasonable
attorney's fees and costs from the opposing Party. Attorneys' fees shall include
attorney's fees on any appeal. A Party entitled to attorney's fees shall be entitled to all
other reasonable costs for investigating such action, taking depositions and discovery,
expert fees, and all other necessary costs the court allows which are incurred in such
litigation. All such fees shall be deemed to have accrued on commencement of such
action.
July 93, 2009, DRAFT -108- City of Diamond Bar - Residential
IN WITNESS WHEREOF, City and Contractor have executed this Agreement as of the day and
year first above written.
CITY OF DIAMOND BAR
Cci 1 n)
DATED:
CITY OF DIAMOND BAR
By:
City Manager
Approved as to form:
By:
City Attorney
ATTEST:
City Clerk
DATED: ri — I S�7 10 0 �
TITLE
� [i) QIJ Q
NAME OF COANY
o, QV,U�,
ADDRESS
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TELEPHONE
July 93, 2009, DRAFT -109- City of Diamond Bar - Residential
EXHIBIT I
PUBLIC EDUCATION PLAN
(to be attached after City approval per Section 5.3.2)
July 93, 2009, DRAFT City of Diamond Bar - Residential
EXHIBIT 2
INITIAL MAXIMUM RATES*
Following are the rates for August 16, 2010 through June 30, 2011:
Residential Service
Rate
Cart Service - one each refuse, recycling, and green waste cart
Standard Rates
- 35 -gallon refuse cart
- 64 -gallon refuse cart
- 96 -gallon refuse cart
$18.95 per month
$23.34 per month
$28.02 per month
Senior Reduced Rates
35 -gallon refuse cart
$16.31 per month
64 -gallon refuse cart
$20.15 per month
96 -gallon refuse cart
$24.02 per month
Additional Carts
35 -gallon refuse cart
$ 5.92 per month
64 -gallon refuse cart
$ 8.88 per month
96 -gallon refuse cart
$11.87 per month
Additional Recycling Cart (beyond two carts)
$ 1.64 per month
Additional Green Waste Cart (beyond one cart)
$ 4.20 per month
Additional Cart Rates and Services
Backyard Service Surcharge
$19.65 per month
Yard Waste Reduction Discount
$ 2.84 per month
Additional Special Overage Pickup for Automated Cart
'Customers (in excess of two pickups per year)
$ 8.00 per pickup
Additional Bulky Item pickups (in excess of permitted annual
free pickups)
$30.00 per item
Cart Exchange (after free -exchange period)
$15.00 per request
Emergency Service Rates - one crew and one collection truck
$85.00/hour
*Including all fees retained by, or paid to, City.
July 13, 2009, DRAFT 2-1 City of Diamond Bar - Residential
EXHIBIT 2
INITIAL MAXIMUM RATES' (continued)
Following are the rates for August 16, 2010 through Tune 30, 2011:
Temporary Services"
Rate
Temporary Roll -Off Box, 40 -cubic yards - including container
rental, pull and disposal costs up to 6 tons
$550.54
Temporary Roll -Off Box, Low Boy - including container rental, pull
and disposal costs up to 6 tons
$583.98
Temporary Bins - 3 cubic yards
$124.19
Temporary Bins - 6 cubic yards
$153.36
Container Rental Fee - for temporary containers retained beyond seven
days without being serviced
$ 24.18 day
* Including all fees retained by, or paid to, City.
** Rates to be set equal to rates in City's Bin and Roll -Off Service Customer Solid Waste Management Services
agreement with Valley Vista Services.
July 13, 2009, DRAFT 2-2 City of Diamond Bar - Residential
EXHIBIT 3A
EXAMPLE RATE ADJUSTMENT FORMULA
Step One: Calculate percentage change in indices
Row Adjustment Factor Index
Old Index Value
New Index Value
Percent Change In
Index ((Column SJ
Column A) -1)
I
Labor
(1)
1810
18.65
30%
2
Fuel
(2)
216.9
2355
86%
3
E w ment
(3)
119.2
1300
91%
4Drs
osal
(4) $
38 26
$ 4100
7 2%
5
All Other
(5)
220 000
230 000
4 5%
Step Two: Determine components
Row
Adjustment Factor Index
Cost Component
Weighted as a % of
Component Total (7)
percent Change In Index
(from Colun C) Total
m
Weighted Change
6
Labor (1)
23%
30%
07%
7
Fuel (2)
8%
86%
07%
8
Equipment (3)
11%
91%
10%
9
Disposal (4)32%
$ 24.02
72% 123%
$
10
-Is ••
_
-
570/
$
771
$ 31 71
(5)
230%
Step Three: Apply percentage change to rates
Row Rale Category (8)
Total Weighted Rate Increase or
Existing Customer Rate Percentage Change (Row Decrease (Column G x
13, Column F) Column H)
Adjusted Rate
(Column G + Column L)
12 96 -gallon cart service
$ 92802
5 7%
$
5290
$ 98092
13 64 -gallon cart service
$ 2334
57%
$
133
$ 2467
14 35 -gallon cart service
$ 1895
57%
$
108
$ 2003
15 96 -gallon semor service
$ 24.02
5 7%
$
1 37
$ 25 39
16 Extra Bulk Item
$ 30 00
570/
$
771
$ 31 71
Step Four. Re -weight cost components
Row Adjustment Factor Index
Cost Component Percent Change as
Weighting (Column D) Applied to Rate
Adjustment (Column E)
Increase in Cost Cost Component
Components (Column Increased (Column K +
K x Column L) Column 111)
Cost Components
Reweighted to Equal
100%
17 Labor
(1)
230%
3.0%
07%
237%
231%
18 Fuel
(2)
80%
86%
07%
87%
85%
19 E w ment
(3)
110%
91%
10%
120%
11.7%
20 Drs osai
(4)
320%
72% 1
2 31k
1 343%
334%
21 All Other
(5)
230%
45%
10%
240%
233°%
22 Total
970%
1027%
1000%
(1) Driver A/B rate from Agreement between local haulers and Package and General UtilityDrivers Local Union 396, International Brotherhood of Teamsters
(2) Producer Price Index, WPU 0531 not seasonally adjusted, Fuels and related products and power, natural gas - average annual change
(3) Producer Price Index, PCU336120336120, Heavy duty truck manufacturing- average annual change
(4) Gate rate at the approved landfill site
(5) Consumer Price Index for All Urban Consumers (CUURA421SAOLIE), all items less food and energy index - Los Angeles -Riverside -Orange County - average
annualchange
(6) Based on Proposal After the first rate adjustment, this column comes from Column O of the previous year's rate adjustment worksheet
(7) First year weightings to come from actual contractor costs for the 12 -month period ended December 31, 2010. Subsequent years' weighhngs will come from
Column O of the previous year
(8) Example rates listed below Adjustment applies to all applicable rate categories
July 93, 2009, DRAFT 3-1 City of Diamond Bar - Residential
EXHIBIT 3B
EXAMPLE RATE ADJUSTMENT FORMULA
Example Calculation of an Annual Change in a Published Indice
Consumer Price Index - All Urban Consumers, Los Angeles -Riverside -Orange County, CA
All items less food and energy, CUUSA421SAOLIE
Year Jan Feb March April May June July August Sept Oct Nov Dec Average
2007 216.196 217.809 218.307 218.886 218.837 218.625 219.728 220.477 220.807 221.060 221.000 220.506 219.353
2008 222.048 222.762 223.499 223.540 224.626 225.185 225.777 226.574 226.771 226.751 226.671 225.9971 225.017
Average Change: 2.6%
July 93, 2009, DRAFT 3-2 City of Diamond Bar - Residential
EXHIBIT 4
CORPORATE GUARANTY
Guaran
THIS GUARANTY (the "Guaranty) is given as of the day of 2009.
THIS GUARANTY is made with reference to the following facts and circumstances:
A. USA Waste of California dba Waste Management of San Gabriel/Pomona Valley,
hereinafter ("Owner") is a corporation organized under the laws of the State of
California, all of the issued and outstanding stock of which is owned by Waste
Management, Inc. (Guarantor).
B. Owner and the City have negotiated an Agreement for collection, processing,
and disposal of solid waste dated as of (hereinafter "Agreement"). A
copy of this Agreement is attached hereto.
C. It is a requirement of the Agreement, and a condition to the City entering into the
Agreement, that Guarantor guaranty Owner's performance of the Agreement.
D. Guarantor is providing this Guaranty to induce the City to enter into the
Agreement.
NOW, THEREFORE, in consideration of the foregoing, Guarantor agrees as follows:
1. Guaranty of the Agreement. Guarantor hereby irrevocably and unconditionally
guarantees to the City the complete and timely performance, satisfaction and
observation by Owner of each and every term and condition of the Agreement which
Owner is required to perform, satisfy or observe. In the event that Owner fails to
perform, satisfy or observe any of the terms and conditions of the Agreement,
Guarantor will promptly and fully perform, satisfy or observe them in the place of the
Owner or cause them to be performed, satisfied or observed. Guarantor hereby
guarantees payment to the City of any damages, costs or expenses which might become
recoverable by the City from Owner due to its breach of the Agreement.
2. Guarantor's Obligations Are Absolute. The obligations of the Guarantor
hereunder are direct, immediate, absolute, continuing, unconditional and unlimited,
July 13, 2009, DRAFT 4 - 1 City of Diamond Bar - Residential
and with respect to any payment obligation of Owner under the Agreement, shall
constitute a guarantee of payment and not of collection, and are not conditional upon
the genuineness, validity, regularity or enforceability of the Agreement. In any action
brought against the Guarantor to enforce, or for damages for breach of, its obligations
hereunder, the Guarantor shall be entitled to all defenses, if any, that would be
available to the Owner in an action to enforce, or for damages for breach of, the
Agreement (other than discharge of, or stay of proceedings to enforce, obligations
under the Agreement under bankruptcy law).
3. Waivers. Except as provided herein the Guarantor shall have no right to
terminate this Guaranty or to be released, relieved, exonerated or discharged from its
obligations under it for any reason whatsoever, including, without limitation: (1) the
insolvency, bankruptcy, reorganization or cessation of existence of the Owner; (2) the
actual or purported rejection by a trustee in bankruptcy of the Agreement, or any
limitation on any claim in bankruptcy resulting from the actual or purported
termination of the Agreement; (3) any waiver with respect to any of the obligations of
the Agreement guaranteed hereunder or the impairment or suspension of any of the
City's rights or remedies against the Owner; or (4) any merger or consolidation of the
Owner with any other corporation, or any sale, lease or transfer of any or all the assets
of the Owner. Without limiting the generality of the foregoing, Guarantor hereby
waives the rights and benefits under California Civil Code Section 2819.
The Guarantor hereby waives any and all benefits and defenses under California Civil
Code Section 2846, 2849, and 2850, including without limitation, the right to require the
City to (a) proceed against Owner, (b) proceed against or exhaust any security or
collateral the City may hold now or hereafter hold, or (c) pursue any other right or
remedy for Guarantor's benefit, and agrees that the City may proceed against
Guarantor for the obligations guaranteed herein without taking any action against
Owner or any other guarantor or pledgor and without proceeding against or exhausting
any security or collateral the City may hold now or hereafter hold. City may
unqualifiedly exercise in it sole discretion any or all rights and remedies available to it
against Owner or any other guarantor or pledgor without impairing the City's rights
and remedies in enforcing this Guaranty.
The Guarantor hereby waives and agrees to waive at any future time at the request of
the City to the extent now or then permitted by applicable law, any and all rights which
the Guarantor may have or which at any time hereafter may be conferred upon it, by
July 93, 2009, DRAFT 4-2 City of Diamond Bar - Residential
statute, regulation or otherwise, to avoid any of its obligations under, or to terminate,
cancel, quit or surrender this Guaranty. Waiver of any provision of this Agreement shall
waive the same as applied to the Guarantor, but shall not be deemed a waiver of or
affect the liability of Guarantor for compliance with any other provision set forth in this
Agreement. Any assignment of the Agreement which does not require City's approval
shall not affect the liability of the Guarantor.
The Guarantor hereby expressly waives diligence, presentment, demand for payment or
performance, protest and all notices whatsoever, including, but not limited to, notices of
non-payment or non-performance, notices of protest, notices of any breach or default,
and notices of acceptance of this Guaranty. If all or any portion of the obligations
guaranteed hereunder are paid or performed, Guarantor's obligations hereunder shall
continue and remain in full force and effect in the event that all or any part of such
payment or performance is avoided or recovered directly or indirectly from the City as
a preference, fraudulent transfer or otherwise, irrespective of (a) any notice of
revocation given by Guarantor or Owner prior to such avoidance or recovery, and (b)
payment in full of any obligations then outstanding.
4. Term. This Guaranty is not limited to any period of time, but shall continue in
full force and effect until all of the terms and conditions of the Agreement have been
fully performed or otherwise discharged and Guarantor shall remain fully responsible
under this Guaranty without regard to the acceptance by the City of any performance
bond or other collateral to assure the performance of Owner's obligations under the
Agreement. Guarantor shall not be released of its obligations hereunder so long as
there is any claim by the City against Owner arising out of the Agreement based on
Owner's failure to perform which has not been settled or discharged.
5. No Waivers. No delay on the part of the City in exercising any rights under this
Guaranty or failure to exercise such rights shall operate as a waiver of such rights. No
notice to or demand on Guarantor shall be a waiver of any obligation of Guarantor or
right of the City to take other or further action without notice or demand. No
modification or waiver of any of the provisions of this Guaranty shall be effective unless
it is in writing and signed by the City and by Guarantor, nor shall any waiver be
effective except in the specific instance or matter for which it is given.
6. Attorney's Fees. In addition to the amounts guaranteed under this Guaranty,
Guarantor agrees in the event of Guaranty's breach of its obligations to pay reasonable
July 13, 2009, DRAFT 4-3 City of Diamond Bar - Residential
attorney's fees and all other reasonable costs and expenses incurred by the City in
enforcing this Guaranty, or in any action or proceeding arising out of or relating to this
Guaranty, including any action instituted to determine the respective rights and
obligations of the parties hereunder.
7. Governing Law: Jurisdiction. This Guaranty is and shall be deemed to be a
contract entered into in and pursuant to the laws of the State of California and shall be
governed and construed in accordance with the laws of California without regard to its
conflicts of laws, rules for all purposes including, but not limited to, matters of
construction, validity and performance. Guarantor agrees that any action brought by
the City to enforce this Guaranty may be brought in any court of the State of California
and Guarantor consents to personal jurisdiction over it by such courts. Guarantor
appoints the following person as its agents for service of process in California:
With a copy by certified mail to:
8. Severability. If any portion of this Guaranty is held to be invalid or
unenforceable, such invalidity will have not have an affect upon the remaining portions
of this Guaranty, which shall be severable and continue in full force and effect.
9. Binding On Successors. This Guaranty shall inure to the benefit of the City and
its successors and shall be binding upon Guarantor and its successors, including
transferee(s) of substantially all of its assets and its shareholder(s) in the event of its
dissolution or insolvency.
10. Authority. Guarantor represents and warrants that it has the corporate power
and authority to give this Guaranty, that its execution of this Guaranty has been
authorized by all necessary action under its Article of Incorporation and By -Laws, and
that the person signing this Guaranty on its behalf has the authority to do so.
July 13, 2009, DRAFT 4-4 City of Diamond Bar - Residential
11. Notices. Notice shall be given in writing, deposited in the U.S. mail, registered
or certified, first class postage prepaid, addressed as follows:
To the City: City Manager
City of Diamond Bar
21825 Copley Drive
Diamond Bar, CA 91765
with a copy to the City Attorney at the same address.
To the Guarantor:
By:
(title)
By:
(title)
July 13, 2009, DRAFT 4-5 City of Diamond Bar - Residential
EXHIBIT 5
Contractor's Faithful Performance Bond
KNOW ALL MEN BY THESE PRESENTS:
That
a California , as PRINCIPAL, and
, a Corporation organized and doing business by
virtue of the laws of the State of California, and duly licensed for the purpose of
making, guaranteeing, or becoming sole surety upon bonds or undertakings required or
authorized by the laws of the State of California, as SURETY, are held and firmly bound
to City, hereinafter called OBLIGEE, in the penal sum of one hundred twenty five
thousand dollars ($125,000) lawful money of the United States, for the payment of
which, well and truly to be made, we and each of us hereby bind ourselves, and our
and each of our heirs, executors, administrators, successors, and assigns, jointly and
severally, firmly by these presents.
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH THAT:
WHEREAS, the above bounden PRINCIPAL has entered into a contract, entitled
"RESIDENTIAL SOLID WASTE MANAGEMENT SERVICES" with City, to do and
perform the following work, to wit: Collect, Process and dispose of Solid Waste
generated within City, in accordance with the contract.
NOW, THEREFORE, if the above bounden PRINCIPAL shall well and truly perform, or
cause to be performed each and all of the requirements and obligations of said contract
to be performed by said PRINCIPAL, as in said contract set forth, then this BOND shall
be null and void; otherwise it will remain in full force and effect.
And the said Surety, for value received hereby stipulates and agrees that no change,
extension of time, alteration or addition to the terms of the contract or to the work to be
performed thereunder or the specifications accompanying the same shall in any wise
affect its obligations on this BOND, and it does hereby waive notice of any such change,
extension of time, alteration or addition to the terms of the contract or to the work or to
the specifications.
July 93, 2009, DRAFT 5-1 City of Diamond Bar - Residential
In the event suit is brought by OBLIGEE to enforce the provisions of this bond, said
Surety will pay to OBLIGEE a reasonable attorney's fee, plus costs of suit, in an amount
to be fixed by the court.
IN WITNESS WHEREOF, said PRINCIPAL and said SURETY have caused these presents to be
duly signed and sealed this DAY OF 1200—
a
200_.
a California Corporation SURETY
By: By:
(PRINCIPAL) (ATTORNEY IN FACT)
(SEAL) (SEAL)
July 13, 2009, DRAFT 5-2 City of Diamond Bar - Residential
State of California
County of
On
EXHIBIT 6
NOTARY CERTIFICATION
ACKNOWLEDGMENT
before me,
(insert name and title of the officer)
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
July 13, 2009, DRAFT City of Diamond Bar - Residential
CITY OF DIAMOND BAR
Results of Residential Solid Waste Contract
Negotiations
City Council
Meeting
July 21, 2009
Residential Contract Overview
• Scope -
- Residential automated cart services
- Temporary bin/roll-off services for cart customers
• Term — 8 years, beginning 8/16/10
• Term Extension — 12 months at City's option
__; - Key Residential Contract Enhancements
• Door-to-door HHW collection funded through contract
• Sharps recovery mail -back or drop-off Program
• Alternative fuel vehicles within 17 months
• 45% minimum diversion required (currently at 40%)
• 75% minimum C&D diversion required
• Mulch give -a -way at two events per year
• Recycling rebate above target material prices
• Rate Adjustment Method — Based on price indices for
labor, fuel, equipment, disposal and other cost
components
Waste Management will provide the following payments
to the City:
• Franchise Payment — 5% of gross receipts
• Waste Diversion Program (AB 939) Payment — 4.7% of
gross receipts
• Road Maintenance Payment - $115,000/year
• Street Sweeping Payment - $85,000/year
• Total fees estimated to generate $656,000/year vs.
$251,000/year in current agreement. Payments will
supplement the costs of programs such as:
- Law Enforcement Contract
-Storm Drain Cleaning Program
- Parks & Recreation Programs
- Street Sweeping Program
- Road Maintenance Program
Residential Rate
Per Month*
Current
7-1-09
Proposed
8-16-10
Increase
96 gallon rates
$ 25.24
$ 28.02
$ 2.78
64 gallon rates'
$ 21.03
$ 23.34
$ 2.31
32 gallon rates
$ 17.06
$ 18.95
$ 1.89
One refuse customer plus up to two recycling cart and one green waste cart.
** Most residents use 64 gallon carts.
4
`Residential Rates in Other Cities
City
Monthly
Customer Rate
Walnut
$20.04
Diamond Bar — Current Rate
$21.03
Diamond Bar — Proposed 8-16-10
$23.34
Baldwin Park
$23.43
Asuza
$23.52
Covina
$24.84
San Dimas
$25.53
West Covina
$25.92
CITY COUNCIL
Agenda # 8.3
Meeting Date: July 21, 2009
AGENDA REPORT
TO: Honorable Mayor and Member of the City Council
VIA: James DeStefano, City Man ge
TITLE: APPROVE COMMERCIAL REFU, E KND RECYCLING FRANCHISE
AGREEMENT WITH VALLEY VISTA SERVICES
RECOMMENDATION:
Approve contract agreement.
FINANCIAL IMPACT:
The City will collect fees based on a percentage of the gross receipts received by Valley
Vista Services throughout the term of the agreement, specifically:
i 13% for AB 939 Fees
• 5% for Franchise Fees
The total annual City Fees will amount to 18% of gross receipts.
During the first year of the contract the City will collect the following fees:
• $310,000 in AB 939 Fees
• $119,000 in Franchise Fees
The total annual City Fees will amount to $429,000 in the first year of the contract.
BACKGROUND:
Valley Vista Services (VVS) has been the City's exclusive commercial refuse hauler
since August 2000. The current contract is set to expire on August 15, 2010. Since that
time, Diamond Bar has maintained competitive refuse rates while providing reliable
servcie. As the exclusive commercial refuse hauler, Valley Vista Services has
consistently provided dependable service for the past nine (9) years. In addition to
providing waste hauling services, Valley Vista Services administers the following refuse
programs for the convenience of business as part of the monthly refuse rate:
0 Customer Education Program
• Discounted 3 -Yard Recycling Bin
• Christmas Tree Recycling
• Bulky Waste Pick -Up
Valley Vista Services will enhance their diversion rate by employing a Material Recovery
Facility (MRF), which is a specialized plant that receives, separates and prepares
recyclable materials. Valley Vista's MRF will assist Diamond Bar in achieving a
diversion rate which exceeds the 50% diversion rate mandated by AB 939. With current
legislation (AB 1390) pending to increase the mandatory diversion rate to 75% by 2020,
a partnership with a responsible waste hauler can facilitate the ongoing process of
increasing recycling in the City. Valley Vista Services is willing to assist the City in
achieving such mandated goals and meeting any necessary state mandated objectives.
On December 2, 2008 the City Council directed staff to begin a 6 -month negotiations
process for the commercial refuse and recycling contract with Valley Vista Services. In
an effort to secure the most cost-effective, customer friendly integrated solid waste
management contract possible, the City secured the services of HF&H Consultants
(HF&H) to assist in the City's negotiation process with Valley Vista Services. HF&H has
a long history of successful negotiations of solid waste service agreements on behalf of
other jurisdictions and audited Valley Vista Services in 2005 on behalf of the City. They
are familiar with the solid waste rates, services, and programs implemented throughout
Southern California and are experts in the procurement of service agreements for
refuse, recycling and green waste collection, material processing services, and
disposal.
Earlier this month and with the assistance of HF&H and the City Attorney, staff
completed negotiations for an integrated solid waste management contract with Valley
Vista Services. The agreement is attached as Exhibit A for Council consideration.
DISCUSSION:
The proposed contract term is for eight (8) years, commencing on August 16, 2010 and
expiring on August 15, 2018, with a provision for a 1 -year extension at the City's sole
discretion.
Included in the proposed contract are various program enhancements that ensure that
the solid waste management services in the City of Diamond Bar will be customer
friendly, offered at competitive rates, and effective at meeting the AB 939 diversion
requirement. The program enhancements include:
Commercial Program Enhancements
• Mixed Waste Processing — Contractor shall process all refuse to recover
recyclables prior to landfilling.
• Minimum Recycling Requirement — Contractor shall divert 25% of all waste
collected from landfilling, versus reported 2008 level of 8.5%.
Page 2 of 5
Door -to -Door Household Hazardous Waste Collection — Contractor shall provide
door-to-door collection of household hazardous waste from multi -family residents
at no additional cost to the customer or City (currently, customer pays a co -pay
and City funds the remaining costs).
Alternative Fuel Vehicles — Contractor shall use all alternative fuel collection
vehicles within 12 months.
Confiscation of Illegal Hauler Containers — Contractor shall assist the City by
issuing warnings and confiscating containers placed for use by unauthorized
haulers.
Proposed Commercial Fee Description
Staff is recommending the following fees be incorporated into the franchise agreement.
Commercial Fee Description
COMMERCIAL FEE
DESCRIPTION
CURRENT ANNUAL CITY
FEES
ESTIMATED PROPOSED
ANNUAL FEE AMOUNT
AB 939
$220,000
$310,000
Franchise Fee
0
$119,000
Total Annual City Fees
$220,000
$429,000
For the commercial franchise agreement, utilizing a standard 3 -yard bin collected once
per week, the following fees and rate increases are being recommended:
Commercial Fee Impact on Customer Rate
COMMERCIAL FEE
DESCRIPTION
% OF CUSTOMER RATE
MONTHLY DOLLAR AMOUNT
PER MONTH
AB 939
13%
$16.05
Franchise Fee
5%
6.17
Total Annual City Fees
18%
$22.22
Less Existing AB 939
$12.00
Net Monthly Cost
Increase
$10.22
Proposed Commercial Rate
As part of the rate proposal, Valley Vista Services will increase rates to account for the
total cost of providing refuse hauling services, in particular the utilization of Valley
Vista's Material Recovery Facility (MRF) as well as to pay for City Fees. Overall
customer rates will increase by an average of 19%. The total net increase in contractor
compensation after City fees is 9%: Below is a chart of the City's current rate and
proposed rate for the start of the new contract:
Page 3 of 5
*Current 2009-10 Monthly
Collection Rate
*Proposed 2010-11 Monthly
Collection Rate
$108.89
$123.47
Both current and proposed rates are based on a 3 -yard bin collected once per
week
The City maintains one of the lowest refuse rates while providing the most
comprehensive city-wide refuse and recycling programs in the San Gabriel Valley
region. The chart below shows a comparison of selected cities and their 2009-10 rates
for a 3 -yard bin:
3 -Yard Bin Rates for 2009-2010 (Selected Cities)
City
Month/ Rate*
Walnut
$106.92
Diamond Bar — Current Rate
$108.89
Asuza
$110.29
Diamond Bar — Proposed 8/16/10
$123.47
San Dimas
$134.94
Covina
$139.98
Baldwin Park
$157.29
West Covina
$161.10
* 3 yard bin, collected once per month
The City of Diamond Bar's current rate is one of the lowest of the cities selected. Even
when considering the proposed rate of $123.47 for 2010-11, which includes processing
of all waste for the removal of recyclables and the higher disposal costs to be charged
next year, Diamond Bar still remains among the lowest in comparison to the other cities
listed above.
SUMMARY
With the impending closure of Puente Hills Landfill in October 2013 and more stringent
state mandates that regulate the waste stream, it is the City's responsibility to ensure
the proper disposal and recycling of refuse and hazardous waste in the community.
Staff believes it is extremely important to secure a responsible and resourceful waste
hauler that will guarantee recycling levels and ensure that the City maintains a diversion
rate in compliance with state mandates. A continued partnership with Valley Vista
Services can facilitate the ongoing process of increasing recycling in the City to meet
any new proposed diversion rates in the future.
Page 4 of 5
PREPARED BY:
Patrick Gallegos, Management Analyst
REVIEWE
David--6. Liu
Director of Public Works
Attachments:
Exhibit A: Contract Agreement
Page 5 of 5
DRAFT
AGREEMENT
BETWEEN
CITY OF DIAMOND BAR
AND
VALLEY VISTA SERVICES
FOR
BIN AND ROLL -OFF BOX CUSTOMER SOLID WASTE
MANAGEMENT SERVICES
July 13, 2009
AGREEMENT
BETWEEN
CITY OF DIAMOND BAR
AND
VALLEY VISTA SERVICES
FOR
BIN AND ROLL -OFF BOX SOLID WASTE
MANAGEMENT SERVICES
TABLE OF CONTENTS
RECITALS
Pale
1
ARTICLE1.......................................................................................................................................... 3
DEFINITIONS.................................................................................................................................................................. 3
1.1
AB 939..............................................................................................................................................................3
1.2
AFFILIATE..........................................................................................................................................................3
1.3
BILLINGS...........................................................................................................................................................4
1.4
BIN...............................................................................................................................................................:....4
1.5
BIN SERVICE......................................................................................................................................................4
1.6
BULKY ITEMS.....................................................................................................................................................
4
1.7
CART.................................................................................................................................................................5
1.8
CITY..................................................................................................................................................................5
1.9
COLLECT%COLLECIION....................................................................................................................................5
1.10
COMMERCIAL SERVICES................................................................................................................................5
1.11
CONWF,RCIALPREMISES..............................................................................................."--............................5
1.12
CONTRACTOR......................................................................................................................
_........................ 6
1.13
CONTRACTOR COMPENSATION .................. ............ .............................
......................................................... .6
1.14
CONSTRUCTION AND DEMOLITION DEBRIS...................................................................................................6
1.15
CONTAINER ............................................ ......................................................................................................6
1.16
CPI...............................................................................................................................................................6
1.17
CUSTOMER.............................................................. ...................................................................
...................6
1.18
DISPOSAL...................................................................................... .................................................
...............6
1.19
DISPOSAL SITE(S)..........................................................................................................................................6
1.20
DIVERSION....................................................................................................................................................7
1.21
ENVIRONMENTAL LAWS...................................:...........................................................................................
7
1.22
FACILITY.......................................................................................................................................................7
1.23
GREEN WASTE................................................................ .....................................................................
..........7
1.24
GREEN WASTE PROCESSING FACILITY..........................................................................................................
8
1.25
GROSS RECEIPTS...........................................................................................................................................
8
1.26
HAZARDOUS SUBSTANCE..............................................................................................................................
8
1.27
HAZARDOUS WASTE.....................................................................................................................................9
1.28
HOUSEHOLD HAZARDOUS WASTE ("HHW")..............................................................................................9
1.29
MATERIALS RECOVERY FACILITY („MRF")...................................................................................................9
1.30
MULTI -FAMILY DWELLING...........................................................................................................................9
1.31
PERSON.........................................................................................................................................................9
July 13, 2009, DR4FT City of Diamond Bar - Commercial
1.32
PREMISES...................................................................................................................................................... 9
1.33
RATE YEAR.................................................................................................................................................
10
1.34
RECYCLING.................................................................................................................................................
10
1.35
RECYCLABLE MATERIALS............................................................................................................................
10
1.36
REFUSE......................................................................................................................................................10
2.4
1.37
RESIDENTIAL SERVICES...............................................................................................................................
10
1.38
RESIDENTIAL CUSTOMERS...........................................................................................................................
10
1.39
RESIDENTIAL PREMISES...............................................................................................................................10
2.7
1.40
ROLL -OFF BOX............................................................................................................................................
11
1.41
SINGLE FAMILY DWELLING.........................................................................................................................
11
1.42
SOLID WASTE..............................................................................................................................................11
2.10
1.43
SOLID WASTE COLLECTION SERVICES.........................................................................................................
I 1
1.44
SOURCE SEPARATED...................................................................................................................................
11
1.45
STATE.........................................................................................................................................................
t 1
1.46
TEMPORARY SERVICE..................................................................................................................................
12
1.47
TRANSFORMATION.....................................................................................................................................
12
1.48
TRANSFER STATION....................................................................................................................................
12
1.49
WASTE GENERATOR...................................................................................................................................
12
ARTICLE2.........................................................................................................................................13
GRANT AND ACCEPTANCE OF FRANCHISE........................................................................................................13
2.1
GRANT AND ACCEPTANCE OF FRANCHISE, INDEMNITY OF AWARD................................................................
13
2.2
SECTION DELETED...........................................................................................................................................
13
2.3
EFFECTIVE DATE..............................................................................................................................................
13
2.4
TERM OF AGREEMENT.....................................................................................................................................
13
2.5
CITY's OPTION To EXTEA-D TERM....................................................................................................................
14
2.6
REPRESENTATIONS AND WARRANTIES OF CONTRACTOR................................................................................
14
2.7
CONDITIONS TO EFFECTIVENESS OF AGREEMENT............................................................................................
16
2.8
DELEGATION OF AUTHORITY..........................................................................................................................
16
2.9
LIMITATIONS TO SCOPE...................................................................................................................................
17
2.10
CITY'S RIGHT TO DIRECT CHANGES............................................................................................................
18
2.10.1
General..............................................................................................................................................If
2.10.2
New Diversion Programs...................................................................................................................
15
2.11
OWNERSHIP OF SOLID WASTE.....................................................................................................................
20
2.12
PERMITS AND LICENSES........_.....................................................................................................................
20
ARTICLE3.........................................................................................................................................21
FEESPAID TO THE CITY............................................................................................................................................ 21
3.1 CONTRACTING FEE.......................................................................................................................................... 21
3.2 OTHER CITY FEES............................................................................................................................................ 21
3.2.1 Franchise Fee..........................................................................................................................................21
3.2.2 AB 939 Fee............................................................................................................................................. 21
3.2.3 Section Deleted.......................................................................................................................................22
3.2.4 Section Deleted....................................................................................................................................... 22
3.2.5 Late Payment of Fees............................................................................................................................... 22
3.3 FUTURE FEES................................................................................................................................................... 22
ARTICLE4.........................................................................................................................................23
DIRECTSERVICES.......................................................................................................................................................23
4.1 REFUSE............................................................................................................................................................ 23
4.1.1 General...................................................................................................................................................23
4.1.2 Section Deleted.......................................................................................................................................23
July 13, 2009, DRAFT City of Diamond Bar - Commercial
4.1.3
Section Deleted.......................................................................................................................................
23
4.1.4
Section DeIeted.......................................................................................................................................
23
4.1.5
Section Deleted......................................................................................................................................23
4.1.6
Bin Refuse Collection..............................................................................................................................23
4.1.7
Determination of Service Type................................................................................................................
24
4.1.8
Overflowing Containers..........................................................................................................................
24
4.1.9
Permanent Roll -off Box Service...............................................................................................................25
4.1.10
Temporary Bin and Temporary Roll -Off Box Service..........................................................................
25
4.1.11
Bin Pushout Service.......................................................... ......... ................................................26
4.1.12
Scout Service......................................................................................................................................26
4.1.13
Locking Bins......................................................................................................................................
26
4.1.14
Redelivery/Return Trip Fee .............. ...........
.......................................................................................
26
4.1.15
On -Cali Bulky Item Pickup................................................................................................................
26
4.1.16
Bulky Item Diversion.........................................................................................................................27
4.1.17
Disposal of Electronic and Other Special Wastes.................................................................................
28
4.1.18
Door -to -Door HHW Collection..........................................................................................................
28
4.1.19 SECTION DELETED......................................................................................................................................
28
4.1.20
Service Exceptions; Hazardous Waste Notifications............................................................................
28
4.2 RECYCLING......................................................................................................................................................29
4.2.1
Recyclables Collection.............................................................................................................................29
4.2.2
Processing of Solid Waste .......................... __.................... ............... .......................................................
29
4.2.3
Section Deleted.......................................................................................................................................
30
4.2.4
Marketing and Sale of Recyclable Materials............................................................................................
30
4.2.5
Minimum Recycling Requirements.........................................................................................................30
4.2.6
Construction and Demolition Debris Diversion.......................................................................................31
4.2.7
Optional Food Waste Diversion Program................................................................................................31
4.3 GREEN WASTE PROGRAM................................................................................................................................
31
4.3.1
Residential Green Waste Collection.........................................................................................................31
4.3.2
Holiday Tree Collection Program............................................................................................................
32
4.3.3
Roll -Off Green Waste..............................................................................................................................
32
4.3.4
End Uses for Green Waste......................................................................................................................
32
4.4 SECTION
DELETED...........................................................................................................................................33
4.5 CITY
SERVICES.................................................................................................................................................33
4.5.1
City Facilities Collection.........................................................................................................................33
4.5.2
City Sponsored Events............................................................................................................................33
4.5.3
Emergency Collection and Disposal Semice.............................................................................................34
4.5.4
Abandoned Item Collection from City Right -of -Way or Other Public Property ........................................
34
4.5.5
Community Development Review Services..............................................................................................34
4.5.6
Large Venue Event Assistance, Event Recycling.....................................................................................
34
4.5.7
Confiscation of Unauthorized Containers .... .......... ............. ......._.................................... ........ ....... ..... .....34
4.5.8
Provision of Storage Containers........................................................................................................
35
4.6 OPERATIONS....................................................................................................................................................35
4.6.1
Schedules; Missed Pickups......................................................................................................................35
4.6.2
Vehicles...........................................................................36
4.6.3
Containers..............................................................................................................................................40
4.6.3.1
Carts..................................................................................................................................................40
4.6.3.2
Cart Maintenance and Replacement Responsibilities...........................................................................
41
4.6.3.3
Bins...................................................................................................................................................
41
4.6.3.4
Roll -off Boxes.....................................................................................................................................
42
4.6.4
Litter Abatement.....................................................................................................................................
42
4.6.5
Personnel....................................................................................................................._.,........................43
4.6.6
Identification Required .............. _.......................... ................ ___ ............................... ............................
44
4.6.7
Unautliorized Fees and Gratuities...........................................................................................................
44
July 13, 2009, DRAFT City of Diamond Bar - Commercial
4.6.8 Non-Discrimination............................................................................................................................... 44
4.6.9 Report of Accumulation of Solid Waste; Unauthorized Dumping............................................................ 45
4.7 TRANSPORTATION OF SOLID WASTE................................................................................................................ 45
4.8 APPROVED FACILITIES....................................................................................................._......................_........45
4.9 STATUS OF DISPOSAL SITE..........................................................................................................._................46
4.10 DEDICATED ROUTES................................................................................................................................... 46
4.11 ROUTE AUDIT............................................................................................................................................. 46
ARTICLE5
.........................................................................................................................................48
OTHERSERVICES........................................................................................................................................................48
5.1 CUSTOMER BILLING AND CONTRACTOR COMPENSATION...............................................................................
48
5.1.1
Billing....................................................................................................................................................
48
5.1.2
Contractor's Invoices..............................................................................................................................
48
5.1.3
Section Deleted......................................................................................................................................
48
5.1.4
Section Deleted.......................................................................................................................................48
59
5.1.5
Section Deleted.......................................................................................................................................
48
5.1.6
Non -Payment; Collections; Suspension of Service..................................................................._...............
48
5.2 CUSTOMER SERVICE........................................................................................................................................
49
5.2.1
Local Office...................................................................................................... ........49
...............................
7.2 PERFORMANCE SATISFACTION SURVEY...........................................................................................................
5.2.2
Complaint Documentation.....................................................................................................................
49
5.2.3
Customer Service Standards...................................................................................................................
50
5.2.4
Resolution of Customer Complaints........................................................................................................
51
5.2.5
Contract Liaison.....................................................................................................................................
52
5.2.6
Service Liaison........................................................................................................................................
52
5.3 EDUCATION AND PUBLIC AWARENESS............................................................................................................
52
5.3.1
General...................................................................................................................................................52
5.3.2
Implementation and On-going Education Requirements.........................................................................
52
5.3.3
Contractor Representative.......................................................................................................................
54
5.3.4
Community Events.................................................................................................................................
54
5.4 WASTE GENERATION/ CHARACTERIZATION STUDIES.....................................................................................
54
ARTICLE6.........................................................................................................................................56
COMPANY COMPENSATION AND RATES............................................................................................................
56
6.1 GENERAL.........................................................................................................................................................56
6.2 INITIAL RATES.................................................................................................................................................
56
6.3 SCHEDULE OF FUTURE ADJUSTMENTS.............................................................................................................
56
6.4 METHOD OF ADJUSTMENTS.............................................................................................................................
56
6.4.1 General...................................................................................................................................................56
6.4.2 Cost Components for Rate Adjustment Indices........................................................................................
57
6.4.3 Rate Adjustment Steps for Bin, Temporary and Other Services...............................................................
58
6.4.4 Rate Adjustment Steps for Pull Plus Dump Roll -Off Rates.....................................................................
59
6.5 EXTRAORDINARY ADJUSTMENTS.....................................................................................................................
59
6.6 EFFECT OF PROPOSITION 218...........................................................................................................................
60
ARTICLE7......................................................................................................................................................................62
REVIEW OF SERVICES AND PERFORMANCE.......................................................................................................62
7.1 PERFORMANCE REVIEW MEETING...................................................................................................................62
7.2 PERFORMANCE SATISFACTION SURVEY...........................................................................................................
63
ARTICLE8.........................................................................................................................................64
RECORDS, REPORTS AND INFORMATION REQUIREMENTS.........................................................................64
8.1 GENERAL.........................................................................................................................................................64
8.2 RECORDS......................................................................................................................................................... 64
July 13, 2009, DRAFT City of Diamond Bar - Commercial
8.2.1
General...................................................................................................................................................64
8.2.2
Financial Records .............. --- ........................................................ .......... ...........................................
65
8.2.3
Solid Waste Records................................................................................................._..............................
65
8.2.4
CERCLA Defense Records......................................................................................................................
66
8.2.5
Section Deleted ....................... ................ ....... ...................... .................................................... I .... I.........
67
8.2.6
Other Programs' Records........................................................................................................................
67
8.2.7
Audit......................................................................................................................................................67
81
8.2.8
Payments and Refunds...........................................................................................................................
67
8.3 REPORTS..........................................................................................................................................................68
ARTICLE11.......................................................................................................................................83
8.3.1
Report Formats and Schedule..................................................................................................................
68
8.3.2
Monthly/Quarterly Reports....................................................................................................................
68
8.3.3
Annual Report........................................................................................................................................
69
8.3.4
Financial Report.....................................................................................................................................
70
8.4 REPORTING ADVERSE INFORMATION..............................................................................................................
70
8.5 FAILURE TO REPORT........................................................................................................................................
71
ARTICLE9.........................................................................................................................................72
9.1 INDEMNIFICATION...........................................................................................................................................
72
9.2 HAZARDOUS SUBSTANCES INDEMNIFICATION................................................................................................
73
9.3 AB 939 INDEMNIFICATION AND GUARANTEE.................................................................................................
75
9.4 INSURANCE.....................................................................................................................................................
75
9.5 FAITHFUL PERFORMANCE BOND.....................................................................................................................
79
9.6 FAITHFUL PERFORMANCE LETTER OF CREDIT ..................................................................................................
80
9.7 FORFEITURE OF PERFORMANCE BOND.............................................................................................................
80
9.8 FORFEITURE OF LETTER OF CREDIT OR DEPOSIT..............................................................................................
81
9.9 PERFORMANCE SECURITY BEYOND SERVICE TERM..........................................................................................
81
ARTICLE10.......................................................................................................................................82
CITY'S RIGHT TO CONTRACT WITH THIRD PARTIES TO PERFORM FRANCHISED SERVICES ............
82
ARTICLE11.......................................................................................................................................83
DEFAULT, REMEDIES AND LIQUIDATED DAMAGES.......................................................................................
83
11.1 EVENTS OF DEFAULT...................................................................................................................................
83
11.2 RIGHT TO TERMINATE UPON DEFAULT AND RIGHT TO SPECIFIC PERFORMANCE ........................................
86
11.3 LIQUIDATED DAMAGES........................................._............................................_.......................................
86
11.4 SUSPENSION OF PERFORMANCE..................................................................................................................
91
11.4.1 Force Majeure....................................................................................................................................
91
11.4.2 Labor Unrest......................................................................................................................................92
11.5 DISPUTE RESOLUTION.................................................................................................................................
92
11.5.1 Negotiation and Mediation.................................................................................................................93
11.5.2 Confidentiality ..... ...... .............. .•-- ....... .............................................................................................93
11.5.3 Injunctive Relief-- ..... ........... ..................... ................................... ........................ ........................
93
11.5.4 Continuing Obligation.......................................................................................................................93
11.5.5 Failure of Mediation...........................................................................................................................
94
11.6 ASSURANCE OF PERFORMANCE.................................................................................................................. 94
ARTICLE12.......................................................................................................................................95
OTHER AGREEMENTS OF THE PARTIES...............................................................................................................95
12.1 RELATIONSHIP OF PARTIES.........................................................................................................................
95
12.2 COMPLIANCE WITH LAW............................................................................................................................
95
12.3 GOVERNING LAW.......................................................................................................................................
95
12.4 JURISDICTION.................................................................................................................... .... ....................95
July 13, 2009, DRAFT City of Diamond Bar - Commercial
12.5
ASSIGNMENT.............................................................................................................................................. 96
12.6
CONTRACTING OR SUBCONTRACTING........................................................................................................
98
12.7
BINDING ON ASSIGNS.................................................................................................................................
98
12.8
COOPERATION IN PREPARATION FOR TERMINATION OR EXPIRATION OF CONTRACT .................................
98
12.9
PARTIES IN INTEREST...................................................................................................................................
99
12.10
WAIVER.....................................................................................................................................................
99
12.11
CONTRACTOR'S INVESTIGATION.................................................................................................................
99
12.12
SECTION DELETED......................................................................................................................................
99
12.13
NOTICE.....................................................................................................................................................
100
12.14
REPRESENTATIVES OF THE PARTIES...........................................................................................................
100
12.15
CITY FREE TO NEGOTIATE WITH THIRD PARTIES.......................................................................................
101
12.16
COMPLIANCE WITH MUNICIPAL CODE.....................................................................................................
101
12.17
PRIVACY...................................................................................................................................................
101
12.18
PROPRIETARY INFORMATION, PUBLIC RECORDS.......................................................................................
101
ARTICLE13.....................................................................................................................................103
MISCELLANEOUS PROVISIONS............................................................................................................................
103
13.1
ENTIRE AGREEMENT.................................................................................................................................
103
13.2
SECTION HEADINGS..................................................................................................................................
103
13.3
REFERENCES TO LAWS AND OTHER AGREEMENTS....................................................................................
103
13.4
INTERPRETATION......................................................................................................................................
103
13.5
AGREEMENT......................................................................................................................
........ 103
13.6
SEVERABILITY...........................................................................................................................................
104
13.7
EXHIBITS...................................................................................................................................................
104
13.8
ATTORNEYS FEES.....................................................................................................................................
104
Exhibits
1. Public Education Plan
2. Initial Maximum Rates
3. Rate Adjustment Formula
4. Corporate Guarantee
5. Faithful Performance Bond
6 Notary Certification
July 13, 2009, DRAFT City of Diamond Bar - Commercial
AGREEMENT
This Agreement for Integrated Solid Waste Management Services (hereinafter the
"Agreement") is entered into this day of , 2009, by and between the City of
Diamond Bar, California, ("City") and Valley Vista Services, Inc. ("Contractor'), for the
collection, transportation, recycling, processing, and disposal of commercial solid waste
and other services related to meeting the goals and requirements of the California
Integrated Waste Management Act.
RECITALS
WHEREAS, the Legislature of the State of California, by enactment of the California
Integrated Waste Management Act of 1989 (AB 939) (California Public Resources Code
Sections 49100 et seq.), has declared that it is in the public interest to authorize and
require local agencies to make adequate provisions for solid waste handling within
their jurisdictions; and,
WHEREAS, pursuant to California Public Resources Code Section 49300 and 49500-49524,
the City of Diamond Bar has determined that the public health, safety, and well-being
require that an exclusive franchise for commercial solid waste collection services, be
awarded to a qualified company for the collection, transfer and transportation,
recycling, processing, and disposal of solid waste and other services related to meeting
the diversion goals required by AB 939, and other requirements of the California
Integrated Waste Management Act; and,
WHEREAS, City desires to maintain reasonable rates and quality service related to the
collection, transfer and transportation, recycling, processing, and disposal of solid waste
and other services; and,
WHEREAS, Contractor is the current commercial solid waste hauler for the City and the
current agreement under which it operates in the City will expire on August 16, 2010;
and,
WHEREAS, City and Contractor ("Parties") have negotiated, and desire to enter into this
Agreement in order that Contractor continue to serve s the City's exclusive bin and roll-
off customer solid waste hauler for the term hereof; and,
July 13, 2009, DRAFT -1- City of Diamond Bar - Commercial
WHEREAS, City and Contractor are mindful of the provisions of the laws governing the
safe collection, transport, recycling, processing and disposal of solid waste, including
AB 939, the Resource Conservation and Recovery Act ("RCRA"), and the
Comprehensive Environmental Response, Compensation and Liability Act
("CERCLA"). City and Contractor desire to leave no doubt as to their respective roles
and to memorialize that by entering into this Agreement, City is not thereby becoming
an "arranger" or a "generator" as those terms are used in CERCLA, and that it is
Contractor, not City, that is "arranging for" the collection from premises in the City,
transport for disposal, composting or other processing, and recycling of municipal solid
waste which may contain hazardous substances; and further to confirm that as a
material inducement to City entering into this Agreement, Contractor has agreed to
fully indemnify City in connection with any claims, losses, liabilities, lawsuits or actions
relating to the inadvertent or intentional collection, transportation and/or disposal of
hazardous materials that may occur in connection with Contractor's performance under
this Agreement; and,
WHEREAS, Contractor has agreed, as part of this Agreement, acting as an independent
contractor to provide such personnel, equipment and supplies as are necessary to
ensure City complies with the requirements of Public Resources Code Section 49100, et
seq.
NOW, THEREFORE, in consideration of the premises above stated and the terms,
conditions, covenants and agreements contained herein, the Parties do hereby agree as
follows:
July 13, 2009, DRAFT -2- City of Diamond Bar - Commercial
ARTICLE 1
DEFINITIONS
The terms used in this Agreement shall have the meaning set forth in this Article 1. In
the event a term is not defined in this Article 1, then it shall have the meaning set forth
in the Diamond Bar Municipal Code or in Division 30, Part 1, Chapter 2 of the
California Public Resources Code (with precedence given to definitions in the Diamond
Bar Municipal Code over conflicting definitions contained in the Public Resources
Code). Except as provided in Article 1, words beginning with lower case letters are
being used with their common ordinary meanings, not as defined terms. Otherwise, the
following capitalized words and terms shall have the following meanings:
1.1 AB 939
"AB 939" means the California Integrated Waste Management Act of 1989 (California
Public Resources Code Section 40000 et seq.), as it may be amended from time to time.
1.2 Affiliate
"Affiliate" means all businesses (including corporations, limited and general
partnerships and sole proprietorships) which are directly or indirectly related to
Contractor by virtue of direct or indirect ownership interest or common management.
These shall be deemed to be "Affiliated with" Contractor and included within the term
"Affiliates" as used herein. An Affiliate shall include a business in which Contractor
owns a direct or indirect ownership interest, a business which has a direct or indirect
ownership interest in Contractor and/or a business which is also owned, controlled or
managed by any business or individual which has a direct or indirect ownership
interest in Contractor. For purposes of determining whether an indirect ownership
interest exists, the constructive ownership provisions of Section 318(a) of the Internal
Revenue Code of 1986, as in effect on the date of this Agreement, shall apply; provided,
however, that (i) "ten percent (10%)" shall be substituted for "fifty percent (50%)" in
Section 318(a)(2)(C) and in Section 318(a)(3)(C) thereof; and (ii) Section 318(a)(5)(C) shall
be disregarded. For purposes of determining ownership under this paragraph and
constructive or indirect ownership under Section 318(a), ownership interest of less than
ten percent (10%) shall be disregarded and percentage interests shall be determined on
July 93, 2009, DRAFT -3- City of Diamond Bar - Commercial
the basis of the percentage of voting interest or value which the ownership interest
represents, whichever is greater.
1.3 Billings
"Billings" or "Billing" or `Bill' means the statements of charges provided to Customers
for services rendered by Contractor.
1.4 Bin
"Bin" means a metal Container with hinged lids and wheels with a capacity of less than
ten (10) cubic yards.
1.5 Bin Service
"Bin Service" means Solid Waste Collection Services in which a Bin is used for the
Collection of Solid Waste.
1.6 Bulky Items
"Bulky Items" means Solid Waste that cannot and/or would not typically be
accommodated within the Solid Waste Container at the Premises including specifically:
furniture (including chairs, sofas, mattresses, and rugs); appliances (including
refrigerators, ranges, washers, dryers, water heaters, dishwashers, plumbing, small
household appliances and other similar items, commonly known as "white goods");
unusually large amounts of yard debris and Green Waste and small pieces of wood
limited to one cubic yard of contained material; electronic equipment (including stereos,
televisions, computers and monitors, VCRs, microwaves and other similar items
commonly known as "brown goods" and "e -waste"); and clothing. Bulky Items do not
include car bodies, Construction and Demolition Debris or items requiring more than
two persons to remove. Other items not specifically included or excluded above will be
Collected provided that they are not more than eight feet in length, four feet in width,
or more than 150 pounds. In the event a question ever arises as to whether a specific
item or category of items meets the definition of Bulky Items, City shall be responsible
to determine whether said definition shall apply, which determination shall be final and
binding on the Parties.
July 93, 2009, DRAFT -4- City of Diamond Bar - Commercial
1.7 Cart
"Cart" means a plastic Container with a hinged lid and wheels serviced by an
automated or semi -automated truck with a capacity of no less than 32- and no greater
than 101 -gallons.
1.8 City
"City" means City of Diamond Bar, California, a municipal corporation, and all the
territory lying within the municipal boundaries of City as presently existing or as such
boundaries may be modified during the term of this Agreement.
1.9 Collect/Collection
"Collect" or "Collection" means to take physical possession, transport, and remove Solid
Waste within and from City.
1.10 Commercial Services
"Commercial Services" refer to Solid Waste Collection Services performed at or for
Commercial Premises.
1.11 Commercial Premises
"Commercial Premises" means Premises upon which business activity is conducted,
including but not limited to retail sales, services, wholesale operations, manufacturing
and industrial operations, but excluding Residential Premises upon which business
activities are conducted when such activities are permitted under applicable zoning
regulations and are not the primary use of the property. Notwithstanding any
provision to the contrary herein, in the Diamond Bar Municipal Code, or otherwise, for
purposes of this Agreement, Premises upon which the following uses (as defined in the
Diamond Bar Municipal Code) are occurring shall be deemed to be Commercial
Premises: Assisted Living Facilities, Convalescent Homes, Dormitories, Extended Stay
Motels, Hotels, and Motels.
July 13, 2009, DRAFT -5- City of Diamond Bar - Commercial
1.12 Contractor
"Contractor" means Valley Vista Services, a corporation organized and operating under
the laws of the State of California and its officers, directors, employees, agents,
companies and subcontractors.
1.13 Contractor Compensation
"Contractor Compensation" means the revenue received by the Contractor from
Customers in return for providing services in accordance with this Agreement.
1.14 Construction and Demolition Debris
"Construction and Demolition Debris" means Solid Waste generated at a Premises that
is directly related to construction or demolition activities occurring thereon.
1.15 Container
"Container" means any and all types of Solid Waste receptacles, including Carts, Bins
and Roll -off Boxes.
1.16 CPI
"CPP" means the Consumer Price Index for All Urban Consumers (CPI -U), all items
index less food and energy - Los Angeles -Riverside -Orange County, CA,
CUURA421SAOLIE.
1.17 Customer
"Customer" means a Person receiving Solid Waste Collection Services from Contractor
pursuant to the terms of this Agreement.
1.18 Disposal
"Disposal" means the ultimate disposition of Solid Waste Collected by Contractor at a
landfill or otherwise in full regulatory compliance.
1.19 Disposal Site(s)
"Disposal Site(s)" means the Solid Waste handling Facility or Facilities utilized for the
ultimate Disposal of Solid Waste Collected by Contractor.
July 93, 2009, DRAFT -6- City of Diamond Bar - Commercial
1.20 Diversion
"Diversion" means any combination of waste prevention (source reduction), recycling,
reuse, composting and Transformation activities that reduces waste disposed at
landfills, provided such activities are recognized by the California Integrated Waste
Management Board ("CIWMB") as Diversion in its determination of the City's
Diversion rate and compliance with AB 939. Transformation tonnage that will be
considered toward the 25% Diversion goal under this Agreement is limited to 10% of
Solid Waste Collected by Contractor each calendar year under this Agreement.
1.21 Environmental Laws
"Environmental Laws" means all federal and state statutes, county, local and City
ordinances concerning public health, safety and the environment including, by way of
example and not limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 USC §9601 et seq.; the Resource
Conservation and Recovery Act, 42 USC §6902 et seq.; the Federal Clean Water Act, 33
USC §1251 et seq.; the Toxic Substances Control Act, 15 USC §1601 et seq.; the California
Hazardous Waste Control Act, California Health and Safety Code §25100 et seq.; the
California Hazardous Substance Account Act, California Health and Safety Code
§25300 et seq.; the Porter -Cologne Water Quality Control Act, California Water Code
§13000 et seq.; the Safe Drinking Water and Toxic Enforcement Act, California. Health
and Safety Code §25249.5 et seq.; as currently in force or as hereafter amended, and all
rules and regulations promulgated thereunder.
1.22 Facility
"Facility" means any plant or site, owned or leased and maintained, operated or used by
Contractor for purposes of performing under this Agreement.
1.23 Green Waste
"Green Waste" means tree trimmings, small pieces of wood, grass cuttings, dead plants,
leaves, branches, flowers, plant stocks, and dead trees (not more than four (4) inches in
diameter or 48 inches in length) and similar materials.
July 93, 2009, DRAFT -7- City of Diamond Bar - Commercial
1.24 Green Waste Processing Facility
"Green Waste Processing Facility" means a permitted Facility where Green Waste is
sorted, mulched or separated for the purposes of Recycling, reuse or composting.
1.25 Gross Receipts
"Gross Receipts" means any and all revenue received from Billings, and compensation
in any form, of Contractor or subsidiaries, parent companies or other Affiliates of
Contractor, for the Collection and transportation of Solid Waste pursuant to this
Agreement, in accordance with Generally Accepted Accounting Principles, including,
but not limited to, Customer fees for Collection of Solid Waste, without subtracting
Disposal fees, City fees or other fees or any other cost of doing business. Gross Receipts
does not include revenue from the sale of Recyclables.
1.26 Hazardous Substance
"Hazardous Substance" shall mean any of the following: (a) any substances defined,
regulated or listed (directly or by reference) as "Hazardous Substances", "hazardous
materials", "Hazardous Waste", "toxic waste", "pollutants" or "toxic substances" or
similarly identified as hazardous to human health or the environment, in or pursuant to
(i) the Comprehensive Environmental Response, Compensation and Liability Act of
1980,42 USC §9601 et seq. (CERCLA); (ii) the Hazardous Materials Transportation Act,
49 USC §1802, et seq.; (iii) the Resource Conservation and Recovery Act, 42 USC §6901 et
seq.; (iv) the Clean Water Act, 33 USC §1251 et seq.; (v) California Health and Safety
Code §§25115-25117, 25249.8, 25281, 25316, 25501 and 25501.1; (vi) the Clean Air Act, 42
USC §7901 et seq.; and (vii) California Water Code §13050; (b) any amendments, rules or
regulations promulgated thereunder to such enumerated statutes or acts currently
existing or hereafter enacted; and (c) any other hazardous or toxic substance, material,
chemical, waste or pollutant identified as hazardous or toxic or regulated under any
other applicable federal, state or local Environmental Laws currently existing or
hereinafter enacted, including, without limitation, friable asbestos, polychlorinated
biphenyl's ("PCBs"), petroleum, natural gas and synthetic fuel products, and by-
products.
July 93, 2009, DRAFT -8- City of Diamond Bar - Commercial
1.27 Hazardous Waste
"Hazardous Waste" means all substances defined as Hazardous Waste, acutely
Hazardous Waste, or extremely Hazardous Waste by the State of California in Health
and Safety Code §25110.02, §25115, and §25117 or in the future amendments to or
recodifications of such statutes or identified and listed as Hazardous Waste by the US
Environmental Protection Agency (EPA), pursuant to the Federal Resource
Conservation and Recovery Act (42 USC §6901 et seq.), all future amendments thereto,
and all rules and regulations promulgated thereunder.
1.28 Household Hazardous Waste ("HHW")
"Household Hazardous Waste" means Hazardous Waste generated at Residential
Premises.
1.29 Materials Recovery Facility ("MRF")
"Materials Recovery Facility" means a permitted Solid Waste Facility where Solid
Wastes or Recyclable Materials are sorted or separated for the purposes of Recycling,
processing or composting.
1.30 Multi -Family Dwelling
"Multi -Family Dwelling" means any building or lot containing two or more dwelling
units. Multi -Family Dwelling units generally receive Refuse Collection service through
the use of shared Bins, but may use Carts. Multi -Family Dwelling Units receiving Bin
Refuse Collection are included in this Agreement.
1.31 Person
"Person" means any individual, firm, association, organization, partnership, limited
liability company, corporation, business trust, joint venture, the United States, the State
of California, the County of Los Angeles, cities, and special purpose districts.
1.32 Premises
"Premises" means any land, or building in City where Solid Waste is generated or
accumulated.
July 13, 2009, DRAFT -9- City of Diamond Bar - Commercial
1.33 Rate Year
"Rate Year" means the period July 1 to June 30, for each year during the Term of this
Agreement. For the first year of this Agreement, the Rate Year is August 16 to June 30.
1.34 Recycling
"Recycling" means the processing of Recyclable Materials for the purpose of returning
them to the economy in the form of raw materials for new, reused, or reconstituted
products. The Collection, transportation or Disposal of Solid Waste not intended for, or
capable of, reuse is not Recycling. Recycling does not include use of Solid Waste for
conversion to energy.
1.35 Recyclable Materials
"Recyclable Materials" means Solid Waste that is Source Separated, has some potential
economic value, and is set aside, handled, packaged, or offered for Collection in a
manner different from Refuse in order to allow it to be processed for Recycling.
1.36 Refuse
"Refuse" means putrescible and non-putrescible Solid Waste.
1.37 Residential Services
"Residential Services" refer to Solid Waste Collection Services performed at and for
Residential Premises included under this Agreement.
1.38 Residential Customers
"Residential Customer" means all Customers on Residential Premises that are included
under this Agreement.
1.39 Residential Premises
"Residential Premises" means Premises upon which dwelling units exist, including,
without limitation, Single Family and Multi -Family Dwellings, apartments, boarding or
rooming houses, condominiums, mobile homes, efficiency apartments, second units,
and Group Residential Facilities, Group Care Facilities,. Notwithstanding any
provision to the contrary herein, in the Diamond Bar Municipal Code, or otherwise, for
July 13, 2009, DRAFT -10- City of Diamond Bar - Commercial
purposes of this Agreement, Premises upon which the following uses are occurring
shall not be deemed to be Residential Premises, and rather shall be deemed to be
Commercial Premises: Assisted Living Facilities, Convalescent Homes, Dormitories,
Extended Stay Motels, Hotels, Motels, and any other businesses not specifically listed at
which residency is transient in nature and hence should be classified as Commercial
Premises as determined by City on a case by case basis.
1.40 Roll -off Box
"Roll -off Box" means Solid Waste Collection Containers of 10 cubic yards or larger.
1.41 Single Family Dwelling
"Single Family Dwelling" means a Residential Premises that includes only one dwelling
unit. Single Family Dwellings may receive either Cart or Bin Service.
1.42 Solid Waste
"Solid Waste" means all discarded putrescible and non-putrescible solid, semisolid, and
liquid wastes, including Refuse, Construction and Demolition Debris, Bulky Items,
Recyclable Materials, and Green Waste, or any combination thereof which are permitted
to be disposed of in a Class III landfill, and which are included in the definition of
"Non -hazardous Solid Waste" set forth in the California Code of Regulations.
1.43 Solid Waste Collection Services
"Solid Waste Collection Services" means the Collection, transfer, transport, Recycling,
processing, and Disposal of Solid Waste placed for Collection pursuant to this
Agreement.
1.44 Source Separated
"Source Separated" means the segregation by the Waste Generator of individual
components of Solid Waste, which otherwise would become Refuse (such as glass
bottles, metal cans, newspapers, plastic containers, etc.) into separate Container(s) for
the purpose of allowing the Recycling of such materials.
1.45 State
"State" means the State of California.
July 13, 2009, DRAFT -11- City of Diamond Bar - Commercial
1.46 Temporary Service
"Temporary Service" means Solid Waste Collection Services provided to a Premises on
a temporary, as needed basis to any Premises within the City in conjunction with
construction, demolition, cleanup or other projects, and by use of temporarily placed
Bins or Roll -off Boxes
1.47 Transformation
"Transformation" means incineration, pyrolysis, distillation, gasification, or biological
conversion other than composting.
1.48 Transfer Station
"Transfer Station" means a Facility that received Solid Waste from collection vehicles
and transfers the material to larger vehicles for transport to landfills and other facilities.
Transfer Stations may or may not also include MRFs, transferring residual Refuse
(Refuse left after the sorting of Recyclable Materials) to landfills and Recyclable
Materials (including, for example, Green Waste and/or Construction and Demolition
debris), to processors, brokers or end-users.
1.49 Waste Generator
"Waste Generator" means any Person whose act or process produced Solid Waste as
defined in the Public Resources Code, or whose act first causes Solid Waste to become
subject to regulation.
July 13, 2009, DRAFT -12- City of Diamond Bar - Commercial
ARTICLE 2
GRANT AND ACCEPTANCE OF FRANCHISE
2.1 Grant and Acceptance of Franchise, Indemnity of Award
Subject to the terms and conditions of this Agreement (including but not limited to the
exclusions set forth in Section 2.9 hereof) and applicable State laws, and to the rights of
State, county and school district facilities to use a Solid Waste enterprise other than
Contractor, City hereby grants to Contractor and Contractor hereby accepts from City,
for the Term hereof, the exclusive franchise, right and privilege to provide Solid Waste
Collection Services at all Commercial Premises, and all Residential Premises that receive
Commercial style Bin Refuse service (the "Franchise')
Contractor agrees to and shall timely take all actions that are reasonably necessary to
defend the validity and enforceability of this Agreement and shall pay all costs related
to such defense. Contractor shall defend, indemnify, protect and hold harmless, the
City, its officers, agents and employees from any and all claims, actions or proceedings
to attack, set aside, void, annul or seek monetary damages resulting from an approval
by the City of this Agreement. The City shall promptly notify Contractor of any such
claim, action, or proceeding. The City and Contractor shall meet in good faith in an
effort to come to a mutual agreement for a joint defense; provided that the City shall be
entitled to select legal counsel of its choice to conduct the defense if an agreement
cannot be reached. Contractor's obligations to pay all costs, defend, indemnify, protect
and hold harmless under this section shall not be altered in the event City retains
separate counsel.
2.2 Section Deleted
2.3 Effective Date
The "Effective Date" of this Agreement shall be the date on which the City Council
approves this Agreement.
2.4 Term of Agreement
The term of this Agreement (the "Term') shall be eight (8) years, commencing on
August 16, 2010, and expiring August 15, 2018, subject to extension as provided herein.
July 13, 2009, DRAFT -13- City of Diamond Bar - Commercial
Notwithstanding the foregoing, the unexcused failure or refusal of Collector to perform
any material term, covenant, obligation or condition contained in this Agreement shall
give rise to the right, in favor of City, for earlier termination of this Agreement for cause
in accordance with the procedures elsewhere contained herein.
2.5 City's Option to Extend Term
City shall have the sole option to extend the Term of this Agreement for up to twelve
(12) months following expiration of the initial contract Term under Section 2.4. The City
may, upon at least ninety -days (90 -days) advance written notice to the Contractor prior
to the expiration of the Term of this Agreement, exercise this extension option. If City
provides this extension notice, the Agreement will automatically renew up to a
maximum of twelve (12) months. This extension period shall terminate, upon the
earlier of: (i) the expiration of the aforementioned twelve (12) months, or (ii) ninety (90)
days following the date upon which City gives Contractor written notice of final
termination.
2.6 Representations and Warranties of Contractor
Contractor hereby covenants, represents, and warrants the following to City for the
purpose of inducing City to enter into this Agreement and to consummate the
transaction contemplated hereby, all of which shall be true as of the date of this
Agreement and as of the Effective Date:
a) Contractor is validly existing as a corporation under the laws of the State of
California.
b) Neither the execution of this Agreement nor the delivery by Contractor of
services nor the performance by Contractor of its obligations hereunder: (1)
conflicts with, violates or results in a breach of any applicable law; (2) conflicts
with, violates or results in a breach of any term or condition of any judgment,
decree, agreement (including, without limitation, the certificate of incorporation
of Contractor) or instrument to which Contractor is a party or by which
Contractor or any of its properties or assets are bound, or constitutes a default
under any such judgment, decree, agreement or instrument; or (3) will result in
the creation or imposition of any encumbrance of any nature whatsoever upon
any of the properties or assets of Contractor.
July 93, 2009, Df24FT -14- City of Diamond Bar - Commercial
c) There is no action, suit or other proceeding as of the date of this Agreement, at
law or in equity, or to the best of Contractor's knowledge, any investigation,
before or by any court or governmental authority, pending or threatened against
Contractor that is likely to result in an unfavorable decision, ruling or finding
that would materially and adversely affect the validity or enforceability of this
Agreement or any such agreement or instrument entered into by Contractor in
connection with the transactions contemplated hereby, or that could materially
and adversely affect the ability of Contractor to perform its obligations
hereunder or that would have a material adverse effect on the financial condition
of Contractor.
d) Contractor has no knowledge of any applicable law in effect as of the date of this
Agreement that would prohibit the performance by Contractor of this
Agreement and the transactions contemplated hereby.
e) Contractor has made an independent investigation, satisfactory to it, of the
conditions and circumstances surrounding this Agreement and the work to be
performed by it, and is satisfied that those conditions and circumstances will not
impair its ability to perform the work and provide the Collection services
required by this Agreement.
f) The information supplied by Contractor in all submittals made in connection
with negotiation and execution of this Agreement, including all materials in
Exhibits to this Agreement, and all representations and warranties made by
Contractor throughout this Agreement are true, accurate, correct and complete in
all material respects on and as of the Effective Date of this Agreement.
g) Contractor's representative, designated in Section 5.2.5, shall have authority in
all daily operational matters related to this Agreement. City may rely upon
action taken by such designated representative as action of Contractor unless the
actions taken are not within the scope of this Agreement.
h) Contractor is duly organized, validly existing and in good standing under
applicable laws. It is qualified to transact business in the State of California and
has the power to own its properties and to carry on its business as now owned
and operated and as required by this Agreement.
July 93, 2009, DR4FT -15- City of Diamond Bar - Commercial
i) Contractor has the authority to enter into and perform its obligations under this
Agreement. The Board of Directors or partners of Contractor (or the
shareholders, if necessary) have taken all actions required by law, its articles of
incorporation, its bylaws or otherwise to authorize the execution of this
Agreement. The Persons signing this Agreement on behalf of Contractor have
authority to do so. Contractor shall authorize one employee for the City as a
single point of contact for issues arising under this Agreement, and Contractor
acknowledges and agrees that City may expect and assume that this employee's
actions are taken on behalf of and with the full approval of the Contractor.
2.7 Conditions to Effectiveness of Agreement
The satisfaction of each and all of the conditions set out below, each of which may be
waived in whole or in part by City in writing, is a condition precedent to the
effectiveness of this Agreement, and a condition of Contractor's continued right to the
benefits conveyed herein:
a) Accuracy of Representations. All representations and warranties made by
Contractor and set forth in this Agreement shall be accurate, true and correct on
and as of the Effective Date.
b) Absence of Litigation. There shall be no litigation pending in any court
challenging the award of this Franchise to Contractor or the execution of this
Agreement or seeking to restrain or enjoin its performance.
c) Furnishing of Insurance, Bond, and Letter of Credit. Contractor shall have
furnished evidence of the insurance, bonds, deposit and letter of credit required
by Article 9, and shall comply with all ongoing requirements relating thereto.
d) Contractor shall have paid the contracting fee to City, as provided in Section 3.1.
2.8 Delegation of Authority
The administration of this Agreement by City shall be under the supervision and
direction of City Manager's office and the actions specified in this Agreement, unless
otherwise stated, shall be taken by the City Manager, or his or her designee.
July 93, 2009, DRAFT -16- City of Diamond Bar - Commercial
2.9 Limitations to Scope
Notwithstanding any provision to the contrary contained herein, the exclusive
franchise, right and privilege to provide Solid Waste Collection Services at Premises
within City granted to Contractor by this Agreement (Commercial and Residential
Premises that receive weekly Refuse Collection using Bins) specifically excludes the
following services, which services may be provided by Persons other than Contractor
and which may be the subject of other permits, licenses, franchises or agreements issued
or entered by City:
a) The sale or donation of source -separated Recyclable Material by the Waste
Generator to any Person or entity other than Contractor; provided, however, if
the Generator is required to pay any monetary or non -monetary consideration,
directly or indirectly, for the Collection, transportation, transfer, or processing of
Recyclable Material, it shall not be considered a sale or donation and shall not be
exempt;
b) Solid Waste, including Recyclable Materials and Green Waste, that is removed
from any Premises by the Waste Generator by means of "self -hauling" (as
described in the Diamond Bar Municipal Code), and that is transported
personally by such Generator (or by his or her full-time employees) to a
processing or Disposal Facility in a manner consistent with all applicable laws
and regulations;
c) Green Waste removed from a Premises by a gardening, landscaping, or tree
trimming Contractor, utilizing its own equipment, as an incidental part of a total
service offered by that Contractor rather than as a hauling service;
d) The Collection, transfer, transport, Recycling, processing, and disposal of animal
remains from slaughterhouse or butcher shops for use as tallow;
e) The Collection, transfer, transport, Recycling, processing, and disposal of by-
products of sewage treatment, including sludge, sludge ash, grit and screenings;
f) The Collection, transfer, transport, Recycling, processing, and disposal of
Hazardous Substances, Hazardous Waste, Household Hazardous Waste and
radioactive waste regardless of its source;
July 13, 2009, DRAFT -17- City of Diamond Bar - Commercial
g) Construction and Demolition Debris which is removed by a duly -licensed
construction or demolition company or as part of a total service offered by said
licensed company or by the City, where the licensed company utilizes its own
equipment in compliance with Construction and Demolition Debris
requirements of the Diamond Bar Municipal Code;
h) Collection services provided exclusively by City's Residential Franchisee under
its Cart Customer Solid Waste Management Services Agreement. Contractor
shall service, under this Agreement, Single Family Dwelling Units that received
Bin service, and the City's Residential contractor shall provide service to Single
Family Customers that request regularly scheduled Cart Refuse service;
i) The Collection, transfer, transport, Recycling, processing, and Disposal of Solid
Waste by City through City officers or employees in the normal course of their
City employment; and,
j) Solid Waste Collection Services for governmental agencies other than City, which
may have facilities in City, but over which City has no jurisdiction in connection
with the regulation of Solid Waste, such as State, county and school district
facilities.
The exclusive franchise, right and privilege to provide Solid Waste Collection Services
within City granted to Contractor by this Agreement shall be interpreted to be
consistent with all applicable state and federal laws, now in effect and adopted during
the term of this Agreement, and the scope of this Agreement shall be limited by all
applicable current and developing laws and regulations. In the event that future
interpretations of current law, future enactments or developing legal trends limit the
ability of City to lawfully grant Contractor the scope of services as specifically set forth
herein, Contractor agrees that the scope of this Agreement will be limited to those
services and materials which may be lawfully provided, and that City shall not be
responsible for any lost profits claimed by Contractor as a result thereof.
2.10 City's Right to Direct Changes
2.10.1 General
City may direct Contractor to perform additional services (including new Diversion
programs, etc.) or modify the manner in which it performs existing services or Bills for
July 13, 2009, DRAFT -18- City of Diamond Bar - Commercial
services. Pilot programs and innovative services which may entail new Collection
methods, and different kinds of services and/or new requirements for Waste
Generators are included among the kinds of changes which City may direct. Contractor
acknowledges that State law may increase the Diversion requirement during the term of
this agreement and Contractor agrees to propose services to meet such Diversion
requirements. Contractor shall be entitled to an adjustment in its Contractor
Compensation for providing such additional or modified services, including a profit
factor equal to ten percent (10%) of the incremental cost of such additional or modified
services. City may utilize cost components included in the Contractor's Proposal in
calculating equitable rate adjustments. Agreed upon rates and -service enhancements
require approval of the City Council. If City and Contractor cannot agree on
compensation for new or additional services, then City may contract with other parties
for such services, which shall be considered exempt from the exclusivity provisions of
Section 2.1.
Contractor shall not receive a rate increase to provide additional services implemented
to bring Contractor into compliance with contractually -required minimum diversion
rates per Section 4.2.5 or as a remedy for failure to perform under Section 7.1.
Additional or modified services shall be included in written amendment and shall
require approval of the City Council.
2.10.2 New Diversion Programs
Contractor shall present, within thirty (30) business days of a request to do so by City, a
proposal to provide additional or expanded Diversion services. The proposal shall
contain a complete description of the following:
• Collection methodology to be employed (equipment, manpower, etc.).
• Equipment to be utilized (vehicle number, types, capacity, age, etc.).
• Labor requirements (number of employees by classification).
• Type(s) of Containers to be utilized.
• Type(s) of material to be Collected.
• Provision for program publicity/education/marketing.
July 13, 2009, DRAFT -19- City of Diamond Bar - Commercial
Annual projection of the financial results of the program's operations in an operating
statement format including documentation of the key assumptions underlying the
projections and the support for those assumptions.
2.11 Ownership of Solid Waste
City and Contractor understand and agree that it is Contractor, and not City, who will
arrange to Collect Solid Waste; that City has not, and, by this Agreement does not,
instruct Contractor on its Collection methods, nor supervise the Collection process; nor
do the Parties intend to place title to Solid Waste Collected by Contractor in City.
Rather, the Parties intend that whatever, if any, title in and to the Solid Waste that is
Collected by Contractor which otherwise might exist in or with City in the absence of
this Agreement is hereby transferred to Contractor; and further that if Contractor gains
title to such Solid Waste it is by operation of law and agreement with its Customers and
is not the result of this Agreement. Subject to the provisions of this Agreement, and
unless City exercises its rights to direct the location for Disposal and processing of Solid
Waste, Contractor shall have the right to retain, Recycle, process, dispose of, and
otherwise use Solid Waste Collected pursuant to the terms hereof in any lawful fashion
or for any lawful purpose; and, further, shall have the right to retain any benefit
resulting from its right to retain, Recycle, process, dispose of, or reuse the Solid Waste
which it Collects. Ownership of Solid Waste properly placed for Collection shall
transfer to Contractor when Customer places it at point of Collection.
2.12 Permits and Licenses
Contractor shall acquire and maintain all necessary permits and licenses for the
Collecting, transporting, processing, and storing of Solid Waste and Recyclables,
disposing of Solid Waste, and the Recycling of Recyclables as required under this
Agreement. Failure to maintain all required permits shall be deemed a material breach
of contract for which City may terminate this Agreement as provided in Section 11.2.
Contractor must follow requirements of the Diamond Bar Municipal Code, including,
but not limited to, obtaining a City of Diamond Bar business license.
July 13, 2009, DRAFT -20- City of Diamond Bar - Commercial
ARTICLE 3
FEES PAID TO THE CITY
In addition to any other consideration set forth herein, as part of its consideration for
entering into this Agreement, and for the exclusive franchise, right and privilege to
provide Solid Waste Collection Services as specified herein, Contractor shall provide
the following:
3.1 Contracting Fee
Contractor shall pay to City a Contracting Fee in a one-time lump sum payment of
seventy five thousand dollars ($75,000) within seven days of execution of this
Agreement to reimburse the City for costs it incurred in connection with entering this
Agreement.
3.2 Other City Fees
3.2.1 Franchise Fee
In consideration of the exclusive right to Collect provided in Section 2.1 of this
Agreement, throughout the Term of this Agreement Contractor shall pay to City a
Franchise Fee in an amount equal to five percent (5%) of the Gross Receipts received by
Contractor for all services provided in City pursuant to the terms of this Agreement.
Payments shall be made quarterly. The initial payment shall be due by October 30, 2010,
covering the period August 16 to September 30, and each subsequent payment shall be
due within 30 days of the end of the calendar quarter (January 30, April 30, July 30,
October 30), for the prior calendar quarter.
3.2.2 AB 939 Fee
In support of the City's outreach and administration of various Solid Waste programs
and public education efforts, Contractor shall pay an amount equal to thirteen percent
(13%) of the Gross Receipts received by Contractor for all services provided in City
pursuant to the terms of this Agreement.
July 13, 2009, DRAFT -21- City of Diamond Bar - Commercial
Payments shall be made quarterly. The initial payment shall be due by October 30, 2010,
covering the period August 16 to September 30, and each subsequent payment shall be
due within 30 days of the end of the calendar quarter (January 30, April 30, July 30,
October 30), for the prior calendar quarter.
3.2.3 Section Deleted
3.2.4 Section Deleted
3.2.5 Late Payment of Fees
If any of the fees provided for in this Section 3.2 are not paid on or before the due date,
Contractor shall pay to City a penalty in an amount equal to ten percent (10%) of the
amount owing for that month, plus interest at a rate of one and one-half (1.5%) per
month.
3.3 Future Fees
In the event that City implements a new fee not included in Section 3.2, or increases the
amount of an existing fee, Contractor shall be entitled to a rate adjustment in an amount
sufficient to recover the fee from Customers. City may elect to have Contractor pay in
accordance with the requirements of fee payments made in Section 3.2, or on another
schedule as City identifies with associated deadlines and late fees.
July 13, 2009, DRAFT -22- City of Diamond Bar - Commercial
ARTICLE 4
DIRECT SERVICES
4.1 Refuse
4.1.1 General
The work to be done by Contractor pursuant to this Agreement shall include, but not be
limited to, the furnishing of all labor, supervision, equipment, materials, supplies, and
all other items necessary to perform the services required. The enumeration of, and
specification of requirements for, particular items of labor or equipment shall not
relieve Contractor of the duty to furnish all others, as may be required, whether
enumerated elsewhere in this Agreement or not.
The work to be done by Contractor pursuant to this Agreement shall be accomplished
in a thorough and professional manner so that all Customers are provided reliable,
courteous and high-quality Solid Waste Collection Services at all times. The
enumeration of, and specification of requirements for, particular aspects of service
quality shall not relieve Contractor of the duty of accomplishing all other aspects in the
manner provided in this section, whether such other aspects are enumerated elsewhere
in this Agreement or not.
4.1.2 Section Deleted
4.1.3 Section Deleted
4.1.4 Section Deleted
4.1.5 Section Deleted
4.1.6 Bin Refuse Collection
Contractor shall provide Bins and Bin Service to its Customers that request such service.
Contractor shall Collect and remove all Refuse that is placed in Bins from the property
of Customers receiving Bin Service, at least once per week and more frequently if
required to handle the waste generated at the Premises where the Bins are located. To
resolve a dispute between Contractor and Customers, or if the City has health or safety
concerns, City shall make final determination as to the number and size of Containers,
July 13, 2009, DRAFT -23- City of Diamond Bar - Commercial
and frequency of Collection to be provided to Customers. Special consideration shall be
given when determining the pickup areas to ensure that the flow of traffic is not
impeded.
Contractor shall provide 1.5, 2, 3, 4 and 6 cubic yard Bins upon request. Contractor will
service Bins equipped with compaction devices (known as compactors) that attach to
the Bins if requested by Customer. The provision, sale or lease of the compaction device
itself is outside this Agreement. Contractor is not required to provide the compaction
device.
4.1.7 Determination of Service Type
Contractor may not transition a Customer from Bin to Cart service without prior
advance written approval of the City. If Contractor and Customer have a disagreement
as to whether a Refuse Bin is appropriate, or if City determines the Collection in a
Refuse Bin causes health and safety or other concerns, or if the City determines Cart
service is more appropriate, City shall make the final determination as to whether
Refuse Collection shall be from a Bin, or from a Cart. In all cases, City retains absolute
discretion in the determination of which type of service a Customer shall receive, and
therefore which with hauler will provide service.
4.1.8 Overflowing Containers
Customers that regularly produce more Solid Waste than their current level of service
can accommodate may have their service level increased in accordance with the
following procedure:
First Incident in Three Month Period - If more material is placed for Collection than fits
in a Container, Contractor shall photograph the overflowing Container, Collect the
Solid Waste, and send to the Customer (at both the service and billing addresses) the
picture and a letter instructing that further instances of an overflowing Container may
result in an increase in the level of service.
Second Incident in Three Month Period - Upon the second event of an overfilled
Container in a three-month period, Contractor shall photograph the overflowing
Container, Collect the Solid Waste, and send to the Customer the picture and a letter
requesting that Customer increase its service level. If the Customer declines, Contractor
July 13, 2009, DRAFT -24- City of Diamond Bar - Commercial
may petition City to permit Contractor to increase the service level to accommodate the
higher demand for service.
Contractor shall send City via e-mail or U.S. mail a copy of each letter and picture sent
to a Customer under this Section 4.1.8.
4.1.9 Permanent Roll -off Box Service
Contractor shall provide exclusive (as limited by Section 2.9) permanent Roll -off Box
Collection service upon request. Contractor will provide standard Roll -off Boxes. Rates
shall be charged as "pull plus dump," a set rate for the service component plus the per
ton charge based on actual tonnage Collected. The provision, sale or lease of compactor
Roll -Off Boxes, which are enclosed Containers attached to a compaction devise, is not
included in this Agreement; however, providing service to such compactor Roll -Off
Boxes is included. Rates for permanent Roll -Off Box services are included in the
approved rate schedule attached as Exhibit 2.
4.1.10 Temporary Bin and Temporary Roll -Off Box Service
Contractor shall provide exclusive (as limited by Section 2.9) temporary Bin and
temporary Roll -Off Box Service to Customers upon request, with the exclusion of
providing such service to existing Residential Cart Refuse Customers. Customers
receiving Cart Refuse services under the City's residential Cart franchise agreement,
and construction contractors providing services to such a Customer's premises, shall
receive temporary Bin and Roll -Off Box services from their Refuse Collection service
provider or other hauler authorized to Collect in the City. Services requested for all new
construction and instances not limited by Section 2.9 shall be exclusively provided
under this Agreement. In the event Temporary Services are required for a project
involving multiple Customers that receive service under both the City's Residential and
Commercial franchisees, this service shall be provided under this Commercial
Agreement. Contractor must deliver a temporary Bin or Roll -Off Box to a Customer
within forty-eight (48) hours of request (Saturdays and Sundays excluded). Rates for
Temporary Services are listed separately in the approved rate schedule, attached as
Exhibit 2.
Contractor will provide Roll -off Boxes and Bins for Temporary Services. There will be
no charges other than the specific charges identified in the approved rate schedule.
July 13, 2009, DRAFT -25- City of Diamond Bar - Commercial
Contractor shall confirm that Customer has obtained an encroachment permit from the
City prior to Contractor placing a Container in the public right-of-way.
4.1.11 Bin Pushout Service
Contractor may not charge a fee for pushing or rolling Bins to point of Collection.
4.1.12 Scout Service
Upon request, Contractor shall provide scout service, whereby Contractor will access
Containers using a small vehicle either to move Containers to street for Collection, or
Collecting Solid Waste directly from Container storage location. In the event of a
dispute between Contractor and Customer as to whether scout service will be used,
City will make the final determination.
4.1.13 Locking Bins
Contractor shall provide locking Bin Service (providing the hasp and lock and servicing
the lock) to Customers that request such service in accordance with the approved rate
schedule, based upon a monthly fee per locking Bin.
4.1.14 Redelivery/Return Trip Fee
Contractor may charge a fee, per the approved rate schedule, in the event that
Contractor arrives on time for a scheduled Collection of Bins or Roll -Off Boxes, is
impeded from Collection due to Container being blocked or otherwise unable to be
Collected due to issues within the Customer's control, and Contractor must return a
second time for Collection. Charge may be assessed for the trip, not per Bin, in the event
of a Customer with multiple Bins.
4.1.15 On -Call Bulky Item Pickup
Contractor shall provide Bulky Item pickup service to all Residential Customers. Each
Residential Dwelling Unit shall be entitled to four Bulky Item pickups per calendar year
at no additional charge.
The above mentioned Customers may put out up to four (4) Bulky Items at each pickup.
Contractor may instruct Customers to provide Contractor with a minimum of one
business day's notice for the items, which shall be Collected on the Customer's regular
July 93, 2009, DRAFT -26- City of Diamond Bar - Commercial
Collection day. Contractor shall Collect all Bulky Items as defined in Section 1.6
including items referred to as electronic waste or "e -waste." The following provisions
shall apply to this program:
• No single item that cannot be handled by two workers will be accepted.
• The following items will not be picked up: Hazardous Substances, Hazardous
Waste, including waste oil or anti -freeze, with the exception of Bulky Items per
Section 1.6 (including without limitation, universal wastes such as fluorescent bulbs,
household batteries, and televisions, monitors and other items commonly referred to
as "e -waste" that will be Collected by and disposed of by Contractor in accordance
with this section as well as Sections 4.1.16 and 4.1.17.)
• Contractor shall record by class and weight (in tons) the Solid Waste Collected from
Bulky Item pickups. Contractor shall record the kinds and weights (in tons) of this
Solid Waste that is diverted from the landfill through Recycling, reuse,
Transformation or other means of Diversion. Contractor shall include this
information in its monthly reporting per Section 8.3.2(a).
Residential Customers that exceed the number of free pickups and Commercial
Customers may receive Bulky Item Collection under the same terms for a fee, in
accordance with the approved rate schedule in Exhibit 2.
4.1.16 Bulky Item Diversion
Bulky Items Collected by Contractor in accordance with Section 4.1.15, or otherwise
Collected under this Agreement, may not be landfilled or disposed of until the
following hierarchy of Diversion efforts has been followed by Contractor:
1) Reuse as is
2) Disassemble for reuse or Recycling
3) Recycle
4) Disposal
This hierarchy is intended to preclude the use of front or rear loading packer vehicles
for Bulky Items unless the compaction mechanism is not used to compact the Bulky
Items. An exception maybe made for items that have been designated for Disposal.
July 13, 2009, DRAFT -27- City of Diamond Bar - Commercial
4.1.17 Disposal of Electronic and Other Special Wastes
Contractor shall divert waste requiring special handling, such as universal or electronic
waste, or "e -waste," Collected in accordance with Sections 4.1.15, 4.1.16 or 4.5.4, or by
other means under this Agreement, by taking these goods to a properly permitted
Facility, and not by landfilling.
4.1.18 Door -to -Door HHW Collection
Contractor shall provide Residential Customers with door-to-door call-in HHW
Collection service at no additional cost. Items to be Collected include, at a minimum:
syringes and other Sharps; paint and paint products including but not limited to
thinners, glues, caulking, stains, wood preservatives and strippers; household cleaners;
automotive wastes; swimming pool chemicals; garden chemicals; fluorescent tubes;
thermometers; household batteries; and electronic wastes.
Contractor may direct Residential Customers to use the Bulky Item pickup option for
televisions, computers and other HHW that may safely and legally be Collected as
Bulky Items.
4.1.19 Section Deleted
4.1.20 Service Exceptions; Hazardous Waste Notifications
A. Failure to Collect. When Solid Waste is not Collected from any Solid Waste
service recipient, Contractor shall notify its service recipient in writing, at the time
Collection is not made, through the use of a "red tag" or otherwise, of the reasons why
the Collection was not made, such as the placement of Hazardous Waste in the
Container.
B. Hazardous Waste Inspection and Reporting. Contractor reserves the right to
inspect Solid Waste put out for Collection and to reject Solid Waste observed to be
contaminated with Hazardous Waste and the right not to Collect Hazardous Waste put
out with Solid Waste. Contractor shall notify all agencies with jurisdiction, if
appropriate, including the California Department of Toxic Substances Control and
Local Emergency Response Providers and the National Response Center of reportable
quantities of Hazardous Waste, found or observed in Solid Waste anywhere within
City. In addition to other required notifications, if Contractor observes any substances
July 13, 2009, DRAFT -28- City of Diamond Bar - Commercial
which it or its employees reasonably believe or suspect to contain Hazardous Wastes
unlawfully disposed of or released on any City property, including storm drains, streets
or other public rights of way, Contractor will immediately notify City Manager or City
Manager's designee. Contractor shall implement and maintain a training program that
will assist its employees in identifying and properly disposing of any Hazardous Waste
that may come into their possession.
C. Hazardous Waste Diversion Records. Contractor shall maintain records
showing the types and quantities, if any, of Hazardous Waste found in Solid Waste and
which was inadvertently Collected from service recipients within City, but diverted
from landfilling.
4.2 Recycling
4.2.1 Recyclables Collection
Contractor agrees to provide, in accordance with the approved rate schedule in Exhibit
2, Recycling Collection service to Customers requesting it from the Contractor.
Contractor may purchase Recyclable Materials from its Customers as well. The
Contractor agrees to provide Recycling Bins or Carts to such Customers in sufficient
quantities to meet the Recycling needs of each Customer. Contractor shall continue to
make Recyclables Collection service available to Customers receiving such service as of
the execution of this Agreement (approximately 25 Bins Collected weekly) in
accordance with the approved rate schedule.
Contractor shall take whatever actions may be appropriate, lawful and effective to
discourage the unauthorized removal of Recyclable Materials from the Solid Waste
stream, commonly referred to as scavenging.
4.2.2 Processing of Solid Waste
Contractor shall process all Solid Waste Collected at a materials recovery facility in
order to maximize recovery of Recyclables. Contractor will deliver all mixed Solid
Waste to the Grand Central Recycling and Transfer Station for processing. The only
exception to this processing requirement is that Contractor may elect to Collect Refuse
from food service establishments on a separate route, and the mixed waste from food
establishments is not required to be processed. This exception is limited to Customers
whose primary business is food service. This exception does not extend to the
July 13, 2009, DRAFT -29- City of Diamond Bar - Commercial
processing of Solid Waste Collected from shopping centers, strip malls or office
buildings that may include food waste generating tenants.
4.2.3 Section Deleted
4.2.4 Marketing and Sale of Recyclable Materials
Contractor shall be responsible for marketing and sale of all Recyclable Materials
Collected pursuant to this Agreement. Contractor may retain revenue from the sale of
Recyclable Materials, and shall report the amount of such revenues to City upon
request.
4.2.5 Minimum Recycling Requirements
Contractor shall divert from landfilling a minimum of 25% of all Solid Waste Contractor
Collects under this Agreement.
Contractor shall divert from landfilling a minimum of 25 % of all Roll -Off Box loads,
excluding Construction and Demolition Debris loads, that Contractor Collects under
this Agreement. And Contractor shall divert from landfilling a minimum of 75 % of all
Construction and Demolition Debris loads it Collects under this Agreement.
Construction and Demolition Debris tonnage shall be included in the overall 25%
diversion calculation.
Compliance with each of these minimums will be measured, initially, for the first
period from August 16, 2010 to December 31, 2010, and subsequently on a calendar year
basis. Recycling of materials not Collected by the Contractor is not to be counted
towards meeting this requirement. If Contractor fails to comply with these diversion
rate requirements, Contractor must submit a plan for compliance, including without
limitation implementation of applicable portions of City's Source Reduction and
Recycling Element, within sixty (60) days of the end of the calendar year. Contractor's
plan is subject to approval by the City Manager, and to be approved must constitute a
good faith plan to implement applicable portions of City's Source Reduction and
Recycling Element and be reasonably likely to achieve compliance with the above
requirement. Costs for providing the services in the compliance plan to meet this
existing obligation will be borne by Contractor and shall not be the subject of a rate
adjustment.
July 93, 2009, DRAFT -30- City of Diamond Bar - Commercial
If, following implementation of the plan for compliance, Contractor does not achieve
compliance with the above requirement for the calendar year in which the plan was
submitted, liquidated damages shall be assessed under Section 11.3 for failure to meet
this requirement.
In the event the State increases diversion rate goals, City may require Contractor to
implement programs to meet the goal, and parties shall negotiate a rate adjustment.
Should parties fail to reach a mutually acceptable agreement, City may hire a third
party to provide those services or terminate the Agreement.
4.2.6 Construction and Demolition Debris Diversion
Contractor will bring all loads of mixed Construction and Demolition Debris to a C&D
processing facility designated per Section 4.8 for separation and recovery of this
material. Contractor may deliver separated loads of Construction and Demolition
Debris, such as clean dirt, concrete or rebar, to facilities specializing in the reuse of such
materials, provided this material is diverted from landfilling. Contractor shall divert
from landfilling a minimum of 75% of all Construction and Demolition Debris
Collected.
4.2.7 Optional Food Waste Diversion Program
City reserves the right to require Contractor to implement a program to divert food
waste. Contractor would be entitled to a rate adjustment for the reasonable additional
costs incurred in processing the waste and in transporting the waste in accordance with
Section 2.10. Transportation costs may increase or decrease, depending upon the
location of the food waste processing facility to be used.
4.3 Green Waste Program
4.3.1 Residential Green Waste Collection
Upon Customer request, Contractor shall provide Residential Customers with a
sufficient number of Carts or Bins for Collection of Green Waste ("Green Waste
Cart(s)"). Contractor shall Collect all Green Waste placed in Green Waste Carts or Bins,
as well as all Green Waste bundled as set forth below, and put out for Collection by
Customers not less than once per week. Contractor shall have a Green Waste Recycling
July 13, 2009, DRAFT -31- City of Diamond Bar - Commercial
program whereby it, at a minimum, Collects the types of Green Waste defined in
Section 1.23.
Contractor shall only be obligated to Collect Green Waste set out for Collection in
bundles if it is a maximum of four (4) feet long and eighteen (18) inches in diameter
from Customers with Green Waste Cart service.
4.3.2 Holiday Tree Collection Program
Contractor shall operate an annual holiday tree Collection program from December 26
through the second Sunday in January. During this period all holiday trees placed out
for Collection by Residential Customers shall be Collected by Contractor. After this
period, trees will be Collected as Bulky Items under Section 1.6. Trees up to seven (7)
feet in length will be Collected and diverted without Customers needing to cut them.
Contractor may request that Customers with larger trees cut the trees to pieces no
longer than seven (7) feet. Contractor will divert all holiday trees from landfilling.
4.3.3 Roll -Off Green Waste
Contractor shall provide Roll -Off Box Green Waste service at rates no more than
comparable Refuse pull rates, and per ton Disposal at no more than the actual Green
Waste processing fee.
4.3.4 End Uses for Green Waste
Contractor shall divert Green Waste materials Collected through weekly Cart and
bundle Collection, holiday tree Collection, Roll -off Box Collection and mixed waste
processing from Disposal. Contractor must provide end uses for Green Waste that
maximize Diversion credit for City according to regulations established by the
California Integrated Waste Management Board. Green Waste may be used as
alternative daily cover ("ADC') only to the extent that the City will get full Diversion
credit for its use. Contractor is responsible for monitoring how the Green Waste will be
diverted at selected facilities and for selecting alternative facilities if necessary to ensure
full Diversion credit. Failure to do so places the Contractor in default. City has the
option, but not obligation, to direct Contractor where to deliver the material.
July 93, 2009, DRAFT -32- City of Diamond Bar - Commercial
4.4 Section Deleted
4.5 City Services
4.5.1 City Facilities Collection
Contractor shall Collect and dispose of all Refuse, Recyclable Material, and Green
Waste put in Containers for Collection at Premises owned and/or operated by the City
now and in the future at no charge. Service levels and number of facilities serviced may
increase during the Term of this Agreement without any additional compensation paid
to the Contractor. Such Premises include, but are not limited to, City Hall, City offices,
parks, City yard and street maintenance operations. Solid Waste at City yard will
include Solid Waste Collected from street litter Containers. Collections shall be
scheduled at a time mutually agreed upon by Contractor and City.
4.5.2 City Sponsored Events
Contractor shall provide Solid Waste and Recycling Collection and Disposal/ processing
service for City -sponsored events. This shall include providing Containers (Bins, Roll-
off Boxes, clearly labeled Recycling Containers and cardboard waste boxes with liners)
to Collect and dispose of, or process, all Solid Waste and Recyclable Materials. The
Contractor shall provide these services at City -sponsored events upon City request, at
no cost to City or ratepayers. The City's intent will be to alternate events assigned to
Contractor with those events it assigns to the City's residential cart services franchisee;
however, City does not guarantee that events will be evenly distributed based upon
either level of effort or number of events. City -sponsored events include, but are not
limited to:
• Concerts in the Park
• City Birthday Celebration
• Fourth of July
• Fun Fall Festival
• Winter Snow Fest
• Arbor Day
• Easter Egg Hunt
July 93, 2009, DRAFT -33- City of Diamond Bar- Commercial
4.5.3 Emergency Collection and Disposal Service
Contractor will assist City at the City's request with emergency Collection and Disposal
service (in the event of major disaster, such as an earthquake, storm, riot or civil
disturbance), or as otherwise determined necessary by the City, by providing Collection
equipment and drivers normally assigned to City. Contractor may charge City for
actual Disposal costs plus service rates per the approved rate schedule.
4.5.4 Abandoned Item Collection from City Right -of -Way or Other Public Property
Contractor will Collect and dispose of, at no additional charge, within one business day
of notification from City, all items left in the City's right-of-way, such as sidewalks,
alleys, streets, and parkways. Contractor will not be required to Collect Hazardous
Waste (with the exclusion of electronic waste and universal wastes as provided in this
Agreement), liquid wastes, or automobile parts that are individually too large for
Collection by two people, but will be required to Collect any items defined as Bulky
Items. Contractor will properly divert from landfilling or Dispose of such items in
accordance with Sections 4.1.16 and 4.1.17. City will contact either the residential or
commercial franchisee to provide this service, depending on the location of the
abandoned item.
4.5.5 Community Development Review Services
Upon City request and at no additional charge, Contractor will review building permit
applicants' plans and advise regarding adequacy of Container storage space and access,
particularly to accommodate Recycling containers.
4.5.6 Large Venue Event Assistance, Event Recycling
Contractor will assist planners of large venue events with reporting and planning needs
as may be useful in meeting the requirements of AB 2176, found at California Public
Resources Code 42648, et seq. at no additional charge. Contractor shall provide
Recycling services upon request to special event planners.
4.5.7 Confiscation of Unauthorized Containers
City authorizes Contractor to confiscate illegal Collection Containers located within the
City's pubic rights-of-way. Upon notification from City, or Contractor's locating of an
July 13, 2009, DRAFT -34- City of Diamond Bar - Commercial
illegally placed Container, Contractor shall begin the following procedure within 24
hours:
Contractor shall first place a notice on Container, directing the illegal hauler or its
Customer to remove the Container within 24 -hours of notice, citing relevant sections
of the City's municipal code, indicating where the Container may be retrieved,
impound and storage costs, and warning that, should the Container not be removed
by the hauler that Container may be removed without warning. If the company can
be identified and its address ascertained, Contractor shall mail the warning as well.
2. Notify City of the notice and request authorization to impound the Container.
3. With written City approval, impound the Container if it has not yet been removed
by the illegal hauler.
4. For subsequent violations by the same company after the initial notice has been
posted, and after Contractor has mailed a warning to the company, Contractor may
request written approval from City to remove company's Containers immediately,
mailing a notice if address is known as to where the Container may be retrieved and
impound and storage costs. If address is unknown, Contractor shall place the notice
as close as feasible to where the Container was located.
Written approval from City under this section will include, but is not limited to,
approval sent by e-mail or facsimile.
4.5.8 Provision of Storage Containers
Contractor will provide the City with eleven 40 -cubic -yard portable storage containers
to be used for storage at City facilities and schools for the duration of the Agreement,
and will maintain them in a condition satisfactory to the City. Contractor may transfer
ownership of these storage containers to City, provided Contractor will remove and
Dispose of these containers when requested to by City.
4.6 Operations
4.6.1 Schedules; Missed Pickups
To preserve peace and quiet, Solid Waste shall only be Collected between 6:30 a.m. and
6:30 p.m. Collection is only permitted Monday through Saturday. Contractor may not
July 13, 2009, DRAFT -35- City of Diamond Bar - Commercial
make exceptions to these Collection days and times without advance written approval
from the City. If the regularly scheduled Collection day falls on New Year's Day,
Memorial Day, Fourth of July, Labor Day, Thanksgiving Day, or Christmas Day,
Collection days for the remainder of that week shall all be postponed one Collection
day. Collection on Saturday holidays shall be made up on the prior Friday or the
following Monday.
Contractor shall review its operations plan outlining the Collection routes, intervals of
Collection and Collection times for all materials Collected under this Agreement with
City upon thirty (30) days written notice requesting said review. Contractor shall
submit a copy of its schedule and route map within seven (7) business days if requested
by City. If the plan is determined to be inadequate by City, Contractor shall revise it
incorporating any changes reasonably necessary to make it satisfactory to City within
thirty (30) days. Change in schedules and routing shall not be implemented without
City approval and not until at least fifteen (15) business days following notification to
Customers. The City may restrict the timing and frequency of any route changes based
upon the City's Municipal Code or any other applicable law or requirement.
When notified of a missed pickup (which was not justified under the provisions of this
Agreement) prior to 12:00 p.m., Contractor shall Collect the Refuse, Recyclable
Materials, and/or Green Waste that was not Collected the same day. If notified after
12:00 p.m., Collection must take place no later than the next business day. if Contractor
determined that the missed pickup was justified under this Agreement, Contractor will
notify Customer as to the reason within this same time period.
4.6.2 Vehicles
A. General. Contractor is responsible for providing all vehicles that may be
required for the Collection of Solid Waste that are sufficient in number and capacity to
efficiently perform the work required by this Agreement in strict accordance with its
terms. Contractor is expressly obligated to provide such Collection Vehicles and routes
as are required to meet the service standards set forth herein. Contractor shall have
available on Collection days sufficient back-up vehicles for each type of Collection
Vehicle used to respond to complaints and emergencies. All equipment of Contractor
used to provide the services set forth in this Agreement shall be subject to inspection by
City upon request.
July 93, 2009, DRAFT -36- City of Diamond Bar - Commercial
B. Specifications. Within twelve months of the start of service under this
Agreement, all Collection vehicles used to provide service under this agreement,
including spares, shall use exclusively liquefied natural gas or compressed natural gas.
No Collection vehicle, including spares, used in the City shall be more than 10 years old
at any time during the Agreement Term. Such vehicles must be registered with the
California Department of Motor Vehicles and shall have water -tight bodies designed to
prevent leakage, spillage or overflow. At all times during the term of this Agreement,
Contractor's Collection vehicles shall comply with South Coast Air Quality
Management District Requirements and the California Air Resource Board
requirements as they are currently in force and as they may be approved for Refuse
removal vehicles, as well as other Federal, State and local laws and regulations that may
be enacted during the term of this Agreement.
C. Vehicle Identification and Labeling. Each Collection vehicle shall be marked
with Contractor's name, toll free phone number, and a vehicle identification number
designated by Contractor for each Collection Vehicle which shall be prominently
displayed on all such Vehicles, in lettering at least six inches in height. City must
approve truck labeling.
D. Cleaning and Maintenance
1) Contractor shall maintain all vehicles and equipment used in providing service
under this Agreement in a good, safe, neat, clean and operable condition at all
times.
2) Collection Vehicles shall be painted, thoroughly washed, and thoroughly steam
cleaned on a regular basis so as to present a clean appearance. Contractor shall
make all Collection Vehicles available to the County of Los Angeles for
inspection regarding health concerns and requirements at any frequency it
requests. Contractor agrees to replace or repair to the City's satisfaction, any
Collection Vehicle which City determines to be of unsightly appearance, leaking,
or in unsatisfactory operating condition.
3) Contractor shall repaint any or all Collection Vehicles within thirty (30) days'
notice from City, if City determines that their appearance warrants painting.
City may not require a vehicle to be repainted if it has been repainted within the
previous thirty (36) months.
July 93, 2009, DRAFT -37- City of Diamond Bar - Commercial
4) Contractor shall inspect each Collection Vehicle daily to ensure that all
equipment is operating properly. Collection Vehicles which are not operating
properly shall be removed from service until repaired and operating properly.
Contractor shall perform all scheduled maintenance functions upon Collection
Vehicles in accordance with the manufacturer's specifications and schedule.
Contractor shall keep accurate records of all Collection Vehicle maintenance,
recorded according to date and shall make such records available to City upon
request.
5) Contractor shall repair, or arrange for the repair of, all of its vehicles and
equipment for which repairs are needed because of accident, breakdown or any
other cause so as to maintain all equipment in a safe and operable condition.
Contractor shall maintain accurate records of repair, which shall include the
date, nature of repair and the verification by signature of a maintenance
supervisor that the repair has been properly performed.
6) Upon request, Contractor shall furnish City a written inventory of all equipment,
including Collection Vehicles, used in providing service pursuant to this
Agreement. This inventory shall list all equipment by manufacturer, year of
production, ID number, date of acquisition, type, capacity, and whether the
vehicle is a spare.
7) All vehicles used to provide services under this Agreement shall at all times have
in the cab the registration of the truck, a certificate of insurance and an
identification card with the name of whom to telephone in case of an accident or
emergency. Each truck shall be equipped with a minimum of a 20 -pound fire
extinguisher that has been certified by the state fire marshal. This fire
extinguisher shall be recharged as needed, but not less than once annually.
Vehicles shall be equipped with a shovel and broom to clean up any spillage.
8) All trucks used to provide services under this Agreement in the City shall be
required to be completely enclosed with a nonabsorbent cover while
transporting refuse, recyclables or compostable materials or other solid waste
materials in or through the city. "Completely enclosed with a nonabsorbent
cover" means that refuse, trash, recyclable or compostable materials shall not be
visible from the public highway, nor shall any of the substances be permitted to
leak, spill or become deposited along any public highway.
July 93, 2009, DRAFT -38- City of Diamond Bar - Commercial
E. Operation. Vehicles shall be operated in compliance with the California Vehicle
Code, and all applicable safety and local ordinances. Contractor shall not load vehicles
in excess of the manufacturer's recommendations or limitations imposed by state or
local weight restrictions on vehicles.
Contractor's equipment shall comply with US EPA noise emission regulations,
currently codified at 40 CFR Part 205 and other applicable noise control regulations, and
such noise control features shall be incorporated throughout the entire fleet of
Collection Vehicles. Noise levels of equipment used for Collection shall comply with
Diamond Bar Municipal Code Chapter 8.16 and in no event shall the noise level exceed
75 dba when measured at a distance of 25 feet from the vehicle, five feet from the
ground. Contractor shall store all equipment in safe and secure locations in accordance
with City's applicable zoning regulations.
Contractor shall be responsible for any damage, normal wear and tear excepted,
resulting from or directly attributable to any of its operations, and which it causes to:
City's driving surfaces, whether or not paved, public or private; associated curbs,
gutters and traffic control devices; and all other public and private improvements.
F. City Inspection Per Code. City may cause any vehicle used in performance of
this Agreement to be inspected and tested at any commercially reasonable time and in
such manner as may be appropriate to determine that the vehicle is being maintained in
compliance with the provisions of the State Vehicle Code, including, but not limited to,
California Vehicle Code Sections 27000(b), 23114, 23115, 42030, 42032, and all Vehicle
Code Sections regarding smog equipment requirements. City may direct the removal of
any vehicle from service if that vehicle is found not to be in conformance with
applicable codes. No vehicle directed to be removed from service shall be returned to
service until it conforms with, and its return to service has been approved by City.
G. Vehicle Inspections. Upon City request, Contractor shall submit the Safety
Compliance Report/Terminal Record Update from its Biennial Inspection of Terminal,
or BIT. If Contractor receives a terminal rating below satisfactory, Contractor shall
notify the City, and Contractor is in violation of this Agreement. Contractor has the
time allowed by the Department of California Highway Patrol ("CHP") to cure
violations and bring the terminal rating up to satisfactory. If the CHP does not adjust
the rating to satisfactory or better within six (6) months, then the Contractor shall be
considered in default of the contract and the City may terminate this Agreement.
July 93, 2009, DRAFT -39- City of Diamond Bar - Commercial
H. Correction of Defects. Following any inspection, the City Manager shall have
the right to cause Contractor, at its sole cost and expense, to recondition or replace any
vehicle or equipment found to be unsafe, unsanitary or unsightly. The City Manager's
determination may be appealed to the City Council, whose decision shall be final.
4.6.3 Containers
Contractor will provide Containers to be used under this Agreement.
4.6.3.1 Carts
A. Cart Design Requirements
Carts and Cart lids must meet color, size, uniformity and quality requirements of the
City. The City will not permit Carts and Cart lids with inconsistent colors or in poor
condition to be used in the City at any time during the term of this Agreement, and may
require Contractor to replace such Carts.
All Carts provided by Contractor utilized in the performance of this Agreement shall be
manufactured by injection or rotational molding and meet the Cart design and
performance requirements as specified below. All Carts selected shall be subject to
City's approval.
B. Section Deleted
C. Cart Color and Appearance
The Recycling and Green Waste Carts will be differentiated by color.
The colors shall be colorfast and resistant to fading as a result of weathering or
ultraviolet degradation. Color must be approved in advance by the City. Cart and Cart
lid colors shall be consistent throughout the City.
D. Cart Labeling and Hot Stamping
Labels used on Carts shall be placed on the inside of the Cart lid, and hot stamps shall
be on the top of the lid and/or on the body of the Cart. Each Cart shall be hot stamped
"Recycling" or "Green Waste' in English, Mandarin and Korean. Design for both the
labels and the hot stamps must be approved by City prior to ordering labels or Carts.
City shall approve what information is included on the label and in the hot stamp, as
July 13, 2009, DRAFT -40- City of Diamond Bar - Commercial
well as approve design and quality. Labels shall be replaced when worn, and when
information on the label is in need of updating, but no later than 90 days of request
from City. Information on the Carts shall include the telephone number to call for
Contractor, Bulky Item pickups and HHW disposal information, and shall include an
anti -scavenging warning.
4.6.3.2 Cart Maintenance and Replacement Responsibilities
Contractor shall be responsible for Cart repair and maintenance, graffiti removal and
replacing lost, stolen or damaged Carts within three (3) business days, at no additional
charge to the Customer or to City, unless Contractor can demonstrate to the City
Manager beyond a reasonable doubt that the damage or loss was due exclusively to
Customer's intentional or negligent behavior. City Manager shall make the final
determination. If City permits a repair or replacement charge to be assessed against a
Customer, charge shall be no more than the actual cost of repair or the Contractor's
purchase price for a new Cart, whichever is lower. All repairs must restore the Cart to
its full functionality. Unsightly/worn-out Carts shall be replaced by Contractor upon
Customer request at no additional charge.
4.6.3.3 Bins
A. Cleaning. Contractor shall maintain Bins in a clean, sound condition free from
putrescible residue. All Bins in use shall be constructed of heavy metal, or other
suitable, durable material, and shall be watertight and well painted. Wheels, forklift
slots, and other apparatuses, which were designed for movement, loading, or unloading
of the Bin shall be maintained in good repair.
Upon Customer or City request, or if required to maintain the Containers in a clean
condition, Contractor shall clean all Bins once per year at no additional charge.
Contractor shall perform cleaning or replacement of Bins more frequently if necessary
to prevent a nuisance caused by odors or vector harborage, or if requested by Customer
or City, for an additional fee in accordance with the approved rate schedule. When a
Bin is removed for cleaning, Contractor shall replace the Bin, either temporarily or as a
change -out, with another Container. Contractor shall remove graffiti from any
Container within three (3) business days of request by City or Customer. Contractor is
required to proactively look for graffiti when Collecting Bins, with all graffiti removed
July 13, 2009, DRAFT -41- City of Diamond Bar - Commercial
from Containers in no later than three (3) business days after any Collection without
notification.
B. Bin Identification and Color. Each Bin placed in City by Contractor shall be
clearly labeled on the front of the Bin with the Bin type (Refuse, Recycling, Cardboard,
Green Waste) and the name of Contractor and phone number in letters not less than
three (3) inches high on the exterior of the Bin so as to be visible when the Bin is placed
for use. Alternatively, the Bin type (Refuse, Recycling, Cardboard, Green Waste) may
be identified with an affixed sign. Labels shall also be placed on the inside of the Bin lid.
Labels shall include English, Korean, Mandarin and graphic instruction on what
materials should and should not be placed in each Bin, and shall include an anti -
scavenging warning. Contractor shall have labels approved by City prior to ordering
and placement on Bins. Labels shall be replaced when worn, and when information on
the label is in need of updating, but no later than 90 days of request from City.
Contractor shall repaint Bins upon City's request if the City deems it necessary to
maintain a neat appearance.
4.6.3.4 Roll -off Boxes
Contractor shall provide sufficient Roll -off Boxes to meet Customer demand
throughout the Term of the Agreement, and will keep all Roll -off Boxes clean, free from
graffiti, equipped with reflectors, and with the name and phone number of Contractor
in letters not less than three (3) inches high on the exterior of the Roll -off Box so as to be
visible when the Roll -off Box is placed for use. Contractor shall properly cover all open
Roll -off Boxes during transport as required by the State Vehicle Code.
4.6.4 Litter Abatement
A. Minimization of Spills. Contractor shall use due care to prevent Solid Waste or
fluids from leaking, being spilled and/or scattered during the Collection or transporta-
tion process and shall clean up any leaks or spills from its vehicles per the National
Pollutant Discharge Elimination System (NPDES) permit in effect at the time. No fluids
shall be washed into storm drains at any time. All NPDES dry-cleaning measures shall
be complied with. All Collection Vehicles must be equipped with absorbent for such
cleanup efforts and shall carry a broom, shovel, absorbent, and containment materials at
all times for this purpose.
July 13, 2009, DRAFT -42- City of Diamond Bar - Commercial
Contractor shall not transfer loads from one vehicle to another on any public street,
unless it is necessary to do so because of mechanical failure, accidental damage to a
vehicle, or a pre -approved method of Solid Waste transfer between vehicles, without
prior written approval by City. See Section 11.3.B.2.d.
B. Clean Up. During the Collection or transportation process, Contractor shall
clean up all litter spilled during Collection or otherwise caused by Contractor.
Contractor shall leave a "red tag' notice for Customer if litter not caused by Contractor
is found in Container enclosure or around Containers. Contractor may charge
Customers in accordance with the approved rate schedule for the cleaning of Container
enclosures or around the Container if it is littered due to overflowing Containers.
Contractor may address habitual offenders in accordance with Section 4.1.8.
In the event of a spill of materials (vehicle fluids, Green Waste leachate, etc.), Contractor
shall provide a cleanup of the spill to the satisfaction of City and other governing
agencies. Cleanup methods may include pressure washing (Contractor must capture
and reclaim water) or other similar clean-up methods.
C. Covering of Loads. Contractor shall properly cover all open debris boxes during
transport to the Disposal Site or processing facility.
4.6.5 Personnel
A. Qualified Personnel. Contractor shall furnish such qualified drivers,
mechanical, supervisory, clerical, management and other personnel as may be
necessary to provide the services required by this Agreement in a satisfactory, safe,
economical and efficient manner. All drivers shall be trained and qualified in the
operation of vehicles they operate and must possess a valid license, of the appropriate
class, issued by the California Department of Motor Vehicles.
B. Hazardous Waste Employee Training. Contractor shall establish and vigorously
enforce an educational program which will train Contractor's employees in the
identification of Hazardous Waste. Contractor's employees shall not knowingly place
such Hazardous Waste in the Collection Vehicles, nor knowingly dispose of such
Hazardous Wastes at the processing Facility or Disposal Site.
July 13, 2009, DRAFT 43- City of Diamond Bar- Commercial
C. Unauthorized Material Removal. Contractor shall dismiss or discipline
employees who remove documents or any other material from Containers, other than
specifically for the purposes of Disposal and Diversion as described in this Agreement.
D. Training. Contractor shall provide suitable operations, health and safety
training for all of its employees who use or operate equipment or who are otherwise
directly involved in Collection or other related operations.
4.6.6 Identification Required
Contractor shall provide its employees, companies and subcontractors with
identification for all individuals who may make personal contact with residents or
businesses in City. City may require Contractor to notify Customers yearly of the form
of said identification. Contractor shall provide a list of current employees, companies,
and subcontractors to City upon request.
City reserves the right to perform a security and identification check through the City's
Police Department on the Contractor and all their present and future employees
employed by Contractor to work in the City, in accordance with accepted procedures
established by City, or for probable cause.
4.6.7 Unauthorized Fees and Gratuities
Contractor shall not, nor shall it permit any agent, employee, or subcontractors
employed by it to request, solicit or demand, either directly or indirectly, any
compensation or gratuity for services authorized to be performed under this Agreement
except as described in this Agreement, in accordance with Exhibit 2 as updated and
approved by City throughout the Term of the Agreement.
4.6.8 Non -Discrimination
Contractor shall not discriminate in the provision of service or the employment of
persons engaged in performance of this Agreement on account of race, color, religion,
sex, sexual orientation, age, physical handicap or medical condition in violation of any
applicable federal or State law.
July 93, 2009, DRAFT -44- City of Diamond Bar - Commercial
4.6.9 Report of Accumulation of Solid Waste; Unauthorized Dumping
Contractor shall direct its drivers to note (1) the addresses of any Premises serviced
under this Agreement at which they observe that Solid Waste is accumulating and
which is not being place out for Collection; and (2) the address, or other location
description, at which Solid Waste has been dumped in an apparently unauthorized
manner. Contractor shall deliver the address or description to City within one (1)
working day of such observation.
4.7 Transportation of Solid Waste
Contractor shall transport all Refuse Collected to a City -approved Facility (e.g. Transfer
Station, Waste -to -Energy Facility, Green Waste Processing Facility, MRF, Disposal Site).
Contractor agrees to make all reasonable efforts to separate Recyclable Materials from
Refuse for Diversion from landfill Disposal.
Contractor shall maintain accurate records of the quantities of Solid Waste transported
to all Facilities utilized and will cooperate with City in any audits or investigations of
such quantities.
Contractor shall cooperate with the operator of any Facility it uses with regard to
operations therein, including, for example, complying with directions from the operator
to unload Collection vehicles in designated areas, accommodating to maintenance
operations and construction of new facilities, cooperating with its Hazardous Waste
exclusion program, and so forth.
4.8 Approved Facilities
The Contractor shall dispose of Refuse Collected that is not required to be processed at
the approved Disposal Site. Contractor must receive written advance approval from
City to use each transfer station, transformation facility, processing facility or other
Facility used by Contractor in the fulfillment of this Agreement. Contractor is
responsible for ensuring that each Facility it uses is properly permitted prior to
requesting City approval to use such Facility. Unless and until the City instructs
otherwise, the designated Disposal Site and other Facilities are: Grand Central
Recycling and Transfer Station.
July 93, 2009, DRAFT -45- City of Diamond Bar - Commercial
4.9 Status of Disposal Site
Any Disposal Site utilized by Contractor, shall be designed and constructed in
accordance with 23 California Code of Regulations Section 2510 et seq. ("Subchapter 15").
Any such landfill shall have been issued all permits from federal, state, regional, county
and city agencies necessary for it to operate as a Class III Sanitary Landfill and is in full
regulatory compliance with all such permits.
4.10 Dedicated Routes
Solid Waste Collected in the City shall not be commingled in Collection vehicles with
Solid Waste from other jurisdictions. All routes shall be dedicated exclusively to City of
Diamond Bar Solid Waste.
4.11 Route Audit
Once during the first year, and subsequently upon request by the City, but in no event
more than once per year, Contractor shall conduct an audit of its Collection routes in
the City. In setting these audit dates, City will establish due dates for Contractor
providing routing and account information, and later, the report, to City.
The route audit, at minimum, shall consist of an independent physical observation by
person(s) other than the route driver of each Customer in City. This person(s) is to be
approved in advance by City. The route audit information shall include, as a minimum,
the following information for each account:
• Route Number;
• Truck Number;
• Account Name;
• Account Number;
• Account Service Address;
• Account Type (Residential, Commercial, Roll -Off);
• Service Level per Contractor Billing system (Quantity, Size, Frequency);
• Observed Containers (Quantity and Size);
• Container condition;
• Proper signage;
• Graffiti.
July 13, 2009, DRAFT -46- City of Diamond Bar - Commercial
Within forty-five (45) days after the completion of the route audit, Contractor shall
submit to City a report summarizing the results of the audit. This summary shall
include:
• Identification of the routes;
• Route map;
• Truck numbers;
• Number of accounts, by route and in total;
• Confirmation that all routes are dedicated exclusively to City Customers;
• Number and type of exceptions observed;
• Total monthly service charge (Residential, Commercial and Roll -Off Box), pre -audit;
• Total monthly service charge (Residential, Commercial and Roll -Off Box), post -audit
(subsequent to corrections of identified exceptions).
The report shall include a description of the procedures followed to complete the route
audit. This description shall include the names and titles of those supervising the route
audits and the name and titles of those performing the observations.
The report shall also include a description of the changes and Contractor's plans to
resolve the exceptions. The results of the audit, and supporting back-up data, shall be
available for review by City or its representative.
July 93, 2009, DRAFT -47- City of Diamond Bar - Commercial
ARTICLE 5
OTHER SERVICES
5.1 Customer Billing and Contractor Compensation
5.1.1 Billing
Contractor shall Bill Customers in accordance with the approved rate schedule attached
as Exhibit 2. Contractor Compensation is exclusively derived from revenue received as
a result of the Billings for services listed on the approved rate schedule, and Contractor
shall charge no additional fees unless approved in advance by the City.
Contractor will accept major credit cards for payment from Customers who request
temporary Roll -off Box or temporary Bin service that do not have an account with
Contractor. Customers without such an account who do not use credit cards may be
required by the Contractor to post a security deposit or to pay on a "Cash on Delivery"
(C.O.D.) basis. Any unused portion of a security deposit will be refunded to the
Customer within five business days of the termination of service.
Contractor shall be responsible for bad debt.
5.1.2 Contractor's Invoices
Bills must be itemized by Container size, frequency of service and period billed for. City
must approve the format of Contractor billing invoices. All bills must carry a due date,
not "due upon receipt." Bills will not carry an itemization of fees remitted to the City.
5.1.3 Section Deleted
5.1.4 Section Deleted
5.1.5 Section Deleted
5.1.6 Non -Payment, Collections, Suspension of Service
In the event of non-payment by a Commercial Customer Billed by Contractor,
Contractor must follow these steps before suspending service:
July 93, 2009, DRAFT -48- City cf Diamond Bar - Commercial
First Notice - If payment is not received by 15 days after due date, Contractor shall
notify Customer in writing of the non -receipt of payment and that non-payment can
result in suspension of service.
Second Notice - If payment is not received within 15 days of the mailing of the first
notice of non -receipt of payment, Contractor shall mail a second notice of non -receipt of
payment, warning that 1) service will be suspended in 15 days if payment is not
received and that City will undertake code enforcement against the delinquent
Customer, and 2) Contractor may assess a penalty of up to 10% on balances outstanding
for sixty (60) days after the invoice date.
Contractor shall not suspend service without prior approval from City.
Notwithstanding the above, in the event of a Billing dispute or to avoid a negative
impact on public health or safety, Contractor shall continue to provide service to all
Customers unless permitted otherwise by City, without regard to the status of said
Customer account. Contractor may be required to continue Residential service despite
lack of payment due to health and safety concerns.
5.2 Customer Service
5.2.1 Local Office
Contractor shall maintain a local office. Said office shall be open ("Office Hours"), at a
minimum, from 7:00 A.M. to 5:00 P.M., Monday through Friday, exclusive of holidays.
A responsible and qualified representative of Contractor shall be available during
Office Hours for personal communication with the public at the local office. Contractor
shall have either a representative, a message machine, or an answering service available
outside of Office Hours. Calls received outside of Office Hours shall be responded to
on the next business day. Contractor shall provide City with a twenty-four (24) hour
emergency number to a live person, not voice -mail.
5.2.2 Complaint Documentation
Service complaints received by City will be directed to Contractor. Contractor shall
keep daily logs of complaints forwarded to it for a minimum of three (3) years.
Contractor shall log all complaints received and said log shall include the date and time
the complaint was received, the name, address and telephone number of the
July 13, 2009, DRAFT 49- City of Diamond Bar - Commercial
caller/ complainant, a description of the complaint, the name of the employee recording
the complaint and the action taken by Contractor to respond to and remedy the
complaint. The log shall also include each instance that Solid Waste and/or Recyclables
are not Collected and the form of notification used to inform the participants of the
reasons for non -Collection and the end result or means of resolution of the incident.
All written Customer complaints and inquiries shall be date-stamped when received.
All complaints shall be initially responded to within one (1) business day of receipt.
Contractor shall use best efforts to resolve complaints within two (2) business days.
Contractor shall log action taken by Contractor to respond to and remedy the
complaint.
All Customer service records and logs kept by Contractor shall be available to City
upon request. City shall, at any time during regular Office Hours, have access to
Contractor's Customer service department for purposes that may include monitoring
the quality of Customer service or researching Customer complaints.
Contractor shall record Customer complaints regarding Customer service personnel in
accordance with this Section 5.2.2. Customer service representatives receiving multiple
complaints are to be transferred from Customer service duties or, with City approval,
disciplined and appropriately trained.
5.2.3 Customer Service Standards
Customer care is among the most important aspects of the services to be required of the
Contractor. Contractor shall perform customer service at a level that can be measured
by the following two standards:
1. The number of complaints in any one month period totaling no more that 2.5% of
the number of residential customers served. In Diamond Bar, there are an estimated
300 accounts, meaning that in any given month, there must not be more than 8
complaints. Any compliant level in excess of this measure will be considered a
separate violation of the agreement.
2. Sufficient telephone line capacity during normal office hours to ensure that all calls
will be answered in less than an average of thirty (30) seconds.
July 13, 2009, DRAFT -50- City of Diamond Bar - Commercial
Contractor shall insure that all incoming calls are answered courteously and
promptly during the office hours stated above. Calls will be answered in less than an
average of thirty (30) seconds, and thereafter will not be placed on hold longer than
an average of one (1) minute before talking to a customer service representative of
the Contractor. This standard must be measured quarterly, and the Contractor shall
not exceed this standard or it will be considered a separate violation of this
Agreement,
Contractor shall track complaints and call ringing and hold requirements, and include
results in its quarterly report to the City. In any 12 -month period, accumulation by the
Contractor of four or more separate customer service violations shall be deemed a
material breach of this Agreement and shall subject Contractor to all remedies which
are available to the City under this Agreement or otherwise. A violation is one month in
which the number of complaints exceeds the maximum permitted under Section
5.2.3(A) or one calendar quarter in which fewer than 90% of calls placed by the City and
its Customers to Contractor are answered by a live customer service representative
before the fourth rung under Section 5.2.3(B).
Contractor shall train its employees in Customer courtesy, shall prohibit the use of loud
or profane language, and shall instruct Collection crews to perform the work quietly.
Contractor shall use its best efforts to assure that all employees present a neat
appearance and conduct themselves in a courteous manner. If any employee is found
to be discourteous or not to be performing services in the manner required by this
Agreement, Contractor shall take all necessary corrective measures including, but not
limited to, transfer, discipline or termination. If City has notified Contractor of a
complaint related to discourteous or improper behavior, Contractor will consider
reassigning the employee to duties not entailing contact with the public while
Contractor is pursuing its investigation and corrective action process.
5.2.4 Resolution of Customer Complaints
Disputes between Contractor and Customers regarding the services provided in
accordance with this Agreement may be resolved by City. City's decision shall be final
and binding.
July 13, 2009, DRAFT -51- City of Diamond Bar - Commercial
Intervention by City is not a condition precedent to any rights or remedies third parties
might otherwise have in any dispute with Contractor. Nothing in this section is
intended to affect the remedies of third parties against Contractor.
5.2.5 Contract Liaison
Contractor shall designate in writing a "Contract Liaison" who shall be responsible for
working with City and/or City's designated representative(s) to resolve Agreement -
related issues. City shall have the right to approve the Contractor's choice for a liaison.
City shall be notified in advance of any change in Contract Liaison.
5.2.6 Service Liaison
Contractor shall designate in writing a field supervisor as "Service Liaison' who shall
be responsible for working with City and/or City's designated representative(s) to
resolve Customer service related complaints. City shall have the right to approve the
Contractor's choice for a liaison. City shall be notified in advance of any change in
Service Liaison.
5.3 Education and Public Awareness
5.3.1 General
Contractor acknowledges and agrees that education and public awareness are critical
elements of efforts to achieve the requirements of AB 939. Accordingly, Contractor
agrees to take direction from City to exploit opportunities to expand public and
Customer knowledge concerning needs and methods to reduce, reuse and Recycle Solid
Waste and to cooperate fully with City in this regard.
Contractor shall maintain its own program of providing information relevant to needs
and methods to reduce, reuse and recycle Solid Waste to be distributed, when
appropriate, along with its Bills. All public education materials shall be subject to
approval in advance by City and shall be printed in English, Mandarin and Korean.
5.3.2 Implementation and On-going Education Requirements
In order to promote public education, in addition to any other materials it develops,
Contractor shall create the following public education materials and programs at its
expense, which will be distributed as indicated below. All of these materials and
Judy 13, 2009, DRAFT -52- City of Diamond Bar - Commercial
programs shall be produced and/or available in English, Mandarin and Korean
languages, including pictures wherever applicable. All brochures, mailings, and other
educational materials are subject to approval by City in advance of distribution. A
Public Education Plan shall be submitted to City for review within sixty (60) days of the
execution of this Agreement. The plan shall address the items described in this section.
The approved plan shall be attached to this Agreement as Exhibit 1.
Instructional "How-to" Packets - An information packet shall be provided to each
Customer at the start of service under this Agreement and to each new Customer
throughout the Agreement term. This packet shall: describe available services,
including available Recycling and Diversion programs; provide instructions for
proper use of the Containers (such as the types of materials to be placed in each type
of Container and other similar information); detailed holiday Collection schedules;
and provide billing and Customer service telephone numbers; identify who to
contact with service or Billing questions; and who to contact for Bulky Item pickups.
The packet should also clearly indicate what materials, such as syringes and other
Household Hazardous Wastes (HHW), should not be disposed of in the Containers.
The packet shall include instructions on how Customers should dispose of HHW.
• Container Labels and Hot Stamps - Recyclables and Green Waste Containers shall
carry stickers/labels and hot stamps as described in Sections 4.6.3.1.13 and 4.6.3.3.B.
• Billing Inserts - City may require Contractor to insert notices in Contractor's
Billings up to four (4) times per year. City may instruct Contractor to prepare such
notices at Contractor's expense, or may choose to provide such notices for insertion.
Additionally, City may periodically request that Contractor include informative
language directly on the invoices it sends.
• Annual Brochures/Mailings - Not less than once per year during each Rate Year,
Contractor shall prepare and distribute to each Customer a mailing to update
Customers regarding program basics, program changes, holiday schedules and
other service related information. Mailings should promote and explain: all Solid
Waste programs offered by City and Contractor (such as Recycling, Green Waste,
Holiday Tree and Bulky Item Collections) described in detail; the environmental,
regulatory, and other benefits of participating in Recycling; how to properly dispose
of Household Hazardous Waste such as syringes, paint, etc.; Collection schedules,
July 93, 2009, DRAFT -53- City of Diamond Bar - Commercial
including holiday schedules; Customers service numbers; and the procedures to
begin and terminate services (if moving from Premises). This brochure shall be at
least four (4) pages, and printed in full color. Contractor is responsible for all
associated costs.
Corrective Action Notice - Contractor shall develop a corrective action notification
form for use in instances where a Customer sets out inappropriate materials for
Collection, that explains the appropriate manner for Disposal of such items.
• Website - Contractor shall develop and maintain a website to display holiday
schedules, explain proper HHW disposal procedures, describe which materials are
to be placed in Recyclables Containers and other useful information, as well as
informing Customers how to contact Contractor.
5.3.3 Contractor Representative
Contractor shall retain on its staff an individual who shall, as part of his or her job
function, routinely visit civic groups, school assemblies, homeowners' associations,
Multi -Family complexes and businesses, to promote and explain the Recycling
programs Contractor offers, and participate in demonstrations, and civic events, and
coordinate those visits with the City.
5.3.4 Community Events
At the direction of City, Contractor shall participate in and promote Recycling and
other Diversion techniques at community events and local activities. Such participation
would normally include providing, without cost, educational and publicity information
promoting the goals of City's Solid Waste program.
5.4 Waste Generation/Characterization Studies
Contractor acknowledges that City must perform Solid Waste generation and Disposal
characterization studies periodically to comply with the requirements of AB 939.
Contractor agrees to participate and cooperate with City and its agents and to
accomplish studies and data collection and prepare reports, as needed and directed by
City, to determine weights and volumes of Solid Waste Collected and characterize Solid
Waste generated, disposed, transformed, diverted or otherwise handled/ processed, by
Customer type, to satisfy the requirements of AB 939. Upon request of City, Contractor
July 93, 2009, DRAFT -54- City of Diamond Bar - Commercial
will at its sole expense conduct a waste generation and characterization study relating
only to the Solid Waste Contractor Collects, but not more than once every three years.
July 93, 2009, DRAFT -55- City of Diamond Bar - Commercial
ARTICLE 6
COMPANY COMPENSATION AND RATES
6.1 General
The maximum rates set forth in Exhibit 2, and as more fully defined as Contractor
Compensation in this Article, shall be the maximum amount Contractor may charge
Customers as full, entire and complete compensation due pursuant to this Agreement
for all labor, equipment, materials and supplies, taxes, insurance, bonds, letters of
credit, overhead, Disposal, transfer, profit and all other things necessary to perform all
the services required by this Agreement in the manner and at the times prescribed.
Contractor shall impose no other charges for services provided to Customers unless
approved by the City Manager.
6.2 Initial Rates
The maximum rates that Contractor may charge Customers through the Rate Year
ending June 30, 2011, shall not exceed the maximum rates set forth in Exhibit 2.
6.3 Schedule of Future Adjustments
Beginning with the Rate Year starting July 1, 2011 and ending on June 30, 2012 and for
all subsequent Rate Years, Contractor may request an annual adjustment to the
maximum rates shown in Exhibit 2. The Contractor shall submit its request in writing,
to be received by City in Person or via certified mail, by the preceding March 30, and
shall be based on the method of adjustment described in Section 6.4. Failure to submit a
written request by March 30 shall constitute a waiver by Contractor of its right to
request such an increase for the subsequent Rate Year. Adjustment to the maximum
rates is subject to the approval of the City Manager.
6.4 Method of Adjustments
6.4.1 General
Pursuant to Section 6.3, the Contractor may request an adjustment to the maximum
rates according to the method described below and the formula shown in Exhibit 3,
July 13, 2009, DRAFT -56- City of Diamond Bar - Commercial
subject to review and approval of City. All future adjustments are to be effective July 1
of the same calendar year, following the March 30 submission deadline.
6.4.2 Cost Components for Rate Adjustment Indices
The approved rates consist of the following cost component categories. Each cost
component may be adjusted by the change in the corresponding index below. See
Section 6.4.3 and Section 6.4.4 for detailed rate adjustment procedures.
1 For exam le, under theagreement ter minatin October 1, 2009, these rates are:
Contract Date
Initial
10/1/07
Cost
Weightings
$17.25
$18.15
Rate Adjustment Factor
Section
Section
Category
7/01/09
Change to Labor
Component
6.4.3
6.4.4
3.6%
Change in the "Driver" Classification to be in effect as of
the date the new rates go into effect (July 1) under the
Agreement between Waste Management of San
Gabriel/Pomona Valley, Inc. and Teamsters Automotive
Labor
25.7%
32.5%
Industrial and Allied Workers Local No. 495
Producer Price Index WPU 0531, Fuels and related
Fuel
6.6%
8.4%
products and power, natural gas
Producer Price Index, PCU336120336120, Heavy duty
Equipment
20.4%
25.8%
truck manufacturing
The actual change in landfill gate fee per ton at the
approved landfill, inclusive of taxes and fees included in
Disposal
21.0%
n/a
gate fee
Consumer Price Index for All Urban Consumers
(CUURA421SAOLIE), all items less food and energy - Los
All Other
26.3%
1 33.3%
An eles-Riverside-Oran e CounLy, CA
Total
100.0%
1100.0%
1 For exam le, under theagreement ter minatin October 1, 2009, these rates are:
Contract Date
10/1/06
10/1/07
10/1/08
Hourly Rate
$17.25
$18.15
$18.80
Rate Adjustment Date
n/a
7/01/08
7/01/09
Change to Labor
Component
n/a
5.2%
3.6%
Comparable rates from subsequent labor agreements will similarly apply. If a
subsequent labor contract has not been executed prior to a rate adjustment calculation,
the percentage change in the labor cost component used in the prior year's adjustment
calculation will be used. In the event that the estimated labor component change is
July 13, 2009, DRAFT -57- City of Diamond Bar - Commercial
higher or lower than the actual change after a new labor contract is executed, no
compensation adjustment shall be provided for prior periods.
6.4.3 Rate Adjustment Steps for Bin, Temporary and Other Services
All rates, except for those specifically adjusted under Section 6.4.4, will be adjusted
using the same methodology and cost component weightings. See Exhibit 3.
Step One - Calculate the percentage increase or decrease in the index for each category
listed in Section 6.4.2. The increase or decrease in the published indices for fuel,
equipment and all other (CPI) will be for the change in the average annual published
index between the calendar vear ended the December prior to the Rate Year anniversary
date and prior calendar year.
Step Two - The weightings of the cost components for the first rate adjustment are
identified in the table in Section 6.4.2. Components to be used in subsequent years shall
be calculated in Step Four of the rate adjustment. For Step Two of each subsequent rate
adjustment, use the cost components recalculated in Step Four during the previous rate
adjustment.
The hauler may elect to apply for a one-time reset of cost component weightings prior
to the first rate adjustment based upon actual costs from August 16, 2010 through
February 28, 2011. This request and supporting data shall be submitted to the City by
March 30, 2011. The revision of the cost component weightings is subject to approval by
the City Manager, which will review the request and supporting data for
reasonableness.
Multiply the percentage changes for each rate adjustment component by that
component's weighting and add these resulting percentages together to get the total
weighted change to the rates.
Step Three - Multiply the total weighted percent change from Step Two by the existing
Customer rates to calculate the increase or decrease to the maximum rates. Add the rate
increase or decrease to the existing rates to derive the newly adjusted rates.
Step Four - Recalculate weightings for the following year based upon these changes.
July 13, 2009, DRAFT -58- City of Diamond Bar - Commercial
6.4.4 Rate Adjustment Steps for Pull Plus Dump Roll -Off Rates
This section shall apply exclusively to the adjustment of permanent Roll -Off Box rates
that consist of a pull rate, or service component, plus a per ton Disposal/ processing
cost. See Exhibit 3B for an example rate adjustment procedure.
Service or "Pull" Component
Step One - Calculate the percentage increase or decrease in the index for each cost
category listed in Section 6.4.2, with the exclusion of the Disposal index. The increase or
decrease in the published indices for fuel, equipment and all other (CPI) will be for the
change in the average annual published index between the calendar year ended the
December prior to the Rate Year anniversary date and prior calendar year.
Step Two - The cost components for the first rate adjustment shall be calculated as a
percentage of total costs, based upon actual Contractor costs for the twelve-month
period ended December 31, 2010, with subsequent components calculated in Step Four
of the rate adjustment. For Step Two of each subsequent rate adjustment, use the cost
components recalculated in Step Four during the previous rate adjustment.
Multiply the percentage changes for each rate adjustment component by that
component's weighting and add these resulting percentages together to get the total
weighted change to the rates.
Step Three - Multiply the total weighted percent change from Step Two by the existing
Customer rates to calculate the increase or decrease to the maximum rates. Add the rate
increase or decrease to the existing rates to derive the newly adjusted rates.
Step Four - Recalculate weightings for the following year based upon these changes.
Disposal/ Processing Component - The Disposal/ processing component of these rates
will be adjusted based upon the increase or decrease in the average annual CPI index
between the calendar year ended the December prior to the Rate Year anniversary date
and prior calendar year.
6.5 Extraordinary Adjustments
Contractor may request an adjustment to maximum rates in the event of extraordinary
changes in the cost of providing service under this Agreement, including changes in a
July 13, 2009, DRAFT -59- City of Diamond Bar - Commercial
direct per ton surcharge assessed at the Disposal Site by federal, state or local regulatory
agencies after the Effective Date. These requests, with the exception of changes in a
direct per ton surcharge assessed at the Disposal Site by federal, state or local regulatory
agencies after the Effective Date, if approved, shall only be granted at the time of the
annual July 1 increase per Section 6.3, must be submitted no later than March 30 of each
year, and should be submitted as early as feasible to provide City with sufficient time to
review the request prior to granting the annual July 1 increase. Changes in Disposal
surcharges may be requested at other times. Such changes shall not include changes in
Recyclable Material processing costs, changes in the market value of Recyclables,
inaccurate estimates by the Contractor of its proposed cost of operations, or
unionization of Contractor's work force. Extraordinary rate adjustments shall only be
effective after approval by City Council and may not be applied retroactively.
For each request for an adjustment to the maximum rates that Contractor may charge
Customers brought pursuant to this section, Contractor shall prepare a schedule
documenting the extraordinary costs. Such request shall be prepared in a form
acceptable to City with support for assumptions made by Contractor in preparing the
estimate. Contractor shall also submit a schedule showing how its total costs and total
revenues have changed over the past three years for the services provided under this
Agreement.
City may request a copy of the Contractor's annual financial statements in connection
with the City's review of Contractor's extraordinary rate adjustment request. City shall
review the Contractor's request and, in City's sole judgment and absolute, unfettered
discretion, make the final determination as to whether an adjustment to the maximum
rates will be made, and, if an adjustment is permitted, the appropriate amount of the
adjustment. City will confirm receipt of a request for an extraordinary rate adjustment
within sixty (60) days of receipt of Contractor's request and will promptly coordinate
with Contractor to assess the request. City may consider increases or decreases in the
Contractor's total revenues and total cost of services when reviewing an extraordinary
rate adjustment request.
6.6 Effect of Proposition 218
If a rate adjustment approved by the City Manager or City Council is prevented from
implementation due to a protest under Proposition 218, and City does not otherwise
compensate Contractor for amount of the adjustment due, Contractor is permitted to
July 93, 2009, DRAFT -60- City of Diamond Bar - Commercial
terminate this Agreement upon one-year notice. Parties do not believe and do not
intend to imply that Proposition 218 applies to Contractor's charges.
July 13, 2009, DRAFT -61- City of Diamond Bar - Commercial
ARTICLE 7
REVIEW OF SERVICES AND PERFORMANCE
7.1 Performance Review Meeting
City may hold a meeting annually to review Contractor's Solid Waste Collection efforts,
source reduction, processing and other Diversion services and overall performance
under this Agreement (the "Solid Waste Services and Performance Review Meeting').
The purpose of the Solid Waste Services and Performance Review Meeting is to provide
for a discussion and review of technological, economic, and regulatory changes in
Collection, source reduction, Recycling, processing and Disposal to achieve a
continuing, advanced Solid Waste Collection, source reduction and Recycling and
Disposal system; and to ensure services are being provided by Contractor with
adequate quality, effectiveness and economy, and in full compliance with the terms of
this Agreement. Topics for discussion and review at the Solid Waste Services and
Performance Review Meeting shall include, but shall not be limited to, services
provided, feasibility of providing new services, application of new technologies,
Customer complaints, amendments to this Agreement, developments in the law, new
initiatives for meeting or exceeding AB 939's goals, regulatory constraints, results of
route audits, and Contractor performance. City and Contractor may each select
additional topics for discussion at any Solid Waste Services and Performance Review
Meeting.
City shall notify Contractor of its intent to hold a Solid Waste Services and Performance
Review Meeting at least sixty (60) days in advance thereof. Thirty (30) days after
receiving notice from City of a Solid Waste Services and Performance Review Meeting,
Contractor shall submit a report to City which may contain such information as it
wishes to have considered, and shall contain the following:
a) Current Diversion rates and a report on Contractor's outreach activities for the
past year.
b) Recommended changes and/or new services to improve City's ability to meet the
goals of AB 939 and to contain costs and minimize impacts on rates. A specific
plan for AB 939 compliance shall be included.
c) Any specific plans for provision for new or changed services by Contractor.
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The reports required by this Agreement regarding Customer complaints shall be used
as one basis for review of Contractor's performance, and Contractor may submit other
relevant performance information and reports for consideration at the Solid Waste
Services and Performance Review Meeting. In addition to the above, City may request
Contractor to submit any other specific information relating to its performance for
consideration at the Solid Waste Services and Performance Review Meeting, and any
Customer may submit comments or complaints during or before the Meeting, either
orally or in writing. Contractor shall be present at and participate in the Solid Waste
Services and Performance Review Meeting.
As a result of its findings following any Solid Waste Services and Performance Review
Meeting, City may require Contractor to provide expanded or new services within a
reasonable time and City may direct or take corrective actions for any performance
inadequacies (although nothing contained in this provision should be construed as
requiring City to hold a Solid Waste Services and Performance Review Meeting in order
to enforce any rights or remedies it has pursuant to the terms hereof.) Should City
require expanded or new services as a remedy for Contractor's failure to perform its
obligations hereunder, no additional compensation shall be due for such services.
Otherwise, any new or expanded services required of Contractor shall be subject to the
provisions of Section 2.10.
7.2 Performance Satisfaction Survey
If requested by the City, Contractor will create and conduct a survey at Contractor's
expense. If City would like to present results at a Solid Waste Services and Performance
Review Meeting, City shall notify Contractor of its desire for such a survey at least 90
days in advance of the Solid Waste Services and Performance Review Meeting. The
purpose of the survey is to determine Customer satisfaction with current Collection
services and Customer service provided by Contractor. The Survey will be distributed
to one hundred percent (100%) of the Customers. Contractor shall obtain City's
approval of the survey's content, format, and mailing list prior to its distribution. City
may require that Contractor have Customer responses to the survey returned directly to
City. The survey results shall be made available to the City thirty (30) days prior to the
Solid Waste Services and Performance Review Meeting.
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ARTICLE 8
RECORDS, REPORTS AND INFORMATION REQUIREMENTS
8.1 General
Contractor shall maintain such accounting, statistical and other records related to its
performance under this Agreement as shall be necessary to develop the financial
statements and other reports required by this Agreement. Also, Contractor agrees to
conduct data collection, information and record keeping, and reporting activities
needed to comply with applicable laws and regulations and to meet the reporting and
Solid Waste program management needs of City. To this extent, such requirements set
out in this and other Articles of this Agreement shall not be considered limiting or
necessarily complete. In particular, this Article is intended to only highlight the general
nature of records and reports and is not meant to define exactly what the records and
reports are to be and their content. Further, with the written direction or approval of
City, the records and reports to be maintained and provided by Contractor in
accordance with this and other Articles of this Agreement shall be adjusted in number,
format, or frequency.
8.2 Records
8.2.1 General
Contractor shall maintain records required to conduct its operations, to support
requests it may make to City, and to respond to requests from City in the conduct of
City business. Adequate record security shall be maintained to preserve records from
events that can be reasonably anticipated such as a fire, theft and earthquake.
Electronically maintained data/records shall be protected and backed up. All records,
with the exception of records to be maintained under Section 8.2.4, shall be maintained
for five (5) years, and shall continue to be available for five (5) years after the expiration
of this Agreement. After minimum holding periods are met, Contractor will notify City
Manager and City Attorney ninety (90) days before destroying records and offer
records to the City.
City shall have the right to inspect or review the specific documents or records required
expressly or by inference pursuant to this Agreement, or any other similar records or
July 13, 2009, DRAFT -64- City of Diamond Bar - Commercial
reports of Contractor or its Affiliates that City shall deem, in its sole discretion,
necessary to evaluate annual reports, and Contractor's performance provided for in this
Agreement. Contractor agrees that the records of any and all companies conducting
operations addressed in the Agreement shall be provided or made available to City and
its official representatives. Account histories shall be accessible to the City by computer
for a minimum of five (5) years after termination of the Agreement. Contractor shall
make all records and documents to be reviewed and inspected by City as a part of any
audit or other record review conducted by City, available for City's review, inspection
and copying within five (5) days of receiving written notice from City requesting the
same. Additionally, City may review records at Contractor's local facility during
normal business hours, within five (5) days of request during normal business hours.
Such records include, but are not limited to, financial, Solid Waste, CERCLA and
Disposal records.
8.2.2 Financial Records
Contractor shall maintain financial records relating to its operations pursuant to this
Agreement separate and segregated from such records relating to its other operations.
Contractor shall maintain at least the following records:
• Audited financial statements for Contractor or, if a guarantee was provided, for the
parent company guarantor as a whole;
• Financial statements (compiled, reviewed or audited) of revenue and expense for
this Agreement segregated from the other operations of Contractor (including
without limitation those operations of Contractor in City and surrounding
jurisdictions which are not covered by this Agreement), including a description of
segregation methodology; and
• Complete descriptions of related party transactions (corporate and/or regional
management fees, inter -company profits from transfer, processing or Disposal
operations).
8.2.3 Solid Waste Records
Contractor shall maintain and make available to the City upon request the following
records relating to its operations pursuant to this Agreement:
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a) Customer services and Billing/ City payment records;
b) Records of tons Collected, processed, diverted and disposed by waste stream
(Refuse, Recycling, Green Waste), by Customer type (Cart, Bin, Roll -Off Box),
and the Facilities (Transfer Station, MRF, or landfill) where such material was
taken;
c) Quantity of Recyclable Materials recovered by material type, as well as quantity
of material diverted from landfills in compliance with AB 939;
d) Bulky Item results and Special Event tonnages, including tons disposed and
diverted;
e) Routes;
f) Facilities, equipment and personnel used;
g) Facilities and equipment operations, maintenance and repair;
h) Number and type of Refuse, Recycling and Green Waste Containers in service;
i) Complaints; and
j) Missed pickups.
8.2.4 CERCLA Defense Records
City views the ability to defend against the Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA) and related litigation as a matter of great
importance. For this reason, City regards the ability to prove where Solid Waste
Collected in the City was taken for Disposal, as well as where it was not taken, to be
matters of concern. Contractor shall maintain data retention and preservation systems
which can establish where Solid Waste Collected in the City was landfilled (and
therefore establish where it was not landfilled) for not less than twenty-five (25) years
following the termination of this Agreement, and agrees to notify City Manager and
City Attorney before destroying such records thereafter. At any time, including after
the expiration of the Term hereof, Contractor shall provide copies of such records to
City upon request. The requirements of this section shall survive the expiration of the
Term of this Agreement.
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8.2.5 Section Deleted
8.2.6 Other Programs' Records
Records for other programs shall be tailored to specific needs. In general, they shall
include:
a) Plans, tasks, and milestones; and,
b) Accomplishments in terms such as dates, activities conducted, quantities of
products used, produced or distributed, and numbers of participants and
responses.
8.2.7 Audit
City may conduct an audit of Contractor at any time. The scope of the audit, and
auditing party, will be determined by City and the scope may include, but is not limited
to, compliance with terms of this Agreement, Customer service levels and Billing, fee
payments, Gross Receipts, tonnage, and verification of Diversion rate. The first audit, to
be performed during calendar year 2012, will be based on the Contractor's reports and
records from the start of the Agreement through calendar year 2011. Audits will be
performed every third year thereafter. Contractor will reimburse to the City the cost of
such audits (including audits conducted by City staff) up to $50,000 for the first audit,
and $35,000 for each subsequent audit in 2012 dollars. After 2012, the $35,000 amount
shall be increased annually by the change in CPI using the formula for the change in the
"all other" component of the rates in Section 6.4.
Should an audit conducted or authorized by the City disclose that fees payable by
Company were underpaid by two percent (2%) or more, that tonnage was mis-reported
by 2% or more, or that more than two percent (2%) of the Customers were inaccurately
billed based on the auditor's sampling, for the period under review, City may expand
the scope of the audit and recover all additional audit costs from the Contractor.
8.2.8 Payments and Refunds
Should an audit disclose that fees payable by the Contractor were underpaid to City or
that Customers were overcharged for the period under review, Contractor shall pay to
City any underpayment of fees and/or refund to Contractor's Customers or to City, as
directed by City, any overcharges within thirty (30) days following the date of the audit.
July 93, 2009, DRAFT -67- City of Diamond Bar - Commercial
Contractor shall pay interest to the City for any underpayment or overcharges at an
annual rate of 12%. Undercharges shall not be billed in arrears for more than ninety
(90) days of service, with any remaining undercharges absorbed by Contractor. Should
an audit disclose that fees were overpaid, City shall credit such amounts against future
fees payable by Contractor.
8.3 Reports
8.3.1 Report Formats and Schedule
Records shall be maintained in forms and by methods that facilitate flexible use of data
contained in them to structure reports, as needed. Contractor may propose report
formats that are responsive to the objectives and audiences for each report. The format
of each report shall be approved by City, which may require changes and/or additions
to the format.
Reports shall be submitted within thirty (30) calendar days after the end of the
reporting period. Annual reports shall be submitted within thirty (30) calendar days
after the end of the calendar year. If requested, Contractor's complaint summary,
described in Section 5.2.2, shall be sent to the City within five (5) business days of
request.
All reports shall be submitted in electronic format compatible with City's
software/ computers, at no additional charge, to the Public Works Director and/or
other City staff designated by the Public Works Director at e-mail addresses to be
provided by City. City may additionally request hard copies, which would be delivered
to:
Public Works Director
City of Diamond Bar
21825 Copley Drive
Diamond Bar, CA 91765
8.3.2 Monthly/Quarterly Reports
The information listed below shall be the minimum reported monthly:
a) Solid Waste Collected by Contractor, sorted by type of Solid Waste Collected and
diverted (Refuse, Recycling, Green Waste) in tons, including contamination and
Diversion rates for each wastestream and Customer type (Cart, Bin, Roll -Off Box)
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and the Facilities where the tons were processed or disposed. Bulky Item tons
Collected and diverted shall also be reported as a separate line item.
The information listed below shall be the minimum reported quarterly:
a) Solid Waste Collected by Contractor, sorted by type of Solid Waste Collected and
diverted (Refuse, Recycling, Green Waste) in tons (including contamination and
Diversion rates for each wastestream and Customer type (Cart, Bin, Roll -Off Box)
and the Facilities where the tons were processed or disposed. Bulky Item tons
Collected and diverted shall also be reported as a separate line item.
b) Number of warning notices issued for contaminated Recyclable Materials and
Green Waste Containers, and HHW improperly placed for Disposal.
c) Narrative summary of problems encountered and actions taken with
recommendations for City, as appropriate.
d) Quantity of Recyclable Materials recovered by material type, as well as quantity
of material diverted from landfills in compliance with AB 939.
e) Description of Contractor outreach activities and copies of promotional and
public education materials sent during the month.
f) Other information or reports that City may reasonably request or require.
8.3.3 Annual Report
The Annual Report is to be essentially in the form and content of the monthly report,
but shall also include:
a) A summary of the number of Containers in service as of December 31 by size
(number of gallons/yards), service frequency, and type of service (Refuse,
Recycling, Green Waste).
b) Records of tons Collected, processed, diverted and disposed by waste stream
(Refuse, Recycling, Green Waste), by Customer type (Cart Bin, Roll -Off Box), and
the Facilities (Transfer Station, MRF, or landfill) where such material was taken.
c) Gross Receipts by sector (Cart, Bin, Roll -Off Box)].
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d) A complete inventory of vehicles used to provide all services, including make,
year, type, fuel used, use, California license number and whether or not it is used
as a spare.
e) Number of routes and route hours per day by type of service as of December 31.
f) General information about the Contractor and its most recent annual report.
g) Other information or reports that City may reasonably request or require.
8.3.4 Financial Report
The City may, at City's option, request and be provided with Contractor's financial
reports/ statements for the most recently completed fiscal year in connection with any
audit, extraordinary rate adjustment request, or verification of other information
required under this Agreement.
Financial statements shall include a supplemental combining schedule showing
Contractor's results of operations, including the specific revenues and expenses in
connection with the operations provided for in this Agreement, separated from others
included in such financial statements. The financial statements and footnotes shall be
prepared in accordance with Generally Accepted Accounting Principles (GAAP) and
audited, in accordance with Generally Accepted Auditing Standards (GAAS) by a
certified public accountant (CPA) licensed (in good standing) to practice public
accounting in the State of California as determined by the State of California
Department of Consumer Affairs Board of Accountancy. The cost for preparation of the
financial statements and audit shall be borne by Contractor as a direct cost of service. In
addition, Contractor shall provide to City the supplemental schedule on a compiled
basis.
8.4 Reporting Adverse Information
Contractor shall provide City two copies (one to the City Manager, one to the City
Attorney) of all reports, pleadings, applications, notifications, Notices of Violation,
communications or other material relating in any way to Contractor's performance of
services pursuant to this Agreement, submitted by Contractor to, or received by
Contractor from, the United States or California Environmental Protection Agency, the
California Integrated Waste Management Board, the Securities and Exchange
Commission or any other federal, state or local agency, including any federal or state
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court. Copies shall be submitted to City within thirty (30) days of receipt by Contractor,
or sooner if reasonably apparent that to do so is time critical, and any responses by
Contractor shall be submitted to City simultaneously with Contractor's filing or
submission of such matters with said agencies. Contractor's routine correspondence to
said agencies need not be routinely submitted to City, but shall be made available to
City promptly upon City's written request.
8.5 Failure to Report
The refusal or failure of Contractor to file any required reports, or to provide required
information to City, or the inclusion of any materially false or misleading statement or
representation by Contractor in such report shall be deemed a material breach of this
Agreement as described in Section 11.1 and shall subject Contractor to all remedies
which are available to the City under this Agreement, the Diamond Bar Municipal Code
or otherwise.
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ARTICLE 9
INDEMNIFICATION, INSURANCE, BOND AND LETTER OF CREDIT
9.1 Indemnification
Contractor hereby agrees to and shall indemnify and hold harmless City, its elected and
appointed boards, commissions, officers, employees, consultants and agents
(collectively, "Indemnitees") from and against any and all loss, liability, penalty,
forfeiture, claim, demand, action, proceeding or suit in law or equity of any and every
kind and description (including, but not limited to, injury to and death of any Person
and damage to property, or for contribution or indemnity claimed by third parties)
arising or resulting from and in any way connected with (1) the negligence or willful
misconduct of Contractor, its officers, employees, agents, contractors and/or
subcontractors in performing services under this Agreement; (2) the failure of
Contractor, its officers, employees, agents, contractors and/or subcontractors to comply
in all respects with the provisions of this Agreement, applicable laws (including,
without limitation, the Environmental Laws), ordinances and regulations, and/or
applicable permits and licenses; and (3) the acts of Contractor, its officers, employees,
agents, contractors and/or subcontractors in performing services under this Agreement
for which strict liability is imposed by law (including, without limitation, the
Environmental Laws). The foregoing indemnity shall apply regardless of whether such
loss, liability, penalty, forfeiture, claim, demand, action, proceeding, suit, injury, death
or damage is also caused in part by any of the Indemnitees' negligence, but shall not
extend to matters resulting from the Indemnitees' sole negligence, or willful
misconduct. Contractor further agrees to and shall, upon demand of City, at
Contractor's sole cost and expense, defend (with attorneys acceptable to City,
acceptance of which shall not be unreasonably withheld) the Indemnitees against any
claims, actions, suits in law or equity or other proceedings, whether judicial, quasi-
judicial or administrative in nature, arising or resulting from any of the aforementioned
events, and to reimburse City for any and all costs and expenses City incurs in
providing any such defense, either before, during or after the time Contractor elects to
provide such defense, including any and all costs incurred in overseeing any defense to
be provided herein by Contractor.
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Contractor, upon demand of City, made by and through the City Attorney, shall protect
City and appear in and defend the Indemnitees in any claims or actions by third parties,
whether judicial, administrative or otherwise, including, but not limited to disputes and
litigation over the definitions of "Solid Waste' or "Recyclable Material," the scope of
the rights granted herein, conflicts between the rights granted herein and rights
asserted by other Persons, or the limits of City's authority with respect to the grant of
licenses, or agreements, exclusive or otherwise, or asserting rights under the United
States or California Constitutions or any federal or state law to provide Solid Waste
Collection Services in the City.
THE PROVISIONS OF THIS SECTION SHALL NOT TERMINATE OR EXPIRE,
SHALL BE GIVEN THE BROADEST POSSIBLE INTERPRETATION AND SHALL
SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS
AGREEMENT.
9.2 Hazardous Substances Indemnification
A. Without regard to any insurance coverage or requirements, and without limiting the
above general indemnification obligation in any way, Contractor specifically agrees to
and shall, to the maximum extent permitted by law, defend (with counsel acceptable to
City), reimburse, indemnify, and hold harmless Indemnities from and against any and
all claims, actions, liabilities, damages, demands, judgments, losses, costs, liens,
expenses, suits, actions, attorneys' fees, consultant fees, penalties and any and all other
losses, damages, fees and expenses of whatever kind or nature ("Claims") (including but
not limited to response costs, investigative costs, assessment costs, monitoring costs,
treatment costs, cleanup costs, removal costs, remediation costs, and similar costs,
damages and expenses) that arise out of or are alleged to arise out of or in any way
relate to any action, inaction or omission of Contractor that:
1. results in any demand, claim, notice, order, or lawsuit, asserting that any
Indemnitee is liable, responsible or in any way obligated to investigate, assess,
monitor, study, test, treat, remove, remediate, or otherwise cleanup, any
Hazardous Contaminant (as defined herein); or
2. relates to material Collected, transported, recycled, processed, treated or
disposed of by Contractor.
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B. Contractor's obligations pursuant to this section shall apply, without limitation, to:
1. any Claims brought pursuant to or based on the provisions of any
Environmental Law;
2. any Claims based on or arising out of or alleged to be arising out of the
ownership, use, lease, sale, design, construction, maintenance or operation of
Contractor of any Facility;
3. any Claims based on or arising out of or alleged to be arising out of the
marketing, sale, distribution, storage, transportation, Disposal, processing or use
of any materials recovered by Contractor;
4. any Claims based on or arising out of or alleged to be arising out of any
breach of any express or implied warranty, representation or covenant arising
out of or in connection with this Agreement.
C. The foregoing indemnity and defense obligations shall apply irrespective of the
negligence or willful misconduct of Contractor or any Affiliate of Contractor.
D. The foregoing indemnity shall apply regardless of whether such loss, liability,
penalty, forfeiture, claim, demand, action, proceeding, suit, injury, death or damage is
also caused in part by any of the Indemnitees' negligence, but shall not extend to
matters resulting from the Indemnitees' sole negligence, or willful misconduct.
E. For purposes of this section, the term "Hazardous Contaminant" shall mean any
Hazardous Substance, any Hazardous Waste, any crude oil or refined or unrefined
petroleum product or any fraction or derivative thereof; and any asbestos or asbestos -
containing material. The term "Hazardous Contaminant" shall also include any and all
amendments to any referenced statutory or regulatory provisions made before or after
the date of execution of this Agreement.
F. In the event that the City exercises its right under Sections 2.11 and 4.8 to direct
Contractor to use a facility other than a site approved in this Agreement, and such
facility is not owned and operated by Contractor or any parent, affiliate or guarantor of
the Contractor, this indemnification shall not apply for the tonnage directed by the City
to such facility.
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G. THE PROVISIONS OF THIS SECTION SHALL NOT TERMINATE OR EXPIRE,
SHALL BE GIVEN THE BROADEST POSSIBLE INTERPRETATION AND SHALL
SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS
AGREEMENT.
9.3 AB 939 Indemnification and Guarantee
A. To the extent authorized by law, Contractor agrees to indemnify and hold harmless
City from and against all fines and/or penalties imposed by the California Integrated
Waste Management Board in the event the source reduction and Recycling goals or any
other requirement of AB 939 are not met by City with respect to the waste stream
Collected under this Agreement.
B. Contractor warrants and represents that it is familiar with City's waste
characterization study as set forth in City's Source Recovery and Recycling Element
(SRRE), and that it has the ability to and will provide sufficient programs and services
to ensure City will meet or exceed the Diversion requirements (including, without
limitation, amounts of Solid Waste to be diverted, time frames for Diversion, and any
other requirements) set forth in AB 939, with respect to that portion of the Solid Waste
generated in City that is the subject of this Agreement.
9.4 Insurance
Contractor shall procure and maintain during the entire Term of this Agreement the
following types of insurance, and shall maintain the following minimum levels of
coverage, which shall apply to any claims which may arise from or in connection with
Contractor's performance hereunder or the actions or inactions of any of Contractor's
officers, agents, representatives, employees, or subcontractors in connection with
Contractor's performance. The insurance requirements hereunder in no way limit
Contractor's various defense and indemnification obligations, or any other obligations
as set forth herein.
A. Minimum Scope of Insurance. Coverage shall be at least as broad as:
1. The most recent editions of Insurance Services Office Commercial General
Liability coverage ("occurrence" form CG 00 01).
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2. The most recent editions of Insurance Services Office form number CA 00 01
covering Automobile Liability, code 1 "any auto" and endorsement CA 00 25.
3. Workers' Compensation insurance as required by the Labor Code of the
State of California and Employers Liability insurance.
B. Minimum Limits of Insurance. Contractor shall maintain in force for the term
of this Agreement limits no less than:
1. Comprehensive General Liability: Ten Million Dollars ($10,000,000) limit
aggregate and Ten Million Dollars ($10,000,000) limit per occurrence for
bodily injury, Personal injury and property damage.
2. Automobile Liability: Five Million Dollars ($5,000,000) single limit per
accident for bodily injury and property damage.
3. Workers' Compensation and Employers Liability: Workers' compensation
limits as required by the Labor Code of the State of California or provide
evidence of State approval to be self-insured. Employers Liability in the
minimum amount of $1,000,000.
C. Deductibles and Self -Insured Retentions. Any deductibles or self-insured
retentions must be declared to and approved by City. At the option of City, either: the
insurer shall reduce or eliminate such deductibles or self-insured retention's as respects
City, its officials, employees and agents; or Contractor shall procure a bond
guaranteeing payment of losses and related investigations, claim administration and
defense expenses.
D. Other Insurance Provisions. The policies are to contain, or be endorsed to
contain, the following provisions:
1. General Liability and Automobile Liability Coverages
a) City, its elective and appointive boards, commissions, officials,
employees, agents and volunteers are to be named as additional
insureds as respects: liability arising out of activities performed by
or on behalf of Contractor; products and completed operations of
Contractor; Premises owned, leased or used by Contractor; or
vehicles owned, leased, hired or borrowed by Contractor. The
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coverage shall contain no special limitations on the scope of
protection afforded to City, its elective and appointive boards,
commissions, officials, employees, agents or volunteers.
b) Contractor's insurance coverage shall be primary insurance as
respects City, its elective and appointive boards, commissions,
officials, employees, agents and volunteers. Any insurance or self-
insurance maintained by City, its officials, elective and appointive
boards, commissions, employees, agents or volunteers shall be
excess of Contractor's insurance and shall not contribute with it.
c) Any failure to comply with reporting provisions of the policies
shall not affect coverage provided to City, its officials, elective and
appointive boards, commissions, employees, agents or volunteers.
d) Coverage shall state that Contractor's insurance shall apply
separately to each insured against whom claim is made or suit is
brought, except with respect to the limits of the insurer's liability.
2. Workers' Compensation and Employers Liability Coverage - The insurer
shall agree to waive all rights of subrogation against City, its officials,
elective and appointive boards, commissions, employees, agents and
volunteers for losses arising from work performed by Contractor for City.
3. All Coverages - Each insurance policy required by this clause shall be
endorsed to state that coverage shall not be suspended, voided, canceled
by either party, reduced in coverage or in limits except after thirty (30)
days' prior written notice (ten (10) days written notice in the event of
cancellation for non-payment) by certified mail, return receipt requested,
has been given to City.
E. Acceptability of Insurers. The insurance policies required by this section shall
be issued by an insurance company or companies authorized to do business in the State
of California and with a rating in the most recent edition of Best's Insurance Reports of
size category VII or larger and a rating classification of A or better.
F. Verification of Coverage. Within thirty (30) days of the execution of this
Agreement, or prior to the start of service under this Agreement, whichever comes first,
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Contractor shall furnish City certificates of each policy of insurance required hereunder,
in form and substance satisfactory to City. Such certificates shall show the type and
amount of coverage, effective dates and dates of expiration of policies and shall have all
required endorsements. If City requests, copies of each policy, together with all
endorsements, shall also be promptly delivered to City.
Renewal certificates will be furnished promptly upon renewal to City to demonstrate
maintenance of the required coverage throughout the Term.
G. Required Endorsements
1. Insurance policies shall contain an endorsement in substantially the
following form:
"Thirty (30) days prior written notice (ten (10) days written notice in the
event of cancellation for non-payment) by certified mail, return receipt
requested, shall be given to City in the event of cancellation, reduction in
coverage, or non -renewal of this policy. Such notice shall be sent to:
City Manager
City of Diamond Bar
21825 Copley Drive
Diamond Bar, CA 91765
2. "This policy shall be considered primary insurance as respects any other
valid and collectible insurance maintained by City, including any self-
insured retention or program of self-insurance, and any other such
insurance shall be considered excess insurance only."
3. "Inclusion of City as an insured shall not affect City's rights as respects
any claim, demand, suit or judgment brought or recovered against
Contractor. This policy shall protect Contractor and City in the same
manner as though a separate policy had been issued to each, but this shall
not operate to increase Contractor's liability as set forth in the policy
beyond the amount shown or to which Contractor would have been liable
if only one party had been named as an insured."
H. Other Insurance Requirements
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1. In the event any services are delegated to another company or
subcontractor, Contractor shall require such Contractor or subcontractor
to provide statutory workers' compensation insurance and employer's
liability insurance for all of the Contractor or subcontractor's employees
engaged in the work in accordance with this Section 9.4. The liability
insurance required by this Section 9.4 shall cover all Contractor or
subcontractors or the Contractor or subcontractor must furnish evidence
of insurance provided by it meeting all of the requirements of this Section
9.4.
2. Contractor shall comply with all requirements of the insurers issuing
policies. The carrying of insurance shall not relieve Contractor from any
obligation under this Agreement. If any claim exceeding the amount of
any deductibles or self-insured reserves is made by any third Person
against Contractor or any Contractor or subcontractor on account of any
occurrence related to this Agreement, Contractor shall promptly report
the facts in writing to the insurance carrier and to City.
If Contractor fails to procure and maintain any insurance required by this
Agreement, City may take out and maintain, at Contractor's expense, such
insurance as it may deem proper and recover costs from the Contractor's
Letter of Credit and/or Performance Bond provided under Sections 9.5
and 9.6.
9.5 Faithful Performance Bond
Concurrently with execution of this Agreement, Contractor shall deliver to City a
performance bond in the sum of the amount of One Hundred Twenty-five Thousand
Dollars ($125,000), similar to the form provided in Exhibit 5, which secures the faithful
performance of this Agreement, including, without limitation, payment of any penalty
and the funding of any work to cure a breach of this Agreement, unless such
requirement is waived by the City Manager. The bond shall contain the original
notarized signature of an authorized officer of the surety and affixed thereto shall be a
certified and current copy of his power of attorney. The bond shall be unconditional
and remain in force during the entire term of the Agreement and shall be released only
upon written release from City per Section 9.9.
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9.6 Faithful Performance Letter of Credit
A. In addition to a corporate surety bond as noted in Section 9.5 above, Contractor
shall furnish an irrevocable letter of credit in the amount of One Hundred Twenty-five
Thousand Dollars ($125,000), from a financial institution acceptable to the City and in a
form acceptable to the City Attorney as security for the performance of this Agreement
(the "LOC"). The LOC shall be the sole responsibility of Contractor, shall be
unconditional and remain in force during the entire Term of the Agreement and shall be
released only upon written release from City per Section 9.9.
B. As an alternative to providing the performance bond and letter of credit required
under 9.5 and 9.6.A, Contractor may provide a letter of credit in the amount of $250,000.
The letter of credit shall be from a financial institution acceptable to the City in a form
acceptable to the City Attorney as security for the performance of this Agreement. The
LOC shall be the sole responsibility of Contractor, shall be unconditional and remain in
force during the entire Term of the Agreement and shall be released only upon written
release from City per Section 9.9.
C. As an alternative to providing the performance bond and letter of credit required
under 9.5 and 9.6.A, Contractor may deposit funds, on terms satisfactory to City, in an
interest-bearing account at an institution satisfactory to both City and Contractor.
Contractor may replace any required amount of the performance bond requirement, or
the LOC requirement with an equivalent deposit. The deposit shall be accessible to the
City immediately without action required by Contractor. The deposit shall be accessible
to the City immediately without penalty, unless the funds on deposit are increased in
excess of the total $250,000 required under Sections 9.5 and 9.6 by the maximum
amount of the total potential penalty. The funds on deposit shall be the sole
responsibility of the Contractor, shall be unconditional and remain on deposit during
the entire Term of the Agreement and shall be withdrawn to Contractor's custody only
upon written release from City per Section 9.9.
9.7 Forfeiture of Performance Bond
In the event Contractor shall for any reason become unable to, or fail in any way to,
perform as required by this Agreement, City may declare a portion or all of the
performance bond forfeited to the City up to an amount which is necessary to
recompense and make whole the City. Upon partial or full forfeiture of the
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performance bond, Contractor shall restore the performance bond to its face amount
within thirty (30) days of the City's declaration. Failure to restore the performance
bond to its full amount within thirty (30) days shall be a material breach of the
Agreement.
9.8 Forfeiture of Letter Of Credit or Deposit
Thirty (30) days following City providing Contractor with written notice of its failure to
pay City any amount owing under this Agreement, the LOC or deposit may be drawn
upon by City for purposes including, but not limited to:
a. Payment of sums due under the terms of this Agreement which Contractor has
failed to timely pay to City
b. Reimbursement of costs borne by City to correct violations of this Agreement not
corrected by Contractor, including but not limited to the liquidated damages
described in Section 11.3.
City may draw upon the entire LOC and convert it to a cash deposit, or draw upon the
entire deposit, if Contractor fails to cause it to be extended or replaced with another
satisfactory LOC or deposit no later than 60 days prior to its expiration during the term
hereof. If City partially draws down LOC or deposit, Contractor must restore it to full
amount within 30 days of City's draw. Failure to restore the LOC or deposit to its full
amount within thirty (30) days shall be a material breach of the Agreement.
9.9 Performance Security Beyond Service Term
Some Agreement requirements extend beyond the Term of this Agreement and other
requirements, such as minimum Diversion rates per Section 4.2.5, will not be
substantiated until after the final service date. Therefore, the Contractor shall not
terminate the performance bond, letter of credit or deposit, and will renew them to
ensure continuous availability to the City, until receiving a written release from the City
or until the fifth annual anniversary of the end of the Term of this Agreement.
Permission from the City to discontinue holding these performance securities does not
relieve Contractor of payments to the City that may be due, or may become due.
July 13, 2009, DRAFT -81- City of Diamond Bar - Commercial
ARTICLE 10
CITY'S RIGHT TO CONTRACT WITH THIRD PARTIES TO PERFORM
FRANCHISED SERVICES
City may contract with another Solid Waste enterprise to Collect and transport Solid Waste in
the event Contractor for any reason (except as provided below regarding Force Majeure)
refuses or is unable to Collect Solid Waste for a period of more than forty-eight (48) hours.
City must provide twenty-four (24) hours prior written notice to Contractor during such time
before contracting with another solid waste enterprise. In such event Contractor must identify
sources from which such substitute solid waste services are immediately available and
reimburse City for all of its expenses for such substitute services during period in which
Contractor does not provide Collection and transportation services required by this
Agreement.
July 13, 2009, DRAFT -82- City of Diamond Bar - Commercial
ARTICLE 11
DEFAULT, REMEDIES AND LIQUIDATED DAMAGES
11.1 Events of Default
Each of the following provisions, without limitation, are considered material and shall
constitute an event of default by the Contractor.
A. Fraud or Deceit or Misrepresentation. If the Contractor engages in, or attempts
to practice, any fraud or deceit upon City or makes a misrepresentation regarding
material information to City.
B. Insolvency or Bankruptcy or Financial Irresponsibility. If Contractor becomes
insolvent, unable, or unwilling to pay its debts, files a bankruptcy petition or takes steps
to liquidate its assets.
C. Failure to Maintain Coverage. If Contractor fails to provide or maintain in full
force and effect the Workers' Compensation, liability, or indemnification coverage as
required by this Agreement.
D. Violations of Regulations. If Contractor violates any orders or filings of any
regulatory body having jurisdiction over Contractor relative to this Agreement,
provided that Contractor may contest any such orders or filings by appropriate
proceedings conducted in good faith, in which case no breach of the Franchise and this
Agreement shall be deemed to have occurred until a final decision adverse to the
Contractor is entered.
E. Failure to Perform. If Contractor ceases to provide all or a portion of the
Collection, processing or Recycling services, or any other Solid Waste Collection
Services as required under this Agreement for a period of seven (7) consecutive days or
more, unless, and only to the extent, performance is excused pursuant to Section 11.4.
F. Failure to Pay. If Contractor fails to make any payments required under this
Agreement and/or refuses to provide City, within ten (10) days of the demand, with
required information, reports, and/or records in a timely manner as provided for in the
Agreement.
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G. Failure to Cooperate with Audits. Failure to complete, perform or cooperate
with any audit as described by this Agreement.
H. Failure to Submit Reports or Documentation. Failure to complete or to provide
required reports or documents to City as required by this Agreement.
I. Acts or Omissions.
1. Any act or omission by Franchisee relative to the services provided under this
Agreement which violates the terms, conditions, or requirements of this
Agreement, or AB 939, or any law, statute, ordinance, order, directive, rule, or
regulation issued pursuant to AB 939 not corrected or remedied within the
time set in the written notice of the violation from the issuing entity or, if
Franchisee cannot reasonably correct or remedy the breach within the time
set forth in such notice, if Franchisee should fail to commence to correct or
remedy such violation within the time set forth in such notice and diligently
effect such correction or remedy.
2. Any situation in which Franchisee or any of its officers, directors or
employees are found guilty of any crime related to the performance of this
Agreement, or of any crime related to anti-trust activities, illegal transport or
Disposal of hazardous or toxic materials, or bribery of public officials. The
term "found guilty" shall be deemed to include any judicial determination
that Franchisee or any of Franchisee's officers, directors or employees is
guilty as well as any admission of guilt by Franchisee or any of Franchisee's
officers, directors or employees including, but not limited to, the plea of
"guilty", "nolo contendere", "no contest", and "guilty to a lesser charge."
J. False or Misleading Statements. Any representation or disclosure made to City
by Contractor in connection with or as an inducement to entering into this Agreement,
or any future amendment to this Agreement, which proves to be false or misleading in
any material respect as of the time such representation or disclosure is made, whether
or not any such representation or disclosure appears as part of this Agreement.
K. Attachment. The seizure of, attachment of, or levy on, the operating equipment
of Contractor, including, without limits, its equipment, maintenance or office facilities,
or any part thereof.
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L. Suspension or Termination of Service. Any termination or suspension of the
transaction of business by Contractor, including, without limitation, due to labor unrest
including strike, work stoppage or slowdown, sick-out, picketing, or other concerted
job action lasting more than seven (7) consecutive days, unless, and only to the extent,
performance is excused pursuant to Section 11.4, or Section 5.1.6.
M. Failure to Provide Assurance of Performance. If Contractor fails to provide
reasonable assurances of performance as required under Section 11.6.
N. Commingling of Recyclables With Refuse/Landfilling of Recyclables. If
Contractor empties a Container of properly set out Recyclable Materials or Green Waste
into a Refuse load, or transports Recyclable Materials or Green Waste to a landfill or
other location at which the material will not be diverted from landfilling (with the
exception of Green Waste used as alternative daily cover provided full Diversion credit
is received).
O. Failure to Meet Diversion Goals. Contractor fails to achieve diversion goals
specified in Section 4.2.5, for two consecutive calendar years, beginning with calendar
year 2011.
P. Lapse of Performance Bond and/or Letter of Credit and/or Deposit. Contractor
fails to restore the full balance of the Performance Bond and/or Letter of Credit and/or
deposit required under Sections 9.5 and 9.6 to the full required value within 30 days of
being depleted due to payment to City under Sections 9.7 or 9.8, or Contractor allows
any of the securities at any time for any other reason to lapse or fall below required
minimums for any period of time.
Contractor shall have forty-eight (48) hours from the time it is given notification by City
to cure any default arising under subsections E, F, G, H, K, L, M, N, and P provided,
however, that City shall not be obligated to provide Contractor with a notice and cure
opportunity if Contractor has committed the same or similar breach within a twenty-
four (24) month period. It is expressly understood that Contractor is not entitled to
receive notice of default, or to cure such default, with respect to those matters listed in
subsections A. B, C, D, I, J and O above.
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11.2 Right to Terminate Upon Default and Right to Specific Performance
If Contractor commits a material breach, including specifically any of the matters listed
in subsections A through P of Section 11.1 above (and, if permitted to cure, does not
cure it within the forty-eight (48) hours), City shall be entitled to unilaterally terminate
this Agreement or impose other such sanctions (which may include financial sanctions,
temporary suspensions or any other conditions it deems appropriate short of
termination) as it shall deem proper pursuant to the provisions in this Agreement or the
Diamond Bar Municipal Code. Should City decide to terminate this Agreement upon a
default by Contractor, City shall have the right to do so upon giving ten (10) days notice
to Contractor, and shall not be required by this Agreement to take any further action
(such as holding any hearing, bringing any suit or taking any other action.)
City's rights to terminate this Agreement and City's termination of this Agreement shall
not constitute an election of remedies. Instead, such remedies shall be in addition to
any and all other legal and equitable rights and remedies which City may have.
By virtue of the nature of this Agreement, the urgency of timely continuous and high-
quality service, the time required to effect alternative service, and the rights granted by
City to Contractor, the remedy of damages for a breach hereof by Contractor is
inadequate and City shall be entitled to seek injunctive relief and/or specific
performance of any breach of this Agreement.
11.3 Liquidated Damages
A. General. City finds, and Contractor agrees, that as of the time of the execution of
this Agreement, it is impractical, if not impossible, to reasonably ascertain the extent of
damages which shall be incurred by City as a result of a breach by Contractor of certain
specific obligations under this Agreement. The factors relating to the impracticability of
ascertaining damages include, but are not limited to, the fact that: (i) substantial
damage results to members of the public who are denied services or denied quality or
reliable service; (ii) such breaches cause inconvenience, anxiety, frustration, and
deprivation of the benefits of the Agreement to individual members of the general
public for whose benefit this Agreement exists, in subjective ways and in varying
degrees of intensity which are incapable of measurement in precise monetary terms; (iii)
that the services that are the subject of this Agreement might be available at
substantially lower costs than alternative services and the monetary loss resulting from
July 13, 2009, DRAFT -86- City of Diamond Bar - Commercial
denial of services or denial of quality or reliable services is impossible to calculate in
precise monetary terms; and (iv) the termination of this Agreement for such specific
breaches, and other remedies are, at best, a means of future correction and not remedies
which make the public whole for past breaches.
B. Service Performance Standards; Liquidated Damages for Failure to Meet
Standards. The parties further acknowledge that consistent, reliable Solid Waste
Collection Service is of utmost importance to City and that City has considered and
relied on Contractor's representations as to its quality of service commitment in
entering this Agreement with it. The Parties further recognize that some quantified
standards of performance are necessary and appropriate to ensure consistent and
reliable service and performance. The Parties further recognize that if Contractor fails
to achieve the performance standards, or fails to submit required documents in a timely
manner, City and its residents will suffer damages and that it is and will be impractical
and extremely difficult to ascertain and determine the exact amount of damages which
City will suffer. Therefore, without prejudice to City's right to treat such breaches as an
event of default under this Article 11, the Parties agree that the following liquidated
damage amounts represent a reasonable estimate of the amount of such damages for
such specific breaches, considering all of the circumstances existing on the date of this
Agreement, including the relationship of the sums to the range of harm to City that
reasonably could be anticipated and the anticipation that proof of actual damages
would be costly or impractical. In placing their initials at the places provided, each
party specifically confirms the accuracy of the statements made above and the fact that
each party has had ample opportunity to consult with legal counsel and obtain an
explanation of the liquidated damage provisions at the time that the Agreement was
made.
Contractor
Initial Here
Contractor agrees to pay (as liquidated damages and not as a penalty) the amounts set
forth below:
Collection Reliability
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a) For each failure to commence service to a new Customer account within
seven (7) days after order, which exceeds five (5) such failures annually:
$100.00
b) For each failure, which exceeds ten (10) such failures annually, to Collect
Solid Waste from any established Customer account on the scheduled
Collection day and not make up the Collection within the time allotted per
Section 4.6.1: $100.00
2. Collection Quality
a) For each occurrence of failure to properly return empty Containers to avoid
pedestrian or vehicular traffic impediments or to place Containers upright
which exceeds ten (10) such occurrences annually: $100.00
b) For each occurrence of excessive noise or discourteous behavior which
exceed ten (10) annually: $250.00
c) For each occurrence of Collecting Solid Waste during unauthorized hours
which exceeds five (5) such occurrences annually: $250.00
d) For each failure to clean up Solid Waste spilled from Solid Waste Containers
within ninety (90) minutes that exceeds ten (10) such failures annually:
$150.00
e) For each complaint that exceeds the maximum permitted number of
complaints per month in Section 5.2.3: $150.00
3. Customer Responsiveness
a) For each failure to initially respond to a Customer complaint within one (1)
business day, and for each additional day in which the complaint is not
addressed, which exceed five (5) annually: $150.00
b) For each failure to process Customer complaints as required by Article 5,
which exceed five (5) annually: $150.00
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c) For each failure to remove graffiti from Containers, or to replace with
Containers bearing no graffiti, within three (3) business days of request from
City or Customer: $ 50.00 per day
d) For each failure to repair or replace a damaged or missing Container within
two (2) business days of request from City or Customer: $ 50.00 per day
e) For each failure to process a claim for damages within thirty (30) days from
the date submitted to Contractor: $100.00
f) For each additional thirty (30) day increment of time in which Contractor has
failed to resolve a claim for damages within thirty (30) days from the claim
date:
$100.00
g) For each violation under Section 5.2.3 (one month of excessive complaints or
one quarter of excessive delays in answering customer service calls):
$500.00
4. Diversion Efforts
a) For each calendar year (beginning calendar year 2010) in which Contractor
fails to provide support to the City within thirty (30) days of year-end,
documenting that it diverted at least 25% of the Solid Waste Contractor
Collected under this Agreement: $25 for each ton below tonnage level
necessary to meet 25 % Diversion goal
5. Timeliness of Submissions to City
Any report shall be considered late until such time as a correct and complete
report is received by City. For each calendar day a report is late, the daily
liquidated damage amount shall be:
i) Monthly Reports:
ii) Annual Reports:
$100.00 per day
$200.00 per day
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6. Accuracy of Billing
Each Customer invoice that is not prepared in accordance with the City's
approved rate schedule, in excess of ten (10) annually: $25.00
7. Cooperation with Service Provider Transition
a) For each day routing information requested by City in accordance with
Section 12.8 is received after City -established due dates, both for
preparation of a request for proposals and for new service provider's
implementation of service:
$1,000.00/ day
b) For each day delivery of keys, access codes, remote controls, or other means
of access to Solid Waste Containers is delayed beyond one (1) day prior to
new service provider servicing Customers with access issues, as described in
Section 12.8:
$1,000.00/ day
c) For delay in not meeting the requirements contained in Sections 4.11 and
12.8 in a timely manner, in addition to the daily liquidated damages for
breach under 7(a) and 7(b) above, liquidated damages of: $35,000.00
8. General Contract Adherence
For each day that Franchisee fails to provide services required under the
Agreement, or comply with terms of the Agreement, five (5) business days after
receipt of written notification from City that such services are not being provided
or terms are not being met: $300.00/day
City may determine the occurrence of events giving rise to liquidated damages through
the observation of its own employees or representative or investigation of Customer
complaints. If any failure is permitted or excused by another section of this Agreement,
such a failure shall not count towards assessment of liquidated damages (such as a
failure to Collect would not apply if it were due to the presence of contamination,
provided Contractor left a warning notice).
Prior to assessing liquidated damages, City Manager shall give Contractor notice of its
intention to do so. The notice will include a brief description of the incident(s)/non-
performance. Contractor may review (and make copies at its own expense) all
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information in the possession of City relating to incident(s)/non-performance.
Contractor may, within ten (10) days after receiving the notice, request a meeting with
City Manager. Contractor may present evidence in writing and through testimony at
the meeting of its employees and others relevant to the incident(s)/non-performance.
City Manager will provide Contractor with a written explanation of its determination
on each incident(s)/non-performance prior to authorizing the assessment of liquidated
damages. The decision of City Manager shall be final.
C. Amount. City may assess liquidated damages for each calendar day or event, as
appropriate, that Contractor is determined to be liable in accordance with this
Agreement.
D. Timing of Payment. Contractor shall pay any liquidated damages assessed by
City within ten (10) days after receipt of notice that liquidated damages are being
assessed. If they are not paid within the ten (10) day period, City may proceed against
the performance bond, letter of credit, or deposit required by the Agreement or find
Contractor in default and terminate this Agreement pursuant to Section 11.2, or both.
11.4 Suspension of Performance
11.4.1 Force Majeure
The Parties shall be excused from performing their respective obligations hereunder in
the event they are prevented from so performing by reason of floods, earthquakes, other
natural disasters, war, civil insurrection, riots, acts of any government (including
judicial action), and other similar catastrophic events which are beyond the control of
and not the fault of the party claiming excuse from performance hereunder.
The interruption or discontinuance of Contractor's services caused by one (1) or more of
the events excused shall not constitute a default by Contractor under this Agreement
provided that other services delivered to properties in Diamond Bar (such as and
without limitation electricity, gas, water, or residential solid waste collection services)
have been similarly disrupted as a direct result of the catastrophic event.
Notwithstanding the foregoing, however, if Contractor is excused from performing its
obligations hereunder for any of the causes listed in this section for a period of thirty
(30) days or more, where Diamond Bar is not significantly impacted by the catastrophic
event, City shall nevertheless have the right, in its sole discretion, to terminate this
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Agreement by giving ten (10) days' notice, and may contract with another party for
Solid Waste Collection Services.
11.4.2 Labor Unrest
Labor unrest, including work stoppage or slowdown or sick-out conducted by
Contractor's employees or directed at Contractor is excused from performance only to
the extent that the following requirements are met;
• Contractor provides a contingency plan to the City prior to the execution of this
Agreement demonstrating how services will be provided. Plan is subject to City
Manager approval and Contractor shall amend plan until it meets City
requirements, including reasonably demonstrating how City's basic Collection and
sanitary needs will be met to the City's satisfaction.
• Contractor shall meet all requirements of this plan; if Contractor does not meet all
requirements, City may choose to revoke this excuse from performance offered
under this Agreement and may choose to use enforcement provisions under this
Agreement, including Sections 11.1, 11.2 and 11.3.
The party claiming excuse from performance shall, within two (2) days after such party
has notice of such cause, give the other party notice of the facts constituting such cause
and asserting its claim to excuse under this section.
The interruption or discontinuance of Contractor's services caused by labor -related
events excused under this Section 11.4.2 shall not constitute a default by Contractor
under this Agreement. Notwithstanding the foregoing, however, if Contractor is
excused from performing its obligations hereunder for any of the causes listed in this
section for a period of thirty (30) days or more, City shall nevertheless have the right, in
its sole discretion, to terminate this Agreement by giving ten (10) days' notice, and may
contract with another party for Solid Waste Collection Services.
11.5 Dispute Resolution
Except as may otherwise be set forth expressly herein, all disputes arising under this
Agreement shall be resolved as set forth in this section.
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11.5.1 Negotiation and Mediation
The Parties shall attempt in good faith to resolve any dispute arising out of or relating
to this Agreement promptly by negotiations between the Parties' authorized
representatives. The disputing Party shall give the other Parties written notice of any
dispute. Within five (5) days after delivery of such notice, the authorized
representatives shall meet at a mutually acceptable time and place, and thereafter as
often as they reasonably deem necessary to exchange information and to attempt to
resolve the dispute. If the matter has not been resolved within ten (10) days of the first
meeting, any Party may initiate a mediation of the dispute. The mediation shall be
facilitated by a mediator that is acceptable to all Parties and shall conclude within thirty
(30) days of its commencement, unless the Parties agree to extend the mediation process
beyond such deadline. Upon agreeing on a mediator, the Parties shall enter into a
written agreement for the mediation services with each Party paying a pro rata share of
the mediator's fee, if any. The mediation shall be conducted in accordance with the
Commercial Mediation Rules of the American Arbitration Association; provided,
however, that no consequential damages shall be awarded in any such proceeding and
each Party shall bear its own legal fees and expenses.
11.5.2 Confidentiality
All negotiations and any mediation conducted pursuant to this section shall be
confidential and shall be treated as compromise and settlement negotiations, to which
Section 1152 of the California Evidence Code shall apply, which Section is incorporated
in this Agreement by reference.
11.5.3 Injunctive Relief
Notwithstanding the foregoing provisions, a Party may seek a preliminary injunction or
other provisional judicial remedy if in its judgment such action is necessary to avoid
irreparable damage or to preserve the status quo.
11.5.4 Continuing Obligation
Each Party shall continue to perform its obligations under this Agreement pending final
resolution of any dispute arising out of or relating to this Agreement.
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11.5.5 Failure of Mediation
If after good faith efforts to mediate a dispute under the terms of this Agreement the
parties cannot agree to a resolution of the dispute, any party may pursue whatever legal
remedies may be available to it at law or in equity before a court of competent
jurisdiction and with venue in Los Angeles County.
11.6 Assurance of Performance
City may, at its option and in addition to all other remedies it may have, demand from
Contractor reasonable assurances of timely and proper performance of this Agreement,
in such form and substance as City may require. If Contractor fails or refuses to
provide satisfactory assurances of timely and proper performance in the form and by
the date required by City, such failure or refusal shall be an event of default.
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ARTICLE 12
OTHER AGREEMENTS OF THE PARTIES
12.1 Relationship of Parties
The Parties intend that Contractor shall perform the services required by this
Agreement as an independent contractor engaged by City and not as an officer or
employee of City nor as a partner of or joint venture with City. No employee or agent
or Contractor shall be or shall be deemed to be an employee or agent of City. Except as
expressly provided herein, Contractor shall have the exclusive control over the manner
and means of conducting the Solid Waste Collection Services performed under this
Agreement, and all Persons performing such services. Contractor shall be solely
responsible for the acts and omissions of its officers, employees, Affiliates, contractors,
subcontractors and agents. Neither Contractor nor its officers, employees, Affiliates,
contractors, subcontractors and agents shall obtain any rights to retirement benefits,
workers' compensation benefits, or any other benefits which accrue to City employees
by virtue of their employment with City.
12.2 Compliance with Law
In providing the services required under this Agreement, Contractor shall at all times,
at its sole cost, comply with all applicable laws and regulations of the United States, the
State of California, and any federal, state, regional or local administrative and
regulatory agencies, now in force and as they may be enacted, issued or amended.
12.3 Governing Law
This Agreement shall be governed by, and construed and enforced in accordance with,
the laws of the State of California.
12.4 Jurisdiction
Except for those matters where Federal Courts have exclusive jurisdiction, any lawsuits
between the Parties arising out of this Agreement shall be brought and concluded in the
courts of the State of California, which shall have exclusive jurisdiction over such
lawsuits.
July 13, 2009, DRAFT -95- City of Diamond Bar - Commercial
With respect to venue, the Parties agree that this Agreement is made in and will be
performed in Los Angeles County.
12.5 Assignment
Contractor shall not assign its rights, nor delegate, subcontract or otherwise transfer its
obligations under this Agreement (collectively referred to as an "assignment") to any
other Person without the prior written consent of City. Any such assignment made
without the consent of City shall be void and the attempted assignment shall constitute
a material breach of this Agreement.
For purposes of this section the term "assignment" shall be given the broadest possible
interpretation, and shall include, but not be limited to (i) a sale, exchange or other
transfer of substantially all of Contractor's assets dedicated to service under this
Agreement to a third party; (ii) a sale, exchange or other transfer of outstanding
common stock of Contractor to a third party provided said sale, exchange or transfer
may result in a change of control of Contractor; (iii) any dissolution, reorganization,
consolidation, merger, re -capitalization, stock issuance or re -issuance, voting trust,
pooling agreement, escrow arrangement, liquidation or other transaction which results
in a change of ownership or control of Contractor; (iv) any assignment by operation of
law, including those resulting from mergers or acquisitions by or of Contractor of any
of its Affiliates, insolvency or bankruptcy, making assignment for the benefit of
creditors, writ of attachment for an execution being levied against this Agreement,
appointment of a receiver taking possession of Contractor's property, or transfer
occurring in the event of a probate proceeding; and (v) any combination of the
foregoing (whether or not in related or contemporaneous transactions) which has the
effect of any such transfer or change of ownership, or change of control of Contractor.
Contractor acknowledges that this Agreement involved rendering a vital service to
City's residents and businesses, and that City has selected Contractor to perform the
services specified herein based on (1) Contractor's experience, skill and reputation for
conducting its Solid Waste Collection Services in a safe, effective and responsible
fashion, at all times in keeping with applicable Environmental Laws, regulations and
best Solid Waste management practices, and (2) Contractor's financial resources to
maintain the required equipment and to support its indemnity obligations to City under
this Agreement. City has relied on each of these factors, among others, in choosing
Contractor to perform the services to be rendered by Contractor under this Agreement.
July 13, 2009, DRAFT -96- City of Diamond Bar - Commercial
If Contractor requests City's consideration of and consent to an assignment, City may
deny or approve such request in its sole discretion. Any request for an assignment
must be approved by the City Manager in writing, and no request by Contractor for
consent to an assignment need be considered by City unless and until Contractor has
met (or with respect to matters that would only occur upon completion of the
assignment if approved, made reasonable assurances that it will meet) the following
requirements:
a) Contractor shall pay City its reasonable expenses for attorney's fees and
investigation costs necessary to investigate the suitability of any proposed
assignee, and to review and finalize any documentation required as a condition
for approving any such assignment. An advance payment towards expenses
may be requested by City prior to City consideration of any assignment request
and Contractor shall be responsible to pay all costs incurred by City in
considering a request for assignment, including those in excess of the aforesaid
deposit amount, regardless of whether City consents to the assignment.
b) Contractor shall pay the City a transfer fee equal to one percent (1%) of the Gross
Receipts it, or its assignee, will receive during the remaining term of the
Agreement at rates and service levels in effect at the time of the assignment, as
estimated by City.
c) Contractor shall furnish City with audited financial statements for itself, and the
proposed assignee's operations for the inunediately preceding three (3) operating
years.
d) A proforma financial statement (income statement and balance sheet) for the
proposed assignee with the projected results of operations assuming that the
assignment is completed. Such proforma financial statement shall reflect any
debt to be incurred by the assignee as part of the acquisition of Contractor's
operations.
e) Contractor shall furnish City with satisfactory proof: (i) that the proposed
assignee has at least ten (10) years of Solid Waste management experience on a
scale equal to or exceeding the scale of operations conducted by Contractor
under this Agreement; (ii) that in the last five (5) years, the proposed assignee
has not suffered any significant citations or other censure from any federal, state
July 13, 2009, DRAFT -97- City of Diamond Bar - Commercial
or local agency having jurisdiction over its Solid Waste management operations
due to any significant failure to comply with state, federal or local Environmental
Laws and that the assignee has provided City with a complete list of any such
citations and censures; (iii) that the proposed assignee has at all times conducted
its operations in an environmentally safe and conscientious fashion; (iv) that the
proposed assignee conducts its Solid Waste management practices in accordance
with sound Solid Waste management practices in full compliance with all
federal, state and local laws regulating the Collection and Disposal of Solid
Waste including Hazardous Substances; and, (v) of any other information
required by City to ensure the proposed assignee can fulfill the terms of this
Agreement in a timely, safe and effective manner.
Under no circumstances shall City be obliged to consider any proposed assignment by
City if Contractor is in default at any time during the period of consideration. Should
City consent to any assignment request, such assignment shall not take effect until all
conditions relating to City's approval have been met in accordance with Chapter 8.16 of
the Diamond Bar Municipal Code, as amended from time to time.
12.6 Contracting or Subcontracting
Contractor shall not engage any contractors or subcontractors for the Collection of Solid
Waste.
12.7 Binding on Assigns
The provisions of this Agreement shall inure to the benefit to and be binding on the
permitted assigns (if any) of the Parties.
12.8 Cooperation in Preparation for Termination or Expiration of Contract
Prior to, and at the end of the Term or in the event this Agreement is terminated for
cause prior to the end of the Term, Contractor shall cooperate fully with City and any
subsequent Solid Waste enterprise it designates to assure a smooth transition of Solid
Waste Collection Services. Contractor's cooperation shall include, but not be limited to,
providing route lists, Billing information and other operating records needed to service
all Premises covered by this Agreement. The failure to cooperate with City following
termination shall be conclusively presumed to be grounds for specific performance of
this covenant and/or other equitable relief necessary to enforce this covenant.
July 13, 2009, DRAFT -98- City of Diamond Bar - Commercial
Contractor shall provide a new service provider with all keys, security codes and
remote controls used to access garages and Bin enclosures. Contractor shall be
responsible for coordinating transfer immediately after Contractor's final pickups, so as
not to disrupt service. Contractor shall provide City with detailed route sheets
containing service names and addresses, Billing names and addresses, monthly rate and
service levels (number and size of Containers and pickup days) at least 90 days prior to
the transition date, and provide an updated list two weeks before the transition and a
final list of changes the day before the transition. Contractor shall provide means of
access to the new service provider at least one full business day prior to the first day of
Collection by another party, and always within sufficient time so as not to impede in
any way the new service provider from easily servicing all Containers.
12.9 Parties in Interest
Nothing in this Agreement, whether express or implied, is intended to confer any rights
on any Persons other than the Parties to it and their representatives, successors and
permitted assigns.
12.10 Waiver
The waiver by either party of any breach or violation of any provisions of this
Agreement shall not be deemed to be a waiver of any breach or violation of any other
provision nor of any subsequent breach of violation of the same or any other provision.
The subsequent acceptance by either Party of any moneys which become due hereunder
shall not be deemed to be a waiver of any pre-existing or concurrent breach or violation
by the other Party of any provision of this Agreement.
12.11 Contractor's Investigation
Contractor has made an independent investigation (satisfactory to Contractor) of the
conditions and circumstances surrounding the Agreement and the work to be
performed by it.
12.12 Section Deleted
July 13, 2009, DRAFT -99- City of Diamond Bar - Commercial
12.13 Notice
All notices, demands, requests, proposals, approvals, consents and other ,
communications which this Agreement requires, authorizes or contemplates, unless
otherwise specified in this Agreement, shall be in writing and shall either be personally
delivered to a representative of the Parties at the address below or be deposited in the
United States mail, first class postage prepaid, addressed as follows:
If to City:
City Manager
City of Diamond Bar
21825 Copley Drive
Diamond Bar, CA 91765
If to Contractor: David Perez
V.P. Operations
Valley Vista Services
17445 E. Railroad St.
City of Industry, CA 91748
The address to which conununications may be delivered may be changed from time to
time by a written notice given in accordance with this section.
Notice shall be deemed given on the day it is personally delivered or, if mailed, three
days from the date it is deposited in the mail.
This notice shall also be sent by e-mail to the City Manager.
12.14 Representatives of the Parties
All actions to be taken by City shall be taken by the City Council except as expressly
provided herein. The City Council may delegate authority to the City Manager, and/or
to other City employees and may permit such employees, in turn, to delegate some or
all of such authority to subordinate employees. Contractor may rely upon actions taken
by such delegates if they are within the scope of the authority so delegated to them.
Contractor shall, by the Effective Date, designate in writing a responsible officer who
shall serve as the representative of Contractor in all matters related to the Agreement
and shall inform City in writing of such designation and of any limitations upon his or
July 93, 2009, DRAFT -100- City of Diamond Bar - Commercial
her authority to bind Contractor. City may rely upon action taken by such designated
representative as actions of Contractor unless they are outside the scope of the authority
expressly delegated to him/her by Contractor as communicated to City.
12.15 City Free to Negotiate with Third Parties
City may investigate all options for the Collection, transporting, Recycling, processing
and Disposal of Solid Waste for periods during which this Agreement has expired or
been terminated. Without limiting the generality of the foregoing, City may solicit
proposals from Contractor and from third parties for the provision of Solid Waste
Collection Services which are the subject of this Agreement, including without
limitation Collection services, Disposal services, Recycling services, Green Waste
services and processing, and any combination thereof, and may negotiate and execute
agreements for such services which will take effect upon the expiration or earlier
termination of this Agreement pursuant to Section 11.2 or otherwise.
12.16 Compliance with Municipal Code
Contractor shall comply with those provisions of the municipal code of City which are
applicable, and with any and all amendments to such applicable provisions during the
term of this Agreement.
12.17 Privacy
Contractor shall strictly observe and protect the rights of privacy of Customers.
Information identifying individual Customers or the composition or contents of a
Customer's waste stream shall not be revealed to any Person, governmental unit,
private agency, or company, unless upon the authority of a court of law, by statute, or
upon valid authorization of the Customer. This provision shall not be construed to
preclude Contractor from preparing, participating in, or assisting in the preparation of
waste characterization studies or waste stream analyses which may be required by AB
939. This provision shall not apply to reports or records provided to City pursuant to
this Agreement.
12.18 Proprietary Information, Public Records
The City acknowledges that a number of the records and reports of Contractor are
proprietary and confidential. Contractor is obligated to permit City inspection of its
July 13, 2009, DRAFT -101- City of Diamond Bar - Commercial
records on demand and to provide copies to City where requested. City will endeavor
to maintain the confidentiality of all proprietary information provided by Contractor.
Notwithstanding the foregoing, any documents provided by Contractor to City that are
public records may be disclosed pursuant to the California Public Records Act.
July 93, 2009, DRAFT -102- City of Diamond Bar - Commercial
13.1
13.2
13.3
13.4
13.5
ARTICLE 13
MISCELLANEOUS PROVISIONS
Entire Agreement
This Agreement contains the entire integrated agreement and understanding
concerning the subject matter herein and supersedes and replaces any prior
negotiations, promises, proposals (including Contractor's Proposal), and agreements
between the Parties, whether written or oral. The Parties acknowledges this document
has been executed with the consent and upon the advice of counsel. Each of the Parties
acknowledges that no Party or agent or attorney of any other party has made any
promise, representation, or warranty, express or implied, not contained in this
Agreement, to induce the other Party to execute this instrument.
Section Headings
The article headings and section headings in this Agreement are for convenience of
reference only and are not intended to be used in the construction of this Agreement
nor to alter or affect any of its provisions.
References to Laws and Other Agreements
All references in this Agreement to laws shall be understood to include such laws as
they may be subsequently amended or recodified, unless otherwise specifically
provided.
Interpretation
This Agreement, including the Exhibits attached hereto, shall be interpreted and
construed reasonably and neither for nor against either Party, regardless of the degree
to which either Party participated in its drafting.
Agreement
This Agreement may not be modified or amended in any respect except by a writing
signed by the Parties.
July 13, 2009, DRAFT -103- City of Diamond Bar - Commercial
13.6 Severability
Invalidation of any of the provisions contained in this Agreement, or of the application
thereof to any person, by judgment or court order, shall in no way affect any of the
other provisions hereof or the application thereof to any other person or circumstance,
and that same shall remain in full force and effect, unless enforcement of this
Agreement, as so invalidated, would be unreasonable or inequitable under all the
circumstances or would frustrate the purposes of this Agreement and/or the rights and
obligations of the parties hereto.
13.7 Exhibits
Each of Exhibits identified as Exhibit "1" through "6" is attached hereto and
incorporated herein and made a part hereof by this reference.
13.8 Attorneys' Fees
If either Party to this Agreement is required to initiate or defend or made a party to any
action or proceeding between the Parties in any way connected with this Agreement,
the prevailing Party in such action or proceeding, in addition to any other relief which
may be granted, whether legal or equitable, shall be entitled to recover its reasonable
attorney's fees and costs from the opposing Party. Attorneys' fees shall include
attorney's fees on any appeal. A Party entitled to attorney's fees shall be entitled to all
other reasonable costs for investigating such action, taking depositions and discovery,
expert fees, and all other necessary costs the court allows which are incurred in such
litigation. All such fees shall be deemed to have accrued on commencement of such
action.
July 13, 2009, DRAFT -104- City of Diamond Bar - Commercial
IN WITNESS WHEREOF, City and Contractor have executed this Agreement as of the day and
year first above written.
CITY OF DIAMOND BAR
('Vity")
DATED:
CITY OF DIAMOND BAR
By:
City Manager
Approved as to form:
By:
City Attorney
ATTEST:
City Clerk
DATED:
CON-1t)ANY
By: ( '
NAME'
— V
TITLE
_-V oI (S-Cok lav �C
NAME, OF (!OMPANY
T.
ADDRESS
-- �-c 2J.0 —
TELEPHONE
July 13, 2009, DRAFT -105- City of Diamond Bar - Commercial
EXHIBIT 1
PUBLIC EDUCATION PLAN
(to be attached after City approval per Section 5.3.2)
July 93, 2009, DRAFT City of Diamond Bar - Commercial
EXHIBIT 2
INITIAL MAXIMUM RATES (1)
Following are the rates for August 16, 2010 through June 30, 2011:
Monthly Collection Rates
Container
Size
Pickups per week
1
2
3
4
5
6
Extra
Empty
1.5 Cubic Yard
$87.08
$143.11
extra bin (2)
$78.38
$128.79
2 Cubic Yard
$99.72
172.90
$236.39
$305.89
$379.09
$442.57
$38.07
extra bin (2)
$89.75
$155.61
$212.75
$275.30
$341.18
$398.31
3 Cubic Yard
$123.47
$204.69
$287.42
$373.15
$457.38
$558.22
$44.09
extra bin (2)
$111.12
$184.22
$258.68
$335.84
$411.64
$502.40
4 Cubic Yard
$156.31
$251.57
$349.02
$497.08
$594.51
$722.15
$50.13
extra bin (2)
$140.68
$226.41
$314.11
$447.37
$535.06
$649.94
6 Cubic Yard
$186.59
$308.24
$431.44
$627.07
$748.73
$904.48
$58.23
extra bin (2)
$167.93
$277.42
$388.30
$564.36
$673.85
$814.03
Recycling - 96 gal.
$16.30
Recycling - 1.5 yd.
$37.05
$59.01
Recycling - 2 yd.
$42.54
$71.33
$94.67
$122.11
$150.94
$175.61
Recycling - 3 yd.
$61.74
$95.18
$132.86
$172.05
$210.50
$257.32
Scout Service (3)
$62.42
$148.71
$223.07
$297.42
$371.78
$446.13
(1) Including all fees retained by, or paid to, City.
(2) Customers with more than one bin are charged a lower rate for additional bins.
(3) Scout service rates may be charged in addition to collection rates, in accordance with Section 4.1.12 of the
collection agreement, on a per container basis.
July 13, 2009, DRAFT 2 - 1 City of Diamond Bar - Commercial
EXHIBIT 2
INITIAL MAXIMUM RATES (1) (continued)
Following are the rates for. August 16, 2010 through Tune 30, 2011:
Bin Charges
Rate
Temporary Bin - 3 cubic yard
$124.19/pull
Temporary Bin - 6 cubic yard
$153.36/pull
Bin Cleaning (over one per year)
$50.00
Locking Bin, per bin per month
$10.83
Redelivery/ Return Trip Fee
$96.75
Roll -off Box Charges
Rate
Standard Roll -Off Box - Rate per pull (including container rental)
12 to 16 yard
$203.45
25 to 30 yard
$195.58
40 to 45 yard
$189.33
Compactor Roll -Off Box - Rate per pull (excluding compactor rental)
30 yard
$302.37
40 yard
$337.68
Container Rental Fee - for use in Excess of 7 days without being
serviced
$24.18/day
Processing Per Ton
$66.76
Temporary Roll -Off Box, 40 yard - rate includes container
rental, pull and disposal up to 6 tons
$550.54
Temporary Roll -Off Box, Low Boy - rate includes container rental, pull,
and disposal up to 6 tons
$583.98
Roll -Off Box Cleaning (above one per year)
$109.81
Redelivery/Return Trip Fee/ Dry runs - roll -off box
$142.19
Additional Service Charges
Rate Per Service
Multi -Family Bulky Item Pickup - each pickup above four per
year of up to four items
$30.00per item
Emergency Service Rates - one crew and one collection truck
$85.00/hour
(1) Including all fees retained by, or paid to, City.
July 13, 2009, DRAFT 2-2 City of Diamond Bar - Commercial
EXHIBIT 3A
EXAMPLE RATE ADJUSTMENT FORMULA
Bin, Temporary Service and Other Service Rates
Step One: Calculate percentage change in indices
Row Adjustment Factor Index
Old iudex V alue
New Index Value
Percent Change In
Index ((Column W
Column A) -1)
1
Labor
(1)
1810
1865
3 01A
2
Fuel
(2)
2169
2355
86%
3
Equipment
(3)
1192
1300
91%
5
Dis osa]
(4) $
22 00
$ 22 00
0 0
6
All Other
(5)
205709
220000
1 6.9%
Step Two: Determine components
Row Adjustment Factor Index
Cost Component
Weighted as a 70 of
percent Change In Index
Total Weighted Change
Total Weighted Rate Increase or
Change (Row Decrease (Column G x
13, Column F) Column H)
Component Total (7)
(from Column C)
7 Labor Index
257%
30% OS%
8 Fuel (1)
66%
86% 06%
9 rrnrr
15
3 Yd Bin 2x week
11
I
3 1 %
12 I
783
4.
_ _
13 •I I -
Temp. 45-vd roll -off
$
Step Three: Apply percentage change to rates
Row
Rate Category (8)
Existing Customer Rate Percentage
Total Weighted Rate Increase or
Change (Row Decrease (Column G x
13, Column F) Column H)
Adjusted Rate
(Col umnss + Column I)
14
3 Yd Bin, lx week
$
94.68
3.11A
$
4.83
$ 9951
15
3 Yd Bin 2x week
$
15362
3 1 %
$
783
$ 16145
16
Temp. 45-vd roll -off
$
48500
51%
$
2474
$ 50974
17
Temp 3-vd bin
$
110.10
51%
$
562
$ 11572
18
lExtra Empty - 3 yd
$
3668
5 1 %
$
187
$ 3855
19
Bin Clearing
$
9228
51%
$
471
$ 96W
Step Four. Re -weight cost components
Row Adjustment Factor Index
Cost Component
Weighting (Column D)
Percent Change as
Applied to Rate
Adjustment (Column E)
Increase in Cost Cost Component
Components (Column K Increased (Column K +
x Column L) Column M)
Cost Components
Reweighted to Equal
100
21
ILabor
Index
257%
3 0%
08%
265%
252%
22
Fuel
(1)
66%
86%
06%
72%
69%
23
Equipment
(2)
204%
91%
1.9%
223%
212%
25
Disposal
(3)
210%
00%
00%
210%
20011,
26
All Other
(4)
263%
69%
18%
2810/
267%
27
Total
(5)
1000%
105 1 %
100.0%
(1) Driver A/B rate from Agreement between local haulers and Package and General Utility Drivers Local Union 396, International Brotherhood of Teamsters
(2) Producer Price Index, W PU 0531 not seasonally adjusted, Fuels and related products and power, natural gas - average annual change
(3) Producer Price Index, PCU336120336120, Heavy duty truck manufacturing - average annual change
(4) Gate rate at Approved Disposal Site
(5) Consumer Price Index for All Urban Consumers (CUURA42JSAOLI E), all items less food and energy index - Los Angeles -Riverside -Orange County - average
annualchange
(6) First rate adjustment based on actual costs After the first rate adjustment, this column comes from Column O of the previous year's rate adjustment worksheet
(7) First year weightings to come from actual contractor costs for the 12 -month period ended December 31, 2010 Subsequent years' Weightings will come from
Column O of the previous year
(8) Example rates listed below Adjustment applies to all applicable rate categories
July 13, 2009, DRAFT 3-1 City of Diamond Bar - Commercial
EXHIBIT 3B
EXAMPLE RATE ADJUSTMENT FORMULA
Permanent Roll -Off Box Rate Adjustment
SNOW Cdaratepercedggecharvinindioss
Row
AdjudmereFedor
Inter
Old IndwValue
NerInow Value
Cdurm Chsngelncalur
((Cklunn B/ Column
A)-1)
1
Service Componern(PWI Rate)
17208
7 9%
$ 1359
$ 18567
2
Labor
(1)
1613
1695
51%
3
Fuel
(2)
562
868
544%
4
Equpmert
(3)
1000
1030
30%
5
1 All Other
(4)
1767
1809
24%
6
1 Di sposa/Process rig
(4)
1767
1809
24%
31epTwa Daterminec rnpmeds
Row
AdjustnredFedor
Inter
Cod Fedor Category
WeIghtedasa%d
Toted (6)
Chelge In I ndec
(from Stop Onq Column C)
Total WeightedChelge
7
SeviceComponent (Pull Rate)
17208
7 9%
$ 1359
$ 18567
8
L
1 (1)
325%
51%
17%
9
Fuel
2)
84%
544%
460/.
10
Equpfr>ent
(3)
258%
30°/a
08%
56
$ 306.17
18
40 -yd Compactor Rolloff
$
25574
790/
Ya 14
$ 27594
19
Per Ton Disposi/ProcesaW
$
13
Dispose/ftcessmg
1 (4)
1000%
240K
24%
Step Three Apply percentage dwV to rases
Row
RateCategory (7)
Curred Customer Rate
Total Wd¢ded Peroedage Rate Irxreaseor Decrease
Ghelge(Iram Cdwrn F) (Column 0 x Odurm H)
Adjusted Rete
(Column G+Column l)
14
16 -yd Roll off Box
$
17208
7 9%
$ 1359
$ 18567
15 30 -yd Rolloff Box
$
18542
79%
$ 1307
$ 17849
16
45 -yd Rolloff Box
$
16014
790/
$ 1265
$ 17279
17
30 -yd Cortpactor Rd loll
258%
08%
02%
56
$ 306.17
18
40 -yd Compactor Rolloff
$
25574
790/
$ 2020
$ 27594
19
Per Ton Disposi/ProcesaW
$
4146
24%
$ 100
$ 4246
Stop Farr: Re-welIttit cod TM2DVs
Rau
AdjtlimeMFector
Instar
Cost Corrlponent
(CdA D)
PrrcentChangeasApplied
toRateAdjtlatmed
(Column E)
IntreasalnCod
Conponelts(ColurmKx
Column L)
tiporantInessed
Cad Carriporant rr
un
(Cdn K + CdrmuM)
Cost Components
ReAdghted to Equal 100%
20
Labor
(1)
325%
17%
060/
331%
326%
21
Fuel
(2)
84%
46%
04%
88%
87%
22
Equpment
(3)
258%
08%
02%
260%
256%
23
All Other
(4)
333%080/0
03%
a6_0/0
331%
24 Totel
1000%
1015%
W00%
(1) Dnver A/B rate from Agreement between local haulers and Package and General Uhhty Drivers Local Union 396, International Brotherhood of Teamsters
(2) Producer Price Index, WPU 0531 not seasonally adjusted, Fuels and related products and power, natural gas - average annual change
(3) Producer Price Index, PCU336120336120, Heavy duty truck manufacturing - average annual change
(4) Consumer Price Index for All Urban Consumers (CUUROOOOSAOLIE), all rteme less food and energy index - U S. city average - average annual change
(5) Consumer Price Index for All Urban Consumers (CUURA421SAOLIE), all items less food and energy index -Los Angeles -Riverside -Orange County -average annual change
(6) First year weightings to come from actual contractor costs for the 12 -month period ended December 31, 2010 Subsequent years' weighnngs will come from Column O of the
previous year
(7) Example rates listed below Adjustment applies to all applicable rate categories
July 13, 2009, DRAFT 3-2 City of Diamond Bar - Commercial
EXHIBIT 4
[Section Deleted]
Ju/y 13, 2009, DRAFT 4 - 1 City of Diamond Bar - Commercial
EXHIBIT 5
Contractor's Faithful Performance Bond
KNOW ALL MEN BY THESE PRESENTS:
That , a California , as PRINCIPAL, and
a Corporation organized and doing business by
virtue of the laws of the State of California, and duly licensed for the purpose of
making, guaranteeing, or becoming sole surety upon bonds or undertakings required or
authorized by the laws of the State of California, as SURETY, are held and firmly bound
to City, hereinafter called OBLIGEE, in the penal sum of one hundred twenty five
thousand dollars ($125,000) lawful money of the United States, for the payment of
which, well and truly to be made, we and each of us hereby bind ourselves, and our
and each of our heirs, executors, administrators, successors, and assigns, jointly and
severally, firmly by these presents.
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH THAT:
WHEREAS, the above bounden PRINCIPAL has entered into a contract, entitled
"RESIDENTIAL SOLID WASTE MANAGEMENT SERVICES" with City, to do and
perform the following work, to wit: Collect, Process and dispose of Solid Waste
generated within City, in accordance with the contract.
NOW, THEREFORE, if the above bounden PRINCIPAL shall well and truly perform, or
cause to be performed each and all of the requirements and obligations of said contract
to be performed by said PRINCIPAL, as in said contract set forth, then this BOND shall
be null and void; otherwise it will remain in full force and effect.
And the said Surety, for value received hereby stipulates and agrees that no change,
extension of time, alteration or addition to the terms of the contract or to the work to be
performed thereunder or the specifications accompanying the same shall in any wise
affect its obligations on this BOND, and it does hereby waive notice of any such change,
extension of time, alteration or addition to the terms of the contract or to the work or to
the specifications.
July 93, 2009, DRAFT 5 - 1 City of Diamond Bar - Commercial
In the event suit is brought by OBLIGEE to enforce the provisions of this bond, said
Surety will pay to OBLIGEE a reasonable attorney's fee, plus costs of suit, in an amount
to be fixed by the court.
IN WITNESS WHEREOF, said PRINCIPAL and said SURETY have caused these presents to be
duly signed and sealed this DAY OF
a California Corporation
0
(PRINCIPAL)
(SEAL)
By:
200_.
SURETY
(ATTORNEY IN FACT)
(SEAL)
July 13, 2009, DRAFT 5 - 2 City of Diamond Bar - Commercial
EXHIBIT 6
NOTARY CERTIFICATION
ACKNOWLEDGMENT
State of California
County of )
On before me,
(insert name and title of the officer)
personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
July 93, 2009, DRAFT City of Diamond Bar - Commercial
EXHIBIT 6
NOTARY CERTIFICATION
ACKNOWLEDGMENT
State of California
County of )
On before me,
(insert name and title of the officer)
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
July 13, 2009, DRAFT City of Diamond Bar - Commercial
T 3
CITY OF DIAMOND BAR
Results of Commercial Solid Waste
Contract Negotiations
City Council
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Commercial Contract Overview
• Scope -
- Regular/weekly bin and roll -off services for
commercial and multi -family customers
- Temporary container services for regularly
scheduled bin/roll-off customers
• Term — 8 years, beginning 8/16/10
• Term Extension — 12 months at City's option
Key Commercial Contract Enhancements
• Processing of all refuse to recover
I, recyclables prior to landfilling
• Alternative fuel vehicles within 12 months
• 25% minimum diversion required
(currently at 8.5%)
• 75% minimum C&D diversion required
•Rate Adjustment Method —Based on
price indices for labor, fuel, equipment,
disposal and other cost components
i Valley Vista will provide the following
i, payments to the City:
• Franchise Payment — 5% of gross receipts
• Waste Diversion Program (AB 939) Payment - 13%
of gross receipts
• Total fees estimated to generate $429,000/year vs.
$220,000/year in current agreement. Payments will
supplement the costs of programs such as:
- Law Enforcement Contract
- Storm Drain Cleaning Program
- Parks & Recreation Programs
- Street Sweeping Program
- Road Maintenance Program
Commercial Customer Rates
Including all City fees
Commercial Rate
Current
Proposed
Per Month
7-1-09
8-16-10
Increase
3 yard bin, 1 x week
$ 108.89
$ 123.47
$ 14.58
3 yard bin, 2x week
$ 179.40
$ 204.69
$ 25.29
F1
Commercial Rates in Other Cities
City
Monthly
Customer Rate
Walnut
$106.92
Diamond Bar - Current Rate
$108.89
Asuza
$110.29
Diamond Bar - Proposed 8116110
$123.47
San Dimas
$134.94
Covina
$139.98
Baldwin Park
$157.29
West Covina
$161.10
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VOLUNTARY REQUEST TO ADDRESS THE CITY COUNCIL
TO: CITY CLERK
FROM: ' 1 i l'i � ti 11 DATE:
ADDRESS: PHONE..q,J 2 -3 �% 7
ORGANIZATION:
AGENDA#/SUBJECT:
I expect to address the Council on the subject agenda/subject item. Please have the Council Minutes
reflect my name and address as written above.
Sign t
This document is a public record subject to disclosure under the Public Records Act.