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Home My WebLink About_ Contract - Valley Vista Services, Inc. - Solid Waste - 2017.pdfAMENDED AND RESTATED AGREEMENT BETWEEN CITY OF DIAMOND BAR AND VALLEY VISTA SERVICES FOR BIN AND ROLL -OFF BOX CUSTOMER SOLID WASTE MANAGEMENT SERVICES February 15, 2017 AGREEMENT BETWEEN CITY OF DIAMOND BAR AND VALLEY VISTA SERVICES FOR BIN AND ROLL -OFF BOX SOLID WASTE MANAGEMENT SERVICES TABLE OF CONTENTS RECITALS Page 11 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........................................................................................................................................................................4 1.8 CITY.......................................................................................................................................................................... 5 1.9 COLLECT/COLLECTION...........................................................................................................................................5 1.10 COMMERCIAL SERVICES...................................................................................................................................... 5 1.11 COMMERCIAL PREMISES..................................................................................................................................... 5 1.12 CONTRACTOR......................................................................................................................................................5 1.13 CONTRACTOR COMPENSATION .................................. ....... 5 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...........................................................................................................................................................6 1.21 ENVIRONMENTAL LAWS.....................................................................................................................................7 1.22 FACILITY..............................................................................................................................................................7 1.23 FOOD WASTE ................ -....................................................... 7 1.24 GREEN WASTE..................................................................................................................................................... 7 1.25 GREEN WASTE PROCESSING FACILITY............................................................................................................... 8 1.26 GROSS RECEIPTS..................................................................................................................................................8 1.27 HAZARDOUS SUBSTANCE................................................................................................................................... 8 1.28 HAZARDOUS WASTE ............................................. ....................................................... 9 1.29 IOUSEHOLD HAZARDOUS WASTE ("HHW")............ ........................................ 9 1.30 MATERIALS RECOVERY FACILITY („MRF")....................................................................................................... 9 1.31 MULTI-FAMILYDWELLING.............................................. 9 February 15, 2017 i City of Diamond Bar - Commercial 1.32 ORGANIC WASTE................................................................................................................................................9 1.33 ORGANIC WASTE PROCESSING FACILITY. ........................ ................. ............................................................... 9 1.34 PERSON..............................................................................................................................................................10 1.35 PREMISES........................................................................................................................................................... 10 1.36 RATE YEAR........................................................................................................................................................ 10 1.37 RECYCLING........................................................................................................................................................10 1.38 RECYCLABLE MATERIALS........................................................._...................................................................... 10 1.39 REFUSE...............................................................................................................................................................10 1.40 RESIDENTIAL SERVICES..................................................................................................................................... 10 1.41 RESIDENTIAL CUSTOMERS................................................................................................................................ 11 1.42 RESIDENTIAL PREMISES..............................................................................................................._.........._........ 11 1.43 ROLL-oFF Box................................................................................................................................................... 11 1.44 SINGLE FAMILY DWELLING.............................................................................................................................Al 1.45 SOLID WASTE.................................................................................................................................................... 11 1.46 SOLID WASTE COLLECTION SERVICES.............................................................................................................. 12 1.47 SOURCE SEPARATED.......................................................................................................................................... 12 1.48 STATE.................................................................................................................................................................12 1.49 TEMPORARY SERVICE........................................................................................................................................ 12 1.50 TRANSFORMATION............................................................................................................................................ 12 1.51 TRANSFER STATION.......................................................................................................................................... 12 1.52 WASTE GENERATOR.......................................................................................................................................... 13 ARTICLE2...............................................................................................................................................14 GRANT AND ACCEPTANCE OF FRANCHISE............................................................................................................14 2.1 GRANT AND ACCEPTANCE OF FRANCHISE, INDEMNITY OF AWARD................................................................... 14 2.2 SECTION DELETED................................................................................................................................................. 14 2.3 EFFECTIVE DATE.................................................................................................................................................... 14 2.4 TERM OF AGREEMENT........................................................................................................................................... 14 2.5 CITY'S OPTION To EXTEND TERM......................................................................................................................... 15 2.6 REPRESENTATIONS AND WARRANTIES OF CONTRACTOR.................................................................................... 15 2.7 CONDITIONS TO EFFECTIVENESS OF AGREEMENT................................................................................................ 17 2.8 DELEGATION OF AUTHORITY................................................................................................................................ 17 2.9 LIMITATIONS TO SCOPE......................................................................................................................................... 18 2.10 CITY'S RIGHT TO DIRECT CHANGES................................................................................................................. 20 2.10.1 General.....................................................................................................................................................20 2.10.2 New Diversion Programs.....................:................................................................................................... 20 2.11 OWNERSHIP OF SOLID WASTE.......................................................................................................................... 21 2.12 PERMITS AND LICENSES.................................................................................................................................... 21 ARTICLE3...............................................................................................................................................23 FEESPAID TO THE CITY...................................................................................................................................................23 3.1 CONTRACTING FEE................................................................................................................................................ 23 3.2 OTHER CITY FEES................................................................................................................................................... 23 3.2.1 Franchise Fee................................................................................................................................................ 23 3.22 AB 939 Fee.................................................................................................................................................... 23 3.2.3 Environmental Education Fee...................................................................................................................... 24 3.2.4 Section Deleted .............................................................................................................................................24 3.2.5 Late Payment of Fees.................................................................................................................................... 24 3.3 FUTURE FEES.......................................................................................................................................................... 24 ARTICLE 4 ............. DIRECT SE R'vICES... 25 2 - February 15, 2017 ii City Of Diamond Bar - Commercial 4.1 REFUSE . ............... ................................................................................................................................................... 25 4.1.1 General..........................................................................................................................................................25 4.1.2 Section Deleted............................................................................................................................................. 25 4.1.3 Section Deleted.............................................................................................................................................25 4.1.4 Section Deleted............................................................................................................................................. 25 4.1.5 Section Deleted............................................................................................................................................. 25 4.1.6 Bin Refuse Collection ......................................... ........ ___ ..... ................ ......... ........ ...................................... 25 4.1.7 Determination of Service Type...................-................................................................................................ 26 4.1.8 Overflowing Containers...............................................................................................................................26 4.1.9 Pernnanent Roll -off Box Service.................................................................................................................... 27 4.1.10 Temporary Bin and Temporary Roll -Off Box Service ........ .................. -............... .................. 27 4.1.11 Bin Pushout Service................................................................................................................................. 28 4.1.12 Scout Service, ........................................................................................................................................... 28 4.1.13 Locking Bins................................................... ........................ -...... ............. .................. .............. 28 4.1.14 Redelivery/Return Trip Fee...................................................................................................................... 28 4.1.15 On -Cali Bulky Item Pickup..................................................................................................................... 29 4.1.16 Bulky Real Diversion............................................................................................................................... 29 4.1.17 Disposal of Electronic and Other Special Wastes................................................._......._......................- 30 4.1.18 Door-to-DoorHHW Collection...............................................................................................................30 4.1.19 SECTION DELETED............................................................................................................................................. 30 4.1.20 Service Exceptions Hazardous Waste Notifications ............................................................................... 30 4.2 RECYCLING ............................ ............................... .................................................................................................. 31 4.2.1 Recyclables Collection .......................................... ................................ ................................. ...... 31 4.2.2 Processing of Solid Waste............................................................................................................................. 32 4.2.3 Section Deleted...................................................................................-........................................................32 4.2.4 Marketing and Sale of Recyclable Materials..._........................................................................._................. 32 4.2.5 Minimum Diversion Requirements.............................................................................................................. 32 4.2.6 Construction and Demolition Debris Diversion........................................................................................... 33 4.2.7 Organic Waste Collection Set -vices.. . ..................................................... ................. ................... 33 4.2.8 Section Deleted............................................................................................................................................. 34 4.3 GREEN WASTE PROGRAM... ........ .... . .... ........................................................................................................... 34 4.3.1 Holiday Tree Collection Program................................................................................................................. 34 4.3.2 Roll -Off Green Waste................................................................................................................................... 34 4.3.3 End Uses for Green Waste............................................................................................................................ 34 4.4 SECTION DELETED .............................................. .... -............. ........................... ............. ........................................ 35 4.5 CITY SERvicEs............. ........ _................................................................................................................................. 35 4.5.1 Ciftj Facilities Collection............................................................................................................................... 35 4.5.2 City Sponsored Events.................................................................................................................................. 35 4.5.3 Emergency Collection and Disposal Service...............................................................................................- 36 4.5.4 Abandoned Item Collection frons City Right -of -Way or Other Public Property .......................................... 36 4.5.5 Commnunity Development Review Services-... ..................................... ....... ............ ......... __ 36 4.5.6 Large Venue Event Assistance, Event Recycling......................................................................................... 36 4.5.7 Confiscation of Unauthorized Containers.................................................................................................... 36 4.5.8 Provision of Storage Containers .............................................................. ..................................................... 37 4.6 OPERATIONS 37 4.6.1 Schedules Missed Pickups........................................................................................................................... 37 4.6.2 Vehicles.........................................................................................................................................................38 4.6.3 Containers.....................................................................................................................................................42 4.6.3.1 Carts.........................................................................................................................................................42 4.6.3.2 Cart Maintenance and Replacement Responsibilities .......................... ............................................. 43 4.6.3.3 Bilns..........................................................................................................................................................43 4.6.3.4 Roll -off Boxes...........................................................................................................................................44 4.6.4 Litter Abatement........................................................................................................................................... 44 February 15, 2017 iii City of Diamond Sar - Colmnercial 4.6.5 Personnel.......................................................................................................................................................45 4.6.6 Identification Required .............................. ..... -............................................................................................ 46 4.6.7 Unauthorized Fees and Gratuities... ................................................................................. 46 4.6.8 Non-Discrimination.....................................................................................................................................46 4.6.9 Report ofAecunrulation of Solid Waste; Unauthorized Dumping... ............... _ 47 4.7 TRANSPORTATION OF SOLID WASTE..................................................................................................................... 47 4.8 APPROVED FACILITIES........................................................................................................................................... 47 4.9 STATUS OF DISPOSAL SITE..................................................................................................................................... 48 4.10 DEDICATED ROUTES......................................................................................................................................... 48 4.11 RoUTEAuDIT....................................................................................................................................................48 ARTICLE5...............................................................................................................................................50 OTHERSERVICES...............................................................................................................................................................50 5.1 CUSTOMER BILLING AND CONTRACTOR COMPENSATION................................................................................... 50 5.1.1 Billing...........................................................................................................................................................50 5.1.2 Contractor's Invoices.................................................................................................................................... 50 5.1.3 Section Deleted.............................................................................................................................................50 5.1.4 Section Deleted.............................................................................................................................................50 5.1.5 Section Deleted............................................................................................................................................. 50 5.1.6 Nott -Payment; Collections; Suspension of Service....................................................................................... 50 5.2 CUSTOMER SERVICE............................................................................................................................................... 51 5.2.1 Local Office ...................................................................................................................................................51 5.2.2 Complaint Documentation...........................................................................................................................51 5.2.3 Customer Service Standards......................................................................................................................... 52 5.2.4 Resolution of Customer Complaints ............................................... ................... 53 5.2.5 Contract Liaison...........................................................................................................................................54 5.2.6 Service Liaison.............................................................................................................................................. 54 5.3 EDUCATION AND PUBLIC AWARENESS................................................................................................................. 54 5.3.1 General..........................................................................................................................................................54 5.3.2 Implementation and On-going Education Requirements............................................................................. 54 5.3.3 Contractor Representative............................................................................................................................56 5.3.4 Community Events....................................................................................................................................... 56 5.4 WASTE GENERAHoN/CHARACTERIZATION STUDIES......................................................................................... 57 ARTICLE6...............................................................................................................................................58 COMPANYCOMPENSATION AND RATES................................................................................................................. 58 6.1 GENERAL ....... ....................................................................... .................................................................................. 58 6.2 INITIAL RATES........................................................................................................................................................ 58 6.3 SCHEDULE OF FUTURE ADJUSTMENTS.................................................................................................................. 58 6.4 METHOD OF ADJUSTMENTS.................................................................................................................................1.59 6.4.1 General........................................................... -........... ........ ........ ...... ......................... 59 6.4.2 Cost Components for Rate Adjustment Indices............................................................................................ 59 6.4.3 Rate Adjustment Steps for Bin, Temporary and Other Services.................................................................. 60 6.4.4 Rate Adjustment Steps for Pull Plass Dump Roll -Off Rates........................................................................ 61 6.5 EXTRAORDINARY ADJUSTMENTS........................................................................................................................... 62 6.6 EFFECT OF RATE CHALLENGE............................................................................................................................... 63 ARTICLE7.............................................................................................................................................................................. 64 REVIEWOF SERVICES AND PERFORMANCE............................................................................................................64 7.1 PERFORMANCE REVIEW MEETING........................................................................................................................ 64 72 PERFORMANCE SATISFACTION SURVEY ........ ............................................. ............................ 65 ARTICLE &...... u....... February 15, 2017 iv City of Diamoud Bar - Commercial RECORDS, REPORTS AND INFORMATION REQUIREMENTS............................................................................. 66 8.1 GENERAL................................................................................................................................................................ 66 8.2 RECORDS .................................................. ........ --.................................... ........ ........... ........................................... 66 8.2.1 General..........................................................................................................................................................66 11.3 LIQUIDATED DAMAGES.................................................................................................................................... 8.2.2 Financial Records.......................................................................................................................................... 67 8.2.3 Solid Waste Records......................................................................................................................................67 11.4.1 Force Majeure...................... ........... ............. .................. .......................... ................................................ 8.2.4 CERCLA Defense Records ........................... :................................................................................................ 68 8.2.5 Section Deleted .... ...... -..... -....... ........ ......................... ...... --....... ...................... ........................................... 69 8.2.6 Other Programs' Records.............................................................................................................................69 11.5.1 Negotiation and Mediation......................................................................................................................95 8.2.7 Audit.............................................................................................................................................................69 11.5.2 Confidentiality.........................................................................................................................................96 8.2.8 Payments and Refunds................................................................................................................................. 69 8.3 REPORTS.................................................................................................................................................................70 11.5.4 Continuing Obligation... ................. ........... ................. ...................... ................................................... 8.3.1 Report Formats and Schedule....................................................................................................................... 70 8.3.2 Monthly/Quarterly Reports..........................................................................................................................70 11.6 ASSURANCE OF PERFORMANCE............................................................ .......... ............. ..................................... 8.3.3 Annual Report.. ............................. ....... ................................ .............. - ............... — ............ 71 8.3.4 Financial Report...........................................................................................................................................72 8.4 REPORTING ADVERSE INFORMATION.................................................................................................................... 72 8.5 FAILURE TO REPORT ..................... --............... .................... .......... -... ............. ..................................................... 73 ARTICLE9...............................................................................................................................................74 INDEMNIFICATION, INSURANCE, BOND AND LETTER OF CREDIT............................................................... 74 9.1 INDEMNIFICATION................................................................................................................................................. 74 9.2 HAZARDOUS SUBSTANCES INDEMNIFICATION..................................................................................................... 75 9.3 AB 939 INDEMNIFICATION AND GUARANTEE............................................................ -........................................ 77 9.4 INSURANCE............................................................................................................................................................ 77 9.5 FAITHFUL PERFORMANCE BOND..................................................................................................-....................... 81 9.6 FAITHFUL PERFORMANCE LETTER OF CREDIT...................................................................................................... 81 9.7 FORFEITURE OF PERFORMANCE BOND.................................................................................................................. 82 9.8 FORFEITURE OF LETTER OF CREDIT OR DEPOSIT.................................................................................................. 83 9.9 PERFORMANCE SECURITY BEYOND SERVICE TERM - ............ .......... ............ -......... ............................................... 83 ARTICLE10.............................................................................................................................................84 CITY'S RIGHT TO CONTRACT WITH THIRD PARTIES TO PERFORM FRANCHISED SERVICES ............. 84 ARTICLE11.............................................................................................................................................85 DEFAULT, REMEDIES AND LIQUIDATED DAMAGES........................................................................................... 85 11.1 EVENTS OF DEFAULT.....................................................................................................................................-.. 85 11.2 RIGHT TO TERMINATE UPON DEFAULT AND RIGHT TO SPECIFIC PERFORMANCE ......................................... 88 11.3 LIQUIDATED DAMAGES.................................................................................................................................... 88 11.4 SUSPENSION OF PERFORMANCE..............................................................................._...................................... 94 11.4.1 Force Majeure...................... ........... ............. .................. .......................... ................................................ 94 11.4.2 Labor Unrest............................................................................................................................................ 94 11.5 DISPUTE RESOLUTION....................................................................................................................................... 95 11.5.1 Negotiation and Mediation......................................................................................................................95 11.5.2 Confidentiality.........................................................................................................................................96 11.5.3 Injunctive Relief...................................................................................................................................... 96 11.5.4 Continuing Obligation... ................. ........... ................. ...................... ................................................... 96 11.5.5 Failure of Media Hon.........................................................................................................................._.....96 11.6 ASSURANCE OF PERFORMANCE............................................................ .......... ............. ..................................... 96 ARTICLE 12....................................................................... OTHER AGREEMENTS OF THE PARTIES ................................. 9 8 98 February 15, 2017 v City of Diamond liar - Commercial 12.1 RELATIONSHIP OF PARTIES............................................................................................................................... 98 12.2 COMPLIANCE WITH LAW.. ......... __ ........... .................... .................................................................. 98 12.3 GOVERNINGLAW..............................................................................................................................................98 13.3 12.4 JURISDICTION_.................................................................................................................................................. 98 12.5 ASSIGNMENT...... ........................................................................... __ ................................................................ 99 12.6 CONTRACTING OR SUBCONTRACTING........................................................................................................... 101 12.7 BINDING ON ASSIGNS..................................................................................................................................... 101 12.8 COOPERATION IN PREPARATION FOR TERMINATION OR EXPIRATION OF CONTRACT ................................. 101 12.9 PARTIES IN INTEREST....................................................................................................................................... 102 12.10 WAIVER...........................................................................................................................................................102 12.11 CONTRACTOR'SINVESTIGATION.....................................................................................................................102 12.12 SECTION DELETED........................................................................................................................................... 102 12.13 NOTICE............................................................................................................................................................103 12.14 REPRESENTATIVES OF THE PARTIES................................................................................................................103 12.15 CITY FREE TO NEGOTIATE WITH THIRD PARTIES........................................................................................... 104 12.16 COMPLIANCE WITH MUNICIPAL CODE..........................................................................................................104 12.17 PRIVACY..........................................................................................................................................................104 12.18 PROPRIETARY INFORMATION, PUBLIC RECORDS........................................................................................... 105 ARTICLE13...........................................................................................................................................106 MISCELLANEOUS PROVISIONS..................................................................................................................................106 13.1 ENTIRE AGREEMENT.......................................................................................................................................106 13.2 SECTION HEADINGS........................................................................................................................................106 13.3 REFERENCES TO LAWS AND OTHER AGREEMENTS........................................................................................106 13.4 INTERPRETATION.......................... ........................................................................................................ 106 13.5 AGREEMENT.. ................... ...................................................................................................................... Io6 13.6 SEVERABILITY..................................................................................................................................................107 13.7 EXHIBITS..........................................................................................................................................................107 13.8 ATTORNEYS' FEES........................................................................................................................................... 107 Exhibits 1. Public Education Plan 2. Initial Maximum Rates 3. Example Rate Adjustment Formula: 3A: Bin, Temporary Service and Other Service Rates 313: Permanent Roll -Off Box Rates 3C: Calculation of Annual Change in a Published Index 4. Corporate Guarantee 5. Faithful Performance Bond 6 Notary Certification 7 Example Monthly Report Format February 15, 2017 vi City of Diamond Bar - Commercial This Amended and Restated Agreement for Integrated Solid Waste Management Services hereinafter the "Agreement") is entered into this 21 day of February, 2017, 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. 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 term of the Initial Agreement, as defined below is set to expire on August 15, 2018; and, WHEREAS, City and Contractor ("Parties") have negotiated, and desire to enter into this Agreement in order that Contractor continue to serves the City's exclusive bin and roll- off customer solid waste hauler for the term hereof; and, 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 February 23, 2017 -1- City of Diamond Bar - Commercial 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. WHEREAS, the Parties entered in that certain agreement for Solid Waste Management Services on August 16, 2010 ("Initial Agreement"), which term expires on August 15, 2018. The Parties intend that in entering into this Agreement that this Agreement shall replace in its entirety the Initial Agreement and all amendments thereto upon the Effective Date as defined herein. NOW, THEREFORE, in consideration of the recitals above stated, which recitals are a material part of this Agreement, and the terms, conditions, covenants and agreements contained herein, the Parties do hereby agree as follows: February 23, 2017 -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: 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 the basis of the percentage of voting interest or value which the ownership interest represents, whichever is greater. February 15, 2017 -3- City of Diamond Bar - Commercial 1.3 1.4 1.5 1.6 1.7 Billings Billings" or "Billing' or 'Bill" means the statements of charges provided to Customers for services rendered by Contractor. Bin Bin" means a rectangular metal or plastic Container with hinged lids and wheels with a capacity of at least 1.5 cubic yards, and less than ten (10) cubic yards. Bin Service Bin Service" means Solid Waste Collection Services in which a Bin is used for the Collection of Solid Waste. 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. 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. February 15, 2017 -4- City of Diamond Bar - Commercial 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. IC i ]W I z"iTU . .' C 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. 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. February 15, 2017 -5- City of Diamond Bar - Commercial 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. 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 CalRecycle 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. February 15, 2017 -6- City of Diamond Bar - Commercial 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 Food Waste Food Waste" means: All food (including fruits, vegetables, meat, poultry, seafood, shellfish, bones, rice, beans, pasta, bread, cheese and eggshells); Food -soiled paper that is mixed in with food waste (including waxed cardboard, waxed paper, napkins, paper towels, paper plates, paper milk cartons); Tea bags; and, Coffee grounds and filters. Food Waste is a subset of Organic Waste. 1.24 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 February 15, 2017 -7- City of Diamond Bar - Commercial diameter or 48 inches in length) and similar materials. Green Waste is a subset of Organic Waste. 1.25 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. 1.26 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. 1.27 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. February 15, 2017 -8- Ci y of Diamond Bar - Conunercial 1.25 ElW 1.30 1.31 1.32 1.33 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. Household Hazardous Waste ("HHW) Household Hazardous Waste" means Hazardous Waste generated at Residential Premises. 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. 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. Organic Waste Organic Waste" means Food Waste and Green Waste, and other compostables, collectively or individually. Organic Waste Processing Facility Organic Waste Processing Facility" means a permitted Facility where Organic Waste is sorted, mulched or separated for the purposes of Recycling, reuse or composting. February 15, 2017 -9- City of Diamond Bar - Commercial 1.34 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. 1.35 Premises Premises" means any land, or building in City where Solid Waste is generated or accumulated. 1.36 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, 1.37 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. 1.38 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 mamler different from Refuse in order to allow it to be processed for Recycling. 1.39 Refuse Refuse" means putrescible and non-putrescible Solid Waste. 1.40 Residential Services Residential Services" refer to Solid Waste Collection Services performed at and for Residential Premises included under this Agreement. February 15, 2017 -10- City of Diamond Bar - Commercial 1.41 Residential Customers Residential Customer" means all Customers on Residential Premises that are included under this Agreement. 1.42 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 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. 1.43 Roll -off Box Roll -off Box" means Solid Waste Collection Containers of 10 cubic yards or larger. 1.44 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. 1.45 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 Organic 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. February 15, 2017 -11- City of Diamond Bar - Commercial 1.46 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. 1.47 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. 1.48 State State" means the State of California. 1.49 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 1.50 Transformation Transformation" means incineration, pyrolysis, distillation, gasification, or biological conversion other than composting. 1.51 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, Organic Waste and/or Construction and Demolition debris), to processors, brokers or end-users. February 15, 2017 -12- CiLy of Diamond Bar - Commercial 1.52 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. February 15, 2017 -13- 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 Tenn 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 thirteen (13) years, and fifteen (15) days, commencing on August 16, 2010, and expiring August 31, 2023, subject to February 15, 2017 -24- City of Diamond Bar - Commercial extension as provided herein. 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 for up to twenty-four (24) months following expiration of the 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, exercise this extension option. If City provides this extension notice, the Agreement will automatically renew up to a maxhnum of twenty-four (24) months. This extension period shall terminate, upon the earlier of: (i) the expiration of the aforementioned twenty-four (24) 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. February 15, 2017 -15- 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 comlection 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 turless the actions taken are not within the scope of t1 -ds 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. February 15, 2017 -16- 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 Agreement 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 as 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. February 15, 2017 -17- City of Diamond Bar - Coimnercial 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, francluses or agreements issued or entered by City: a) The sale or donation of source -separated Recyclable Material and/or Organic Waste 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 and/or Organic Materials, 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; February 15, 2017 -18- 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; 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; k) The Collection, transfer, transport, Recycling, and processing of Organic Waste for use as animal feed; and, 1) Food that is donated or otherwise provided to charitable organizations or food banks for use as food for human consumption. 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. February 15, 2017 -19- City of Diamond Bar - Commercial 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. If City directs Contractor to perform additional services, 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, unless the Parties otherwise agree. 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 does not direct Contractor to perform additional services 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.). February 15, 2017 -20- Ciiy of Diamond Bar - Coinrnercial 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. 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. February 15, 2017 -21- City of Diamond Bar - Commercial Contractor must follow requirements of the Diamond Bar Municipal Code, including, but not limited to, obtaining a City of Diamond Bar business license. February 15, 2017 -22- Ciiy of Diamond Bar - Commercial 3.1 M 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: Contracting Fee Contractor paid 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 the Initial Agreement to reimburse the City for costs it incurred in connection with entering the Initial Agreement. A contract extension fee of $75,000 shall be paid to the City within seven (7) days of execution of this Agreement to reimburse the City for costs it incurred in connection with entering into this Agreement. 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 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 sei vices 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 admiuustration 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. February 15, 2017 -23- City of i7iamond Bar - Commercial 3.3 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 Environmental Education Fee Pursuant to the terms of this Agreement, Contractor shall pay an annual Environmental Education Fee in the amount of Six Thousand, Five Hundred Dollars ($6,500). The first such payment shall be due and payable to the City on July 1, 2017, and subsequent payments shall be due and payable to the City on or before July 1 of each subsequent year. The amount of the Environmental Education Fee shall be adjusted amivally for the average annual change in the CPI between the calendar year ended the December preceding the fee payment due date and the prior calendar year. For example, for the fee payment due July 1, 2018, the percentage adjustment to the $6,500 payment amount from the prior year would be equal to the average annual change in the CPI comparing calendar year 2017 to calendar year 2016. 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 for each month the payment is late thereafter. 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. February ib, 20"i 7 -24- City of Diamond Bar - ConuLerci d 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, February 15, 2617 -25- City of Diamond Bar - Connnercial 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 or visa versa 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 February 15, 2017 -26- 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. February 15, 2017 -27- 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 or other public right-of-way for Collection, or Collecting Solid Waste directly from Container storage location. Under no circumstance shall Containers remain in the public right-of-way or outside of Container storage location for a period exceeding two (2) hours. In the event of a dispute between Contractor and Customer as to whether scout service will be used, City will make the final determination. Contractor is responsible for verifying that an encroachment permit has been obtained from the City prior to placing a Container in the public right-of-way. If the Customer has not obtained an encroachment permit, the Contractor shall inform the Customer that the Container shall not be placed in the public right-of-way until the Customer provides Contractor with verification of an encroachment permit, instructing the Customer as to how to obtain the permit. A copy of the encroachment permit shall be affixed to the Container. 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 Cusiomer with multiple Bins. February 15, 2017 -25- City of Diamond Bar - Commercial 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 days' notice for the items, which shall be Collected on the Customer's regular 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 February 15, 2017 -29- City of Diamond Bar - Cormnercial 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 mhiimum: 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 Customer, Contractor shall notify Customer 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. February 15, 2017 D0- City of Diamond Lar - Commercial IN 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 Customers within City, but diverted from landfilling. 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 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. February 15, 2017 -31- City of Diamond Bar - Commercial 4.2.2 Processing of Solid Waste Contractor shall process all mixed 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. 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 Diversion Requirements For each calendar year, beginning calendar year 2010 through calendar year 2017, 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 tomlage shall be included in the overall 25% diversion calculation. For each calendar year, beginning January 1, 2018, Contractor shall divert from landfilling a minimum of 25 % of all Solid Waste Contractor Collects under this Agreement, excluding Construction and Demolition Debris Loads. Additionally, Contractor shall divert from landfilling a minimum of 75% or the State -mandated Construction and Demolition diversion percentage, whichever is greater, of all Construction and Demolition Debris loads it Collects under this Agreement. 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 February 15, 2017 32- City of Diamond Bar - Commercial 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 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% or the State -mandated Construction and Demolition diversion percentage, whichever is greater, of all Construction and Demolition Debris Collected. 4.2.7 Organic Waste Collection Services Contractor shall make arrangements to provide Organic Waste Collection services to Multi -Family and Commercial accounts to comply with State requirements for mandatory Commercial Organics Recycling under AB 1826. Organic Waste Collection may be done utilizing Bins or Carts, depending on the amount of material generated or space constraints. Contractor agrees to assist City to identify Multi -Family and Coimauercial Premises required to arrange for Organic TE/13-terial Collection services February 15, 2017 -33- City of Diamond Bar - Commercial under State law, offer Organic Waste Collection to such Premises, and notify the City in the event of refusal to subscribe for Organic Waste Collection. Collection of Organic Waste in Bins shall be charged at the same rate as Refuse Bins included in Exhibit 2. Collection of Organic Waste in Carts shall be in accordance with the approved rates included in Exhibit 2. 4.2.8 Section Deleted 4.3 Green Waste Program 4.3.1 Holiday Tree Collection Program Contractor shall operate an amzual 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. 4.3.2 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. 4.3.3 End Uses for Green Waste Contractor shall divert Green Waste materials Collected through 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 CalRecycle. 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. Diversion credit for ADC is not allowed after January 1, 2020 per Assembly Bill 1594. 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. February 15, 2017 -34- City of Diamond Bar - Conuiiercial 4.5 Section Deleted City Services 4.5.1 City Facilities Collection Contractor shall Collect and dispose of all Refuse, Recyclable Material, and Organic 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 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 February 15, 2Oi% -35- 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 illegally placed Container, Contractor shall begin the following procedure within 24 hour. s: February 15, 2017 -36- City of Diamond Bar - Conunercial 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 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 6:00 a.m. and 6:30 p.m. Collection is only permitted Monday through Saturday. 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 DEy, Thanksgiving Day, or Czristmas Day, February 15, 2017 -37- City of Diamond Bar - Commercial 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 Organic 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. 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. February 15, 20i7 -38- City of Diamond Bar - Commercial 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 reasonably determines that their appearance warrants painting. 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 February 15, 2017 -39- City of Diamond Bar - Commercial 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, evidence of insurance meeting the requirements of this Agreement 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. 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 February 15, 20 7 -40- City of Diamond Bar - Commercial in excess of the manufacturer's reconunendations 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 mamler 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. February 15, 2017 -41- 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 decision shall be final. 4.6.3 Containers Contractor will provide Containers to be used under this Agreement. On or before December 31, 2017, Contractor shall ensure that all Containers comply with requirements included in Sections 4.6.3.1 through 4.6.3.4, and provide City with a written Container inspection report. 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. S. Section Deleted C. Cart Color and Appearance The Recycling and Organic 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 sl Il be hot stamped February 15, 2017 - --2- City of Diamond Sar - Coxmnercial with the material type (e.g., trash, Recycling, Organics) 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 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 February 15, 2017 -43- City of Diamond Bar - Commercial 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, Organic 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, Organic 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 February 15, 2017 -44- City of Diamond :Sar - Commercial cleanup efforts and shall carry a broom, shovel, absorbent, and containment materials at all times for this purpose. 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, Organic 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 tine p_-ocessing Facility or Disposal Site. February 15, 2017 -45- 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. February 15, 2017 -46- City of Diamond Bar - Commercial EWA 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 maruler. Contractor shall deliver the address or description to City within one (1) working day of such observation. Transportation of Solid Waste Contractor shall transport all Refuse Collected to a City -approved Facility (e.g. Transfer Station, Waste -to -Energy Facility, Organic 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 iri designated areas, accommodating to maintenance operations and construction of new facilities, cooperating with its Hazardous Waste exclusion program, and so forth. 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. February i5, 2017 -47- 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 landfill Disposal Site 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 approved under this Agreement shall be dedicated exclusively to Solid Waste Collected in the City of Diamond Bar, with the exception of Commercial Organics routes. 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; February 15, 2017 -48- City of Diamond Bar - Conunercial Graffiti. 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. February 15, 2017 --49- 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 fifteen 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: February 15, 2017 -50- Cay of 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, wanting 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. Billing disputes between Contractor and Customer may be resolved by City, and City's decision shall be final and binding. 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 mirvmum, 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. February 15, 20i7 -51- City of Diamond Bar - Commercial 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. 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 anyone 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 this 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. Februaiy 15, 2017 -52- 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 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 mariner. 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. February 15, 2017 -53- City of Diamond Bar - Cormnerdal 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 e>.pense; wl-Lich will be distributed as indicated below. All of these materials and February 15, 2N7 -54- 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 new Customer throughout the Agreement term. This packet shall: describe available sei vices, 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. All customers shall be promptly notified of any changes to such information. 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 -Containers shall carry stickers/ labels and hot stamps as described in Sections 4.6.3.1.1) 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, Organic Waste, Holiday Tree and Bulky Item Collections) described in detail; the environmental, regulatory, and other benefits of participating in Recycling; how to properly dispose February 15, 2017 -05- City of Diamond Bar - Commercial 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. Second Annual Mailer- Not less than once per year during each Rate Year, Contractor shall prepare and distribute to each Customer a one (1) page, double - sided mailer printed in full color. City and Contractor shall meet and confer to determine the subject matter of mailer. Contractor is responsible for all associated costs. The method of delivery to Customers is at the City's discretion. 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. February 15, 2017 -56- City of Diamond Pear - Commercial 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 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. February 15, 2017 -57- 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 (including but not limited to surcharges for weekend or priority service) 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, 2018, 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 agrees to waive the annual rate adjustment that would be due July 1, 2017. 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. The City shall consider a failure to submit a written request by March 31 as Contractor's determination not to seek an adjustment and shall constitute a waiver by Contractor of its right to request such an increase for the subsequent Rate Year. However, the City reserves the right to initiate a rate adjustment in instances where the Contractor fails to submit a written rate adjustment request Adjustment to the maximum rates is subject to the approval of the City Manager. If an annual adjustment that would have resulted in a rate decrease is not implemented for any reason, the next rate adjustment will be measured based on the change in February 15, 2017 -58- City of Diamond Bar - Commercial indices from the last implemented rate adjustment; the intent is to ensure subsequent rate increases shall be offset with any decrease not previously implemented. 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 Exhibits 3A, 3B, and 3C, subject to review and approval of City. All 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 and Section 6.4.4 for detailed rate adjustment procedures. 1) For example, under the ab ePs entternunating Septe_1_be 30, 2019, these rates arc: February 15, 2017 -59- City of Diamond Bar - Conunercia_l Weightings for VW8 AdjustmentCost Category Rate Adjustment Factor Section Section 6.4.3 6.4.4 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, hic. and Teamsters Automotive Industrial and Allied Workers Local Labor 27.0% 34.2% No. 495(1) Producer Price Index WPU05522101, Fuels and Fuel 6.1% 7.6% related products and power Producer Price Index, PCU336120336120, Heavy Equipment 20.0% 25.0% duty truck manufacturing Consumer Price Index for All Urban Consumers CUURA421SAOLIE), all items less food and energy Disposal 17.0% n/a Los An eles-Riverside-Oran e County, CA Consumer Price Index for All Urban Consumers CUURA421SAOLIE), all items less food and energy All Other 29.9% 33.2% Los Angeles -Riverside -Orange County, CA Total 100.0% 100.0% 1) For example, under the ab ePs entternunating Septe_1_be 30, 2019, these rates arc: February 15, 2017 -59- City of Diamond Bar - Conunercia_l Contract Date 10/01/16 10/01/17 10/01/18 Hourly Rate 21.85 22.25 22.65 Rate Adjustment Date n/a 7/01/18 7/01/19 Change to Labor Component n/a 1.8% 1.8% 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. 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 3A. 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, disposal 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 3C for an example average arulual 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 6.4.2. 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 Contractor 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. February 15, 2017 -60- City of Diamond. tiay - Commercial 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 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. (See Exhibit 3C for an example average amival change in published index year over 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. February 15, 2017 -61- City of Diamond Bar - Commercial 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 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, 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 February 15, 2017 -62- City of Diamond Bar - Conunercial 6.6 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, among other things, increases or decreases in the Contractor's total revenues and total cost of services when reviewing an extraordinary rate adjustment request. Effect of Rate Challenge If a rate adjustment approved by the City Manager or City Council is prevented from implementation due to a legal challenge by third parties, and City does not otherwise compensate Contractor for the amount of the adjustment due, Contractor is permitted to terminate this Agreement upon one-year notice. February 15, 2017 -63- City of Diamond Bar - Conumercial ARTICLE 7 REVIEW OF SERVI,CES 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. February 15, 2017 -64- City of Diamond Bar - Commercial 7.2 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. 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. February 15, 20-17 -65- City of Diamond Bar - Commercial 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 reports of Contractor or it" Affiliates that City shall', deem, in its sole discretion, February 15, 2017 -66- City of Diamond Bar - Conunercial 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: a) Customer services and Billing/City payment records; February 15, 2017 -67- City of Diamond Bar - Commercial b) Records of tons Collected, processed, diverted and disposed by waste stream Refuse, Recycling, Organic 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 Organic 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. February 15, 2017 -68- City of Diamond Bar - Corornercial 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, quantifies of products used, produced or distributed, and numbers of participants and responses. 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 may be performed every third year thereafter. Contractor will pay 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. Audit payments from the Contractor to the City are due January 1 of year the audit is being performed. 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 re fined to Contractor's Customers, as directed by February 15, 2017 -69- City of Diamond bar - Cormmercial City, any overcharges within thirty (60 days following the date of the audit. Contractor shall pay interest to the City for any underpayment or overcharges at an annual rate of 6%. 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 with interest. 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 shall utilize the Monthly Report template included in Exhibit 7, which may be adjusted by the City at any time. Contractor may propose the format for the Annual Report that is responsive to the objectives and audiences for report. The format of the Annual 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 City Manager and/or other City staff designated by the City Manager at e-mail addresses to be provided by City. City may additionally request hard copies, which would be delivered to: City Manager City of Diamond Bar 21810 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, Organic Waste) in tons, including contamination February 15, 2017 -70- City of Diamond Bar - Commercial 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. 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, Organic 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, Green Waste, and Organic 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, Organic Waste). b) Records of tons Collected, processed, diverted and disposed by waste stream Refuse, Recycling, Organic Waste Waste), by Customer type (Cart Bin, Roll -Off Box), and the Facilities (Transfer Station, MRF, processing or composting facility, or landfill) where such material was taken. c) Gross Receipts by sector (Cart, Bin, Roil -Off Dox)j. February 15, 2017 -71- City of Diamond Bar - Conunercial d) A complete inventory of velucles 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) A complete listing of accounts receiving scout service, including service address, billing name and address, telephone number, and proof of encroachment permit. f) Number of routes and route hours per day by type of service as of December 31. g) General information about the Contractor and its most recent annual report. h) 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, but only as they pertain to 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 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 Enviromnental Protection Agency, CalReeycle, the Securities and ExchaiLge Coninission or any other federal, state or local February 15, 2017 -72- City of Diamond Bar - Commercial M 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. 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 hi 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. February 15, 2017 -73- City of Diamond Bar - Corn ercial 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 omissions, 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 hi 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. Contractor, upon demand of City, made by and through the City Attorney, shall protect City and appear F_t and defend the hndemnitees in any claims or aeons by turd parties, February 15, 2017 -74- City of Diamond Bar_ - Commercial am 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 11 • AGREEMENT. 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, which acceptance shall not be unreasonably withheld), 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. February 15, 2017 -75- City of Diamond Bar - Commercial_ 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 only apply to Claims arising out of Contractor's collection and transportation to such facility. February 15, 2017 -76- City of Diamond Bar - Commercial 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 CalRecycle 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 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 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 heremlder 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). 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. February 15, 2017 -77- City of Diamond Bar - Commercial 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: 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 retentions 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) The Indemnitees shall 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, hued or borrowed by Contractor. The coverage shall contain no special limitations on the scope of protection afforded to the Indemnitees. February i5, 2017 -78- Ciiy of Diamond Bar - Commercial b) Contractor's insurance coverage shall be primary insurance as respects the Indemnitees. Any insurance or self-insurance maintained by the Indemnitees 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 the Indemnitees. 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 the Indemnitees for losses arising from work performed by Contractor for City. 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, 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 maLntenance of the required coverage tf roughout the Term. February 15, 2017 -79- City of Diamond Bar - Commercial 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 21810 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." 1 "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. Thus policy shall protect Contractor and City in the same mamier 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 go 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 February 15, 2017 -80- City of Diamond Bar - Commercial 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 Exlubit 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. 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 February 15, 2017 -Si- City of Diamond Bar - Commercial 9.7 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. 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 tlw-ty (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. February 15, _017 -82- City of Diamond Bar - CommercW WK 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. Performance Security Beyond Service Terra Some Agreement requirements extend beyond the Term 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 second am -mal anniversary of the end of the Term. 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. February 15, 201783- City of Diamond_ Ear - Conunercial 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 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. February 15, 201% -84- City of Diamond Bar - Commercial ARTICLE 11 I NJ a W -all anti No In P I awng, I. . 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 or cause its subcontractors 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. February 15, 2017 -85- City of Diamond bar - Commercial 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 Contractor 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 Contractor cannot reasonably correct or remedy the breach within the time set forth in such notice, if Contractor 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 Contractor 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 Contractor or any of Contractor's officers, directors or employees is guilty as well as any admission of guilt by Contractor or any of Contractor'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 February 15, 2017 -86- City of Diamond Bar - Commercial 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 Organic Waste into a Refuse load, or transports Recyclable Materials or Organic 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. February 15, 2017 -87- City of Diamond Bar - Conunercial 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 for preservation of the public health, safety and welfare, 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 rebruary 15, 2017 -88- City of Diamond Bar - Commercial substantially lower costs than alternative services and the monetary loss resulting from 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 the public health, safety and welfare and that City has considered and relied on Contractor's representations as to its quality of service corrunitment 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 mamler, 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 February 15, 2017 -89- City of Diamond Bar - Commercial a) For each failure to commence service to anew 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: 2. Collection Quality 100.00 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 f) For each occurrence of failure to verify that Customer has obtained an encroachment permit from the City prior to Contractor placing a Container in the public right-of-way which exceeds ten (10) such occurrences annually: 100.00 g) For each occurrence of failure to return a Container to Container storage locations, as described in Section 4.1.12 "Scout Service' of this Agreement, withal two (2) hours of set out which exceeds ten (10) such occurrences annually: 100.00 February 15, 2017 -90- City of Diamond Sar - Commercial 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 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 h) For each occurrence of inaccurate information being provided to Customers by Contractor's customer service department which exceeds five (5) such occurrences annually: 100.00 4. Diversion Efforts a) For each calendar year, beginning calendar year 2010 through calendar year 2017, 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: February 15, 2017 -91- City of :Diamond Bar - Commercial 25 for each ton below tonnage level , necessary to meet 25 % Diversion goal b) For each calendar year, beginning January 1, 2018, in which Contractor fails to provide documentation to the City within thirty (30) days of year-end, supporting that it diverted at least 25% of the Solid Waste Contractor Collected under this Agreement, excluding Construction and Demolition Debris loads: 25 for each ton below tonnage level necessary to meet 25 % Diversion goal c) For each calendar year, beginning calendar year 2018, in which Contractor fails to provide documentation to the City within thirty (30) days of year- end, supporting that it diverted at least 75 %, or the State -mandated Construction and Demolition diversion percentage, whichever is greater, of all Construction and Demolition Debris loads it Collects under this Agreement: $25 for each ton below tonnage level necessary to meet 75%, or State -mandated Construction and Demolition Diversion goal, whichever is greater. 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: $25 per day ii) Annual Reports: $50 per day 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 :nor February 15, 2017 -92- City of Diamond Bar - Commercial a 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 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 representatives or through investigation of Customer complaints by such Persons. 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, the 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. 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 incident(s)/non-performance prior to authorizing the assessment of liquidated damages. The decision of City Manager shall be final. February 15, 2017 93- City of Diamond Bar - Cormmerciai 11.4 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 60 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. 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, City may contract with another provider to perform all or part of this Agreement until such time Contractor is able to perform. If Contractor is unable to renew its performance of this Agreement for a period of thirty (30) days or more, where the City is not significantly impacted by the catastrophic event, City shall nevertheless have the right, in its sole discretion, to ter- minate flus Agreement by giving ten (10) days' notice. 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 follcwing requiTe_.azen.ts are met: February 15, '9017 -94- City of Diamond Bar - Conunerciai 11.5 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, u1 its sole discretion, to terminate this Agreement by giving ten (10) days' notice, and may contract with another party for Solid Waste Collection Services. Dispute Resolution Except as may otherwise be set forth expressly herein, all disputes arising under this Agreement shall be resolved as set forth in thus 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 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 raay nitiate a mediation of 'L11e dispute. The mediation shall be facilitated by a February 15, 2017 -95- City of Diamond Bar - Commercial 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. 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 fo -1n aiLd subsi:ance as City may _-equire. H Contractor fails or refuses to February 15, 2017 -96- City of Diamond Bar - Commercial 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. February 15, 2017 -97- City of Diamond Bar - Commercial 12.1 12.2 12.3 12.4 ARTICLE 12 OTHER,AGREEMENTS OF THE PARTIES 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. 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. Governing Law This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California. 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. February 15, 2017 n8- 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 indexmzity obligations to City under this Agreement. City has relied on each of these factors, among others, in choosing Contractor to pertorLn tie services to be rend --red by Contractor under this Ag eement. February 15, 2017 -99- 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 immediately 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 thus 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 February 15, 2017 -1o0- City of Diamond Bar - Commercial 12.6 12.7 12.8 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. Contracting or Subcontracting Contractor shall not engage any contractors or subcontractors for the Collection of Solid Waste. 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. 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 lirnited 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 6..is covenant and/or oiler equitable relief necesSary io enforce this covenant. February 15, 2017 . -101- City of Diamond Bar - Cor unercial 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 tlus 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 February 15, 2017 -102- City of Diamond Bar - Conunercial 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 21810 Copley Drive Diamond Bar, CA 91765 If to Contractor: David Perez V.P. Operations Valley Vista Services 17445 E. Railroad St. City of hrdustry, CA 91748 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 the Agreement and shall inform City in writing of such designation end of any limitations upon his or February 10, 2017 -103- 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, Organic 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. Februaiy 15, 2017 -104- City of Diamond Bar - Commercial 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 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. February 15, 2017 -105- City of Diamond Bar - Conunercial 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 sighed by the Parties. February 15, 2017 -106- 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. 13.9 Effective Date 11 -ds Agreement shall be effective upon the date it has been executed by both Parties. Once so executed, the City's City Clerk shall insert the later date thereof in the opening paragraph of this Agreement. February 15, 2017 -107- 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 DATED:Or '9-a -->o l? CITY OF DIN BAR By: fames DeStefJno City Manager ATTEST: Tommye Cribbins City Clerk NINSFU • oplemm- I\ A s-ic42-'E i '+-1 TITLE Valley Vista Services, Inc. NAME OF COMPANY 17445 Railroad Street, Industry, CA ADDRESS 626) 961-6291 TELEPHONE February 15, 2017 -108- City of Diamond Bar - Commercial EXHIBIT 1 Iits) SO 17i iT_ 1 1 C 7 A_i i to be attached after City approval per Section 5.3.2) February 15, 2017 1 City of Diamond Bar - Commercial AMENDED AND RESTATED AGREEMENT BETWEEN CITY OF DIAMOND BAR AND VALLEY VISTA SERVICES FOR BIN AND ROLL -OFF BOX CUSTOMER SOLID WASTE MANAGEMENT SERVICES February 15, 2017 AGREEMENT BETWEEN CITY OF DIAMOND BAR AND VALLEY VISTA SERVICES FOR BIN AND ROLL -OFF BOX SOLID WASTE MANAGEMENT SERVICES TABLE OF CONTENTS RECITALS Page 11 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........................................................................................................................................................................4 1.8 CITY.......................................................................................................................................................................... 5 1.9 COLLECT/COLLECTION...........................................................................................................................................5 1.10 COMMERCIAL SERVICES...................................................................................................................................... 5 1.11 COMMERCIAL PREMISES..................................................................................................................................... 5 1.12 CONTRACTOR......................................................................................................................................................5 1.13 CONTRACTOR COMPENSATION .................................. ....... 5 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...........................................................................................................................................................6 1.21 ENVIRONMENTAL LAWS.....................................................................................................................................7 1.22 FACILITY..............................................................................................................................................................7 1.23 FOOD WASTE ................ -....................................................... 7 1.24 GREEN WASTE..................................................................................................................................................... 7 1.25 GREEN WASTE PROCESSING FACILITY............................................................................................................... 8 1.26 GROSS RECEIPTS..................................................................................................................................................8 1.27 HAZARDOUS SUBSTANCE................................................................................................................................... 8 1.28 HAZARDOUS WASTE ............................................. ....................................................... 9 1.29 IOUSEHOLD HAZARDOUS WASTE ("HHW")............ ........................................ 9 1.30 MATERIALS RECOVERY FACILITY („MRF")....................................................................................................... 9 1.31 MULTI-FAMILYDWELLING.............................................. 9 February 15, 2017 i City of Diamond Bar - Commercial 1.32 ORGANIC WASTE................................................................................................................................................9 1.33 ORGANIC WASTE PROCESSING FACILITY. ........................ ................. ............................................................... 9 1.34 PERSON..............................................................................................................................................................10 1.35 PREMISES........................................................................................................................................................... 10 1.36 RATE YEAR........................................................................................................................................................ 10 1.37 RECYCLING........................................................................................................................................................10 1.38 RECYCLABLE MATERIALS........................................................._...................................................................... 10 1.39 REFUSE...............................................................................................................................................................10 1.40 RESIDENTIAL SERVICES..................................................................................................................................... 10 1.41 RESIDENTIAL CUSTOMERS................................................................................................................................ 11 1.42 RESIDENTIAL PREMISES..............................................................................................................._.........._........ 11 1.43 ROLL-oFF Box................................................................................................................................................... 11 1.44 SINGLE FAMILY DWELLING.............................................................................................................................Al 1.45 SOLID WASTE.................................................................................................................................................... 11 1.46 SOLID WASTE COLLECTION SERVICES.............................................................................................................. 12 1.47 SOURCE SEPARATED.......................................................................................................................................... 12 1.48 STATE.................................................................................................................................................................12 1.49 TEMPORARY SERVICE........................................................................................................................................ 12 1.50 TRANSFORMATION............................................................................................................................................ 12 1.51 TRANSFER STATION.......................................................................................................................................... 12 1.52 WASTE GENERATOR.......................................................................................................................................... 13 ARTICLE2...............................................................................................................................................14 GRANT AND ACCEPTANCE OF FRANCHISE............................................................................................................14 2.1 GRANT AND ACCEPTANCE OF FRANCHISE, INDEMNITY OF AWARD................................................................... 14 2.2 SECTION DELETED................................................................................................................................................. 14 2.3 EFFECTIVE DATE.................................................................................................................................................... 14 2.4 TERM OF AGREEMENT........................................................................................................................................... 14 2.5 CITY'S OPTION To EXTEND TERM......................................................................................................................... 15 2.6 REPRESENTATIONS AND WARRANTIES OF CONTRACTOR.................................................................................... 15 2.7 CONDITIONS TO EFFECTIVENESS OF AGREEMENT................................................................................................ 17 2.8 DELEGATION OF AUTHORITY................................................................................................................................ 17 2.9 LIMITATIONS TO SCOPE......................................................................................................................................... 18 2.10 CITY'S RIGHT TO DIRECT CHANGES................................................................................................................. 20 2.10.1 General.....................................................................................................................................................20 2.10.2 New Diversion Programs.....................:................................................................................................... 20 2.11 OWNERSHIP OF SOLID WASTE.......................................................................................................................... 21 2.12 PERMITS AND LICENSES.................................................................................................................................... 21 ARTICLE3...............................................................................................................................................23 FEESPAID TO THE CITY...................................................................................................................................................23 3.1 CONTRACTING FEE................................................................................................................................................ 23 3.2 OTHER CITY FEES................................................................................................................................................... 23 3.2.1 Franchise Fee................................................................................................................................................ 23 3.22 AB 939 Fee.................................................................................................................................................... 23 3.2.3 Environmental Education Fee...................................................................................................................... 24 3.2.4 Section Deleted .............................................................................................................................................24 3.2.5 Late Payment of Fees.................................................................................................................................... 24 3.3 FUTURE FEES.......................................................................................................................................................... 24 ARTICLE 4 ............. DIRECT SE R'vICES... 25 2 - February 15, 2017 ii City Of Diamond Bar - Commercial 4.1 REFUSE . ............... ................................................................................................................................................... 25 4.1.1 General..........................................................................................................................................................25 4.1.2 Section Deleted............................................................................................................................................. 25 4.1.3 Section Deleted.............................................................................................................................................25 4.1.4 Section Deleted............................................................................................................................................. 25 4.1.5 Section Deleted............................................................................................................................................. 25 4.1.6 Bin Refuse Collection ......................................... ........ ___ ..... ................ ......... ........ ...................................... 25 4.1.7 Determination of Service Type...................-................................................................................................ 26 4.1.8 Overflowing Containers...............................................................................................................................26 4.1.9 Pernnanent Roll -off Box Service.................................................................................................................... 27 4.1.10 Temporary Bin and Temporary Roll -Off Box Service ........ .................. -............... .................. 27 4.1.11 Bin Pushout Service................................................................................................................................. 28 4.1.12 Scout Service, ........................................................................................................................................... 28 4.1.13 Locking Bins................................................... ........................ -...... ............. .................. .............. 28 4.1.14 Redelivery/Return Trip Fee...................................................................................................................... 28 4.1.15 On -Cali Bulky Item Pickup..................................................................................................................... 29 4.1.16 Bulky Real Diversion............................................................................................................................... 29 4.1.17 Disposal of Electronic and Other Special Wastes................................................._......._......................- 30 4.1.18 Door-to-DoorHHW Collection...............................................................................................................30 4.1.19 SECTION DELETED............................................................................................................................................. 30 4.1.20 Service Exceptions Hazardous Waste Notifications ............................................................................... 30 4.2 RECYCLING ............................ ............................... .................................................................................................. 31 4.2.1 Recyclables Collection .......................................... ................................ ................................. ...... 31 4.2.2 Processing of Solid Waste............................................................................................................................. 32 4.2.3 Section Deleted...................................................................................-........................................................32 4.2.4 Marketing and Sale of Recyclable Materials..._........................................................................._................. 32 4.2.5 Minimum Diversion Requirements.............................................................................................................. 32 4.2.6 Construction and Demolition Debris Diversion........................................................................................... 33 4.2.7 Organic Waste Collection Set -vices.. . ..................................................... ................. ................... 33 4.2.8 Section Deleted............................................................................................................................................. 34 4.3 GREEN WASTE PROGRAM... ........ .... . .... ........................................................................................................... 34 4.3.1 Holiday Tree Collection Program................................................................................................................. 34 4.3.2 Roll -Off Green Waste................................................................................................................................... 34 4.3.3 End Uses for Green Waste............................................................................................................................ 34 4.4 SECTION DELETED .............................................. .... -............. ........................... ............. ........................................ 35 4.5 CITY SERvicEs............. ........ _................................................................................................................................. 35 4.5.1 Ciftj Facilities Collection............................................................................................................................... 35 4.5.2 City Sponsored Events.................................................................................................................................. 35 4.5.3 Emergency Collection and Disposal Service...............................................................................................- 36 4.5.4 Abandoned Item Collection frons City Right -of -Way or Other Public Property .......................................... 36 4.5.5 Commnunity Development Review Services-... ..................................... ....... ............ ......... __ 36 4.5.6 Large Venue Event Assistance, Event Recycling......................................................................................... 36 4.5.7 Confiscation of Unauthorized Containers.................................................................................................... 36 4.5.8 Provision of Storage Containers .............................................................. ..................................................... 37 4.6 OPERATIONS 37 4.6.1 Schedules Missed Pickups........................................................................................................................... 37 4.6.2 Vehicles.........................................................................................................................................................38 4.6.3 Containers.....................................................................................................................................................42 4.6.3.1 Carts.........................................................................................................................................................42 4.6.3.2 Cart Maintenance and Replacement Responsibilities .......................... ............................................. 43 4.6.3.3 Bilns..........................................................................................................................................................43 4.6.3.4 Roll -off Boxes...........................................................................................................................................44 4.6.4 Litter Abatement........................................................................................................................................... 44 February 15, 2017 iii City of Diamond Sar - Colmnercial 4.6.5 Personnel.......................................................................................................................................................45 4.6.6 Identification Required .............................. ..... -............................................................................................ 46 4.6.7 Unauthorized Fees and Gratuities... ................................................................................. 46 4.6.8 Non-Discrimination.....................................................................................................................................46 4.6.9 Report ofAecunrulation of Solid Waste; Unauthorized Dumping... ............... _ 47 4.7 TRANSPORTATION OF SOLID WASTE..................................................................................................................... 47 4.8 APPROVED FACILITIES........................................................................................................................................... 47 4.9 STATUS OF DISPOSAL SITE..................................................................................................................................... 48 4.10 DEDICATED ROUTES......................................................................................................................................... 48 4.11 RoUTEAuDIT....................................................................................................................................................48 ARTICLE5...............................................................................................................................................50 OTHERSERVICES...............................................................................................................................................................50 5.1 CUSTOMER BILLING AND CONTRACTOR COMPENSATION................................................................................... 50 5.1.1 Billing...........................................................................................................................................................50 5.1.2 Contractor's Invoices.................................................................................................................................... 50 5.1.3 Section Deleted.............................................................................................................................................50 5.1.4 Section Deleted.............................................................................................................................................50 5.1.5 Section Deleted............................................................................................................................................. 50 5.1.6 Nott -Payment; Collections; Suspension of Service....................................................................................... 50 5.2 CUSTOMER SERVICE............................................................................................................................................... 51 5.2.1 Local Office ...................................................................................................................................................51 5.2.2 Complaint Documentation...........................................................................................................................51 5.2.3 Customer Service Standards......................................................................................................................... 52 5.2.4 Resolution of Customer Complaints ............................................... ................... 53 5.2.5 Contract Liaison...........................................................................................................................................54 5.2.6 Service Liaison.............................................................................................................................................. 54 5.3 EDUCATION AND PUBLIC AWARENESS................................................................................................................. 54 5.3.1 General..........................................................................................................................................................54 5.3.2 Implementation and On-going Education Requirements............................................................................. 54 5.3.3 Contractor Representative............................................................................................................................56 5.3.4 Community Events....................................................................................................................................... 56 5.4 WASTE GENERAHoN/CHARACTERIZATION STUDIES......................................................................................... 57 ARTICLE6...............................................................................................................................................58 COMPANYCOMPENSATION AND RATES................................................................................................................. 58 6.1 GENERAL ....... ....................................................................... .................................................................................. 58 6.2 INITIAL RATES........................................................................................................................................................ 58 6.3 SCHEDULE OF FUTURE ADJUSTMENTS.................................................................................................................. 58 6.4 METHOD OF ADJUSTMENTS.................................................................................................................................1.59 6.4.1 General........................................................... -........... ........ ........ ...... ......................... 59 6.4.2 Cost Components for Rate Adjustment Indices............................................................................................ 59 6.4.3 Rate Adjustment Steps for Bin, Temporary and Other Services.................................................................. 60 6.4.4 Rate Adjustment Steps for Pull Plass Dump Roll -Off Rates........................................................................ 61 6.5 EXTRAORDINARY ADJUSTMENTS........................................................................................................................... 62 6.6 EFFECT OF RATE CHALLENGE............................................................................................................................... 63 ARTICLE7.............................................................................................................................................................................. 64 REVIEWOF SERVICES AND PERFORMANCE............................................................................................................64 7.1 PERFORMANCE REVIEW MEETING........................................................................................................................ 64 72 PERFORMANCE SATISFACTION SURVEY ........ ............................................. ............................ 65 ARTICLE &...... u....... February 15, 2017 iv City of Diamoud Bar - Commercial RECORDS, REPORTS AND INFORMATION REQUIREMENTS............................................................................. 66 8.1 GENERAL................................................................................................................................................................ 66 8.2 RECORDS .................................................. ........ --.................................... ........ ........... ........................................... 66 8.2.1 General..........................................................................................................................................................66 11.3 LIQUIDATED DAMAGES.................................................................................................................................... 8.2.2 Financial Records.......................................................................................................................................... 67 8.2.3 Solid Waste Records......................................................................................................................................67 11.4.1 Force Majeure...................... ........... ............. .................. .......................... ................................................ 8.2.4 CERCLA Defense Records ........................... :................................................................................................ 68 8.2.5 Section Deleted .... ...... -..... -....... ........ ......................... ...... --....... ...................... ........................................... 69 8.2.6 Other Programs' Records.............................................................................................................................69 11.5.1 Negotiation and Mediation......................................................................................................................95 8.2.7 Audit.............................................................................................................................................................69 11.5.2 Confidentiality.........................................................................................................................................96 8.2.8 Payments and Refunds................................................................................................................................. 69 8.3 REPORTS.................................................................................................................................................................70 11.5.4 Continuing Obligation... ................. ........... ................. ...................... ................................................... 8.3.1 Report Formats and Schedule....................................................................................................................... 70 8.3.2 Monthly/Quarterly Reports..........................................................................................................................70 11.6 ASSURANCE OF PERFORMANCE............................................................ .......... ............. ..................................... 8.3.3 Annual Report.. ............................. ....... ................................ .............. - ............... — ............ 71 8.3.4 Financial Report...........................................................................................................................................72 8.4 REPORTING ADVERSE INFORMATION.................................................................................................................... 72 8.5 FAILURE TO REPORT ..................... --............... .................... .......... -... ............. ..................................................... 73 ARTICLE9...............................................................................................................................................74 INDEMNIFICATION, INSURANCE, BOND AND LETTER OF CREDIT............................................................... 74 9.1 INDEMNIFICATION................................................................................................................................................. 74 9.2 HAZARDOUS SUBSTANCES INDEMNIFICATION..................................................................................................... 75 9.3 AB 939 INDEMNIFICATION AND GUARANTEE............................................................ -........................................ 77 9.4 INSURANCE............................................................................................................................................................ 77 9.5 FAITHFUL PERFORMANCE BOND..................................................................................................-....................... 81 9.6 FAITHFUL PERFORMANCE LETTER OF CREDIT...................................................................................................... 81 9.7 FORFEITURE OF PERFORMANCE BOND.................................................................................................................. 82 9.8 FORFEITURE OF LETTER OF CREDIT OR DEPOSIT.................................................................................................. 83 9.9 PERFORMANCE SECURITY BEYOND SERVICE TERM - ............ .......... ............ -......... ............................................... 83 ARTICLE10.............................................................................................................................................84 CITY'S RIGHT TO CONTRACT WITH THIRD PARTIES TO PERFORM FRANCHISED SERVICES ............. 84 ARTICLE11.............................................................................................................................................85 DEFAULT, REMEDIES AND LIQUIDATED DAMAGES........................................................................................... 85 11.1 EVENTS OF DEFAULT.....................................................................................................................................-.. 85 11.2 RIGHT TO TERMINATE UPON DEFAULT AND RIGHT TO SPECIFIC PERFORMANCE ......................................... 88 11.3 LIQUIDATED DAMAGES.................................................................................................................................... 88 11.4 SUSPENSION OF PERFORMANCE..............................................................................._...................................... 94 11.4.1 Force Majeure...................... ........... ............. .................. .......................... ................................................ 94 11.4.2 Labor Unrest............................................................................................................................................ 94 11.5 DISPUTE RESOLUTION....................................................................................................................................... 95 11.5.1 Negotiation and Mediation......................................................................................................................95 11.5.2 Confidentiality.........................................................................................................................................96 11.5.3 Injunctive Relief...................................................................................................................................... 96 11.5.4 Continuing Obligation... ................. ........... ................. ...................... ................................................... 96 11.5.5 Failure of Media Hon.........................................................................................................................._.....96 11.6 ASSURANCE OF PERFORMANCE............................................................ .......... ............. ..................................... 96 ARTICLE 12....................................................................... OTHER AGREEMENTS OF THE PARTIES ................................. 9 8 98 February 15, 2017 v City of Diamond liar - Commercial 12.1 RELATIONSHIP OF PARTIES............................................................................................................................... 98 12.2 COMPLIANCE WITH LAW.. ......... __ ........... .................... .................................................................. 98 12.3 GOVERNINGLAW..............................................................................................................................................98 13.3 12.4 JURISDICTION_.................................................................................................................................................. 98 12.5 ASSIGNMENT...... ........................................................................... __ ................................................................ 99 12.6 CONTRACTING OR SUBCONTRACTING........................................................................................................... 101 12.7 BINDING ON ASSIGNS..................................................................................................................................... 101 12.8 COOPERATION IN PREPARATION FOR TERMINATION OR EXPIRATION OF CONTRACT ................................. 101 12.9 PARTIES IN INTEREST....................................................................................................................................... 102 12.10 WAIVER...........................................................................................................................................................102 12.11 CONTRACTOR'SINVESTIGATION.....................................................................................................................102 12.12 SECTION DELETED........................................................................................................................................... 102 12.13 NOTICE............................................................................................................................................................103 12.14 REPRESENTATIVES OF THE PARTIES................................................................................................................103 12.15 CITY FREE TO NEGOTIATE WITH THIRD PARTIES........................................................................................... 104 12.16 COMPLIANCE WITH MUNICIPAL CODE..........................................................................................................104 12.17 PRIVACY..........................................................................................................................................................104 12.18 PROPRIETARY INFORMATION, PUBLIC RECORDS........................................................................................... 105 ARTICLE13...........................................................................................................................................106 MISCELLANEOUS PROVISIONS..................................................................................................................................106 13.1 ENTIRE AGREEMENT.......................................................................................................................................106 13.2 SECTION HEADINGS........................................................................................................................................106 13.3 REFERENCES TO LAWS AND OTHER AGREEMENTS........................................................................................106 13.4 INTERPRETATION.......................... ........................................................................................................ 106 13.5 AGREEMENT.. ................... ...................................................................................................................... Io6 13.6 SEVERABILITY..................................................................................................................................................107 13.7 EXHIBITS..........................................................................................................................................................107 13.8 ATTORNEYS' FEES........................................................................................................................................... 107 Exhibits 1. Public Education Plan 2. Initial Maximum Rates 3. Example Rate Adjustment Formula: 3A: Bin, Temporary Service and Other Service Rates 313: Permanent Roll -Off Box Rates 3C: Calculation of Annual Change in a Published Index 4. Corporate Guarantee 5. Faithful Performance Bond 6 Notary Certification 7 Example Monthly Report Format February 15, 2017 vi City of Diamond Bar - Commercial This Amended and Restated Agreement for Integrated Solid Waste Management Services hereinafter the "Agreement") is entered into this 21 day of February, 2017, 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. 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 term of the Initial Agreement, as defined below is set to expire on August 15, 2018; and, WHEREAS, City and Contractor ("Parties") have negotiated, and desire to enter into this Agreement in order that Contractor continue to serves the City's exclusive bin and roll- off customer solid waste hauler for the term hereof; and, 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 February 23, 2017 -1- City of Diamond Bar - Commercial 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. WHEREAS, the Parties entered in that certain agreement for Solid Waste Management Services on August 16, 2010 ("Initial Agreement"), which term expires on August 15, 2018. The Parties intend that in entering into this Agreement that this Agreement shall replace in its entirety the Initial Agreement and all amendments thereto upon the Effective Date as defined herein. NOW, THEREFORE, in consideration of the recitals above stated, which recitals are a material part of this Agreement, and the terms, conditions, covenants and agreements contained herein, the Parties do hereby agree as follows: February 23, 2017 -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: 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 the basis of the percentage of voting interest or value which the ownership interest represents, whichever is greater. February 15, 2017 -3- City of Diamond Bar - Commercial 1.3 1.4 1.5 1.6 1.7 Billings Billings" or "Billing' or 'Bill" means the statements of charges provided to Customers for services rendered by Contractor. Bin Bin" means a rectangular metal or plastic Container with hinged lids and wheels with a capacity of at least 1.5 cubic yards, and less than ten (10) cubic yards. Bin Service Bin Service" means Solid Waste Collection Services in which a Bin is used for the Collection of Solid Waste. 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. 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. February 15, 2017 -4- City of Diamond Bar - Commercial 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. IC i ]W I z"iTU . .' C 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. 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. February 15, 2017 -5- City of Diamond Bar - Commercial 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. 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 CalRecycle 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. February 15, 2017 -6- City of Diamond Bar - Commercial 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 Food Waste Food Waste" means: All food (including fruits, vegetables, meat, poultry, seafood, shellfish, bones, rice, beans, pasta, bread, cheese and eggshells); Food -soiled paper that is mixed in with food waste (including waxed cardboard, waxed paper, napkins, paper towels, paper plates, paper milk cartons); Tea bags; and, Coffee grounds and filters. Food Waste is a subset of Organic Waste. 1.24 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 February 15, 2017 -7- City of Diamond Bar - Commercial diameter or 48 inches in length) and similar materials. Green Waste is a subset of Organic Waste. 1.25 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. 1.26 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. 1.27 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. February 15, 2017 -8- Ci y of Diamond Bar - Conunercial 1.25 ElW 1.30 1.31 1.32 1.33 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. Household Hazardous Waste ("HHW) Household Hazardous Waste" means Hazardous Waste generated at Residential Premises. 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. 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. Organic Waste Organic Waste" means Food Waste and Green Waste, and other compostables, collectively or individually. Organic Waste Processing Facility Organic Waste Processing Facility" means a permitted Facility where Organic Waste is sorted, mulched or separated for the purposes of Recycling, reuse or composting. February 15, 2017 -9- City of Diamond Bar - Commercial 1.34 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. 1.35 Premises Premises" means any land, or building in City where Solid Waste is generated or accumulated. 1.36 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, 1.37 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. 1.38 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 mamler different from Refuse in order to allow it to be processed for Recycling. 1.39 Refuse Refuse" means putrescible and non-putrescible Solid Waste. 1.40 Residential Services Residential Services" refer to Solid Waste Collection Services performed at and for Residential Premises included under this Agreement. February 15, 2017 -10- City of Diamond Bar - Commercial 1.41 Residential Customers Residential Customer" means all Customers on Residential Premises that are included under this Agreement. 1.42 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 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. 1.43 Roll -off Box Roll -off Box" means Solid Waste Collection Containers of 10 cubic yards or larger. 1.44 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. 1.45 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 Organic 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. February 15, 2017 -11- City of Diamond Bar - Commercial 1.46 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. 1.47 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. 1.48 State State" means the State of California. 1.49 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 1.50 Transformation Transformation" means incineration, pyrolysis, distillation, gasification, or biological conversion other than composting. 1.51 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, Organic Waste and/or Construction and Demolition debris), to processors, brokers or end-users. February 15, 2017 -12- CiLy of Diamond Bar - Commercial 1.52 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. February 15, 2017 -13- 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 Tenn 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 thirteen (13) years, and fifteen (15) days, commencing on August 16, 2010, and expiring August 31, 2023, subject to February 15, 2017 -24- City of Diamond Bar - Commercial extension as provided herein. 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 for up to twenty-four (24) months following expiration of the 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, exercise this extension option. If City provides this extension notice, the Agreement will automatically renew up to a maxhnum of twenty-four (24) months. This extension period shall terminate, upon the earlier of: (i) the expiration of the aforementioned twenty-four (24) 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. February 15, 2017 -15- 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 comlection 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 turless the actions taken are not within the scope of t1 -ds 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. February 15, 2017 -16- 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 Agreement 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 as 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. February 15, 2017 -17- City of Diamond Bar - Coimnercial 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, francluses or agreements issued or entered by City: a) The sale or donation of source -separated Recyclable Material and/or Organic Waste 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 and/or Organic Materials, 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; February 15, 2017 -18- 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; 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; k) The Collection, transfer, transport, Recycling, and processing of Organic Waste for use as animal feed; and, 1) Food that is donated or otherwise provided to charitable organizations or food banks for use as food for human consumption. 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. February 15, 2017 -19- City of Diamond Bar - Commercial 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. If City directs Contractor to perform additional services, 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, unless the Parties otherwise agree. 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 does not direct Contractor to perform additional services 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.). February 15, 2017 -20- Ciiy of Diamond Bar - Coinrnercial 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. 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. February 15, 2017 -21- City of Diamond Bar - Commercial Contractor must follow requirements of the Diamond Bar Municipal Code, including, but not limited to, obtaining a City of Diamond Bar business license. February 15, 2017 -22- Ciiy of Diamond Bar - Commercial 3.1 M 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: Contracting Fee Contractor paid 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 the Initial Agreement to reimburse the City for costs it incurred in connection with entering the Initial Agreement. A contract extension fee of $75,000 shall be paid to the City within seven (7) days of execution of this Agreement to reimburse the City for costs it incurred in connection with entering into this Agreement. 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 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 sei vices 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 admiuustration 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. February 15, 2017 -23- City of i7iamond Bar - Commercial 3.3 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 Environmental Education Fee Pursuant to the terms of this Agreement, Contractor shall pay an annual Environmental Education Fee in the amount of Six Thousand, Five Hundred Dollars ($6,500). The first such payment shall be due and payable to the City on July 1, 2017, and subsequent payments shall be due and payable to the City on or before July 1 of each subsequent year. The amount of the Environmental Education Fee shall be adjusted amivally for the average annual change in the CPI between the calendar year ended the December preceding the fee payment due date and the prior calendar year. For example, for the fee payment due July 1, 2018, the percentage adjustment to the $6,500 payment amount from the prior year would be equal to the average annual change in the CPI comparing calendar year 2017 to calendar year 2016. 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 for each month the payment is late thereafter. 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. February ib, 20"i 7 -24- City of Diamond Bar - ConuLerci d 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, February 15, 2617 -25- City of Diamond Bar - Connnercial 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 or visa versa 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 February 15, 2017 -26- 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. February 15, 2017 -27- 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 or other public right-of-way for Collection, or Collecting Solid Waste directly from Container storage location. Under no circumstance shall Containers remain in the public right-of-way or outside of Container storage location for a period exceeding two (2) hours. In the event of a dispute between Contractor and Customer as to whether scout service will be used, City will make the final determination. Contractor is responsible for verifying that an encroachment permit has been obtained from the City prior to placing a Container in the public right-of-way. If the Customer has not obtained an encroachment permit, the Contractor shall inform the Customer that the Container shall not be placed in the public right-of-way until the Customer provides Contractor with verification of an encroachment permit, instructing the Customer as to how to obtain the permit. A copy of the encroachment permit shall be affixed to the Container. 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 Cusiomer with multiple Bins. February 15, 2017 -25- City of Diamond Bar - Commercial 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 days' notice for the items, which shall be Collected on the Customer's regular 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 February 15, 2017 -29- City of Diamond Bar - Cormnercial 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 mhiimum: 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 Customer, Contractor shall notify Customer 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. February 15, 2017 D0- City of Diamond Lar - Commercial IN 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 Customers within City, but diverted from landfilling. 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 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. February 15, 2017 -31- City of Diamond Bar - Commercial 4.2.2 Processing of Solid Waste Contractor shall process all mixed 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. 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 Diversion Requirements For each calendar year, beginning calendar year 2010 through calendar year 2017, 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 tomlage shall be included in the overall 25% diversion calculation. For each calendar year, beginning January 1, 2018, Contractor shall divert from landfilling a minimum of 25 % of all Solid Waste Contractor Collects under this Agreement, excluding Construction and Demolition Debris Loads. Additionally, Contractor shall divert from landfilling a minimum of 75% or the State -mandated Construction and Demolition diversion percentage, whichever is greater, of all Construction and Demolition Debris loads it Collects under this Agreement. 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 February 15, 2017 32- City of Diamond Bar - Commercial 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 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% or the State -mandated Construction and Demolition diversion percentage, whichever is greater, of all Construction and Demolition Debris Collected. 4.2.7 Organic Waste Collection Services Contractor shall make arrangements to provide Organic Waste Collection services to Multi -Family and Commercial accounts to comply with State requirements for mandatory Commercial Organics Recycling under AB 1826. Organic Waste Collection may be done utilizing Bins or Carts, depending on the amount of material generated or space constraints. Contractor agrees to assist City to identify Multi -Family and Coimauercial Premises required to arrange for Organic TE/13-terial Collection services February 15, 2017 -33- City of Diamond Bar - Commercial under State law, offer Organic Waste Collection to such Premises, and notify the City in the event of refusal to subscribe for Organic Waste Collection. Collection of Organic Waste in Bins shall be charged at the same rate as Refuse Bins included in Exhibit 2. Collection of Organic Waste in Carts shall be in accordance with the approved rates included in Exhibit 2. 4.2.8 Section Deleted 4.3 Green Waste Program 4.3.1 Holiday Tree Collection Program Contractor shall operate an amzual 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. 4.3.2 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. 4.3.3 End Uses for Green Waste Contractor shall divert Green Waste materials Collected through 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 CalRecycle. 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. Diversion credit for ADC is not allowed after January 1, 2020 per Assembly Bill 1594. 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. February 15, 2017 -34- City of Diamond Bar - Conuiiercial 4.5 Section Deleted City Services 4.5.1 City Facilities Collection Contractor shall Collect and dispose of all Refuse, Recyclable Material, and Organic 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 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 February 15, 2Oi% -35- 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 illegally placed Container, Contractor shall begin the following procedure within 24 hour. s: February 15, 2017 -36- City of Diamond Bar - Conunercial 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 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 6:00 a.m. and 6:30 p.m. Collection is only permitted Monday through Saturday. 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 DEy, Thanksgiving Day, or Czristmas Day, February 15, 2017 -37- City of Diamond Bar - Commercial 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 Organic 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. 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. February 15, 20i7 -38- City of Diamond Bar - Commercial 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 reasonably determines that their appearance warrants painting. 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 February 15, 2017 -39- City of Diamond Bar - Commercial 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, evidence of insurance meeting the requirements of this Agreement 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. 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 February 15, 20 7 -40- City of Diamond Bar - Commercial in excess of the manufacturer's reconunendations 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 mamler 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. February 15, 2017 -41- 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 decision shall be final. 4.6.3 Containers Contractor will provide Containers to be used under this Agreement. On or before December 31, 2017, Contractor shall ensure that all Containers comply with requirements included in Sections 4.6.3.1 through 4.6.3.4, and provide City with a written Container inspection report. 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. S. Section Deleted C. Cart Color and Appearance The Recycling and Organic 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 sl Il be hot stamped February 15, 2017 - --2- City of Diamond Sar - Coxmnercial with the material type (e.g., trash, Recycling, Organics) 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 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 February 15, 2017 -43- City of Diamond Bar - Commercial 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, Organic 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, Organic 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 February 15, 2017 -44- City of Diamond :Sar - Commercial cleanup efforts and shall carry a broom, shovel, absorbent, and containment materials at all times for this purpose. 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, Organic 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 tine p_-ocessing Facility or Disposal Site. February 15, 2017 -45- 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. February 15, 2017 -46- City of Diamond Bar - Commercial EWA 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 maruler. Contractor shall deliver the address or description to City within one (1) working day of such observation. Transportation of Solid Waste Contractor shall transport all Refuse Collected to a City -approved Facility (e.g. Transfer Station, Waste -to -Energy Facility, Organic 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 iri designated areas, accommodating to maintenance operations and construction of new facilities, cooperating with its Hazardous Waste exclusion program, and so forth. 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. February i5, 2017 -47- 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 landfill Disposal Site 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 approved under this Agreement shall be dedicated exclusively to Solid Waste Collected in the City of Diamond Bar, with the exception of Commercial Organics routes. 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; February 15, 2017 -48- City of Diamond Bar - Conunercial Graffiti. 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. February 15, 2017 --49- 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 fifteen 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: February 15, 2017 -50- Cay of 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, wanting 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. Billing disputes between Contractor and Customer may be resolved by City, and City's decision shall be final and binding. 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 mirvmum, 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. February 15, 20i7 -51- City of Diamond Bar - Commercial 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. 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 anyone 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 this 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. Februaiy 15, 2017 -52- 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 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 mariner. 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. February 15, 2017 -53- City of Diamond Bar - Cormnerdal 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 e>.pense; wl-Lich will be distributed as indicated below. All of these materials and February 15, 2N7 -54- 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 new Customer throughout the Agreement term. This packet shall: describe available sei vices, 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. All customers shall be promptly notified of any changes to such information. 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 -Containers shall carry stickers/ labels and hot stamps as described in Sections 4.6.3.1.1) 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, Organic Waste, Holiday Tree and Bulky Item Collections) described in detail; the environmental, regulatory, and other benefits of participating in Recycling; how to properly dispose February 15, 2017 -05- City of Diamond Bar - Commercial 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. Second Annual Mailer- Not less than once per year during each Rate Year, Contractor shall prepare and distribute to each Customer a one (1) page, double - sided mailer printed in full color. City and Contractor shall meet and confer to determine the subject matter of mailer. Contractor is responsible for all associated costs. The method of delivery to Customers is at the City's discretion. 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. February 15, 2017 -56- City of Diamond Pear - Commercial 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 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. February 15, 2017 -57- 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 (including but not limited to surcharges for weekend or priority service) 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, 2018, 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 agrees to waive the annual rate adjustment that would be due July 1, 2017. 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. The City shall consider a failure to submit a written request by March 31 as Contractor's determination not to seek an adjustment and shall constitute a waiver by Contractor of its right to request such an increase for the subsequent Rate Year. However, the City reserves the right to initiate a rate adjustment in instances where the Contractor fails to submit a written rate adjustment request Adjustment to the maximum rates is subject to the approval of the City Manager. If an annual adjustment that would have resulted in a rate decrease is not implemented for any reason, the next rate adjustment will be measured based on the change in February 15, 2017 -58- City of Diamond Bar - Commercial indices from the last implemented rate adjustment; the intent is to ensure subsequent rate increases shall be offset with any decrease not previously implemented. 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 Exhibits 3A, 3B, and 3C, subject to review and approval of City. All 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 and Section 6.4.4 for detailed rate adjustment procedures. 1) For example, under the ab ePs entternunating Septe_1_be 30, 2019, these rates arc: February 15, 2017 -59- City of Diamond Bar - Conunercia_l Weightings for VW8 AdjustmentCost Category Rate Adjustment Factor Section Section 6.4.3 6.4.4 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, hic. and Teamsters Automotive Industrial and Allied Workers Local Labor 27.0% 34.2% No. 495(1) Producer Price Index WPU05522101, Fuels and Fuel 6.1% 7.6% related products and power Producer Price Index, PCU336120336120, Heavy Equipment 20.0% 25.0% duty truck manufacturing Consumer Price Index for All Urban Consumers CUURA421SAOLIE), all items less food and energy Disposal 17.0% n/a Los An eles-Riverside-Oran e County, CA Consumer Price Index for All Urban Consumers CUURA421SAOLIE), all items less food and energy All Other 29.9% 33.2% Los Angeles -Riverside -Orange County, CA Total 100.0% 100.0% 1) For example, under the ab ePs entternunating Septe_1_be 30, 2019, these rates arc: February 15, 2017 -59- City of Diamond Bar - Conunercia_l Contract Date 10/01/16 10/01/17 10/01/18 Hourly Rate 21.85 22.25 22.65 Rate Adjustment Date n/a 7/01/18 7/01/19 Change to Labor Component n/a 1.8% 1.8% 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. 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 3A. 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, disposal 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 3C for an example average arulual 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 6.4.2. 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 Contractor 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. February 15, 2017 -60- City of Diamond. tiay - Commercial 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 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. (See Exhibit 3C for an example average amival change in published index year over 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. February 15, 2017 -61- City of Diamond Bar - Commercial 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 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, 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 February 15, 2017 -62- City of Diamond Bar - Conunercial 6.6 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, among other things, increases or decreases in the Contractor's total revenues and total cost of services when reviewing an extraordinary rate adjustment request. Effect of Rate Challenge If a rate adjustment approved by the City Manager or City Council is prevented from implementation due to a legal challenge by third parties, and City does not otherwise compensate Contractor for the amount of the adjustment due, Contractor is permitted to terminate this Agreement upon one-year notice. February 15, 2017 -63- City of Diamond Bar - Conumercial ARTICLE 7 REVIEW OF SERVI,CES 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. February 15, 2017 -64- City of Diamond Bar - Commercial 7.2 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. 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. February 15, 20-17 -65- City of Diamond Bar - Commercial 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 reports of Contractor or it" Affiliates that City shall', deem, in its sole discretion, February 15, 2017 -66- City of Diamond Bar - Conunercial 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: a) Customer services and Billing/City payment records; February 15, 2017 -67- City of Diamond Bar - Commercial b) Records of tons Collected, processed, diverted and disposed by waste stream Refuse, Recycling, Organic 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 Organic 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. February 15, 2017 -68- City of Diamond Bar - Corornercial 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, quantifies of products used, produced or distributed, and numbers of participants and responses. 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 may be performed every third year thereafter. Contractor will pay 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. Audit payments from the Contractor to the City are due January 1 of year the audit is being performed. 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 re fined to Contractor's Customers, as directed by February 15, 2017 -69- City of Diamond bar - Cormmercial City, any overcharges within thirty (60 days following the date of the audit. Contractor shall pay interest to the City for any underpayment or overcharges at an annual rate of 6%. 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 with interest. 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 shall utilize the Monthly Report template included in Exhibit 7, which may be adjusted by the City at any time. Contractor may propose the format for the Annual Report that is responsive to the objectives and audiences for report. The format of the Annual 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 City Manager and/or other City staff designated by the City Manager at e-mail addresses to be provided by City. City may additionally request hard copies, which would be delivered to: City Manager City of Diamond Bar 21810 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, Organic Waste) in tons, including contamination February 15, 2017 -70- City of Diamond Bar - Commercial 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. 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, Organic 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, Green Waste, and Organic 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, Organic Waste). b) Records of tons Collected, processed, diverted and disposed by waste stream Refuse, Recycling, Organic Waste Waste), by Customer type (Cart Bin, Roll -Off Box), and the Facilities (Transfer Station, MRF, processing or composting facility, or landfill) where such material was taken. c) Gross Receipts by sector (Cart, Bin, Roil -Off Dox)j. February 15, 2017 -71- City of Diamond Bar - Conunercial d) A complete inventory of velucles 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) A complete listing of accounts receiving scout service, including service address, billing name and address, telephone number, and proof of encroachment permit. f) Number of routes and route hours per day by type of service as of December 31. g) General information about the Contractor and its most recent annual report. h) 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, but only as they pertain to 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 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 Enviromnental Protection Agency, CalReeycle, the Securities and ExchaiLge Coninission or any other federal, state or local February 15, 2017 -72- City of Diamond Bar - Commercial M 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. 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 hi 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. February 15, 2017 -73- City of Diamond Bar - Corn ercial 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 omissions, 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 hi 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. Contractor, upon demand of City, made by and through the City Attorney, shall protect City and appear F_t and defend the hndemnitees in any claims or aeons by turd parties, February 15, 2017 -74- City of Diamond Bar_ - Commercial am 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 11 • AGREEMENT. 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, which acceptance shall not be unreasonably withheld), 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. February 15, 2017 -75- City of Diamond Bar - Commercial_ 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 only apply to Claims arising out of Contractor's collection and transportation to such facility. February 15, 2017 -76- City of Diamond Bar - Commercial 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 CalRecycle 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 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 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 heremlder 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). 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. February 15, 2017 -77- City of Diamond Bar - Commercial 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: 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 retentions 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) The Indemnitees shall 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, hued or borrowed by Contractor. The coverage shall contain no special limitations on the scope of protection afforded to the Indemnitees. February i5, 2017 -78- Ciiy of Diamond Bar - Commercial b) Contractor's insurance coverage shall be primary insurance as respects the Indemnitees. Any insurance or self-insurance maintained by the Indemnitees 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 the Indemnitees. 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 the Indemnitees for losses arising from work performed by Contractor for City. 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, 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 maLntenance of the required coverage tf roughout the Term. February 15, 2017 -79- City of Diamond Bar - Commercial 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 21810 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." 1 "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. Thus policy shall protect Contractor and City in the same mamier 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 go 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 February 15, 2017 -80- City of Diamond Bar - Commercial 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 Exlubit 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. 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 February 15, 2017 -Si- City of Diamond Bar - Commercial 9.7 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. 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 tlw-ty (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. February 15, _017 -82- City of Diamond Bar - CommercW WK 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. Performance Security Beyond Service Terra Some Agreement requirements extend beyond the Term 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 second am -mal anniversary of the end of the Term. 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. February 15, 201783- City of Diamond_ Ear - Conunercial 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 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. February 15, 201% -84- City of Diamond Bar - Commercial ARTICLE 11 I NJ a W -all anti No In P I awng, I. . 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 or cause its subcontractors 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. February 15, 2017 -85- City of Diamond bar - Commercial 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 Contractor 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 Contractor cannot reasonably correct or remedy the breach within the time set forth in such notice, if Contractor 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 Contractor 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 Contractor or any of Contractor's officers, directors or employees is guilty as well as any admission of guilt by Contractor or any of Contractor'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 February 15, 2017 -86- City of Diamond Bar - Commercial 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 Organic Waste into a Refuse load, or transports Recyclable Materials or Organic 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. February 15, 2017 -87- City of Diamond Bar - Conunercial 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 for preservation of the public health, safety and welfare, 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 rebruary 15, 2017 -88- City of Diamond Bar - Commercial substantially lower costs than alternative services and the monetary loss resulting from 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 the public health, safety and welfare and that City has considered and relied on Contractor's representations as to its quality of service corrunitment 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 mamler, 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 February 15, 2017 -89- City of Diamond Bar - Commercial a) For each failure to commence service to anew 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: 2. Collection Quality 100.00 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 f) For each occurrence of failure to verify that Customer has obtained an encroachment permit from the City prior to Contractor placing a Container in the public right-of-way which exceeds ten (10) such occurrences annually: 100.00 g) For each occurrence of failure to return a Container to Container storage locations, as described in Section 4.1.12 "Scout Service' of this Agreement, withal two (2) hours of set out which exceeds ten (10) such occurrences annually: 100.00 February 15, 2017 -90- City of Diamond Sar - Commercial 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 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 h) For each occurrence of inaccurate information being provided to Customers by Contractor's customer service department which exceeds five (5) such occurrences annually: 100.00 4. Diversion Efforts a) For each calendar year, beginning calendar year 2010 through calendar year 2017, 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: February 15, 2017 -91- City of :Diamond Bar - Commercial 25 for each ton below tonnage level , necessary to meet 25 % Diversion goal b) For each calendar year, beginning January 1, 2018, in which Contractor fails to provide documentation to the City within thirty (30) days of year-end, supporting that it diverted at least 25% of the Solid Waste Contractor Collected under this Agreement, excluding Construction and Demolition Debris loads: 25 for each ton below tonnage level necessary to meet 25 % Diversion goal c) For each calendar year, beginning calendar year 2018, in which Contractor fails to provide documentation to the City within thirty (30) days of year- end, supporting that it diverted at least 75 %, or the State -mandated Construction and Demolition diversion percentage, whichever is greater, of all Construction and Demolition Debris loads it Collects under this Agreement: $25 for each ton below tonnage level necessary to meet 75%, or State -mandated Construction and Demolition Diversion goal, whichever is greater. 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: $25 per day ii) Annual Reports: $50 per day 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 :nor February 15, 2017 -92- City of Diamond Bar - Commercial a 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 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 representatives or through investigation of Customer complaints by such Persons. 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, the 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. 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 incident(s)/non-performance prior to authorizing the assessment of liquidated damages. The decision of City Manager shall be final. February 15, 2017 93- City of Diamond Bar - Cormmerciai 11.4 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 60 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. 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, City may contract with another provider to perform all or part of this Agreement until such time Contractor is able to perform. If Contractor is unable to renew its performance of this Agreement for a period of thirty (30) days or more, where the City is not significantly impacted by the catastrophic event, City shall nevertheless have the right, in its sole discretion, to ter- minate flus Agreement by giving ten (10) days' notice. 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 follcwing requiTe_.azen.ts are met: February 15, '9017 -94- City of Diamond Bar - Conunerciai 11.5 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, u1 its sole discretion, to terminate this Agreement by giving ten (10) days' notice, and may contract with another party for Solid Waste Collection Services. Dispute Resolution Except as may otherwise be set forth expressly herein, all disputes arising under this Agreement shall be resolved as set forth in thus 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 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 raay nitiate a mediation of 'L11e dispute. The mediation shall be facilitated by a February 15, 2017 -95- City of Diamond Bar - Commercial 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. 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 fo -1n aiLd subsi:ance as City may _-equire. H Contractor fails or refuses to February 15, 2017 -96- City of Diamond Bar - Commercial 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. February 15, 2017 -97- City of Diamond Bar - Commercial 12.1 12.2 12.3 12.4 ARTICLE 12 OTHER,AGREEMENTS OF THE PARTIES 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. 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. Governing Law This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California. 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. February 15, 2017 n8- 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 indexmzity obligations to City under this Agreement. City has relied on each of these factors, among others, in choosing Contractor to pertorLn tie services to be rend --red by Contractor under this Ag eement. February 15, 2017 -99- 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 immediately 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 thus 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 February 15, 2017 -1o0- City of Diamond Bar - Commercial 12.6 12.7 12.8 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. Contracting or Subcontracting Contractor shall not engage any contractors or subcontractors for the Collection of Solid Waste. 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. 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 lirnited 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 6..is covenant and/or oiler equitable relief necesSary io enforce this covenant. February 15, 2017 . -101- City of Diamond Bar - Cor unercial 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 tlus 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 February 15, 2017 -102- City of Diamond Bar - Conunercial 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 21810 Copley Drive Diamond Bar, CA 91765 If to Contractor: David Perez V.P. Operations Valley Vista Services 17445 E. Railroad St. City of hrdustry, CA 91748 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 the Agreement and shall inform City in writing of such designation end of any limitations upon his or February 10, 2017 -103- 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, Organic 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. Februaiy 15, 2017 -104- City of Diamond Bar - Commercial 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 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. February 15, 2017 -105- City of Diamond Bar - Conunercial 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 sighed by the Parties. February 15, 2017 -106- 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. 13.9 Effective Date 11 -ds Agreement shall be effective upon the date it has been executed by both Parties. Once so executed, the City's City Clerk shall insert the later date thereof in the opening paragraph of this Agreement. February 15, 2017 -107- 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 DATED:Or '9-a -->o l? CITY OF DIN BAR By: fames DeStefJno City Manager ATTEST: Tommye Cribbins City Clerk NINSFU • oplemm- I\ A s-ic42-'E i '+-1 TITLE Valley Vista Services, Inc. NAME OF COMPANY 17445 Railroad Street, Industry, CA ADDRESS 626) 961-6291 TELEPHONE February 15, 2017 -108- City of Diamond Bar - Commercial EXHIBIT 1 Iits) SO 17i iT_ 1 1 C 7 A_i i to be attached after City approval per Section 5.3.2) February 15, 2017 1 City of Diamond Bar - Commercial EXHIBIT 2 INITIAL MAXIMUM RATES (1) Following are the rates through June 30, 2018: Monthly Collection Rates Container Size Pickups per week 1 2 3 4 5 6 Extra Empty Refuse and Organics Sins 1.5 Cubic Yard 93.78 154.13 extra bin (2) 84.41 138.71 2 Cubic Yard 107.41 186.22 254.58 329.44 408.29 476.65 41.00 extra bin (2) 96.66 167.59 229.12 296.50 367.46 428.97 3 Cubic Yard 132.98 220.46 309.55 401.88 492.60 601.21 47.48 extra bin (2) 119.68 198.40 278.60 361.70 443.35 541.09 4 Cubic Yard 168.35 270.95 375.89 535.36 640.29 777.75 53.99 extra bin (2) 151.51 243.84 338.29 481.82 576.27 699.99 6 Cubic Yard 200.96 331.97 464.66 675.35 806.37 974.12 62.71 extra bin (2) 180.86 298.78 418.19 607.82 725.74 876.71 Organics Cart- 65 gal. 40.00 80.00 120.00 160.00 200.00 240.00 Recycling - 96 gal. 17.56 Recycling -1.5 yd. 39.90 63.55 Recycling - 2 yd. 45.81 76.82 101.95 131.51 162.57 189.13 Recycling - 3 yd. 66.50 102.51 143.09 185.29 226.72 277.14 Scout Service (3) 67.22 160.16 240.25 320.32 400.41 480.48 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 maybe charged in addition to collection rates, in accordance with Section 4.1.12 of the collection agreement, on a per container basis. February 15, 2017 2-1 City of Diamond Sar - Commercial EXHIBIT 2 INITIAL MAXIMUM RATES (1) Following are the rates through June 30, 2018: Monthly Collection Rates Container Size Pickups per week 1 2 3 4 5 6 Extra Empty Refuse and Organics Sins 1.5 Cubic Yard 93.78 154.13 extra bin (2) 84.41 138.71 2 Cubic Yard 107.41 186.22 254.58 329.44 408.29 476.65 41.00 extra bin (2) 96.66 167.59 229.12 296.50 367.46 428.97 3 Cubic Yard 132.98 220.46 309.55 401.88 492.60 601.21 47.48 extra bin (2) 119.68 198.40 278.60 361.70 443.35 541.09 4 Cubic Yard 168.35 270.95 375.89 535.36 640.29 777.75 53.99 extra bin (2) 151.51 243.84 338.29 481.82 576.27 699.99 6 Cubic Yard 200.96 331.97 464.66 675.35 806.37 974.12 62.71 extra bin (2) 180.86 298.78 418.19 607.82 725.74 876.71 Organics Cart- 65 gal. 40.00 80.00 120.00 160.00 200.00 240.00 Recycling - 96 gal. 17.56 Recycling -1.5 yd. 39.90 63.55 Recycling - 2 yd. 45.81 76.82 101.95 131.51 162.57 189.13 Recycling - 3 yd. 66.50 102.51 143.09 185.29 226.72 277.14 Scout Service (3) 67.22 160.16 240.25 320.32 400.41 480.48 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 maybe charged in addition to collection rates, in accordance with Section 4.1.12 of the collection agreement, on a per container basis. February 15, 2017 2-1 City of Diamond Sar - Commercial AMENDED AND RESTATED AGREEMENT BETWEEN CITY OF DIAMOND BAR AND VALLEY VISTA SERVICES FOR BIN AND ROLL -OFF BOX CUSTOMER SOLID WASTE MANAGEMENT SERVICES February 15, 2017 AGREEMENT BETWEEN CITY OF DIAMOND BAR AND VALLEY VISTA SERVICES FOR BIN AND ROLL -OFF BOX SOLID WASTE MANAGEMENT SERVICES TABLE OF CONTENTS RECITALS Page 11 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........................................................................................................................................................................4 1.8 CITY.......................................................................................................................................................................... 5 1.9 COLLECT/COLLECTION...........................................................................................................................................5 1.10 COMMERCIAL SERVICES...................................................................................................................................... 5 1.11 COMMERCIAL PREMISES..................................................................................................................................... 5 1.12 CONTRACTOR......................................................................................................................................................5 1.13 CONTRACTOR COMPENSATION .................................. ....... 5 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...........................................................................................................................................................6 1.21 ENVIRONMENTAL LAWS.....................................................................................................................................7 1.22 FACILITY..............................................................................................................................................................7 1.23 FOOD WASTE ................ -....................................................... 7 1.24 GREEN WASTE..................................................................................................................................................... 7 1.25 GREEN WASTE PROCESSING FACILITY............................................................................................................... 8 1.26 GROSS RECEIPTS..................................................................................................................................................8 1.27 HAZARDOUS SUBSTANCE................................................................................................................................... 8 1.28 HAZARDOUS WASTE ............................................. ....................................................... 9 1.29 IOUSEHOLD HAZARDOUS WASTE ("HHW")............ ........................................ 9 1.30 MATERIALS RECOVERY FACILITY („MRF")....................................................................................................... 9 1.31 MULTI-FAMILYDWELLING.............................................. 9 February 15, 2017 i City of Diamond Bar - Commercial 1.32 ORGANIC WASTE................................................................................................................................................9 1.33 ORGANIC WASTE PROCESSING FACILITY. ........................ ................. ............................................................... 9 1.34 PERSON..............................................................................................................................................................10 1.35 PREMISES........................................................................................................................................................... 10 1.36 RATE YEAR........................................................................................................................................................ 10 1.37 RECYCLING........................................................................................................................................................10 1.38 RECYCLABLE MATERIALS........................................................._...................................................................... 10 1.39 REFUSE...............................................................................................................................................................10 1.40 RESIDENTIAL SERVICES..................................................................................................................................... 10 1.41 RESIDENTIAL CUSTOMERS................................................................................................................................ 11 1.42 RESIDENTIAL PREMISES..............................................................................................................._.........._........ 11 1.43 ROLL-oFF Box................................................................................................................................................... 11 1.44 SINGLE FAMILY DWELLING.............................................................................................................................Al 1.45 SOLID WASTE.................................................................................................................................................... 11 1.46 SOLID WASTE COLLECTION SERVICES.............................................................................................................. 12 1.47 SOURCE SEPARATED.......................................................................................................................................... 12 1.48 STATE.................................................................................................................................................................12 1.49 TEMPORARY SERVICE........................................................................................................................................ 12 1.50 TRANSFORMATION............................................................................................................................................ 12 1.51 TRANSFER STATION.......................................................................................................................................... 12 1.52 WASTE GENERATOR.......................................................................................................................................... 13 ARTICLE2...............................................................................................................................................14 GRANT AND ACCEPTANCE OF FRANCHISE............................................................................................................14 2.1 GRANT AND ACCEPTANCE OF FRANCHISE, INDEMNITY OF AWARD................................................................... 14 2.2 SECTION DELETED................................................................................................................................................. 14 2.3 EFFECTIVE DATE.................................................................................................................................................... 14 2.4 TERM OF AGREEMENT........................................................................................................................................... 14 2.5 CITY'S OPTION To EXTEND TERM......................................................................................................................... 15 2.6 REPRESENTATIONS AND WARRANTIES OF CONTRACTOR.................................................................................... 15 2.7 CONDITIONS TO EFFECTIVENESS OF AGREEMENT................................................................................................ 17 2.8 DELEGATION OF AUTHORITY................................................................................................................................ 17 2.9 LIMITATIONS TO SCOPE......................................................................................................................................... 18 2.10 CITY'S RIGHT TO DIRECT CHANGES................................................................................................................. 20 2.10.1 General.....................................................................................................................................................20 2.10.2 New Diversion Programs.....................:................................................................................................... 20 2.11 OWNERSHIP OF SOLID WASTE.......................................................................................................................... 21 2.12 PERMITS AND LICENSES.................................................................................................................................... 21 ARTICLE3...............................................................................................................................................23 FEESPAID TO THE CITY...................................................................................................................................................23 3.1 CONTRACTING FEE................................................................................................................................................ 23 3.2 OTHER CITY FEES................................................................................................................................................... 23 3.2.1 Franchise Fee................................................................................................................................................ 23 3.22 AB 939 Fee.................................................................................................................................................... 23 3.2.3 Environmental Education Fee...................................................................................................................... 24 3.2.4 Section Deleted .............................................................................................................................................24 3.2.5 Late Payment of Fees.................................................................................................................................... 24 3.3 FUTURE FEES.......................................................................................................................................................... 24 ARTICLE 4 ............. DIRECT SE R'vICES... 25 2 - February 15, 2017 ii City Of Diamond Bar - Commercial 4.1 REFUSE . ............... ................................................................................................................................................... 25 4.1.1 General..........................................................................................................................................................25 4.1.2 Section Deleted............................................................................................................................................. 25 4.1.3 Section Deleted.............................................................................................................................................25 4.1.4 Section Deleted............................................................................................................................................. 25 4.1.5 Section Deleted............................................................................................................................................. 25 4.1.6 Bin Refuse Collection ......................................... ........ ___ ..... ................ ......... ........ ...................................... 25 4.1.7 Determination of Service Type...................-................................................................................................ 26 4.1.8 Overflowing Containers...............................................................................................................................26 4.1.9 Pernnanent Roll -off Box Service.................................................................................................................... 27 4.1.10 Temporary Bin and Temporary Roll -Off Box Service ........ .................. -............... .................. 27 4.1.11 Bin Pushout Service................................................................................................................................. 28 4.1.12 Scout Service, ........................................................................................................................................... 28 4.1.13 Locking Bins................................................... ........................ -...... ............. .................. .............. 28 4.1.14 Redelivery/Return Trip Fee...................................................................................................................... 28 4.1.15 On -Cali Bulky Item Pickup..................................................................................................................... 29 4.1.16 Bulky Real Diversion............................................................................................................................... 29 4.1.17 Disposal of Electronic and Other Special Wastes................................................._......._......................- 30 4.1.18 Door-to-DoorHHW Collection...............................................................................................................30 4.1.19 SECTION DELETED............................................................................................................................................. 30 4.1.20 Service Exceptions Hazardous Waste Notifications ............................................................................... 30 4.2 RECYCLING ............................ ............................... .................................................................................................. 31 4.2.1 Recyclables Collection .......................................... ................................ ................................. ...... 31 4.2.2 Processing of Solid Waste............................................................................................................................. 32 4.2.3 Section Deleted...................................................................................-........................................................32 4.2.4 Marketing and Sale of Recyclable Materials..._........................................................................._................. 32 4.2.5 Minimum Diversion Requirements.............................................................................................................. 32 4.2.6 Construction and Demolition Debris Diversion........................................................................................... 33 4.2.7 Organic Waste Collection Set -vices.. . ..................................................... ................. ................... 33 4.2.8 Section Deleted............................................................................................................................................. 34 4.3 GREEN WASTE PROGRAM... ........ .... . .... ........................................................................................................... 34 4.3.1 Holiday Tree Collection Program................................................................................................................. 34 4.3.2 Roll -Off Green Waste................................................................................................................................... 34 4.3.3 End Uses for Green Waste............................................................................................................................ 34 4.4 SECTION DELETED .............................................. .... -............. ........................... ............. ........................................ 35 4.5 CITY SERvicEs............. ........ _................................................................................................................................. 35 4.5.1 Ciftj Facilities Collection............................................................................................................................... 35 4.5.2 City Sponsored Events.................................................................................................................................. 35 4.5.3 Emergency Collection and Disposal Service...............................................................................................- 36 4.5.4 Abandoned Item Collection frons City Right -of -Way or Other Public Property .......................................... 36 4.5.5 Commnunity Development Review Services-... ..................................... ....... ............ ......... __ 36 4.5.6 Large Venue Event Assistance, Event Recycling......................................................................................... 36 4.5.7 Confiscation of Unauthorized Containers.................................................................................................... 36 4.5.8 Provision of Storage Containers .............................................................. ..................................................... 37 4.6 OPERATIONS 37 4.6.1 Schedules Missed Pickups........................................................................................................................... 37 4.6.2 Vehicles.........................................................................................................................................................38 4.6.3 Containers.....................................................................................................................................................42 4.6.3.1 Carts.........................................................................................................................................................42 4.6.3.2 Cart Maintenance and Replacement Responsibilities .......................... ............................................. 43 4.6.3.3 Bilns..........................................................................................................................................................43 4.6.3.4 Roll -off Boxes...........................................................................................................................................44 4.6.4 Litter Abatement........................................................................................................................................... 44 February 15, 2017 iii City of Diamond Sar - Colmnercial 4.6.5 Personnel.......................................................................................................................................................45 4.6.6 Identification Required .............................. ..... -............................................................................................ 46 4.6.7 Unauthorized Fees and Gratuities... ................................................................................. 46 4.6.8 Non-Discrimination.....................................................................................................................................46 4.6.9 Report ofAecunrulation of Solid Waste; Unauthorized Dumping... ............... _ 47 4.7 TRANSPORTATION OF SOLID WASTE..................................................................................................................... 47 4.8 APPROVED FACILITIES........................................................................................................................................... 47 4.9 STATUS OF DISPOSAL SITE..................................................................................................................................... 48 4.10 DEDICATED ROUTES......................................................................................................................................... 48 4.11 RoUTEAuDIT....................................................................................................................................................48 ARTICLE5...............................................................................................................................................50 OTHERSERVICES...............................................................................................................................................................50 5.1 CUSTOMER BILLING AND CONTRACTOR COMPENSATION................................................................................... 50 5.1.1 Billing...........................................................................................................................................................50 5.1.2 Contractor's Invoices.................................................................................................................................... 50 5.1.3 Section Deleted.............................................................................................................................................50 5.1.4 Section Deleted.............................................................................................................................................50 5.1.5 Section Deleted............................................................................................................................................. 50 5.1.6 Nott -Payment; Collections; Suspension of Service....................................................................................... 50 5.2 CUSTOMER SERVICE............................................................................................................................................... 51 5.2.1 Local Office ...................................................................................................................................................51 5.2.2 Complaint Documentation...........................................................................................................................51 5.2.3 Customer Service Standards......................................................................................................................... 52 5.2.4 Resolution of Customer Complaints ............................................... ................... 53 5.2.5 Contract Liaison...........................................................................................................................................54 5.2.6 Service Liaison.............................................................................................................................................. 54 5.3 EDUCATION AND PUBLIC AWARENESS................................................................................................................. 54 5.3.1 General..........................................................................................................................................................54 5.3.2 Implementation and On-going Education Requirements............................................................................. 54 5.3.3 Contractor Representative............................................................................................................................56 5.3.4 Community Events....................................................................................................................................... 56 5.4 WASTE GENERAHoN/CHARACTERIZATION STUDIES......................................................................................... 57 ARTICLE6...............................................................................................................................................58 COMPANYCOMPENSATION AND RATES................................................................................................................. 58 6.1 GENERAL ....... ....................................................................... .................................................................................. 58 6.2 INITIAL RATES........................................................................................................................................................ 58 6.3 SCHEDULE OF FUTURE ADJUSTMENTS.................................................................................................................. 58 6.4 METHOD OF ADJUSTMENTS.................................................................................................................................1.59 6.4.1 General........................................................... -........... ........ ........ ...... ......................... 59 6.4.2 Cost Components for Rate Adjustment Indices............................................................................................ 59 6.4.3 Rate Adjustment Steps for Bin, Temporary and Other Services.................................................................. 60 6.4.4 Rate Adjustment Steps for Pull Plass Dump Roll -Off Rates........................................................................ 61 6.5 EXTRAORDINARY ADJUSTMENTS........................................................................................................................... 62 6.6 EFFECT OF RATE CHALLENGE............................................................................................................................... 63 ARTICLE7.............................................................................................................................................................................. 64 REVIEWOF SERVICES AND PERFORMANCE............................................................................................................64 7.1 PERFORMANCE REVIEW MEETING........................................................................................................................ 64 72 PERFORMANCE SATISFACTION SURVEY ........ ............................................. ............................ 65 ARTICLE &...... u....... February 15, 2017 iv City of Diamoud Bar - Commercial RECORDS, REPORTS AND INFORMATION REQUIREMENTS............................................................................. 66 8.1 GENERAL................................................................................................................................................................ 66 8.2 RECORDS .................................................. ........ --.................................... ........ ........... ........................................... 66 8.2.1 General..........................................................................................................................................................66 11.3 LIQUIDATED DAMAGES.................................................................................................................................... 8.2.2 Financial Records.......................................................................................................................................... 67 8.2.3 Solid Waste Records......................................................................................................................................67 11.4.1 Force Majeure...................... ........... ............. .................. .......................... ................................................ 8.2.4 CERCLA Defense Records ........................... :................................................................................................ 68 8.2.5 Section Deleted .... ...... -..... -....... ........ ......................... ...... --....... ...................... ........................................... 69 8.2.6 Other Programs' Records.............................................................................................................................69 11.5.1 Negotiation and Mediation......................................................................................................................95 8.2.7 Audit.............................................................................................................................................................69 11.5.2 Confidentiality.........................................................................................................................................96 8.2.8 Payments and Refunds................................................................................................................................. 69 8.3 REPORTS.................................................................................................................................................................70 11.5.4 Continuing Obligation... ................. ........... ................. ...................... ................................................... 8.3.1 Report Formats and Schedule....................................................................................................................... 70 8.3.2 Monthly/Quarterly Reports..........................................................................................................................70 11.6 ASSURANCE OF PERFORMANCE............................................................ .......... ............. ..................................... 8.3.3 Annual Report.. ............................. ....... ................................ .............. - ............... — ............ 71 8.3.4 Financial Report...........................................................................................................................................72 8.4 REPORTING ADVERSE INFORMATION.................................................................................................................... 72 8.5 FAILURE TO REPORT ..................... --............... .................... .......... -... ............. ..................................................... 73 ARTICLE9...............................................................................................................................................74 INDEMNIFICATION, INSURANCE, BOND AND LETTER OF CREDIT............................................................... 74 9.1 INDEMNIFICATION................................................................................................................................................. 74 9.2 HAZARDOUS SUBSTANCES INDEMNIFICATION..................................................................................................... 75 9.3 AB 939 INDEMNIFICATION AND GUARANTEE............................................................ -........................................ 77 9.4 INSURANCE............................................................................................................................................................ 77 9.5 FAITHFUL PERFORMANCE BOND..................................................................................................-....................... 81 9.6 FAITHFUL PERFORMANCE LETTER OF CREDIT...................................................................................................... 81 9.7 FORFEITURE OF PERFORMANCE BOND.................................................................................................................. 82 9.8 FORFEITURE OF LETTER OF CREDIT OR DEPOSIT.................................................................................................. 83 9.9 PERFORMANCE SECURITY BEYOND SERVICE TERM - ............ .......... ............ -......... ............................................... 83 ARTICLE10.............................................................................................................................................84 CITY'S RIGHT TO CONTRACT WITH THIRD PARTIES TO PERFORM FRANCHISED SERVICES ............. 84 ARTICLE11.............................................................................................................................................85 DEFAULT, REMEDIES AND LIQUIDATED DAMAGES........................................................................................... 85 11.1 EVENTS OF DEFAULT.....................................................................................................................................-.. 85 11.2 RIGHT TO TERMINATE UPON DEFAULT AND RIGHT TO SPECIFIC PERFORMANCE ......................................... 88 11.3 LIQUIDATED DAMAGES.................................................................................................................................... 88 11.4 SUSPENSION OF PERFORMANCE..............................................................................._...................................... 94 11.4.1 Force Majeure...................... ........... ............. .................. .......................... ................................................ 94 11.4.2 Labor Unrest............................................................................................................................................ 94 11.5 DISPUTE RESOLUTION....................................................................................................................................... 95 11.5.1 Negotiation and Mediation......................................................................................................................95 11.5.2 Confidentiality.........................................................................................................................................96 11.5.3 Injunctive Relief...................................................................................................................................... 96 11.5.4 Continuing Obligation... ................. ........... ................. ...................... ................................................... 96 11.5.5 Failure of Media Hon.........................................................................................................................._.....96 11.6 ASSURANCE OF PERFORMANCE............................................................ .......... ............. ..................................... 96 ARTICLE 12....................................................................... OTHER AGREEMENTS OF THE PARTIES ................................. 9 8 98 February 15, 2017 v City of Diamond liar - Commercial 12.1 RELATIONSHIP OF PARTIES............................................................................................................................... 98 12.2 COMPLIANCE WITH LAW.. ......... __ ........... .................... .................................................................. 98 12.3 GOVERNINGLAW..............................................................................................................................................98 13.3 12.4 JURISDICTION_.................................................................................................................................................. 98 12.5 ASSIGNMENT...... ........................................................................... __ ................................................................ 99 12.6 CONTRACTING OR SUBCONTRACTING........................................................................................................... 101 12.7 BINDING ON ASSIGNS..................................................................................................................................... 101 12.8 COOPERATION IN PREPARATION FOR TERMINATION OR EXPIRATION OF CONTRACT ................................. 101 12.9 PARTIES IN INTEREST....................................................................................................................................... 102 12.10 WAIVER...........................................................................................................................................................102 12.11 CONTRACTOR'SINVESTIGATION.....................................................................................................................102 12.12 SECTION DELETED........................................................................................................................................... 102 12.13 NOTICE............................................................................................................................................................103 12.14 REPRESENTATIVES OF THE PARTIES................................................................................................................103 12.15 CITY FREE TO NEGOTIATE WITH THIRD PARTIES........................................................................................... 104 12.16 COMPLIANCE WITH MUNICIPAL CODE..........................................................................................................104 12.17 PRIVACY..........................................................................................................................................................104 12.18 PROPRIETARY INFORMATION, PUBLIC RECORDS........................................................................................... 105 ARTICLE13...........................................................................................................................................106 MISCELLANEOUS PROVISIONS..................................................................................................................................106 13.1 ENTIRE AGREEMENT.......................................................................................................................................106 13.2 SECTION HEADINGS........................................................................................................................................106 13.3 REFERENCES TO LAWS AND OTHER AGREEMENTS........................................................................................106 13.4 INTERPRETATION.......................... ........................................................................................................ 106 13.5 AGREEMENT.. ................... ...................................................................................................................... Io6 13.6 SEVERABILITY..................................................................................................................................................107 13.7 EXHIBITS..........................................................................................................................................................107 13.8 ATTORNEYS' FEES........................................................................................................................................... 107 Exhibits 1. Public Education Plan 2. Initial Maximum Rates 3. Example Rate Adjustment Formula: 3A: Bin, Temporary Service and Other Service Rates 313: Permanent Roll -Off Box Rates 3C: Calculation of Annual Change in a Published Index 4. Corporate Guarantee 5. Faithful Performance Bond 6 Notary Certification 7 Example Monthly Report Format February 15, 2017 vi City of Diamond Bar - Commercial This Amended and Restated Agreement for Integrated Solid Waste Management Services hereinafter the "Agreement") is entered into this 21 day of February, 2017, 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. 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 term of the Initial Agreement, as defined below is set to expire on August 15, 2018; and, WHEREAS, City and Contractor ("Parties") have negotiated, and desire to enter into this Agreement in order that Contractor continue to serves the City's exclusive bin and roll- off customer solid waste hauler for the term hereof; and, 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 February 23, 2017 -1- City of Diamond Bar - Commercial 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. WHEREAS, the Parties entered in that certain agreement for Solid Waste Management Services on August 16, 2010 ("Initial Agreement"), which term expires on August 15, 2018. The Parties intend that in entering into this Agreement that this Agreement shall replace in its entirety the Initial Agreement and all amendments thereto upon the Effective Date as defined herein. NOW, THEREFORE, in consideration of the recitals above stated, which recitals are a material part of this Agreement, and the terms, conditions, covenants and agreements contained herein, the Parties do hereby agree as follows: February 23, 2017 -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: 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 the basis of the percentage of voting interest or value which the ownership interest represents, whichever is greater. February 15, 2017 -3- City of Diamond Bar - Commercial 1.3 1.4 1.5 1.6 1.7 Billings Billings" or "Billing' or 'Bill" means the statements of charges provided to Customers for services rendered by Contractor. Bin Bin" means a rectangular metal or plastic Container with hinged lids and wheels with a capacity of at least 1.5 cubic yards, and less than ten (10) cubic yards. Bin Service Bin Service" means Solid Waste Collection Services in which a Bin is used for the Collection of Solid Waste. 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. 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. February 15, 2017 -4- City of Diamond Bar - Commercial 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. IC i ]W I z"iTU . .' C 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. 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. February 15, 2017 -5- City of Diamond Bar - Commercial 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. 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 CalRecycle 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. February 15, 2017 -6- City of Diamond Bar - Commercial 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 Food Waste Food Waste" means: All food (including fruits, vegetables, meat, poultry, seafood, shellfish, bones, rice, beans, pasta, bread, cheese and eggshells); Food -soiled paper that is mixed in with food waste (including waxed cardboard, waxed paper, napkins, paper towels, paper plates, paper milk cartons); Tea bags; and, Coffee grounds and filters. Food Waste is a subset of Organic Waste. 1.24 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 February 15, 2017 -7- City of Diamond Bar - Commercial diameter or 48 inches in length) and similar materials. Green Waste is a subset of Organic Waste. 1.25 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. 1.26 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. 1.27 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. February 15, 2017 -8- Ci y of Diamond Bar - Conunercial 1.25 ElW 1.30 1.31 1.32 1.33 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. Household Hazardous Waste ("HHW) Household Hazardous Waste" means Hazardous Waste generated at Residential Premises. 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. 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. Organic Waste Organic Waste" means Food Waste and Green Waste, and other compostables, collectively or individually. Organic Waste Processing Facility Organic Waste Processing Facility" means a permitted Facility where Organic Waste is sorted, mulched or separated for the purposes of Recycling, reuse or composting. February 15, 2017 -9- City of Diamond Bar - Commercial 1.34 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. 1.35 Premises Premises" means any land, or building in City where Solid Waste is generated or accumulated. 1.36 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, 1.37 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. 1.38 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 mamler different from Refuse in order to allow it to be processed for Recycling. 1.39 Refuse Refuse" means putrescible and non-putrescible Solid Waste. 1.40 Residential Services Residential Services" refer to Solid Waste Collection Services performed at and for Residential Premises included under this Agreement. February 15, 2017 -10- City of Diamond Bar - Commercial 1.41 Residential Customers Residential Customer" means all Customers on Residential Premises that are included under this Agreement. 1.42 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 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. 1.43 Roll -off Box Roll -off Box" means Solid Waste Collection Containers of 10 cubic yards or larger. 1.44 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. 1.45 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 Organic 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. February 15, 2017 -11- City of Diamond Bar - Commercial 1.46 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. 1.47 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. 1.48 State State" means the State of California. 1.49 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 1.50 Transformation Transformation" means incineration, pyrolysis, distillation, gasification, or biological conversion other than composting. 1.51 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, Organic Waste and/or Construction and Demolition debris), to processors, brokers or end-users. February 15, 2017 -12- CiLy of Diamond Bar - Commercial 1.52 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. February 15, 2017 -13- 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 Tenn 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 thirteen (13) years, and fifteen (15) days, commencing on August 16, 2010, and expiring August 31, 2023, subject to February 15, 2017 -24- City of Diamond Bar - Commercial extension as provided herein. 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 for up to twenty-four (24) months following expiration of the 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, exercise this extension option. If City provides this extension notice, the Agreement will automatically renew up to a maxhnum of twenty-four (24) months. This extension period shall terminate, upon the earlier of: (i) the expiration of the aforementioned twenty-four (24) 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. February 15, 2017 -15- 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 comlection 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 turless the actions taken are not within the scope of t1 -ds 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. February 15, 2017 -16- 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 Agreement 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 as 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. February 15, 2017 -17- City of Diamond Bar - Coimnercial 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, francluses or agreements issued or entered by City: a) The sale or donation of source -separated Recyclable Material and/or Organic Waste 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 and/or Organic Materials, 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; February 15, 2017 -18- 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; 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; k) The Collection, transfer, transport, Recycling, and processing of Organic Waste for use as animal feed; and, 1) Food that is donated or otherwise provided to charitable organizations or food banks for use as food for human consumption. 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. February 15, 2017 -19- City of Diamond Bar - Commercial 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. If City directs Contractor to perform additional services, 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, unless the Parties otherwise agree. 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 does not direct Contractor to perform additional services 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.). February 15, 2017 -20- Ciiy of Diamond Bar - Coinrnercial 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. 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. February 15, 2017 -21- City of Diamond Bar - Commercial Contractor must follow requirements of the Diamond Bar Municipal Code, including, but not limited to, obtaining a City of Diamond Bar business license. February 15, 2017 -22- Ciiy of Diamond Bar - Commercial 3.1 M 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: Contracting Fee Contractor paid 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 the Initial Agreement to reimburse the City for costs it incurred in connection with entering the Initial Agreement. A contract extension fee of $75,000 shall be paid to the City within seven (7) days of execution of this Agreement to reimburse the City for costs it incurred in connection with entering into this Agreement. 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 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 sei vices 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 admiuustration 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. February 15, 2017 -23- City of i7iamond Bar - Commercial 3.3 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 Environmental Education Fee Pursuant to the terms of this Agreement, Contractor shall pay an annual Environmental Education Fee in the amount of Six Thousand, Five Hundred Dollars ($6,500). The first such payment shall be due and payable to the City on July 1, 2017, and subsequent payments shall be due and payable to the City on or before July 1 of each subsequent year. The amount of the Environmental Education Fee shall be adjusted amivally for the average annual change in the CPI between the calendar year ended the December preceding the fee payment due date and the prior calendar year. For example, for the fee payment due July 1, 2018, the percentage adjustment to the $6,500 payment amount from the prior year would be equal to the average annual change in the CPI comparing calendar year 2017 to calendar year 2016. 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 for each month the payment is late thereafter. 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. February ib, 20"i 7 -24- City of Diamond Bar - ConuLerci d 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, February 15, 2617 -25- City of Diamond Bar - Connnercial 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 or visa versa 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 February 15, 2017 -26- 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. February 15, 2017 -27- 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 or other public right-of-way for Collection, or Collecting Solid Waste directly from Container storage location. Under no circumstance shall Containers remain in the public right-of-way or outside of Container storage location for a period exceeding two (2) hours. In the event of a dispute between Contractor and Customer as to whether scout service will be used, City will make the final determination. Contractor is responsible for verifying that an encroachment permit has been obtained from the City prior to placing a Container in the public right-of-way. If the Customer has not obtained an encroachment permit, the Contractor shall inform the Customer that the Container shall not be placed in the public right-of-way until the Customer provides Contractor with verification of an encroachment permit, instructing the Customer as to how to obtain the permit. A copy of the encroachment permit shall be affixed to the Container. 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 Cusiomer with multiple Bins. February 15, 2017 -25- City of Diamond Bar - Commercial 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 days' notice for the items, which shall be Collected on the Customer's regular 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 February 15, 2017 -29- City of Diamond Bar - Cormnercial 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 mhiimum: 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 Customer, Contractor shall notify Customer 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. February 15, 2017 D0- City of Diamond Lar - Commercial IN 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 Customers within City, but diverted from landfilling. 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 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. February 15, 2017 -31- City of Diamond Bar - Commercial 4.2.2 Processing of Solid Waste Contractor shall process all mixed 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. 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 Diversion Requirements For each calendar year, beginning calendar year 2010 through calendar year 2017, 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 tomlage shall be included in the overall 25% diversion calculation. For each calendar year, beginning January 1, 2018, Contractor shall divert from landfilling a minimum of 25 % of all Solid Waste Contractor Collects under this Agreement, excluding Construction and Demolition Debris Loads. Additionally, Contractor shall divert from landfilling a minimum of 75% or the State -mandated Construction and Demolition diversion percentage, whichever is greater, of all Construction and Demolition Debris loads it Collects under this Agreement. 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 February 15, 2017 32- City of Diamond Bar - Commercial 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 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% or the State -mandated Construction and Demolition diversion percentage, whichever is greater, of all Construction and Demolition Debris Collected. 4.2.7 Organic Waste Collection Services Contractor shall make arrangements to provide Organic Waste Collection services to Multi -Family and Commercial accounts to comply with State requirements for mandatory Commercial Organics Recycling under AB 1826. Organic Waste Collection may be done utilizing Bins or Carts, depending on the amount of material generated or space constraints. Contractor agrees to assist City to identify Multi -Family and Coimauercial Premises required to arrange for Organic TE/13-terial Collection services February 15, 2017 -33- City of Diamond Bar - Commercial under State law, offer Organic Waste Collection to such Premises, and notify the City in the event of refusal to subscribe for Organic Waste Collection. Collection of Organic Waste in Bins shall be charged at the same rate as Refuse Bins included in Exhibit 2. Collection of Organic Waste in Carts shall be in accordance with the approved rates included in Exhibit 2. 4.2.8 Section Deleted 4.3 Green Waste Program 4.3.1 Holiday Tree Collection Program Contractor shall operate an amzual 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. 4.3.2 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. 4.3.3 End Uses for Green Waste Contractor shall divert Green Waste materials Collected through 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 CalRecycle. 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. Diversion credit for ADC is not allowed after January 1, 2020 per Assembly Bill 1594. 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. February 15, 2017 -34- City of Diamond Bar - Conuiiercial 4.5 Section Deleted City Services 4.5.1 City Facilities Collection Contractor shall Collect and dispose of all Refuse, Recyclable Material, and Organic 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 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 February 15, 2Oi% -35- 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 illegally placed Container, Contractor shall begin the following procedure within 24 hour. s: February 15, 2017 -36- City of Diamond Bar - Conunercial 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 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 6:00 a.m. and 6:30 p.m. Collection is only permitted Monday through Saturday. 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 DEy, Thanksgiving Day, or Czristmas Day, February 15, 2017 -37- City of Diamond Bar - Commercial 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 Organic 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. 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. February 15, 20i7 -38- City of Diamond Bar - Commercial 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 reasonably determines that their appearance warrants painting. 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 February 15, 2017 -39- City of Diamond Bar - Commercial 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, evidence of insurance meeting the requirements of this Agreement 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. 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 February 15, 20 7 -40- City of Diamond Bar - Commercial in excess of the manufacturer's reconunendations 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 mamler 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. February 15, 2017 -41- 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 decision shall be final. 4.6.3 Containers Contractor will provide Containers to be used under this Agreement. On or before December 31, 2017, Contractor shall ensure that all Containers comply with requirements included in Sections 4.6.3.1 through 4.6.3.4, and provide City with a written Container inspection report. 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. S. Section Deleted C. Cart Color and Appearance The Recycling and Organic 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 sl Il be hot stamped February 15, 2017 - --2- City of Diamond Sar - Coxmnercial with the material type (e.g., trash, Recycling, Organics) 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 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 February 15, 2017 -43- City of Diamond Bar - Commercial 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, Organic 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, Organic 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 February 15, 2017 -44- City of Diamond :Sar - Commercial cleanup efforts and shall carry a broom, shovel, absorbent, and containment materials at all times for this purpose. 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, Organic 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 tine p_-ocessing Facility or Disposal Site. February 15, 2017 -45- 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. February 15, 2017 -46- City of Diamond Bar - Commercial EWA 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 maruler. Contractor shall deliver the address or description to City within one (1) working day of such observation. Transportation of Solid Waste Contractor shall transport all Refuse Collected to a City -approved Facility (e.g. Transfer Station, Waste -to -Energy Facility, Organic 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 iri designated areas, accommodating to maintenance operations and construction of new facilities, cooperating with its Hazardous Waste exclusion program, and so forth. 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. February i5, 2017 -47- 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 landfill Disposal Site 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 approved under this Agreement shall be dedicated exclusively to Solid Waste Collected in the City of Diamond Bar, with the exception of Commercial Organics routes. 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; February 15, 2017 -48- City of Diamond Bar - Conunercial Graffiti. 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. February 15, 2017 --49- 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 fifteen 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: February 15, 2017 -50- Cay of 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, wanting 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. Billing disputes between Contractor and Customer may be resolved by City, and City's decision shall be final and binding. 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 mirvmum, 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. February 15, 20i7 -51- City of Diamond Bar - Commercial 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. 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 anyone 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 this 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. Februaiy 15, 2017 -52- 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 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 mariner. 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. February 15, 2017 -53- City of Diamond Bar - Cormnerdal 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 e>.pense; wl-Lich will be distributed as indicated below. All of these materials and February 15, 2N7 -54- 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 new Customer throughout the Agreement term. This packet shall: describe available sei vices, 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. All customers shall be promptly notified of any changes to such information. 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 -Containers shall carry stickers/ labels and hot stamps as described in Sections 4.6.3.1.1) 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, Organic Waste, Holiday Tree and Bulky Item Collections) described in detail; the environmental, regulatory, and other benefits of participating in Recycling; how to properly dispose February 15, 2017 -05- City of Diamond Bar - Commercial 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. Second Annual Mailer- Not less than once per year during each Rate Year, Contractor shall prepare and distribute to each Customer a one (1) page, double - sided mailer printed in full color. City and Contractor shall meet and confer to determine the subject matter of mailer. Contractor is responsible for all associated costs. The method of delivery to Customers is at the City's discretion. 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. February 15, 2017 -56- City of Diamond Pear - Commercial 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 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. February 15, 2017 -57- 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 (including but not limited to surcharges for weekend or priority service) 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, 2018, 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 agrees to waive the annual rate adjustment that would be due July 1, 2017. 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. The City shall consider a failure to submit a written request by March 31 as Contractor's determination not to seek an adjustment and shall constitute a waiver by Contractor of its right to request such an increase for the subsequent Rate Year. However, the City reserves the right to initiate a rate adjustment in instances where the Contractor fails to submit a written rate adjustment request Adjustment to the maximum rates is subject to the approval of the City Manager. If an annual adjustment that would have resulted in a rate decrease is not implemented for any reason, the next rate adjustment will be measured based on the change in February 15, 2017 -58- City of Diamond Bar - Commercial indices from the last implemented rate adjustment; the intent is to ensure subsequent rate increases shall be offset with any decrease not previously implemented. 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 Exhibits 3A, 3B, and 3C, subject to review and approval of City. All 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 and Section 6.4.4 for detailed rate adjustment procedures. 1) For example, under the ab ePs entternunating Septe_1_be 30, 2019, these rates arc: February 15, 2017 -59- City of Diamond Bar - Conunercia_l Weightings for VW8 AdjustmentCost Category Rate Adjustment Factor Section Section 6.4.3 6.4.4 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, hic. and Teamsters Automotive Industrial and Allied Workers Local Labor 27.0% 34.2% No. 495(1) Producer Price Index WPU05522101, Fuels and Fuel 6.1% 7.6% related products and power Producer Price Index, PCU336120336120, Heavy Equipment 20.0% 25.0% duty truck manufacturing Consumer Price Index for All Urban Consumers CUURA421SAOLIE), all items less food and energy Disposal 17.0% n/a Los An eles-Riverside-Oran e County, CA Consumer Price Index for All Urban Consumers CUURA421SAOLIE), all items less food and energy All Other 29.9% 33.2% Los Angeles -Riverside -Orange County, CA Total 100.0% 100.0% 1) For example, under the ab ePs entternunating Septe_1_be 30, 2019, these rates arc: February 15, 2017 -59- City of Diamond Bar - Conunercia_l Contract Date 10/01/16 10/01/17 10/01/18 Hourly Rate 21.85 22.25 22.65 Rate Adjustment Date n/a 7/01/18 7/01/19 Change to Labor Component n/a 1.8% 1.8% 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. 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 3A. 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, disposal 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 3C for an example average arulual 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 6.4.2. 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 Contractor 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. February 15, 2017 -60- City of Diamond. tiay - Commercial 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 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. (See Exhibit 3C for an example average amival change in published index year over 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. February 15, 2017 -61- City of Diamond Bar - Commercial 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 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, 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 February 15, 2017 -62- City of Diamond Bar - Conunercial 6.6 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, among other things, increases or decreases in the Contractor's total revenues and total cost of services when reviewing an extraordinary rate adjustment request. Effect of Rate Challenge If a rate adjustment approved by the City Manager or City Council is prevented from implementation due to a legal challenge by third parties, and City does not otherwise compensate Contractor for the amount of the adjustment due, Contractor is permitted to terminate this Agreement upon one-year notice. February 15, 2017 -63- City of Diamond Bar - Conumercial ARTICLE 7 REVIEW OF SERVI,CES 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. February 15, 2017 -64- City of Diamond Bar - Commercial 7.2 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. 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. February 15, 20-17 -65- City of Diamond Bar - Commercial 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 reports of Contractor or it" Affiliates that City shall', deem, in its sole discretion, February 15, 2017 -66- City of Diamond Bar - Conunercial 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: a) Customer services and Billing/City payment records; February 15, 2017 -67- City of Diamond Bar - Commercial b) Records of tons Collected, processed, diverted and disposed by waste stream Refuse, Recycling, Organic 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 Organic 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. February 15, 2017 -68- City of Diamond Bar - Corornercial 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, quantifies of products used, produced or distributed, and numbers of participants and responses. 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 may be performed every third year thereafter. Contractor will pay 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. Audit payments from the Contractor to the City are due January 1 of year the audit is being performed. 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 re fined to Contractor's Customers, as directed by February 15, 2017 -69- City of Diamond bar - Cormmercial City, any overcharges within thirty (60 days following the date of the audit. Contractor shall pay interest to the City for any underpayment or overcharges at an annual rate of 6%. 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 with interest. 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 shall utilize the Monthly Report template included in Exhibit 7, which may be adjusted by the City at any time. Contractor may propose the format for the Annual Report that is responsive to the objectives and audiences for report. The format of the Annual 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 City Manager and/or other City staff designated by the City Manager at e-mail addresses to be provided by City. City may additionally request hard copies, which would be delivered to: City Manager City of Diamond Bar 21810 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, Organic Waste) in tons, including contamination February 15, 2017 -70- City of Diamond Bar - Commercial 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. 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, Organic 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, Green Waste, and Organic 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, Organic Waste). b) Records of tons Collected, processed, diverted and disposed by waste stream Refuse, Recycling, Organic Waste Waste), by Customer type (Cart Bin, Roll -Off Box), and the Facilities (Transfer Station, MRF, processing or composting facility, or landfill) where such material was taken. c) Gross Receipts by sector (Cart, Bin, Roil -Off Dox)j. February 15, 2017 -71- City of Diamond Bar - Conunercial d) A complete inventory of velucles 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) A complete listing of accounts receiving scout service, including service address, billing name and address, telephone number, and proof of encroachment permit. f) Number of routes and route hours per day by type of service as of December 31. g) General information about the Contractor and its most recent annual report. h) 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, but only as they pertain to 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 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 Enviromnental Protection Agency, CalReeycle, the Securities and ExchaiLge Coninission or any other federal, state or local February 15, 2017 -72- City of Diamond Bar - Commercial M 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. 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 hi 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. February 15, 2017 -73- City of Diamond Bar - Corn ercial 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 omissions, 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 hi 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. Contractor, upon demand of City, made by and through the City Attorney, shall protect City and appear F_t and defend the hndemnitees in any claims or aeons by turd parties, February 15, 2017 -74- City of Diamond Bar_ - Commercial am 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 11 • AGREEMENT. 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, which acceptance shall not be unreasonably withheld), 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. February 15, 2017 -75- City of Diamond Bar - Commercial_ 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 only apply to Claims arising out of Contractor's collection and transportation to such facility. February 15, 2017 -76- City of Diamond Bar - Commercial 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 CalRecycle 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 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 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 heremlder 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). 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. February 15, 2017 -77- City of Diamond Bar - Commercial 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: 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 retentions 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) The Indemnitees shall 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, hued or borrowed by Contractor. The coverage shall contain no special limitations on the scope of protection afforded to the Indemnitees. February i5, 2017 -78- Ciiy of Diamond Bar - Commercial b) Contractor's insurance coverage shall be primary insurance as respects the Indemnitees. Any insurance or self-insurance maintained by the Indemnitees 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 the Indemnitees. 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 the Indemnitees for losses arising from work performed by Contractor for City. 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, 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 maLntenance of the required coverage tf roughout the Term. February 15, 2017 -79- City of Diamond Bar - Commercial 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 21810 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." 1 "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. Thus policy shall protect Contractor and City in the same mamier 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 go 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 February 15, 2017 -80- City of Diamond Bar - Commercial 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 Exlubit 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. 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 February 15, 2017 -Si- City of Diamond Bar - Commercial 9.7 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. 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 tlw-ty (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. February 15, _017 -82- City of Diamond Bar - CommercW WK 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. Performance Security Beyond Service Terra Some Agreement requirements extend beyond the Term 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 second am -mal anniversary of the end of the Term. 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. February 15, 201783- City of Diamond_ Ear - Conunercial 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 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. February 15, 201% -84- City of Diamond Bar - Commercial ARTICLE 11 I NJ a W -all anti No In P I awng, I. . 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 or cause its subcontractors 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. February 15, 2017 -85- City of Diamond bar - Commercial 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 Contractor 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 Contractor cannot reasonably correct or remedy the breach within the time set forth in such notice, if Contractor 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 Contractor 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 Contractor or any of Contractor's officers, directors or employees is guilty as well as any admission of guilt by Contractor or any of Contractor'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 February 15, 2017 -86- City of Diamond Bar - Commercial 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 Organic Waste into a Refuse load, or transports Recyclable Materials or Organic 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. February 15, 2017 -87- City of Diamond Bar - Conunercial 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 for preservation of the public health, safety and welfare, 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 rebruary 15, 2017 -88- City of Diamond Bar - Commercial substantially lower costs than alternative services and the monetary loss resulting from 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 the public health, safety and welfare and that City has considered and relied on Contractor's representations as to its quality of service corrunitment 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 mamler, 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 February 15, 2017 -89- City of Diamond Bar - Commercial a) For each failure to commence service to anew 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: 2. Collection Quality 100.00 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 f) For each occurrence of failure to verify that Customer has obtained an encroachment permit from the City prior to Contractor placing a Container in the public right-of-way which exceeds ten (10) such occurrences annually: 100.00 g) For each occurrence of failure to return a Container to Container storage locations, as described in Section 4.1.12 "Scout Service' of this Agreement, withal two (2) hours of set out which exceeds ten (10) such occurrences annually: 100.00 February 15, 2017 -90- City of Diamond Sar - Commercial 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 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 h) For each occurrence of inaccurate information being provided to Customers by Contractor's customer service department which exceeds five (5) such occurrences annually: 100.00 4. Diversion Efforts a) For each calendar year, beginning calendar year 2010 through calendar year 2017, 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: February 15, 2017 -91- City of :Diamond Bar - Commercial 25 for each ton below tonnage level , necessary to meet 25 % Diversion goal b) For each calendar year, beginning January 1, 2018, in which Contractor fails to provide documentation to the City within thirty (30) days of year-end, supporting that it diverted at least 25% of the Solid Waste Contractor Collected under this Agreement, excluding Construction and Demolition Debris loads: 25 for each ton below tonnage level necessary to meet 25 % Diversion goal c) For each calendar year, beginning calendar year 2018, in which Contractor fails to provide documentation to the City within thirty (30) days of year- end, supporting that it diverted at least 75 %, or the State -mandated Construction and Demolition diversion percentage, whichever is greater, of all Construction and Demolition Debris loads it Collects under this Agreement: $25 for each ton below tonnage level necessary to meet 75%, or State -mandated Construction and Demolition Diversion goal, whichever is greater. 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: $25 per day ii) Annual Reports: $50 per day 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 :nor February 15, 2017 -92- City of Diamond Bar - Commercial a 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 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 representatives or through investigation of Customer complaints by such Persons. 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, the 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. 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 incident(s)/non-performance prior to authorizing the assessment of liquidated damages. The decision of City Manager shall be final. February 15, 2017 93- City of Diamond Bar - Cormmerciai 11.4 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 60 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. 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, City may contract with another provider to perform all or part of this Agreement until such time Contractor is able to perform. If Contractor is unable to renew its performance of this Agreement for a period of thirty (30) days or more, where the City is not significantly impacted by the catastrophic event, City shall nevertheless have the right, in its sole discretion, to ter- minate flus Agreement by giving ten (10) days' notice. 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 follcwing requiTe_.azen.ts are met: February 15, '9017 -94- City of Diamond Bar - Conunerciai 11.5 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, u1 its sole discretion, to terminate this Agreement by giving ten (10) days' notice, and may contract with another party for Solid Waste Collection Services. Dispute Resolution Except as may otherwise be set forth expressly herein, all disputes arising under this Agreement shall be resolved as set forth in thus 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 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 raay nitiate a mediation of 'L11e dispute. The mediation shall be facilitated by a February 15, 2017 -95- City of Diamond Bar - Commercial 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. 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 fo -1n aiLd subsi:ance as City may _-equire. H Contractor fails or refuses to February 15, 2017 -96- City of Diamond Bar - Commercial 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. February 15, 2017 -97- City of Diamond Bar - Commercial 12.1 12.2 12.3 12.4 ARTICLE 12 OTHER,AGREEMENTS OF THE PARTIES 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. 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. Governing Law This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California. 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. February 15, 2017 n8- 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 indexmzity obligations to City under this Agreement. City has relied on each of these factors, among others, in choosing Contractor to pertorLn tie services to be rend --red by Contractor under this Ag eement. February 15, 2017 -99- 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 immediately 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 thus 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 February 15, 2017 -1o0- City of Diamond Bar - Commercial 12.6 12.7 12.8 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. Contracting or Subcontracting Contractor shall not engage any contractors or subcontractors for the Collection of Solid Waste. 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. 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 lirnited 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 6..is covenant and/or oiler equitable relief necesSary io enforce this covenant. February 15, 2017 . -101- City of Diamond Bar - Cor unercial 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 tlus 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 February 15, 2017 -102- City of Diamond Bar - Conunercial 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 21810 Copley Drive Diamond Bar, CA 91765 If to Contractor: David Perez V.P. Operations Valley Vista Services 17445 E. Railroad St. City of hrdustry, CA 91748 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 the Agreement and shall inform City in writing of such designation end of any limitations upon his or February 10, 2017 -103- 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, Organic 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. Februaiy 15, 2017 -104- City of Diamond Bar - Commercial 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 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. February 15, 2017 -105- City of Diamond Bar - Conunercial 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 sighed by the Parties. February 15, 2017 -106- 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. 13.9 Effective Date 11 -ds Agreement shall be effective upon the date it has been executed by both Parties. Once so executed, the City's City Clerk shall insert the later date thereof in the opening paragraph of this Agreement. February 15, 2017 -107- 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 DATED:Or '9-a -->o l? CITY OF DIN BAR By: fames DeStefJno City Manager ATTEST: Tommye Cribbins City Clerk NINSFU • oplemm- I\ A s-ic42-'E i '+-1 TITLE Valley Vista Services, Inc. NAME OF COMPANY 17445 Railroad Street, Industry, CA ADDRESS 626) 961-6291 TELEPHONE February 15, 2017 -108- City of Diamond Bar - Commercial EXHIBIT 1 Iits) SO 17i iT_ 1 1 C 7 A_i i to be attached after City approval per Section 5.3.2) February 15, 2017 1 City of Diamond Bar - Commercial EXHIBIT 2 INITIAL MAXIMUM RATES (1) Following are the rates through June 30, 2018: Monthly Collection Rates Container Size Pickups per week 1 2 3 4 5 6 Extra Empty Refuse and Organics Sins 1.5 Cubic Yard 93.78 154.13 extra bin (2) 84.41 138.71 2 Cubic Yard 107.41 186.22 254.58 329.44 408.29 476.65 41.00 extra bin (2) 96.66 167.59 229.12 296.50 367.46 428.97 3 Cubic Yard 132.98 220.46 309.55 401.88 492.60 601.21 47.48 extra bin (2) 119.68 198.40 278.60 361.70 443.35 541.09 4 Cubic Yard 168.35 270.95 375.89 535.36 640.29 777.75 53.99 extra bin (2) 151.51 243.84 338.29 481.82 576.27 699.99 6 Cubic Yard 200.96 331.97 464.66 675.35 806.37 974.12 62.71 extra bin (2) 180.86 298.78 418.19 607.82 725.74 876.71 Organics Cart- 65 gal. 40.00 80.00 120.00 160.00 200.00 240.00 Recycling - 96 gal. 17.56 Recycling -1.5 yd. 39.90 63.55 Recycling - 2 yd. 45.81 76.82 101.95 131.51 162.57 189.13 Recycling - 3 yd. 66.50 102.51 143.09 185.29 226.72 277.14 Scout Service (3) 67.22 160.16 240.25 320.32 400.41 480.48 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 maybe charged in addition to collection rates, in accordance with Section 4.1.12 of the collection agreement, on a per container basis. February 15, 2017 2-1 City of Diamond Sar - Commercial EXHIBIT 2 INITIAL MAXIMUM RATES (1) Following are the rates through June 30, 2018: Monthly Collection Rates Container Size Pickups per week 1 2 3 4 5 6 Extra Empty Refuse and Organics Sins 1.5 Cubic Yard 93.78 154.13 extra bin (2) 84.41 138.71 2 Cubic Yard 107.41 186.22 254.58 329.44 408.29 476.65 41.00 extra bin (2) 96.66 167.59 229.12 296.50 367.46 428.97 3 Cubic Yard 132.98 220.46 309.55 401.88 492.60 601.21 47.48 extra bin (2) 119.68 198.40 278.60 361.70 443.35 541.09 4 Cubic Yard 168.35 270.95 375.89 535.36 640.29 777.75 53.99 extra bin (2) 151.51 243.84 338.29 481.82 576.27 699.99 6 Cubic Yard 200.96 331.97 464.66 675.35 806.37 974.12 62.71 extra bin (2) 180.86 298.78 418.19 607.82 725.74 876.71 Organics Cart- 65 gal. 40.00 80.00 120.00 160.00 200.00 240.00 Recycling - 96 gal. 17.56 Recycling -1.5 yd. 39.90 63.55 Recycling - 2 yd. 45.81 76.82 101.95 131.51 162.57 189.13 Recycling - 3 yd. 66.50 102.51 143.09 185.29 226.72 277.14 Scout Service (3) 67.22 160.16 240.25 320.32 400.41 480.48 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 maybe charged in addition to collection rates, in accordance with Section 4.1.12 of the collection agreement, on a per container basis. February 15, 2017 2-1 City of Diamond Sar - Commercial EXHIBIT 2 INITIAL MAXIMUM RATES (1) (continued) Following are the rates through June 30, 2018: Bin Charges Rate Temporary Bin - 3 cubic yard 133.75/pull Temporary Bin - 6 cubic yard 165.17/ pull Bin Cleaning (over one per year) 53.86 Locking Bin, per bin per month 11.67 Redelivery/ Return Trip Fee 104.21 Roll -off Box Charges Rate Standard Roll -Off Box - Rate per pull (including container rental) 12 to 16 yard 221.48 25 to 30 yard 212.90 40 to 45 yard 206.10 Compactor Roll -Off Box - Rate per pull (excluding compactor rental) 30 yard 329.16 40 yard 367.59 Container Rental Fee - for use in Excess of 7 days without being serviced 26.32/ day Processing Per Ton 71.77 Temporary Roll -Off Box, 40 yard - rate includes container rental, pull and disposal up to 6 tons 592.94 Temporary Roll -Off Box, Low Boy - rate includes container rental, pull, and disposal up to 6 tons 628.94 Roll -Off Box Cleaning (above one per year) 119.55 Redelivery/ Return Trip Fee/ Dry runs - roll -off box 154.79 Additional Service Charges Rate Per Service Multi -Family Bulky Item Pickup - each pickup above four per year of up to four items 32.40/item Emergency Service Rates - one crew and one collection truck 91.81/hour 1) Including all fees retained by, or paid to, City. February 15, 2017 2-2 City of Diamond Bar - Commercial EXHIBIT 2 INITIAL MAXIMUM RATES (1) (continued) Following are the rates through June 30, 2018: Bin Charges Rate Temporary Bin - 3 cubic yard 133.75/pull Temporary Bin - 6 cubic yard 165.17/ pull Bin Cleaning (over one per year) 53.86 Locking Bin, per bin per month 11.67 Redelivery/ Return Trip Fee 104.21 Roll -off Box Charges Rate Standard Roll -Off Box - Rate per pull (including container rental) 12 to 16 yard 221.48 25 to 30 yard 212.90 40 to 45 yard 206.10 Compactor Roll -Off Box - Rate per pull (excluding compactor rental) 30 yard 329.16 40 yard 367.59 Container Rental Fee - for use in Excess of 7 days without being serviced 26.32/ day Processing Per Ton 71.77 Temporary Roll -Off Box, 40 yard - rate includes container rental, pull and disposal up to 6 tons 592.94 Temporary Roll -Off Box, Low Boy - rate includes container rental, pull, and disposal up to 6 tons 628.94 Roll -Off Box Cleaning (above one per year) 119.55 Redelivery/ Return Trip Fee/ Dry runs - roll -off box 154.79 Additional Service Charges Rate Per Service Multi -Family Bulky Item Pickup - each pickup above four per year of up to four items 32.40/item Emergency Service Rates - one crew and one collection truck 91.81/hour 1) Including all fees retained by, or paid to, City. February 15, 2017 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 fn indices Step Two: Determine components A B C Row Adjustment Factor Index Old Index Value Newhdex Value Percent Change in Index((Colvmn B. Column A) -1) 1 Labor (1) 21.85 225 1.8% 2 Fuel (2) 200.8 176.6 12.1% 3 E " meat (3) 139.3 142.0 1.9% 4 Dis osal (4) 240.9 245.4 1.9% 5 All Otlner (4) 240.9 245.4 1.9% Step Two: Determine components Step Three: Applypementage change to rates DT E F Row Adjustment Factor Index Cost Component Weightedasa%of Component Total (5) Percent Change in Index from Column C) Total Weighted Change ColvuuaDx Column E) 6 Labor 1) 27.0% 1.8% 0.5% 7 Fuel 2) 61% 12.1% 0.7% 8 E vi meat 3) 20.0% 1.9% 0.4% 9 Disposal 4) 17.0% 1.9% 0.3% 10 AR Other 4) 29.9% 1.9% 0.6% 11 T.tA 111.31 100.0% Extra Empty, 3 -yd Step Three: Applypementage change to rates Step Four. Re wett cost components G H M N J Row Rate Category (6) Total Weighted Rate Increase or Existing Customer Rate Percentage Change (Raw Decrease (Column G x 11, Colman I) Column Fi) Adjusted Rate Column G+Column I) 12 3Yd B-m,Ixweek 9468 1.1% 1.04 95.72 13 3Yd Bin, 2x week 153.62 1.1% 1.69 155.31 14 Temp. 45 -yd roll -off 485.00 1.1% 5.34 490.34 15 Temp. 3 -yd bin 110.10 1.1% 1.21 111.31 16 Extra Empty, 3 -yd 36.68 1.1% 0.40 1.9% 17 Bin Cleaning 92.28 1..1% 1.02 93.30 Step Four. Re wett cost components 1) Rate Increased for a "Driver" as described in the Articles of Agreement between Waste Management of San Gabriel/Pomona Valley, lac, and Teamsters Automotive Industrial and Allied Workers Local No. 495. 2) Producer Price Index, WP1305521101 Fuels and related products and power. 3) Producer Price Index, PCU336120336120, Heavy duty truck manufacturing- average annual change. 4) Consumer Price Index for All Urban Consumers (CUURA421S.40L1E), all items less food mid energy index - Los Angeles -Riverside -Orange County - average anmialdwnge. 5) July 1, 2018 rate adjustment weightings come from Article 6.4.2. Subsequent years' weightings will come from Column O of the previous Pro, 6) Example rates listedbelow- Adjustnnent applies to all applicable rate categories. February 15, 2017 3-1 City of Diamond Bar - Coxrunerciai K L M N O Row Adjustment Factor Index Weighting Cost Component Column D) Percent Change asRateApu, toAdjustmentAdjustment (Column E) Increase in Cost Component on L)mnICxColumnL) Cost Component Increased (CohamnK+ Column M) Cost Components Re - weightedto Egna1100% 18 Labor 1) 27.0% 1.8% 0.5% 27.5% 27.2% 19 Fuel 2) 6.1% 12.1% 0.7% 5.4% 5.3% 20 Emipecet 3) 20.0% 1.9% 0.4% 20.4% 20.2% 21 Disposal 4) 17.0% 1.9% 0.3% 17.3% 17.1% 22 All Other 4) 29.9% 1.9% 0.6% 30.5% 30.2% 23 Total 100.0% i 1101.1% 100.0% 1) Rate Increased for a "Driver" as described in the Articles of Agreement between Waste Management of San Gabriel/Pomona Valley, lac, and Teamsters Automotive Industrial and Allied Workers Local No. 495. 2) Producer Price Index, WP1305521101 Fuels and related products and power. 3) Producer Price Index, PCU336120336120, Heavy duty truck manufacturing- average annual change. 4) Consumer Price Index for All Urban Consumers (CUURA421S.40L1E), all items less food mid energy index - Los Angeles -Riverside -Orange County - average anmialdwnge. 5) July 1, 2018 rate adjustment weightings come from Article 6.4.2. Subsequent years' weightings will come from Column O of the previous Pro, 6) Example rates listedbelow- Adjustnnent applies to all applicable rate categories. February 15, 2017 3-1 City of Diamond Bar - Coxrunerciai EXHIBIT 3B EXAMPLE RATE ADJUSTMENT FORMULA Permanent Roll -Off Box Rates Step One: Calc.lm.,ereerm, change to Indices Step Two: Determine components A B C Row Adjustment Factor Index Old Index Value New Index Value percent Change in Index Coln.. B e Column A)-1) 1 Service Componont(Pull Rate) 16 -yd Rolloff Sox 219.55 0.8% 2 Labor( 1) 2185 $ 2225 1.8% 3 Fuel 2) 2008 176.6 111% 4 Equipment 3) 139.3 1420 1.9% 5 All Other 4) 2409 1454 19% 6 Disposal/Proceasiog 4) 1 240.9 1 245.4 Step Two: Determine components Step Three: Apply percentage change to rates D E F Row Adjushuen[Fac[or lodes Cost Factor CategoryCompo1mpoedasComponentTotal (5) percent Change in Index Column C) TotalWeighted Change Colum. D x Column E) 7 Servies Ccow ment(Poll Rate) 16 -yd Rolloff Sox 219.55 0.8% 8 Labor 1) 34.2% 1.8% 0.6% 9 Feel 2) 7,6% 123% 09% 10 Equipment 3) 25,0% 1.9% 05% 11 ABOther 1 (4) 332% 1.9% 06% 12 Service Component Total 36438 1000% 292 0.8% li IDisporcipProccasing 1 (4) 1 Mo./. 1 1.9°/a 1 1.9% Step Three: Apply percentage change to rates Ste Four. Re-weiabt costcon onents G H I S Raw Rafe Category (6) Current Customer Rate Total Weighmd Percentage Change(Colum. F) Rate lvcrease or Decrease Column G x Column If) Adjusted Rate Colon G+Colum. I) 14 16 -yd Rolloff Sox 219.55 0.8% 176 22131 15 30 -yd Rolloff Box S 211.04 O.S% 1.69 21273 16 45 -yd Rolloff Box S 204.30 0.8% 1.63 20593 17 30 -yd Compactor Rolloff 326.29 0.8% 2.61 328.90 1g 40 -yd Compactor Aolloff 36438 0,8% 292 36730 19 Per Ton DerposabPreawsm, 7177 1.9% 136 73.13 Ste Four. Re-weiabt costcon onents 1) Rate increased for a "Driver' as described in the Articles of Agreement between Waste Management of San Gabriel/Pomona Valley, loo and Teamsters Automotive hrd.Anal and Allied Workers Local No. 495. 2) Producer Price Index, IVPU05522101 Fuels and related products and power. 3) Producer Price hrdex, PCU336120336120, Heavy duty truck monufactudng-average annual changs. 4) Comanner Price index for AN Urban Consumers (C[IDRA421SAOLIE), all items less food and energy index- Los Angeles -Riverside -Orange County -average annual dmoe. 5) July 1, 2018 rate adjustment weightings come from Article 6.4.2. Subsequent years' weightings will come from Column O of the previous year. 6) Example rates listed below. Adjustment applies to all applicable rate categories. 7) Rounded doom by 0.1°h to allow the Total in Line 25 to equal 100.0%. February 15, 2017 3-2 City of Diamond Bar - Colnlnercial K L M Y O Raw Adjustmen[Faetor Index Cost Component Colulum. D) Percent Change as Applied to Rate Adjustment Colman E) lvcrease to Cost Components (Colum. Kx Column L) Cost Component Increased Colum. K+Column M) Cost Components Re - weighted to Equal 100% 20 Labor 1) 34.2% 1.8% 0.6% 34.8% 34.5% 21 Fuel 2) 76% 121% 09% 6.7% 6,6% 22 Equipment 3) 250% 1.9% 0.5% 25.5% 25.3% 23 All Other 4) 312% 1.9% 06% 33 8% 33 6% (7) 24 Total 100.0% 100.8% 1000% 1) Rate increased for a "Driver' as described in the Articles of Agreement between Waste Management of San Gabriel/Pomona Valley, loo and Teamsters Automotive hrd.Anal and Allied Workers Local No. 495. 2) Producer Price Index, IVPU05522101 Fuels and related products and power. 3) Producer Price hrdex, PCU336120336120, Heavy duty truck monufactudng-average annual changs. 4) Comanner Price index for AN Urban Consumers (C[IDRA421SAOLIE), all items less food and energy index- Los Angeles -Riverside -Orange County -average annual dmoe. 5) July 1, 2018 rate adjustment weightings come from Article 6.4.2. Subsequent years' weightings will come from Column O of the previous year. 6) Example rates listed below. Adjustment applies to all applicable rate categories. 7) Rounded doom by 0.1°h to allow the Total in Line 25 to equal 100.0%. February 15, 2017 3-2 City of Diamond Bar - Colnlnercial EXHIBIT 3C EXAMPLE RATE ADJUSTMENT FORMULA Example Calculation of an Annual Change in a Published Index Consumer Price Index - All Urban Consumers, Los Angeles -Riverside -Orange County, CA All items less food and energy, CUUSA421SAOLlE Year I Jan I Feb I March I April I May I June I July I August I Sept I Oct I Nov I Dec Average 2014 239.084 239.908 240.322 240.507 240.366 240.460 240.981 241.574 242.016 242.360 241.842 241.491 240.909 2015 242.003 242.806 243.957 244.138 244.800 245.236 245.394 245.896 246.488 247.539 248.120 248.140 246.376 Average Change: 1.9% February 15, 2017 S City of Diamond Bar - Commercial Replaces bond previously issued on City Format GREAT AMERICAN INSURANCE COMPANY Renewable Performance Bond Bond No. MS1400992 KNOW ALL 1vIEN13YTHESE PRESENTS: That Valley Vista Services, Inc. hereinafter called the Principal), and GREAT AMERICAN INSURANCE COMPANY, 580 Walnut Street, Cincinnati, Ohio 45202 (hereinafter called the Surety), are held and firmly bound unto City of Diamond Bar (hereinafter called the Obligee), in the full andjust penal sum of One Hundred Twenty Five Thousand and nolicos *"""""""""" ($125,000 00 ) dollars to the payment of which sum, well and truly to be made, the said Principal and Surety bind themselves, and each of their heirs, administrators, executors, and assigns, jointly and severally, firmly by these presents. WHEREAS, the above bounden Principal has entered into a certain written contract with the above mentioned Obligee for Residential Solid Waste Management Services which contract is hereby referred to and made a part hereof as fully and to the same extent as if copied at length herein with annual renewal at Surety's discretion: and NOW, THEREFORE, THE CONDITIONS OF THE ABOVE OBLIGATION IS SUCH, that if the above bounden Principal shall well and truly keep, do and perform, each and every, all and singular, the matters and things in said contract set forth and specified to be by the said Principal kept, done and performed, at the time and in the manner in said contract specified to be by the said Principal kept, done and performed, at the time and in the manner in said contract specified during the term of this bond, and shall pay over, and make good and reimburse to the above named Obligee, all loss and damage which said Obligee may sustain by reason of failure or default on the partofPrincipal, then this obligation shall be void otherwise to be and remain in full force and effect. PROVIDED, however, that this bond is subject to the following conditions and provisions: 1. This bond is for the tern beginning August 31, 2016 and ending August 31, 2017 2. In the event of a default by the Principal in the performance of the contract during the term of this bond, the Surety shall be liable only for the loss to the Obligee due to actual excess costs of the contract up to the termination of this bond. The Surety, after investigation, shall with reasonable promptness determine the amount for which it may be liable to the Owner as soon as practicable after the amount is determined, tender payment therefore to the Owner, or find an acceptable principal to complete the contract. This bond does not provide coverage to any indirect loss or costs incurred by the Obligee including, but not limited to legal fees, court costs, expert fees or interest. 3. No claim, action, suit orproceeding, -except as hereinafter set forth, shall be had or maintained against the Surety on this instrument unless same be brought or instituted and process served upon the Surety within six months after the expiration of the stated term of this bond. 4. Neither non -renewal by the Surety, nor failure, nor inability of the Principal to file a replacement bond shall constitute loss to the Obligee recoverable under this bond, not withstandingany language in the contract to the contrary. 5. The bond may be extended for an additional year at the option of the Surety, by Continuation Certificate executed by the Surety. 6. This bond shall not be cumulative. Under no circumstances shall the Surety's liability exceed the penal sum stated herein. 7. No right of action shall accrue on this bond to or for the use of any person, entity or corporation other than the Obligee named herein and this bond cannot beassignedto any other party without the written consent of the Surety. Signed and sealed this 16th day of September ,2016 GREAT AMERICAN URANCE CO. Margar9ta T. Thorsen ^ - Attorney -in -Fact STATE OF CALIFORNIA 1 COUNTY OF '-0=- ) 3 _ On ,4d/ (A, before me, " dx r0'=^ r: c4JA) a Notary Public, personally appeared 7 ct-V i ct iejk---,2 Z who proved to me on the basis of satisfactory evidence to be the personVi whose name(%) is/a,# subscribed to the within instrument and acknowledged to me that he/sVe/the0 executed the same in his/h¢Y/thefr authorized capacity(ip5), and that by his/Wr/th if signature(g) on the instrument the persona, or the entity- upon behalf of which the person 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. r' Signature1' Acknowledgment B Mww r Pomona DT 032A-197797 Agenda #: 8.3 Meeting Date: February 21, 2017 CITY COUNCIL TO: Honorable Mayor and Members of the City Council 8.3 AGENDA REPORT FROM: James DeStefano, City Manager af-If TITLE: APPROVE AMENDED AND RESTATED AGREEMENT BETWEEN CITY OF DIAMOND B+- .,. • VALLEY VISTA FOR BIN ROLL-OFFB• CUSTOMER• ) WASTE MANAGEMENT SERVICES RECOMMENDATION: Approve agreement. FINANCIAL IMPACT: The agreement will generate total annual revenues of approximately $481,500 as described in detail in subsequent sections. BACKGROUND: Valley Vista Services (VVS) has been the City's exclusive commercial solid waste hauler since 2000 under two separately negotiated franchise agreements. Under these agreements, VVS has provided good customer service, maintained competitive rates, and offered a variety of refuse and recycling programs and options to residents and businesses. The eight year term of the current agreement expires August 15, 2018. At the Study Session of March 22, 2016, the City Council directed staff to initiate exclusive negotiations with VVS. To assist with the complex process of franchise negotiations and ensure customer -friendly, cost-effective, and environmentally -friendly terms, the City released a Request for Proposals (RFP) for Solid Waste Consulting Services and received three proposals by the April 14, 2016 deadline. Upon receipt and review of the RFP responses, the City Council, at the Regular Meeting of June 7, 2016, awarded a contract to HF&H Consultants, LLC (HF&H): HF&H is an industry leader, assisting more than 400 local agencies with solid waste and recycling franchise negotiations, administration, and programming. As noted below, the agreed-upon franchise terms include a reimbursement from VVS for the City's cost for this consulting. DISCUSSION: The goals of the exclusive negotiation process was to update and improve upon a solid foundational Agreement by: Providing high quality refuse and recycling services at competitive rates Packet Pg. 437 Expanding special recycling, e -waste, and household hazardous waste services. Generating revenues/added value to the public that can be used to fund key community -wide initiatives and enhanced Environmental Services programs Maintaining continuity of service/avoiding service interruption Following a series of productive meetings that commenced in August 2016, the City's team of staff, consultants, and the City Attorney concluded negotiations, coming to initial terms on an amended and restated franchise agreement for commercial solid waste services with WS. The amended and restated agreement, which is attached as Exhibit A, begins immediately upon approval of the City Council, with all newly negotiated terms and conditions superseding those of the previous franchise. Key provisions of the amended and restated agreement include: 1. Term of Agreement Extends the current agreement by five years, with a new expiration date of August 31, 2023. The City retains the sole option to extend the agreement by a period of no more than two years. 2. Regular Service The City's residential sector utilizes a system known as source separation. This typically requires residents to separate their waste into three different barrels - one for trash, one for recyclables, and one for green waste. For the commercial sector, new technologies have made it possible to achieve state -mandated waste diversion requirements. Trash collected from Diamond Bar businesses and multi -family customers is taken directly to the Valley Vista Services Material Recovery Facility (MRF) in the City of Industry. Collection trucks dump their loads onto a massive tipping floor where the trash begins its journey through a series of automated and manual sorting lines to extract recyclables. Once recyclables are removed from the waste stream, the residual trash is loaded onto large transfer trucks and taken to area landfills. The WS MRF is capable of processing more than 5,000 tons of waste each day. It is fully enclosed with a high-tech air filtration system which eliminates odor from escaping to the outside air. The number and types of (permanent) containers in service is dependent on the needs of the businesses and multi -family complexes. The majority of Valley Vista customers receive the standard three (3) cubic yard bin for mixed refuse and recyclables. Valley Vista offers customers -smaller capacity bins of 1.5 cubic yards, and larger capacity roll -off boxes up to 40 cubic yards. All refuse generated in the City is taken to a material recycling facility, and sorted by green waste, recyclables, and refuse. 3. Rates The agreement freezes commercial service rates at current levels and precludes annual adjustment requests during the first year of the agreement, an estimated ratepayer savings of $48,278. WS is eligible for a rate increase request beginning in July 2018. Rate increase requests are based on a standardized formula that accounts for actual business-related costs, including annual changes in disposal rates, labor, fuel, and other factors. The standardized formula may also help to limit extraordinary rate increases. A comparison of the City's rates to other agencies in the region is included below. City Company Commercial & Multi -Family Std. Service Monthly Rate (3 yard bin) Diamond Bar WM 132.98 Arcadia WM Non-exclusive -rates unavailable Azusa Athens 110.40 Baldwin Park WM 185.28 Chino Hills Republic 98.73 Covina Athens 165.25 Glendora Athens 162.22 La Verne WM 144.55 San Dimas WM 166.17 San Marino Athens 116.44 S. Pasadena Athens 153.71 Temple Ci Athens 199.99 Walnut Valley Vista 134.61 W. Covina Athens 183.13 It should be noted that each agency's agreement contains unique contractual provisions, payments, and policies that result in different rates. These unique features make it extremely difficult to make an apples -to -apples comparison between agencies. For example, Diamond Bar's agreements provide residents with a wide variety of refuse, recycling, and environmental services programs at little or no cost (see below for details), whereas other agencies may choose to subsidize or not offer such programs. Similarly, Diamond Bar has chosen to collect a franchise fee while others have other local funding sources (malls, auto dealerships, racetracks, etc.) to make up the difference. These policy choices have a significant impact on rates. 4. Fees The City of Diamond Bar prides itself on prudent fiscal management, making best use of the resources that are available. Diamond Bar does not have the luxury of major commercial developments, auto dealerships, or major tourist attractions that generate significant tax revenues to be used to provide essential public services. Diamond Bar's 5.9% share of the County property tax pool is among the lowest in the County, further highlighting the need to identify and secure the revenue sources required to maintain expected service levels into the future. The amended and restated agreement includes two customer -based fees and several non -customer payments. AB 939 and Franchise Fees rates are based on gross revenues generated and are unchanged from current levels. AB 939 and Franchise Fees will generate approximately $400,000 in year one of the agreement. A new Environmental Education Fee of $6,500 is due to the City annually. In addition, a one-time contracting reimbursement fee of $75,000 is due upon execution of the contract. In total, payments of approximately $481,500 will be made to the City in the first year of the agreement. Street sweeping and road maintenance payments will be adjusted by CPI each year thereafter. A detailed accounting for these fees and payments is as follows: AB 939 Fees —13% of monthly bill The AB 939 rate is unchanged and has not been increased from current levels. It is estimated that $290,000 in AB 939 fees will be generated in the first year of the franchise. AB 939 fees are used to fund the City's environmental services programs, including public events such as Exo Expo/America Recycles Day, Earth Day, Arbor Day, annual Household Hazardous Waste Collection, and the Summer Smart Gardening Composting Workshop series, recycling programs, including collection of household batteries and spent light bulbs (partnership with Ace Hardware), business and school recycle bin program, storm water pollution prevention, and education and outreach, including Envirolink, street sweeping magnets, and the Discovery Cube Eco Challenge program for local fifth and sixth grade students. Franchise Fees — 5% of monthly bill The franchise fee rate is unchanged and has not been increased from current levels. It is estimated that $111,600 in Franchise Fees will be generated in the first year of the agreement. Franchise fees are used to offset the cost of franchise administration and General Fund expenditures, including the City's law enforcement contract, road maintenance, park maintenance and development, Parks & Recreation programming, special events like the City Birthday and Concerts/Movies in the Park, and other city-wide programs that benefit the community at large. 5. Other Funding Per the terms of the franchise, WS shall make the following payments to the City: Environmental Education Funding - $6,500 annually This annual payment will be used to fund various community education programs, including the Discovery Cube program for fifth and sixth grade students. Contracting Funds - $75,000 one-time payment This one-time WS payment will offset solid waste consulting costs related to the negotiations. 6. Minimum Diversion Requirements WS must divert from landfilling a minimum of 25% of all solid waste collected and a minimum 75% of all construction and demolition materials collected. 7. Organic Waste Collection Services In October 2014, Governor Brown signed Assembly Bill 1826 (AB 1826), requiring businesses to recycle their organic waste (food waste, yard waste, food -soiled paper and wood waste) starting in April 1, 2016. To better assist each business in meeting the requirements of AB 1826, the city is working with WS to offer customized, on site recycling program assistance to businesses. To comply with AB 1826, VVS will offer cart services to multi -family and commercial properties and assist the City in identifying properties that have yet to subscribe for organics services. Organic waste may be taken to Puente Hills for processing, once cleared of contaminants, the slurry is pumped into anaerobic digesters, which contains sewage sludge from the plants waste water treatment operations. The digester produces biogas, which is then used to produce electricity. 8. Program Enhancements The City and VVS have agreed to a comprehensive and proactive approach to customer service and environmental stewardship. In addition to the provision of weekly commercial refuse collection, bin, and roll -off services, the agreement includes an extensive list of enhanced services, including: Scout Service Businesses and multi -families complexes can sometimes experience space constraints that impedes safe collection of refuse from the enclosure locations. Scout Services would allow VVS to safely roll the container to an alternate pick-up point and once serviced, return it to its enclosure space. On-call Bulky Item Pickup/E-waste Collection & Disposal Multi- family residents are eligible for four free bulky item pickups per year. Bulky items may include furniture, appliances, large amounts of green waste, and electronic waste such as televisions, computers, and cell phones. Door -to -Door Household Hazardous Waste (HHW) Collection & Disposal VVS will provide multi -family residents a door-to-door call-in household hazardous waste (HHW) collection service at no additional cost. HHW includes syringes/sharps, paint products, automotive wastes, household and pool chemicals and cleaners, etc. Holiday Tree Collection & Disposal Each year, from December 26 to the second Sunday in January, VVS will dispose of natural holiday trees (maximum of seven feet in length and free of all decoration) placed out for collection. City Facilities Service VVS will provide free refuse, recycling, and green waste collection services to City facilities, including City Hall/Library, Diamond Bar Center, City parks and free storage bins for the City's street maintenance operations. The free services are valued at approximately $102,000 annually, which would otherwise be paid from the City's General Fund. City Sponsored Events VVS will provide free bin and container services at City events, which may include the City Birthday Celebration, Concerts in the Park, and Fourth of Pac€tet Pg. 41 July Blast, among others. This free service is valued at approximately 5,000 annually, which would otherwise be paid from the City's General Fund. Educational and Marketing Materials To better inform commercial and multi -family residents, WS is required to produce a variety of print materials, including a comprehensive customer guide with service and educational information, a minimum of four billing inserts per year and an annual brochure or other mailing as directed by the City. These items shall promote and explain all solid waste programs offered, the benefits of recycling, proper methods of disposing of HHW and e -waste, etc. 9. Accountability To ensure franchisee compliance and accountability to the City and its residents, a series of performance management requirements are included. Reporting - WS will provide standardized reporting of diversion rates/AB 939 compliance, special services rendered (bulky item/HHW, etc.), customer outreach/complaints, financial statements, etc. City staff will meet regularly with WS representatives to review reports and discuss matters of concern. Performance Audits - The City may choose to conduct an audit of WS. The scope of the audit is at the City's discretion, and may include general contract compliance, customer service levels, financial review, tonnage/diversion rates, etc. WS shall reimburse the City for the cost of the audit, up to $50,000 for the first audit and up to $35,000 for each audit thereafter. Customer Service Satisfaction Survey - at the City's request, WS will conduct a survey of customers to determine overall customer satisfaction with services. The content of the survey must be approved by the City. SUMMARY: Staff and VVS agree that the goals of the exclusive negotiation period have been met. Because the agreed-upon terms provide business owners and multi -family residents with robust services at competitive rates while meeting all state environmental and diversion mandates, staff recommends the City Council approve the amended and restated agreement with WS. LEGAL REVIEW: The City Attorney has reviewed and approved the document as presented. PREPARED BY: f7yaoRcLean, A sistant City Manager 2/21/2017 ffOfannaoeywell, F®6 4v4nr 2/6/2017 Attachments: 1. 8.3.a WS Amended and Restated Agreement 2. 8.3.b WS Amended and Restated Agreement - Redline 8.3 Packet Pg. 443 AMENDED AND RESTATED AGREEMENT BETWEEN CITY OF DIAMOND BAR AND VALLEY VISTA SERVICES FOR BIN AND ROLL -OFF BOX CUSTOMER SOLID WASTE MANAGEMENT SERVICES February 16, 2017 8.3:a Packei Pg. 444 RECEIVED 2011 AUG 10 PM 1: 57 CITY MANAGERS OFFICE CITY OF DIAMOND DAR August 8, 2017 Diamond Bar City Hall City Clerk's Office Enclosed please find Surety Bond 1400992 continuation issued on behalf of Valley Vista Services, Inc. in favor of The City of Diamond Bar. If you have any questions please feel free to contact me. Sincerely, Jesse Quintana Controller GRE:ATAMERIcA INSURANCE GROUP' GREAT AMERICAN INSURANCE COMPANY An Ohio Corporation with Administrative Office at 301 E. 4th Street, Cincinnati, Ohio 45202 Certificate Continuing In Force Bond No. 1400992 Name of Principal: Valley Vista Services, Inc. Name of Obligee: City of Diamond Bar Amount of Bond: $ One Hundred Twenty Five Thousand Dollars ($125,000.00) The Great American Insurance Company in consideration of the premium, does hereby continue in force the above described bond from the 31 st day of August , 2017 , to the 30th day of August 2018 , standard time at the obligee's address, but this certificate shall not be binding upon the said Company until countersigned by a duly authorized representative of the said Company. This certificate is issued upon the condition that the liability of the Great American Insurance Company shall under no circumstances be cumulative in amounts from year to year, regardless of the number of years said bond be continued in force and the number of premiums that may be paid or payable. Dated July 19, 2017 INSURANCE COMPANY W INUn Attorney -in -Fact F. 9160D (4/08) ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Orange On i e t before me, Charloette J. Huffman insert name and title of the officer) personally appeared Margareta T. Thorsen 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. Seal) r; CHARLOETTE J. HUFFAN Commission No. 2164063 zz m NOTARY PUBLIC -CALIFORNIA ORANGE COUNTY My Comm. Expires SEPTEMBER 3, 2020 GREAT AMERICAN INSURANCE COMPANY' Administrative Office: 301 E 4TH STREET • CINCINNATI, OHIO 45202 • 513-369-5000 • FAX 513-723-2740 The number of persons authorized by this power of attorney is not more than one Bond No. 1400992 POW ER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS: That the GREATAMERICAN INSURANCE COMPANY, a corporation organized and existing under and by virtue of the laws of the State of Ohio, does hereby nominate, constitute and appoint the person or persons named below its true and lawful attorney-in- fact, for it and in its name, place and stead to execute on behalf of the said Company, as surety, the specific bond, undertaking or contract of suretyship referenced herein; provided that the liability of the said Company on any such bond, undertaking or contract of suretyship executed under this authority shall not exceed the limit stated below. The bond number on this Power of Attorney most match the bond number on the bond to which it is attached or it is invalid. Name Address Limit of Power Margareta Thorsen 332 E. Foothill Blvd., Suite B $125000— Arcadia, CA 91006 IN WITNESS WHEREOF the GREAT AMERICAN INSURANCE COMPANY has caused these presents to be signed and attested by its appropriate officers and its corporate seal hereunto affixed this 19th day of July 1 2017 Attest GREAT AMERICAN INSURANCE COMPANY yF k Assistant Secsataw Divisional Senior Viw Pxe®dent STATE OF OHIO, COUNTY OF HAMILTON - ss: DAVID C. KITCHIN (677-377-2405) On this 19th day of July 12017 , before me personally appeared DAVID C. KITCH N, to me known, being duly svA m, deposes and says that he resides in Cincinnati, Ohio, that he is a Divisional Senior Vice President of the Bond Division of Great American Insurance Company, the Company described in and which executed the above instrument; that he knows the seal of the said Company; that the seal affixed to the said instrument is such corporate seal; that it was so affixed by authority of his office under the By -Laws of said Company, and that he signed his name thereto by like authority. Boom& Koh W Mytb nlakn6 mOfrtaa630 °'` This Power ofAttomey is granted by authority of the following resolutions adopted by the Board of Directors of Great American Insurance Company by unanimous written consent dated June 9, 2008_ RESOLVED: That the Divisional President, the several Divisional Senior Mce Presidents, Divisional Vice Presidents and Divisonal Assistant Vice Presidents, or any one of them, be and hereby is authorized, from time to time, to appoint one or more Attorneys -in -Fact to execute on behalf of the Company, as surety, any and all bonds, undertakings and contracts of suretyship, or other written obligations in the nature thereof, to prescribe their respective duties and the respective limits of their authority; and to revoke any such appointment at any time. RESOLI'F,D FURTHER: not the Company seal and the signature of any of the aforesaid officers and anySecretary or Assistant Secretary of the Company may be affixed by facsimile to any power of attorney or certificate of either given for the execution of any bond, undertaking, contract of suretyship, or other written obligation in the nature thereof such signature and seal when so used being hereby adopted by the Company as the original signature of such officer and the original seal of the Company, to be valid and binding upon the Company with the same force and effect as though manually affixed. CERTIFICATION I, STEPHEN C. BERAIIA, Assistant Secretary of Great American Insurance Company, do hereby certify that the foregoing Power of Attorney and the Resolutions of the Board of Directors of June 9, 2008 have not been revoked and are now in full force and effect. Signed and sealed this a " 511940 (6/16) 19th day of July 2017 A,5Vi nt Secretary