HomeMy WebLinkAboutUSA Waste of California, LLC (Waste Management).pdfAMENDED AND RESTATED
AGREEMENT
BETWEEN
CITY OF DIAMOND BAR
AND
USA WASTE OF CALIFORNIA INC.
FOR
RESIDENTIAL CART CUSTOMER SOLID WASTE
MANAGEMENT SERVICES
February 15, 2017
AGREEMENT
BETWEEN
CITY OF DIAMOND BAR
AND
USA WASTE OF CALIFORNIA, INC. FOR
RESIDENTIAL CART CUSTOMER SOLID WASTE
MANAGEMENT SERVICES
TABLE OF CONTENTS
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Page
1
ARTICLE1.................................................................................................................................................3
DEFINITIONS.........................................................................................................................................................................3
1.1 AB 939......................................................................................................................................................................3
1.2 AFFILIATE.................................................................................................................................................................3
1.3 BILLINGS...................................................................................................................................................................4
1.4 BIN............................................................................................................................................................................4
1.5 BIN SERVICE............................................................................................................................................................. 4
1.6 BULKY ITEMS............................................................................................................................................................ 4
1.7 CART........................................................................................................................................................................ 5
1.8 CITY..........................................................................................................................................................................5
1.9 COLLECT/COLLECTION...........................................................................................................................................5
1.10 COMMERCIAL SERVICES...................................................................................................................................... 5
1.11 COMMERCIAL PREMISES..................................................................................................................................... 5
1.12 CONTRACTOR......................................................................................................................................................6
1.13 CONTRACTOR COMPENSATION.......................................................................................................................... 6
1.14 CONSTRUCTION AND DEMOLITION DEBRIS....................................................................................................... 6
1.15 CONTAINER.........................................................................................................................................................6
1.16 CPI...................................................................................................................................................................... 6
1.17 CUSTOMER...........................................................................................................................................................6
1.18 DISPOSAL .................... ....... -................. ...............................................................................................................6
1.19 DISPOSAL SITE(5)................................................................................................................................................. 6
1.20 DIVERSION...........................................................................................................................................................7
1.21 ENVIRONMENTAL LAWS.....................................................................................................................................7
1.22 FACILITY..............................................................................................................................................................7
1.23 FOOD WASTE......................................................................:................................................................................7
1.24 GREEN WASTE..................................................................................................................................................... 8
1.25 GREEN WASTE PROCESSING FACILITY..........................................................................................._.................. 8
1.26 GROSS RECEIPTS..................................................................................................................................................8
1.27 HAZARDOUS SUBSTANCE...................................................................................................................................8
1.28 HAZARDOUS WASTE........................................................................................................................................... 9
1.29 HOUSEHOLD HAZARDOUS WASTE("HHW")................................................................................................... 9
1.30 MATERIALS RECOVERY FACILITY ("IVIgF") ............................................................................................_......... 9
1.31 MULTI -FAMILY DWELLING..............................._................................................................................................9
1.32 ORGANIC WASTE.............................................................................................................................................. 10
1.33 ORCANICG%TASTEFFCCESSLNGPAcrri.Y.......... _.........._.................................................................................10
February 15, 2017 City olDiamond Bar- Residential
1.34 PERSON.- ........................................................................................ ................................................................. 10
1.35 PREMISES........................................................................................................................................................... 10
1.36 RATE YEAR........................................................................................................................................................10
2.4 TERM OF AGREEMENT...........................................................................................................................................
1.37 RECYCLING. ................................................................ ...................................................................................... 10
1.38 RECYCLABLE MATERIALS................................................................................................................................. 10
1.39 REFUSE...............................................................................................................................................................11
17
1.40 RESIDENTIAL SERVICES ............. ......................................................................................... 11
1.41 RESIDENTIAL CUSTOMERS................................................................................................................................ 11
1.42 RESIDENTIAL PREMISES..................................................................................................................................... 11
1.43 ROLL -OFF BOX................................................................................................................................................... 12
1.44 SINGLE FAMILY DWELLING.............................................................................................._.............................. 12
1.45 SOLIDWASTE....................................................................................................................................................12
1.46 SOLID WASTE COLLECTION SERVICES.............................................................................................................. 12
1.47 SOURCE SEPARATED.......................................................................................................................................... 12
1.48. STATE.................................................................................................................................................................12
3.2.4 Residential Collection Vehicle Road Maintenance Cost Reimbursement.....................................................
1.49 TEMPORARY SERVICE........................................................................................................................................ 13
1.50 TRANSFORMATION............................................................................................................................................ 13
1.51 TRANSFER STATION........................................................................................................................_................ 13
1.52 WASTE GENERATOR.......................................................................................................................................... D
ARTICLE2...............................................................................................................................................14
GRANTAND 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
FEES PAID TO THE CITY...................................................................................................................................................23
3.1 CONTRACTING FEE................................................................................................................................................23
3.2 OTHER CITY FEES................................................................................................................................................... 23
3.2.1 Franchise Fee.........................................................................--................................................................... 23
3.2.2 AB 939 Fee.................................................................................................................................................... 23
3.2.3 Street Sweeping Funding.............................................................................................-.............................. 24
3.2.4 Residential Collection Vehicle Road Maintenance Cost Reimbursement..................................................... 24
3.2.5 Environmental Education Fee...................................................................................................................... 24
3.2.6 Late Payment of Fees.................................................................................................................................... 25
3.3 FUTURE FEES.......................................................................................................................................................... 25
ARTICLE 4 ............................
DIRECT SERVICES .....................
4.1 R=sE.......... ................
26
26
6
February 15, 2017 City of Diamond Bar- Residential
4.1.1 General .................................................... .................. .... ........ ............ .................................................. 26
4.1.2 Residential Cart Refuse Collection............................................................................................................... 26
4.1.3 Refuse Cart Overage..................................................................................................................................... 27
4.1.4 Backyard Service........................................................................................................................................... 27
4.1.5 Backyard Service for the Disabled................................................................................................................. 27
4.1.6 Section Deleted.............................................................................................................................................28
4.1.7 Determination of Service Type..................................................................................................................... 28
4.1.8 Overflowing Containers...............................................................................................................................28
4.1.9 Section Deleted.............................................................................................................................................29
4.1.10 Temporary Roll -Off and Temporary Bin Services................................................................................... 29
4.1.11 Section Deleted... ....................................................................... .......................... ...... ........................ 30
4.1.12 Section Deleted............ ............. ..................................................................................... ........................... 30
4.1.13 Section Deleted........................................... ............................................................................. 30
4.1.14 Section Deleted......................................................................................................................................... 30
4.1.15 On -Call Bulky Item Pickup..................................................................................................................... 30
4.1.16 Bulky Item Diversion............................................................................................................................... 31
4.1.17 Disposal of Electronic and Other Special Wastes.................................................................................... 31
4.1.18 Door -to -Door HHW Collection............................................................................................................... 31
4.1.19 Annual Household Hazardous Waste Event........................................................................................... 32
4.1.20 Curbside Used Oil and Oil Filter Collection........................................................................................... 32
4.1.21 Service Exceptions, Hazardous Waste Notifications............................................................................... 32
4.1.22 Sharp's Mail Back Program..................................................................................................................... 33
4.1.23 Medication Takeback Program................................................................................................................. 33
4.1.24 FreeCycle.cont..........................................................................................................................................34
4.2 REcYci.nvG 34
4.2.1 Recycling Collection............................._...................................................................................................34
4.2.2 Section DeIeted..................................................... .............. ................................ ...................... I ............. ...... 34
4.2.3 Contaminated Loads, Warning Notice......................................................................................................... 34
4.2.4 Marketing and Sale of Recyclable Materials ...... .................................................................... --- 35
4.2.5 Minimum Diversion Requirements ................................ ............... ................ .............................................. 35
4.2.6 Construction and Demolition Debris Diversion........................................................................................... 36
4.2.7 Optional Food Waste Diversion Program.................................................................................................... 37
4.3 GREEN WASTE PROGRAM ...................................................................................................................................... 37
4.3.1 Single Family Green Waste Collection......................................................................................................... 37
4.3.2 Holiday Tree Collection Program................................................................................................................. 38
4.3.3 Section Deleted.............................................................................................................................................38
4.3.4 End Uses for Green Waste............................................................................................................................ 38
4.3.5 Mulch Give-a-Way....................................................................................................................................... 38
4.4 CART SELECTION, DISTRIBUTION, EXCHANGES AND REMOVAL.......................................................................... 39
4.4.1 Cart Selection and Distribution.................................................. ...................................................... 39
4.4.2 Cart Exchanges ...................................... -...................................................... ................. .............................. 39
4.4.3 Removal of Carts Distributed Under the Previous Contract.__.........................._....................................... 39
4.5 CITY SERVICES........................................................................................................................................................ 39
4.5.1 Section Deleted .......................................... ..... ............ -- ................... I ............................... -........................ 39
4.5.2 City Sponsored Events.................................................................................................................................. 39
4.5.3 Emergency Collection and Disposal Service................................................................................................. 40
4.5.4 Abandoned Item Collection frons City Right -of -Way or Other Public Property .......................................... 40
4.5.5 Commmnihj Development Review Services.................................................................................................. 40
4.5.6 Large Venue Event Assistance, Event Recycling......................................................................................... 41
4.5.7 Confiscation of Unauthorized Containers ........... :........... ........................................................ 41
4.5.8 Provision of Storage Containers................................................................................................................... 41
4.6 OPERATioNS....... ........ --..... .............................................................................................................. 42
4.6.1 Schedules, Missed Pickups .............._........... ...... 42
February 15, 2017 City of Diamond Bar- Residential
4.6.2 Vehicles...................................................... ........................... ........ .............. ........................ 42
4.6.3 Containers.....................................................................................................................................................46
4.6.3.1 Carts.........................................................................................................................................................47
4.6.3.2 Cart Maintenance and Replacement Responsibilities.............................................................................. 48
4.6.3.3 Bins..........................................................................................................................................................48
4.6.3.4 Roll -off Boxes...........................................................................................................................................49
4.6.4 Litter Abatement...........................................................................................................................................49
4.6.5 Personnel......................................................................................................................................................50
4.6.6 Identification Required................................................................................................................................. 51
4.6.7 Unauthorized Fees and Gratuities ................................. ..................................................................... 51
4.6.8 Non-Discrimination.....................................................................................................................................51
4.6.9 Report of Accumulation of Solid Waste; Unauthorized Dumping............................................................... 52
4.7 TRANSPORTATION OF SOLID WASTE..................................................................................................................... 52
4.8 APPROVED FACILITIES...........................................................................................................................................52
4.9 STATUS OF DISPOSAL SITE..................................................................................................................................... 53
4.10 DEDICATED ROUTES......................................................................................................................................... 53
4.11 ROUTE AUDIT ..... ........................................................ ................................................................... 53
ARTICLE5...............................................................................................................................................55
OTHERSERVICES............................................................................................................................................................... 55
5.1 CUSTOMER BILLING AND CONTRACTOR COMPENSATION................................................................................... 55
5.1.1 Billing...........................................................................................................................................................55
5.1.2 Contractor's Invoices.................................................................................................................................... 55
5.1.3 Yard Waste Reduction Discount.................................................................................................................. 55
5.1.4 Disabled Customer Discount... .................................................................... _ ............. 56
5.1.5 Senior Discount............................................................................................................................................ 56
5.1.6 Non -Payment; Suspension of Service.. .......... .............................................................................................. 57
5.1.6.1 Quarterly Cart Billings............................................................................................................................ 57
5.1.6.2 Temporary Bin and Roll -Off Box Service......................................................... 57
5.1.6.3 Collection Proceedings............................................................................................................................. 57
5.1.6.4 Continued Provision of Service................................................................................................................ 58
5.2 CUSTOMER SERVICE...............................................................................................................................................58
5.2.1 Local Office...................................................................................................................................................58
5.2.2 Complaint Documentation.......:...................................................................................................................58
5.2.3 Customer Service Standards. ... .................................................. ............................. 59
5.2.4 Resolution of Customer Complaints ...................... ...................................................................................... 60
5.2.5 Contract Liaison...........................................................................................................................................60
5.2.6 Service Liaison........................................................ ........ -....... ..................................................................... 61
5.3 EDUCATION AND PUBLIC AWARENESS................................................................................................................. 61
5.3.1 General..........................................................................................................................................................61
5.3.2 Implementation and On-going Education Requirements............................................................................ 61
5.3.3 Contractor Representative ............................................ ...... -...... .................................................................. 63
5.3.4 Communihj Events....................................................................................................................................... 63
5.4 WASTE GENERATION/CHARACTERIZATION STUDIES......................................................................................... 64
ARTICLE6...............................................................................................................................................65
COMPANY COMPENSATION AND RATES.................................................................................................................. 65
6.1 GENERAL................................................................................................................................................................ 65
6.2 INITIAL RATES........................................................................................................................................................ 65
6.3 SCHEDULE OF FUTURE ADJUSTMENTS.................................................................................................................. 65
6.4 METHOD OF ADIusTMENTs................................................................................................................................... 66
6.4.1 General ......................... ..._........... .............................................................. ........ ___ .................... .... ............. 66
February 15, 20 17 City of Diamond Bar- Residential
6.4.2 Cost Components for Rate Adjustment Indices............................................................................................ 66
6.4.3 Rate AdjushnentSteps ............................................................................................................_...................67
6.4.4 Temporary Service Rate Adjustment............................................................. ................................. .............. 68
6.5 EXTRAORDINARYADIUSTMENTS................ ........ ........ ................................... --- .................................................. 68
6.6 EFFECT OF RATE CHALLENGE............................................................................................................................... 69
6.7 RESIDENTIAL RECYCLABLES REBATE TO CUSTOMERS.......................................................................................... 70
ARTICLE7.............................................................................................................................................................................. 72
REVIEW OF SERVICES AND PERFORMANCE............................................................................................................ 72
7.1 PERFORMANCEREVIEWMEETING............ ................................................. ....................................... .................... 72
7.2 PERFORMANCE SATISFACTION SURVEY................................................................................................................ 73
ARTICLE8...............................................................................................................................................74
RECORDS, REPORTS AND INFORMATION REQUIREMENTS............................................................................. 74
8.1 GENERAL..... ............. .................................. ....................................................................................... .................. 74
8.2 RECORDS................................................................................................................................................................ 74
8.2.1 General, Right to Inspect.............................................................................................................................. 74
8.2.2 Financial Records.................................... ............................................. .............................. ........................... 75
8.2.3 Solid Waste Records......................................................................................................................................75
8.2.4 CERCLA Defense Records............................................................................................................................ 76
8.2.5 Section Deleted............................................................................................................................................. 77
8.2.6 Other Programs' Records.............................................................................................................................77
8.2.7 Audit.............................................................................................................................................................77
8.2.8 Payments and Refunds................................................................................................................................. 77
8.3 REPORTS.................................................................................................................................................................78
8.3.1 Report Formats and Schedule....................................................................................................................... 78
8.3.2 Monthly Reports...........................................................................................................................................78
8.3.3 Annual Report.............................................................................................................................................. 79
8.3.4 Financial Report .......................... ................................................................................................................. 80
8.4 REPORTING ADVERSE INFORMATION.................................................................................................................... 80
8.5 FAILURE TO REPORT.............................................................................................................................................. 81
ARTICLE9...............................................................................................................................................82
9.1 INDEMNIFICATION................................................................................................................................................. 82
9.2 HAZARDOUS SUBSTANCES INDEMNIFICATION..................................................................................................... 83
9.3 AB 939 INDEMNIFICATION AND GUARANTEE...................................................................................................... 85
9.4 INSURANCE ......................................... ..................... :........................................................................... .................. 85
9.5 FAITHFUL PERFORMANCE BOND...........................................................................................................................89
9.6 FAITHFUL PERFORMANCE LETTER OF CREDIT...................................................................................................... 90
9.7 FORFEITURE OF PERFORMANCE BOND.................................................................................................................. 90
9.8 FORFEITURE OF LETTER OF CREDIT ............................. ..................................... ..................................................... 90
9.9 PERFORMANCE SECURITY BEYOND SERVICE TERM ......................._..................................................................... 91
ARTICLE10.............................................................................................................................................92
CITY'S RIGFIT TO CONTRACT WITH THIRD PARTIES TO PERFORM FRANCHISED SERVICES 92
ARTICLE11.............................................................................................................................................93
DEFAULT, REMEDIES AND LIQUIDATED DAMAGES........................................................................................... 93
11.1 EVENTS OF DEFAULT.. ......................................................... . ...... ...................... .............................................. 93
112 RIGHT TO TERMINATE UPON DEFAULT AND RIGHT TO SPECIFIC PERFORMANCE ......................................... 96
11.3 LIQUIDATED DAMAGES.................................................................................................................................... 96
11.4 SUSPENSION OF PERFORMANCE..................................................................................................................... 102
11.4.1 Force Majemv...................................................................................................._................................... 102
February 15, 2017 City of Diamond Bar- Residential
11.4.2 Labor Unrest.......................................................................................................................................... 102
11.5 DISPUTE RESOLUTION; ADMINISTRATIVE REMEDIES; TERMINATION........................................................... 103
11.5.1 Negotiation and Mediation....................................................................................................................103
11.5.2 Confidentiality.......................................................................................................................................104
11.5.3 Injunctive Relief.................................................................................................................................... 104
11.5.4 Continuing Obligation...........................................................................................................................104
11.5.5 Failure of Mediation ...................... :......... ............................... ............................................................... 104
11.6 ASSURANCE OF PERFORMANCE...................................................................................................................... 104
ARTICLE12...........................................................................................................................................106
OTHERAGREEMENTS OF THE PARTIES..................................................................................................................106
12.1 RELATIONSHIP OF PARTIES............................................................................................................................. 106
12.2 COMPLIANCE wiTH LAw ................................................................................................................................106
12.3 GOVERNING LAw ............................................................................................................................................106
12AJURISDICTION........_........................................................................................................................................106
12.5 ASSIGNMENT...................................................................................................................................................107
12.6 CONTRACTING OR SUBCONTRACTING........................................................................................................... 109
12.7 BINDING ON ASSIGNS........-........................................................................................................................... 109
12.8 COOPERATION IN PREPARATION FOR TERmiNATION OR ExPIRATION OP CONTRACT ................................. 109
12.9 PARTIES IN INTEREST.......................................................................................................................................110
12.10 WAIVER...........................................................................................................................................................110
12.11 CONTRACTOR'S INVESTIGATION...--.............................................................................................................110
12.12 SECTION DELETED........................................................................................................................................... 111
12.13 NOTICE............................................................................................................................................................111
12.14 REPRESENTATIVES OF THE PARTIES................................................................................................................ I l l
12.15 CITY FREE TO NEGOTIATE WITH THIRD PARTIES....................................................................... _.................. 112
12.16 COMPLIANCE WITH MUNICIPAL CODE.......................................................................................................... 112
12.17 PRIVACY.......................................................................................................................................................... 112
12.18 PROPRIETARY INFORMATION, PUBLIC RECORDS........................................................................................... 113
12.19 GUARANTEE OF CONTRACTORS PERFORMANCE..........................................................................................113
ARTICLE13...........................................................................................................................................114
MISCELLANEOUS PROVISIONS..................................................................................................................................114
13.1 ENTIRE AGREEMENT.......................................................................................................................................114
13.2 SECTION HEADINGS........................................................................................................................................ 114
13.3 REFERENCES To LAws AND OTHER AGREEMENTS ........................................................................................ 114
13.4 INTER.PRETATION............................................................................................................................................. 114
13.5 AGREEMENT....................................................................................................................................................114
13.6 SEVERABILITY ..................................................................................................................................................115
13.7 ExHIBrrs..........................................................................................................................................................115
13.8 ATTORNEYS' FEES........................................................................................................................................... 115
Exhibits
1. Public Education Plan
2. Initial Maximum Rates
3. Example Rate Adjustment Formula:
3A: Residential Rates
313: Calculation of an Almual Change in a Published hldex
4. Corporate Guarantee
5. Faithful Performance Bond
February 15, 201 Coy of Diamond Bar- Residential
6 Notary Certification
7. Example Monthly Report Format
February 15, 2017 City of Diamond Bar- Residential
AGREEMENT
This Amended and Restated Agreement for Integrated Solid Waste Management Services
hereinafter the "Agreement") is entered into this day of , 20, by and
between the City of Diamond Bar, California, ("City") and USA Waste of California,
Inc. ("Contractor"), for the collection, transportation, recycling, processing, and disposal
of residential solid waste and other services related to meeting the goals and
requirements of the California Integrated Waste Management Act.
WHEREAS, the Legislature of the State of California, by enactment of the California
Integrated Waste Management Act of 1989 (AB 939) (California Public Resources Code
Sections 49100 et seq.), has declared that it is in the public interest to authorize and
require local agencies to make adequate provisions for solid waste handling within
their jurisdictions; and,
WHEREAS, pursuant to California Public Resources Code Section 49300 and 49500-49524,
the City of Diamond Bar has determined that the public health, safety, and well-being
require that an exclusive franchise for residential solid waste collection services be
awarded to a qualified company for the collection, transfer and transportation,
recycling, processing, and disposal of solid waste and other services related to meeting
the diversion goals required by AB 939, and other requirements of the California
Integrated Waste Management Act; and,
WHEREAS, City desires to maintain reasonable rates and quality service related to the
collection, transfer and transportation, recycling, processing, and disposal of solid waste
and other services; and,
WHEREAS, Contractor is the current residential solid waste hauler for the City and the
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 serve as the City's exclusive residential
cart 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 wasie, including
February 15, 2017 1- City of Diamond Bar- Residential
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 15, 2017 -2- City of Diamond Bar- Residential
NICOM
193411 l"DW161
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 lowercase letters are
being used with their corm -non ordinary meanings, not as defined terms. Otherwise, the
following capitalized words and terms shall have the following meanings:
1.1 AB 939
AB 939" means the California Integrated Waste Management Act of 1989 (California
Public Resources Code Section 40000 et seq.), as it may be amended from time to time.
1.2 Affiliate
Affiliate" means all businesses (including corporations, limited and general
partnerships and sole proprietorships) which are directly or indirectly related to
Contractor by virtue of direct or indirect ownership interest or common management.
These shall be deemed to be "Affiliated with" Contractor and included within the term
Affiliates" as used herein. An Affiliate shall include a business in which Contractor
owns a direct or indirect ownership interest, a business which has a direct or indirect
ownership interest in Contractor and/or a business which is also owned, controlled or
managed by any business or individual which has a direct or indirect ownership
interest in Contractor. For purposes of determining whether an indirect ownership
interest exists, the constructive ownership provisions of Section 318(a) of the hlternal
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
February 15, 2017 S- City of Diamond Bar- Residential
the basis of the percentage of voting interest or value which the ownership interest
represents, whichever is greater.
1.3 Billings
Billings' or "Billing' or `Bill" means the statements of charges provided to Customers
for services rendered by Contractor.
1.4 Bin
Bin" means a metal Container with hinged lids and wheels with a capacity of less than
ten (10) cubic yards.
1.5 Bin Service
Bin Service" means Solid Waste Collection Services in which a Bin is used for the
Collection of Solid Waste.
1.6 Bulky Items
Bulky Items" means Solid Waste that cannot and/or would not typically be
accommodated within a Cart including specifically: furniture (including chairs, sofas,
mattresses, and rugs); appliances (including refrigerators, ranges, washers, dryers,
water heaters, dishwashers, plumbing, small household appliances and other similar
items, commonly known as "white goods"); unusually large amounts of yard debris
and Green Waste and small pieces of wood limited to one cubic yard of contained
material; electronic equipment (including stereos, televisions, computers and monitors,
VCRs, microwaves and other similar items commonly known as "brown goods" and "e -
waste"); and clothing. Bulky Items do not include car bodies, tires, Construction and
Demolition Debris or items requiring more than two persons to remove. Other items
not specifically included or excluded above will be Collected provided that they are not
more than eight feet in length, four feet in width, or more than 150 pounds. In the event
a question ever arises as to whether a specific item or category of items meets the
definition of Bulky Items, City shall be responsible to determine whether said definition
shall apply, which determination shall be final and binding on the Parties.
February 15, 2017 City of Diamond Bar- Residential
1.7 Cart
Cart" means a plastic Container with a hinged lid and wheels serviced by an
automated or semi -automated truck with a capacity of no less than 32- and no greater
than 101 -gallons.
1.8 City
City" means City of Diamond Bar, California, a municipal corporation, and all the
territory lying within the municipal boundaries of City as presently existing or as such
boundaries may be modified during the term of this Agreement.
1.9 Collect/Collection
Collect" or "Collection" means to take physical possession, transport, and remove Solid
Waste within and from City.
1.10 Commercial Services
Commercial Services" refer to Solid Waste Collection Services performed at or for
Cormnercial 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.
February 15, 2017 -5- City of Diamond Bar- Residential
1.12 Contractor
Contractor" means USA Waste of California, Inc., a corporation organized and
operating under the laws of the State of Delaware and its officers, directors, employees,
agents, companies and subcontractors.
1.13 Contractor Compensation
Contractor Compensation" means the revenue received by the Contractor from
Customers in return for providing sei vices in accordance with this Agreement.
1.14 Construction and Demolition Debris
Construction and Demolition Debris" means Solid Waste generated at a Premises that
is directly related to construction, renovation 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
uldinate Disposal of Solid-vVaste Collected by Contracto .
February 15, 2017 6- City of Diamond Car- Residential
1.20 Diversion
Diversion" means any combination of waste prevention (source reduction), recycling,
reuse, composting and Transformation activities that reduces waste disposed at
landfills, provided such activities are recognized by CalRecycle ("CIWMB") as
Diversion in its determination of the City's Diversion rate and compliance with AB 939.
Transformation tonnage that will be considered toward the 45 % Diversion goal under
this Agreement may be limited by the City to 10 % of Solid Waste Collected by
Contractor each calendar year under this Agreement to the extent total tonnage
transformed by Contactor, the City's Bin and Roll -Off Box service provider, and other
sources within the City exceeds 10% of City-wide Disposal.
1.21 Environmental Laws
Environmental Laws" means all federal and state statutes, county, local and City
ordinances concerning public health, safety and the environment including, by way of
example and not limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980,42 USC §9601 et seq.; the Resource
Conservation and Recovery Act, 42 USC §6902 et seq.; the Federal Clean Water Act, 33
USC §1251 et seq.; the Toxic Substances Control Act, 15 USC §1601 et seq.; the California
Hazardous Waste Control Act, California Health and Safety Code §25100 et seq.; the
California Hazardous Substance Account Act, California Health and Safety Code
25300 et seq.; the Porter -Cologne Water Quality Control Act, California Water Code
13000 et seq.; the Safe Drinking Water and Toxic Enforcement Act, California Health
and Safety Code §25249.5 et seq.; as currently in force or as hereafter amended, and all
rules and regulations promulgated thereunder.
1.22 Facility
Facility" means any plant or site, owned or leased and maintained, operated or used by
Contractor for purposes of performing under this Agreement.
1.23 Food Waste
Food Waste" means:
All food (including fruits, vegetables, meat, poultry, seafood, shellfish, bones, rice,
beans, pasta, bread, cheese and eggshells);
February 15, 2017 -7- City of Diamond Bar- Residentiai
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
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,
February 15, 2017 -8- City of Diamond Bar- Residential
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, polycblorinated
biphenyl's ("PCBs"), petroleum, natural gas and synthetic fuel products, and by-
products.
1.28 Hazardous Waste
Hazardous Waste" means all substances defined as Hazardous Waste, acutely
Hazardous Waste, or extremely Hazardous Waste by the State of California in Health
and Safety Code §25110.02, §25115, and §25117 or in the future amendments to or
recodifications of such statutes or identified and listed as Hazardous Waste by the US
Environmental Protection Agency (EPA), pursuant to the Federal Resource
Conservation and Recovery Act (42 USC §6901 et seq.), all future amendments thereto,
and all rules and regulations promulgated thereunder.
1.29 Household Hazardous Waste ("HHW")
Household Hazardous Waste" means Hazardous Waste generated at Residential
Premises.
1.30 Materials Recovery Facility ("MRF")
Materials Recovery Facility" means a permitted Solid Waste Facility where Solid
Wastes or Recyclable Materials are sorted or separated for the purposes of Recycling,
processing or composting.
1.31 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
February 15, 2017 -9- City of Diamond Bar - Residential
the use of shared Bins, but may use Carts. Multi -Family Dwelling Units receiving Cart
Refuse Collection are included in this Agreement.
1.32 Organic Waste
Organic Waste" means Food Waste and Green Waste, and other compostables,
collectively or individually.
1.33 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.
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 fust 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 material that has been separated from the Customer's
wasie st earu for the intended purpose of collection and process1 zg to return it toedte
February 15, 2017 -10- City of Diamond Bar - Residential
economy in the form of raw materials for new, reused, or reconstituted products by
means of available markets and processes. As of the Effective Date, the list of acceptable
Recyclable Materials consists of empty aluminum cans; empty glass jars and bottles; bi-
metal, and tin cans; empty aerosol containers; empty polyethylene terephthalate plastic
PET"); high density polyethylene plastic ("HDPE"); plastics types 3 - 7; plastic toys and
tools, and other plastic materials (if readily identifiable as being recyclable by plastic
type number, but excluding expanded polystyrene and plastic bags); metal foil; dry
newspaper; dry mixed paper (e.g., ledger, computer paper, junk mail, magazines,
paperback books, cereal boxes, envelopes, paper shopping bags and nonmetallic
wrapping paper); dry corrugated cardboard; and telephone books. City and Contractor
agree to meet and confer from tune to time as needed to modify the list of acceptable
Recyclable Material to address developments in processing technologies, emerging uses
for types of materials, or changes in available markets.
1.39 Refuse
Refuse" means putrescible and non-putrescible Solid Waste.
1.40 Residential Services
Residential Sevices" refer to Solid Waste Collection Services performed at and for
Residential Premises that are included under this Agreement.
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
February 15, 2017 -11- City of Diamond Bar- Residential
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 Sox' 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 Refuse 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.
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.
February 15, 2017 -19- City of Diamond Bar- Residential
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.
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 fust causes Solid Waste to become
subject to regulation.
February 15, 2017 -13- City of Diamond Bar- Residential
ARTICLE 2
GRANT AND ACCEPTANCE OF FRANCHISE
2.1 Grant and Acceptance of Franchise, Indemnity of Award
Subject to the terms and conditions of this Agreement (including but not limited to the
exclusions set forth in Section 2.9 hereof) and applicable State laws, and to the rights of
State, county and school district facilities to use a Solid Waste enterprise other than
Contractor, City hereby grants to Contractor and Contractor hereby accepts from City,
for the Term hereof, the exclusive franchise, right and privilege to provide Solid Waste
Collection Services at all Residential Premises within the City that receive Residential
Cart style Solid Waste Collection service (the "Franchise').
Contractor agrees to and shall timely take all actions that are reasonably necessary to
defend the validity and enforceability of this Agreement and shall pay all costs related
to such defense. Contractor shall defend, indemnify, protect and hold harmless, the
City, its officers, agents and employees from any and all claims, actions or proceedings
to attack, set aside, void, annul or seek monetary damages resulting from an approval
by the City of this Agreement. The City shall promptly notify Contractor of any such
claim, action, or proceeding. The City and Contractor shall meet in good faith in an
effort to come to a mutual agreement for a joint defense; provided that the City shall be
entitled to select legal counsel of its choice to conduct the defense if an agreement
cannot be reached. Contractor's obligations to pay all costs, defend, indemnify, protect
and hold harmless under this section shall not be altered in the event City retains
separate counsel.
2.2 Section Deleted
2.3 Effective Date
The "Effective Date" of t1 -ds Agreement shall be the date on which the City Council
approves this Agreement.
2.4 Term of Agreement
The tern of this Agreement (the "Term') shall be thirteen (13) years and fifteen (15)
days, ca n -re,__ :n g on Augusi i6; 2 0".f?; an,'C::, iril_Eg Augtxc'_ ?', G 3, c ject to
February 15, 2017 City oT Diamond Bar- Residential
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, this
Agreement will automatically renew up to a maximum 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 wholly owned by Waste Management, Inc., which is duly
organized and validly existing as a corporation under the laws of the State of
Delaware.
b) Neither the execution of this Agreement nor the delivery by Contractor of
services nor the performance by Contractor of its obligations hereunder: (1)
conflicts with, violates or results in a breach of any applicable law; (2) conflicts
with, violates or results in a breach of any term or condition of any judgment,
decree, agreement (including, without limitation, the certificate of incorporation
of Contractor) or instrument to which Contractor is a party or by which
Contractor or any of its properties or assets are bound, or constitutes a default
raider 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 Lhe properties or assets of Contractor.
February 15, 2017 -15- City of Diamond Bar - Residential
c) There is no action, suit or other proceeding as of the date of this Agreement, at
law or in equity, or to the best of Contractor's knowledge, any investigation,
before or by any court or governmental authority, pending or threatened against
Contractor or Waste Management, Inc. which is likely to result in an unfavorable
decision, ruling or finding which would materially and adversely affect the
validity or enforceability of this Agreement or any such agreement or instrument
entered into by Contractor or Waste Management Inc. in connection with the
transactions contemplated hereby, or which could materially and adversely
affect the ability of Contractor to perform its obligations hereunder or which
would have a material adverse effect on the financial condition of Contractor or
Waste Management Inc.
d) Contractor has no knowledge of any applicable law in effect as of the date of this
Agreement that would prohibit the performance by Contractor of this
Agreement and the transactions contemplated hereby.
e) Contractor has made an independent investigation, satisfactory to it, of the
conditions and circumstances surrounding this Agreement and the work to be
performed by it, and is satisfied that those conditions and circumstances will not
impair its ability to perform the work and provide the Collection services
required by this Agreement.
f) The information supplied by Contractor in all submittals made in connection
with negotiation and execution of this Agreement, including all materials in
Exhibits to this Agreement, and all representations and warranties made by
Contractor throughout this Agreement are -true, accurate, correct and complete in
all material respects on and as of the Effective Date of this Agreement.
g) Contractor's representative, designated in Section 5.2.5, shall have authority in
all daily operational matters related to this Agreement. City may rely upon
action taken by such designated representative as action of Contractor unless the
actions taken are not within the scope of this Agreement.
h) That it is duly organized, validly existing and in good standing under applicable
laws. It is qualified to transact business in the State of California and has the
power to own its properties and to carry on its business as now owned and
operated and as required by this Agreement.
February 95, 2097 -16- City of Diamond Bar- Residential
i) That it has the authority to enter into and perform its obligations under this
Agreement. The Board of Directors or partners of Contractor (or the
shareholders, if necessary) have taken all actions required by law, its articles of
incorporation, its bylaws or otherwise to authorize the execution of this
Agreement. The Persons signing this Agreement on behalf of Contractor have
authority to do so. Contractor shall authorize one employee for the City as a
single point of contact for issues arising under this Agreement, and Contractor
acknowledges and agrees that City may expect and assume that this employee's
actions are taken on behalf of and with the full approval of the Contractor.
2.7 Conditions to Effectiveness of Agreement
The satisfaction of each and all of the conditions set out below, each of which may be
waived in whole or in part by City in writing, is a condition precedent to the
effectiveness of this Agreement, and a condition of Contractor's continued right to the
benefits conveyed herein:
a) Accuracy of Representations. All representations and warranties made by
Contractor and set forth in this Agreement shall be accurate, true and correct on
and as of the Effective Date.
b) Absence of Litigation. There shall be no litigation pending in any court
challenging the award of this 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 and letter of credit required by
Article 9, and shall comply with all ongoing requirements relating thereto.
d) Contractor shall have paid the contracting fee to City, as provided in Section 3.1.
2.8 Delegation of Authority
The administration of this Agreement by City shall be under the supervision and
direction of City Manager's office and the actions specified in this Agreement, unless
otherwise stated, shall be taken by the City Manager, or his or her designee.
February 15, 2017 -17- Ciiy of Diamond Bar- Residential
2.9 Limitations to Scope
Notwithstanding any provision to the contrary contained herein, the exclusive
franchise, right and privilege to provide Solid Waste Collection Services at Premises
within City granted to Contractor by this Agreement (Residential Premises that receive
weekly Refuse Collection using Carts) specifically excludes the following services,
which services may be provided by Persons other than Contractor and which may be
the subject of other permits, licenses, franchises or agreements issued or entered by
City:
a) The sale or donation of source -separated Recyclable Material 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- Cityof Diamond Bar -Residential
g) Construction and Demolition Debris which is removed by a duly -licensed
construction or demolition company or as part of a total service offered by said
licensed company or by the City, where the licensed company utilizes its own
equipment in compliance with Construction and Demolition Debris
requirements of the Diamond Bar Municipal Code;
h) Collection services provided exclusively by City's Commercial contractor under
the City's exclusive Bin and Roll -Off Box Customer Solid Waste Management
Services Agreement, including servicing any Commercial premises, and
Residential Premises that receive Bin service. Contractor shall service Single
Family Dwellings that receive Cart Refuse service under this Agreement and the
City's Commercial contractor shall provide sei vice to Single Family Customers
that request regularly scheduled Bin service pursuant to the Bin and Roll -Off Box
Customer Solid Waste Management Services Agreement;
i) The Collection, transfer, transport, Recycling, processing, and Disposal of Solid
Waste by City through City officers or employees in the normal course of their
City employment;
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
lhei:cln, Contractor agrees Thai the Scope of this Agzeenlen:L vvill be lnnited to LHose
February 15, 2017 -19- City of Diamond Bar- Residential
services and materials which may be lawfully provided, and that City shall not be
responsible for any lost profits claimed by Contractor as a result thereof.
2.10 City's Right to Direct Changes
2.10.1 General
City may direct Contractor to perform additional services (including new Diversion
programs, etc.) or modify the manner in which it performs existing services or Bills for
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 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:
rebruary 15, 2017 -20- City of Diamond Bar - Residential
Collection methodology to be employed (equipment, manpower, etc.).
Equipment to be utilized (vehicle number, types, capacity, age, etc.).
Labor requirements (number of employees by classification).
Type(s) of Containers to be utilized.
Type(s) of material to be Collected.
Provision for program publicity/education/marketing.
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
Collcr'.'I1-"anSpU til pr rl slori-n— j Sol d yp ' JcsLe _ Ci RCcE Taate.bf
February 15, 2017 -21- City ofDiamond Bar -Kesiden6af
disposing of Solid Waste, and the Recycling of Recyclables as required under this
Agreement. Failure to maintain all required permits shall be deemed a material breach
of contract for which City may terminate this Agreement as provided in Section 11.2.
Contractor must follow requirements of the Diamond Bar Municipal Code, including,
but not limited to, obtaining a City of Diamond Bar business license.
February 15, 2017 -22- Ciiy or`Diamond Ear- Residential
ARTICLE 3
FEES PAID TO THE CITY
In addition to any other consideration set forth herein, as part of its consideration for
entering into this Agreement, and for the exclusive franchise, right and privilege to
provide Solid Waste Collection Services as specified herein, Contractor shall provide
the following:
3.1 Contracting Fee
Contractor 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 comlection 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.
3.2 Other City Fees
3.2.1 Franchise Fee
In consideration of the exclusive right to Collect provided in Section 2.1 of t1 -ds
Agreement, throughout the Term Contractor shall pay to City a Franchise Fee u1 an
amount equal to five percent (5%) of the Gross Receipts received by Contractor for all
services provided in City pursuant to the terns 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 AS 939 Fee
In support of the City's outreach and administration of various Solid Waste programs
and public education efforts, Contractor shall pay an amount equal to four and seven -
tenths percent (4.7%) of the Gross Receipts received by Contractor for all services
Provided in City pursuant to the terms of this Agreement.
Februaiy 15, 201 i -23- Ciiy d Diamond Bar- Residential
Payments shall be made quarterly. The initial payment shall be due by October 30, 2010,
covering the period August 16 to September 30, and each subsequent payment shall be
due within 30 days of the end of the calendar quarter (January 30, April 30, July 30,
October 30), for the prior calendar quarter.
3.2.3 Street Sweeping Funding
Contractor shall pay $85,000 during the first contract year, and an adjusted amount
annually thereafter. The amount shall be adjusted by the twelve-month change in CPI
through the December prior to the start of each rate year. Payments shall be made
quarterly, with $21,250 due each quarter for the first contract year. The initial payment
shall be due August 16, 2010, and each subsequent payment due within 30 days of the
end of the calendar quarter (October 30, January 30, April 30, and July 30).
The annual amount shall increase to $190,000 begin ing August 16, 2017, and an
adjusted amount ani-ually thereafter as described above. Quarterly payments for the
contract year beginning August 16, 2017 shall increase to $47,500 with the fust payment
due October 30, 2017 and subsequent quarterly payments as described above.
3.2.4 Residential Collection Vehicle Road Maintenance Cost Reimbursement
To reimburse the City for road maintenance due to the use of Contractor's Collection
vehicles on City streets, Contractor shall pay $115,000 during the first contract year, and
an adjusted amount annually thereafter. The amount shall be adjusted by the twelve-
month change in CPI tluough the December prior to the start of each rate year.
Payments shall be made quarterly, with $28,750 due each quarter for the first contract
year. The initial payment shall be due August 16, 2010, and each subsequent payment
due within 30 days of the end of the calendar quarter (October 30, January 30, April 30,
and July 30). The annual fee amount as of August 16, 2016 was $125,525.
3.2.5 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 fust
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
February 15, 2017 -24- Ciiyofviamond Bar- Resideniiai
year. The amount of the Enviromnental Education Fee shall be adjusted annually 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 arulual change in the CPI comparing
calendar year 2017 to calendar year 2016.
3.2.6 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 u1 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.
3.3 Future Fees
In the event that City implements a new fee not included in Section 3.2, or increases the
amount of an existing fee, Contractor shall be entitled to a rate adjustment in an amount
sufficient to recover the fee from Customers. City may elect to have Contractor pay in
accordance with the requirements of fee payments made in Section 3.2, or on another
schedule as City identifies with associated deadlines and late fees.
February 15, 2017 -26- City of Diamond Bar- Residential
ARTICLE 4
DIRECT SERVICES
4.1 Refuse
4.1.1 General
The work to be done by Contractor pursuant to this Agreement shall include, but not be
limited to, the furnishing of all labor, supervision, equipment, materials, supplies, and
all other items necessary to perform the services required. The enumeration of, and
specification of requirements for, particular items of labor or equipment shall not
relieve Contractor of the duty to furnish all others, as may be required, whether
enumerated elsewhere in this Agreement or not.
The work to be done by Contractor pursuant to this Agreement shall be accomplished
in a thorough and professional manner so that all Customers are provided reliable,
courteous and high-quality Solid Waste Collection Services at all times. The
enumeration of, and specification of requirements for, particular aspects of service
quality shall not relieve Contractor of the duty of accomplishing all other aspects in the
manner provided in this section, whether such other aspects are enumerated elsewhere
in this Agreement or not.
4.1.2 Residential Cart Refuse Collection
Contractor shall provide all Customers at Residential Dwellings without Bin Service
one Refuse Cart ("Refuse Cart(s)"), and shall Collect all Refuse placed therein for
Collection not less than once per week. If Residential units share Refuse Carts due to
space constraints or otherwise, each unit shall still be assessed the full Residential Cart
service rate.
Customers that regularly require more than one Refuse Cart may request additional
Carts for an additional charge per Cart per month in accordance with the approved rate
schedule.
February 15, 2017' -26- City of Diamond Bar- Residential
4.1.3 Refuse Cart Overage
Residential Cart Customers may periodically generate more Refuse than will fit in the
Refuse Cart(s). Residential Customers are therefore entitled to two annual pickups per
calendar year and an end -of -year pickup of material that does not fit in the Refuse
Cart(s) at no additional cost, as provided in this Section 4.1.3. A pickup shall consist of
up to the equivalent of three (3) large bags, boxes or barrels of Refuse and placement of
more than that amount at any one time shall constitute two pickups. In addition to the
two (2) free pickups, Contractor shall Collect all additional Refuse placed out for
Collection in the Residential Customer's own Containers (bags, boxes, barrels, etc.) at
no additional charge for two weeks beginning each December 26. This service is limited
to Refuse that could otherwise be placed in the Refuse Cart, and not Bulky Items which
are Collected in accordance with Section 1.6 and 4.1.15. Contractor shall Collect, and
Customers may be charged an extra fee per pickup (in accordance with the approved
rate schedule for overage pickups) of, all Refuse put out for Collection that does not fit
in the Refuse Cart(s) above and beyond the free pickups described above.
Customer shall be instructed to call in both free and additional overages. However, if
not called in, Contractor shall Collect and record pickup per Section 4.1.8.
4.1.4 Backyard Service
Backyard service means the Contractor removes all Collection Carts, Green Waste
bundles and Refuse Cart Overages per Section 4.1.3 from a Cart Customer's designated
Collection location other than curbside, such as backyard, side yard, or drive, for
Collection, and returns Carts and other containers when Collection is complete.
Contractor may charge customers requesting backyard service in accordance with the
approved rate schedule, unless the Customer falls under the exception described in
Section 4.1.5 below.
4.1.5 Backyard Service for the Disabled
Contractor shall provide disabled Customers with backyard service at no additional
charge. Contractor will remove Refuse, Recyclable and Green Waste Containers, Green
Waste bundles and Refuse Cart Overages per Section 4.1.3 from Customer's storage
area, place them out for Collection, and return Containers to Customer's storage area
after Collection, ensuring that all doors or gates are closed securely. In order to qualify
as disable(- "under Lniu section, Cusiomets nils L kav e been issued a -,'-Lai dicap placard
February 15, 2017 -27- City of Diamond Bar- Residential
from the Department of Motor Vehicles or otherwise obtain approval to receive such
service from the City, following a verification site visit by Contractor's route supervisor.
Additionally, walk -out service need not be provided if an able-bodied adult resides
with the disabled Customer.
4.1.6 Section Deleted
4.1.7 Determination of Service Type
Contractor may not transition a Customer from Bin to Cart service or visa versa without
prior advance written approval of the City. If Contractor and Customer have a
disagreement as to whether a Refuse Cart is appropriate, or if City determines the
Collection in a Refuse Cart causes health and safety or other concerns, or if the City
determines Bin service is more appropriate, City shall make the final determination as
to whether Refuse Collection shall be from a Cart, or from a Bin. In all cases, City retains
absolute discretion in the determination of which type of service a Customer shall
receive, and therefore which with hauler will provide service.
4.1.8 Overflowing Containers
Customers that regularly produce more Solid Waste than their current level of service
can accommodate may have their service level increased in accordance with the
following procedure:
First Incident in Three Month Period - If more material is placed for Collection than fits
in a Cart (unless Collection of the overage has been properly arranged under Section
4.1.3), Contractor shall photograph the overflowing Cart, Collect the Solid Waste, and
send to the Customer (at both the service and billing addresses) the picture and a letter
instructing that further instances of an overflowing Cart may result in a charge, and
possibly in an increase in the level of service.
Second Incident in Three Month Period - Upon the second event of an overfilled Cart
unless Collection of the overage has been properly arranged under Section 4.1.3) in a
three-month period, Contractor shall photograph the overflowing Cart, Collect the
Solid Waste, and send to the Customer the picture and a letter instructing that a third
incident in that same tluee month period may result in an increase in the level of
service. If Refuse was left beside the Cart for Collection other than. as permitted under
February 15, 2017 -28- City of Diarnond Bar- Resideniial
Section 4.1.3, Contractor may charge the Cart Overage Fee in the approved Rate
Schedule.
Third Incident in Three Month Period - Upon the third event of an overfilled Cart
unless Collection of the overage has been properly arranged under Section 4.1.3) in a
three-month period, Contractor shall photograph the overflowing Cart, Collect the
Solid Waste, and send to the Customer the picture and a letter requesting that Customer
increase its service level. If the Customer declines, Contractor may petition City to
permit Contractor to increase the service level to accommodate the higher demand for
service. If Refuse was left beside the Cart for Collection other than as permitted under
Section 4.1.3, Contractor may charge the Cart Overage Fee in the approved Rate
Schedule.
Each incident shall be counted as one of the Customer's free pickups or, if Customer has
used the annual free pickups, Contractor shall Bill Customer for the additional pickups
per the approved rate schedule.
Contractor shall send City via e-mail or U.S. mail a copy of each letter and picture sent
to a Customer under this Section 4.1.8.
4.1.9 Section Deleted
4.1.10 Temporary Roll -Off and Temporary Bin Services
Contractor shall provide temporary Roll -off Box and temporary Bin Collection service
upon request only to existing Residential Customers (Customers to whom Contractor
provides weekly Solid Waste Collection service using Carts) for cleanup or construction
work performed at their existing residences. The provision of temporary Collection
services for the Construction of new residences, and all work on Commercial premises,
and Residential Premises that receive Bin service, are excluded from this franchise, and
exclusivity is further limited by Section 2.9. In the event Temporary Services are
required for a project involving multiple Customers that receive service under both the
City's Residential Cart and Commercial Bin and Roll -Off franchisees, this service is not
included under this Agreement. In the event there is a dispute as to whether a
particular service is included in the franchise, City shall make the final determination.
Contractor must deliver a temporary Roll -Off Box or temporary Bin to its existing
Residential Customer within forty-eight (48) hours of request (Sundays excluded).
February 15, 2017 -29- City oi°Diamond Bar - Residential
Contractor will provide Roll -off Boxes and Bins for Temporary Services. There will be
no charges other than the specific charges identified in the approved rate schedule,
attached as Exhibit 2.
Contractor shall confirm that Customer has obtained an encroachment permit from the
City prior to Contractor placing a Container in the public right-of-way.
4.1.11 Section Deleted
4.1.12 Section Deleted
4.1.13 Section Deleted
4.1.14 Section Deleted
4.1.15 On -Call Bulky Item Pickup
Contractor shall provide Bulky Item pickup service to all Residential Customers. Each
Residential Dwelling Unit shall be entitled to four Bulky Item pickups per calendar year
at no additional charge.
Residential Customers may put out up to three (3) cubic yards of material at each
pickup. Contractor may instruct Customers to provide Contractor with a minimum of
one business day's notice for the items, which shall be Collected on the Customer's next
regular Collection day following notification by Customer. 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
February 15, 2017 -30- City of Diamond Bar- Residential
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
business Customers may receive Bulky Item Collection for a fee, in accordance with the
approved rate schedule in Exhibit 2.
4.1.16 Bulky Item Diversion
Bulky Items Collected by Contractor in accordance with Section 4.1.15, or otherwise
Collected under this Agreement, may not be landfilled or disposed of until the
following hierarchy of Diversion efforts has been followed by Contractor:
1) Reuse as is
2) Disassemble for reuse or Recycling
3) Recycle
4) Disposal
This hierarchy is intended to preclude the use of front or rear loading packer vehicles
for Bully 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.
Mattresses set out for collection shall in no instance be collected in a packer vehicle. The
Contractor shall Recycle or contract with a third -party vendor to Recycle all mattresses
collected within the City.
4.1.17 Disposal of Electronic and Other Special Wastes
Contractor shall divert waste requiring special handling, such as 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. Each Residential Dwelling Unit shall be entitled to t ,,o door-to-door
February 15, 2017 -31- City of Diamond Bar -Residential
HHW pickups per calendar year at no additional charge. Items to be Collected include,
at a minimum: paint and paint products including but not limited to thinners, glues,
caulking, stains, wood preservatives and strippers; universal waste, household cleaners;
automotive wastes; swimming pool chemicals; garden chemicals; fluorescent tubes;
thermometers; and household batteries.
Contractor may direct Residential Customers to use the Bulky Item pickup option for
televisions, computers and other HIM that may safely and legally be Collected as
Bulky Items as described in Section 4.1.15..
4.1.19 Annual Household Hazardous Waste Event
Waste Management will assist the City in increasing awareness of Household
Hazardous Waste events by promoting the Los Angeles County Household Hazardous
Waste collections held in Diamond Bar. Promotional activities will include: posting on
Waste Management's website, inclusion in the Annual Brochures/Mailings mailed to
each Residential Customer, billing inserts, social media targeted outreach, and press
releases to local news outlets.
4.1.20 Curbside Used Oil and Oil Filter Collection
Contractor shall Collect used oil placed curbside beside Refuse Collection Cart on
regular Collection day at no additional charge. Contractor shall educate Customers to
place used oil in clean containers and used oil filters in clean zip -lock bags.
4.1.21 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 or the Recycling Container
including non-Recyclables.
B. Hazardous Waste Inspection and Reporting. Contractor reserves the right to
inspect Solid Waste put out for Collection and to reject Solid Waste observed to be
contaminated with Hazardous Waste and the right not to Collect Hazardous Waste put
out with Solid Waste. Contractor shall notify all agencies with jurisdiction, if
appropriate, including the California Deparhnent of Toric Substances Control and
February 15, 2017 32- City or Diamond Bar --Residential
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.
4.1.22 Sharp's Mail Back Program
Within six months of the effective date of this Agreement, Contractor will implement a
program for Collection and safe processing of Sharps generated by its Customers,
through a mail -based program and/or a drop-off program. Through a mail -based
program, Residential Customers requesting Sharps services may apply to Contractor to
participate in this program, and Sharps containers will be delivered directly to them at
no cost to the Customer or City. Tluough a drop-off program, Contractor would make
arrangements with pharmacies and/or other locations throughout the City for residents
to drop-off Sharps at no cost to the Customer or City.
4.1.23 Medication Takeback Program
Waste Management will assist the City in increasing awareness of medication takeback
programs provided by the Los Angeles County Sheriff's station and any third -party
events held in Diamond Bar. Promotional activities will include: posting on Waste
Management's website, inclusion in the Annual Brochures/ Mailings mailed to each
Residential Customer, billing inserts, social media targeted outreach, and press releases
to local news outlets.
February i 5, 20 i7 -33- City of Diamond Bar- Residential
4.1.24 FreeCycle.com
Within six (6) months of the Effective Date, Contractor will publicize to Residential
Customers its free materials exchange/ gifting program, known as FreeCycle.org, and
shall promote FreeCycle.org Contractor's website, and the Annual Brochure/ Mailings
described in Section 5.3.2.
4.2 Recycling
4.2.1 Recycling Collection
Contractor shall provide all Customers with a Cart for Recyclable Materials ("Recycling
Cart(s)"), and shall Collect all Recyclable Materials placed therein for Collection not less
than once per week. Contractor shall Collect Recyclable Material placed in Recycling
Carts for Collection from each Customer on the same day as Customers' Refuse Cart is
Collected.
Contractor shall have a Recycling program whereby it, at a minimum, Collects all
materials that can be recovered at the local processing Facility used by Contractor.
Contractor will update public education materials accordingly as new items are added
to those recovered by the Facility.
Customers may request one additional Cart at no additional charge. Residents with
carts beyond two per dwelling unit may be charged in accordance with the approved
rate schedule.
Contractor shall take whatever actions may be appropriate, lawful and effective to
discourage the unauthorized removal of Recyclable Materials from the Solid Waste
stream, commonly referred to as scavenging.
4.2.2 Section Deleted
4.2.3 Contaminated Loads, Warning Notice
Contractor shall place a red tag or other wanting notice approved by the City on all
Recyclable Material or Green Waste loads that are contaminated, indicating to the
Customer why the load was not Collected and diverted, and providing Contractor's
phone number. For Cart Customers with off-site management such as small apartment
i ai ccl j ti t_l.C;--c 17'L ECit ;e 1{S c.Or^" ° r. ., JL7. 1'J1 La , Q'7 Tc^v_l rt „_l.a L 1 "3'—_ ? r r ._ -
February 15, 2017 -34- City of Diamond Bar- ;esidenPia/
address. Contractor shall notify City on a monthly basis of any warning notices issued
pursuant to this section, and shall provide copies of such warnings to City upon
request. With prior written City authorization, Contractor may remove Recycling and
Green Waste Carts from habitual contaminators that have received a total of three
warnings on either or both Carts in any six-month period. Residential Recycling and
Green Waste Carts will be returned only after six months, or upon direction of the City,
or if there is a change of occupancy.
4.2.4 Marketing and Sale of Recyclable Materials
Contractor shall be responsible for marketing and sale of all Recyclable Materials
Collected pursuant to this Agreement. Revenue from the sale of materials Collected,
and tonnage sold, shall be reported to the City on an annual basis by March 31 of each
year for the previous calendar year (by March 312011, Contractor shall report for the
period August 16, 2010 to December 31, 2010). If Recyclable Materials are delivered to a
Material Recovery Facility (MRF), reported revenue from the sale of materials Collected
shall be defined as the revenue received from selling the materials to a Contractor shall
rebate to Customers a portion of Recyclable Materials revenue once per year in
accordance with Section 6.7. Contractor shall report the amount of such revenues to
City on an annual basis per Section 6.7 and upon request.
4.2.5 Minimum Diversion Requirements
Contractor shall divert from landfilling a minimum of 45% of all Solid Waste Contractor
Collects under this Agreement.
Contractor shall divert from landfilling a minimum of 75%, or the State -mandated
Construction and Demolition diversion percentage, whichever is greater, of all
Construction and Demolition Debris loads Contractor Collects under this Agreement.
Construction and Demolition Debris tonnage shall be included in the overall 45%
diversion calculation.
Upon the request of either party, not more often than once every two (2) years, the
parties agree to meet and confer regarding adjustments to the minimum diversion rate,
based on factors including waste characterization data provided by Company, trends in
source reduction and reuse, trends in third party diversion, extent of reverse logistics,
the availability of permitted facilities that are capable of processing material to achieve
the required levels of diversion, emerging methods of hrocessirrg and recycling/reusing
February 15, 2017 -
305-
City of Diamond Bar -Residential
new waste materials, the availability of markets, transportation constraints, embargoes,
and the impact of scavenging. City shall consider such information provided by
Contractor and other industry data and shall, at its sole discretion, determine if any
adjustments to the minimum diversion requirements shall be made, and such changes
must be approved by the City Council before becoming effective.
Compliance with each of these minimums will be measured, initially, for the first
period from August 16, 2010 to December 31, 2010, and subsequently on a calendar year
basis. Recycling or Diversion of materials not Collected by the Contractor is not to be
counted towards meeting this requirement. If Contractor fails to comply with these
diversion rate requirements, Contractor must submit a plan for compliance, including
without limitation implementation of applicable portions of City's Source Reduction
and Recycling Element, within sixty (60) days of the end of the calendar year.
Contractor's plan is subject to approval by the City Manager, and to be approved must
constitute a good faith plan to implement applicable portions of City's Source
Reduction and Recycling Element and be reasonably likely to achieve compliance with
the above requirement. Costs for providing the services in the compliance plan to meet
this existing obligation will be borne by Contractor and shall not be the subject of a rate
adjustment.
If, following implementation of the plan for compliance, Contractor does not achieve
compliance with the above requirement for the calendar year in which the plan was
submitted, liquidated damages shall be assessed under Section 11.3 for failure to meet
this requirement.
In the event the State increases diversion rate goals, City may require Contractor to
implement programs to meet the goal, and parties shall negotiate a rate adjustment.
Should parties fail to reach a mutually acceptable agreement, City may hire a third
party to provide those services.
4.2.6 Construction and Demolition Debris Diversion
Contractor shall process all C&D loads. Contractor will bring all loads of mixed
Construction and Demolition Debris from Construction and Demolition sites, and other
C&D identified as such by Contractor, or identified as such by customer at the time of
the request for service to a C&D processing facility designated per Section 4.8 for
separation and recovery of tris material. Contractor may deliver separated loads of
Februaiy 15, 201 -36- Ciiy of Diamond Bar- Residential
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 muumum of 75 % of all
Construction and Demolition Debris Collected.
4.2.7 Optional Food Waste Diversion Program
City reserves the right to require Contractor to implement a program to divert Food
Waste, either co -collected with Green Waste or separately Collected. Contractor shall
only be required to implement a Residential Food Waste diversion program if
mandated by CalRecycle. The program shall be implemented following the exercise of
the City's right and adjustment of rates as described below. The Contractor shall be
entitled to a rate adjustment of three percent (3%) for implementation of the Food Waste
program. This is in addition to the annual adjustment implemented pursuant to Section
6.4. The three percent (3%) rate adjustment shall only apply to the "Standard Rates" and
Senior Reduced Rates" for Residential Cart service included in Exhibit 2, and shall not
apply to Additional Cart Rates and Services or Temporary Services included in Exhibit
2.
4.3 Green Waste Program
4.3.1 Single Family Green Waste Collection
Contractor shall provide all Customers with a Cart for Collection of Green Waste
Green Waste Cart(s)"), unless the Customer has qualified for the yard waste reduction
discount described under Section 5.1.3. Contractor shall Collect all Green Waste placed
in Green Waste Carts, as well as all Green Waste bundled as set forth below, and put
out for Collection by Customers not less than once per week on the same day as Refuse
Collection. Contractor shall have a Green Waste Recycling program whereby it, at a
minimum, Collects the types of Green Waste defined in Section 1.24.
Contractor shall only be obligated to Collect Green Waste set out for Collection in
bundles if it is a maximum of four (4) feet long and eighteen (18) inches in diameter.
Customers may request one additional Cart at no additional charge. Residents with
carts beyond two per dwelling unit may be charged in accordance with the approved
rate schedule.
February 15, 2017 -37- City of Diamond Bar-- Residential
4.3.2 Holiday Tree Collection Program
Contractor shall operate an annual holiday tree Collection program from December 26
through the second Sunday in January. During this period all holiday trees placed out
for Collection by Residential Customers shall be Collected by Contractor. After this
period, trees will be Collected as Bulky Items under Section 1.6. Trees up to seven (7)
feet in length will be Collected and diverted without Customers needing to cut them.
Contractor may request that Customers with larger trees cut the trees to pieces no
longer than seven (7) feet. Contractor will divert all holiday trees from landfilling.
Notwithstanding the above, Contractor is required to Collect but is not required to
divert artificial holiday trees, or trees containing decorations, ornaments, tinsel, debris,
support stands or other foreign matter as part of this diversion program.
4.3.3 Section Deleted
4.3.4 End Uses for Green Waste
Contractor shall divert Green Waste materials Collected through weekly Cart and
bundle Collection, holiday tree Collection, Roll -off Box Collection and mixed waste
processing from Disposal. Contractor must provide end uses for Green Waste that
maximize Diversion credit for City according to regulations established by
theCalRecycle. 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.
4.3.5 Mulch Give -a -Way
Contractor shall distribute free mulch to Residential Customers. Contractor shall
distribute coupons through quarterly Billings entitling Residential Customers to receive
two bags per event at two community events per year to be identified by City.
February 15, 20-17 -38- Gity of Diamond Bar - Residential
4.4 Cart Selection, Distribution, Exchanges and Removal
4.4.1 Cart Selection and Distribution
Contractor shall provide Residential Cart Customers with the option of 35, 64 and 96 -
gallon Cart sizes for Refuse Collection, and 35 and 64 -gallon Cart sizes for Recycling
and Green Waste.
Residential Customers may request different sizes for each waste stream. In the event a
Residential Customer does not indicate a preference, the standard, default size for each
wastestream shall be 64 -gallons.
4.4.2 Cart Exchanges
Customers may each request one free exchange in cart sizes beginning 60 days after the
initial cart is delivered and ending six months after the initial cart is delivered. One
exchange includes all Cart size changes included in the same Customer request and
may include changes being made to one, two or three of the Customer's Carts. If a
second request is made, or if a request is made following the initial six-month period,
Contractor may charge for each request, regardless of the number of carts exchanged, in
accordance with the approved rate schedule.
New Customers shall be granted the same no -charge exchange period.
4.4.3 Removal of Carts Distributed Under the Previous Contract
Contractor shall Collect and Recycle or Dispose of Carts distributed under the previous
franchise agreement at no additional charge to City or Customers.
4.5 City Services
4.5.1 Section Deleted
4.5.2 City Sponsored Events
Contractor shall provide Solid Waste and Recycling Collection and Disposal/ processing
service for City -sponsored events. This shall include providing Containers (Bins, Roll-
off Boxes, clearly labeled Recycling Containers and cardboard waste boxes with liners)
to Collect and dispose of, or process, all Solid Waste and Recyclable Materials. The
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February 15, 2017 -39- City of Diamond Bar- Residential
no cost to City or ratepayers. The City's intent will be to alternate events assigned to
Contractor with those events it assigns to the City's bin and roll -off customer services
franchisee; however, City does not guarantee that events will be evenly distributed
based upon either level of effort or number of events. City -sponsored events include,
but are not limited to:
Concerts in the Park
City Birthday Celebration
Fourth of July
Fall Fun Festival
Winter Snow Festival
Arbor Day
Easter Egg Hunt
4.5.3 Emergency Collection and Disposal Service
Contractor will assist City at the City's request with emergency Collection and Disposal
service (in the event of major disaster, such as an earthquake, storm, riot or civil
disturbance), or as otherwise determined necessary by the City, by providing Collection
equipment and drivers normally assigned to City. Contractor may charge City for
actual Disposal costs plus service rates per the approved rate schedule.
4.5.4 Abandoned Item Collection from City Right -of -Way or Other Public Property
Contractor will Collect and dispose of, at no additional charge, within one business day
of notification from City, all items left in the City's right-of-way, such as sidewalks,
alleys, streets, and parkways. Contractor will properly divert from landfilling or
Dispose of such items in accordance with Sections 4.1.16 and 4.1.17. City will contact
either the residential Cart or the Bin and, Roll -Off Box franchisee to provide this service,
depending on the location of the abandoned item.
4.5.5 Community Development Review Services
Upon City request and at no additional charge, Contractor will review building permit
applicants' plans and advise regarding adequacy of Container storage space and access,
particularly to accommodate Recycling containers.
February 15, 2017 -40- City or Diamond Bar- Resideniia(
4.5.6 Large Venue Event Assistance, Event Recycling
Contractor will assist planners of large venue events with reporting and plamung 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 witlun the
City's public rights-of-way. Upon notification from City, or Contractor's locating of an
illegally placed Container, Contractor shall begin the following procedure within 24
hours:
1. Contractor shall first place a notice on Container, directing the illegal hauler or its
Customer to remove the Container within 24 -hours of notice, citing relevant sections
of the City's municipal code, indicating where the Container may be retrieved,
impound and storage costs, and warning that, should a second Container belonging
to that company be found in the City in violation of the City Municipal Code, that
Container may be removed without warning. If the company can be identified and
its address ascertained, Contractor shall mail the warning as well.
2. Notify City of the notice and request authorization to impound the Container.
3. With City approval, impound the Container if it has not yet been removed by the
illegal hauler.
4. For subsequent violations by the same company after the initial notice has been
posted, and after Contractor has mailed a warning to the company, Contractor may
request approval from City to remove company's Containers immediately, mailing a
notice if address is known as to where the Container may be retrieved and impomld
and storage costs. If address is unknown, Contractor shall place the notice as close as
feasible to where the Container was located.
4.5.8 Provision of Storage Containers
Contractor will provide the City with eleven 40 -cubic -yard portable storage containers
three currently in use and up to eight more at City's request) to be used for storage at
City facilities and schools for the dxraEion of this Agreement, anc affI m dniain thein in
February 15, 2017 -41- City of Diamond Bar- Residential
a condition satisfactory to the City. Contractor may transfer ownership of these storage
containers to City, provided Contractor will remove and Dispose of these containers
when requested to by City.
4.6 Operations
4.6.1 Schedules, Missed Pickups
To preserve peace and quiet, Solid Waste shall only be Collected between 6:30 a.m. and
6:30 p.m. Collection is only permitted Monday through Friday, with Saturday
Collection permitted during holiday weeks. Contractor may not make exceptions to
these Collection days and times without advance written approval from the City. If the
regularly scheduled Collection day falls on New Year's Day, Memorial Day, Fourth of
July, Labor Day, Thanksgiving Day, or Christmas Day, Collection days for the
remainder of that week shall all be postponed one Collection day.
Contractor shall review its operations plan outlining the Collection routes, intervals of
Collection and Collection times for all materials Collected under this Agreement with
City upon thirty (30) days written notice requesting said review. Contractor shall
submit a copy of its schedule and route map within seven (7) business days if requested
by City. If the plan is determined to be inadequate by City, Contractor shall revise it
incorporating any changes reasonably necessary to make it satisfactory to City within
thirty (30) days. Change in schedules and routing shall not be implemented without
City approval and not until at least fifteen (15) business days following notification to
Customers. The City may restrict the timing and frequency of any route changes based
upon the City's Municipal code or any other applicable law or requirements.
When notified of a missed pickup (which was not justified under the provisions of this
Agreement) prior to 12:00 p.m., Contractor shall Collect the Refuse, Recyclable
Materials, and/or Green Waste that was not Collected the same day. If notified after
12:00 p.m., Collection must take place no later than the next business day. If Contractor
determined that the missed pickup was justified under this Agreement, Contractor will
notify Customer as to the reason within this same time period.
4.6.2 Vehicles
A. General. Contractor is responsible for providing all vehicles that may be
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February 15, 2017 -12- City of Diamond Bar - Residential
efficiently perform the work required by this Agreement in strict accordance with its
terms. Contractor is expressly obligated to provide such Collection Vehicles and routes
as are required to meet the service standards set forth herein. Contractor shall have
available on Collection days sufficient back-up vehicles for each type of Collection
Vehicle used to respond to complaints and emergencies. All equipment of Contractor
used to provide the services set forth in this Agreement shall be subject to inspection by
City upon request.
B. Specifications. At the start of service under flus Agreement, 50% of Collection
vehicles used to provide service under this Agreement, excluding spares, shall use
exclusively liquefied natural gas (LNG) or compressed natural gas (CNG). By December
31, 2011,100% of Collection vehicles used to provide service under this Agreement,
excluding spares, shall use exclusively liquefied natural gas or compressed natural gas.
Spares that do not use exclusively LNG or CNG shall not be used for more than thirty
30) days per calendar year per route. No Collection vehicle, including spares, used in
the City shall be more than 10 years old at any time during this Agreement Term. Up to
four Collection vehicles refurbished to like -new condition will be considered new for
purposes of this provision as of the date the refurbishment is completed. Contractor
and City Manager, or his designee, shall meet within six (6) months of the Effective
Date and periodically thereafter to review vehicle performance and determine the
specific improvements (such as painting, sealing truck bodies, or mechanical systems)
required as part of the refurbishment to allow the Collection vehicle to be considered
like -new. The fuel and vehicle age requirements set forth above apply only to those
automated front -loading and side -loading Collection vehicles used routinely to provide
services, and do not apply to Collection vehicles used for special purposes or on a non-
routine basis, including spare vehicles used for no more than thirty (30) days per year
per route, scout vehicles, flat-bed Bulky Item vehicles or vehicles not used for
Collection. All vehicles used in the City must be registered with the California
Department of Motor Vehicles and, where used for Collection, shall have water -tight
bodies designed to prevent leakage, spillage or overflow. At all times during the term
of this Agreement, Contractor's Collection vehicles shall comply with South Coast Ai
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.
February 15, 2017 -43- City of Diamond Bar- Residential
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. City may not require a vehicle to be repainted if it has been repainted
within the previous thirty (36) months.
4) Contractor shall inspect each Collection Vehicle daily to ensure that all
equipment is operating properly. Collection Vehicles which are not operating
properly shall be removed from service until repaired and operating properly.
Contractor shall perform all scheduled maintenance functions upon Collection
Vehicles in accordance with the manufacturer's specifications and schedule.
Contractor shall keep accurate records of all Collection Vehicle maintenance,
recorded according to date and shall make such records available to City upon
request.
5) Contractor shall repair, or arrange for the repair of, all of its vehicles and
equipment for which repairs are needed because of accident, breakdown or any
other cause so as to maintain all equipment in a safe and operable condition.
Contractor shall maintain accurate records of repair, whick shall i iclude the
Februaiy 15, 2017 -44- City of Diamond Bar- Residential
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 tunes have
in the cab the registration of the truck, evidence of insurance meeting the
requirements of thus 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
in excess of the manufacturer's recommendations or lirnitations imposed by state or
local weight restrictions on vehicles.
Contractor's equipment shall comply with US EPA noise emission regulations,
currently codified at 40 CFR Part 205 and other applicable noise control regulations, and
such noise control features shall be incorporated throughout the entire fleet of
Collection Vehicles. Noise levels of equipment used for Collection shall comply with
Diamond Bar Municipal Code Chapter 8.12 and in no event shall the noise level exceed
75 dba when measured at a distance of 25 feet from the vehicle, five feet from the
February 15, 2017 -45- City of Diamond Bar - P.esideutiai
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 velucle used in performance of
this Agreement to be inspected and tested at any commercially reasonable time and in
such manner as may be appropriate to determine that the vehicle is being maintained in
compliance with the provisions of the State Vehicle Code, including, but not limited to,
California Vehicle Code Sections 27000(b), 23114, 23115, 42030, 42032, and all Vehicle
Code Sections regarding smog equipment requirements. City may direct the removal of
any vehicle from service if that vehicle is found not to be in conformance with
applicable codes. No vehicle directed to be removed from service shall be returned to
service until it conforms with, and its return to service has been approved by City.
G. Vehicle Inspections. Upon City request, Contractor shall submit the Safety
Compliance Report/Terminal Record Update from its Biennial Inspection of Terminal,
or BIT. If Contractor receives a terminal rating below satisfactory, Contractor shall
notify the City, and Contractor is in violation of this Agreement. Contractor has the
time allowed by the Department of California Highway Patrol ("CHP") to cure
violations and bring the terminal rating up to satisfactory. If the CHP does not adjust
the rating to satisfactory or better within six (6) months, then the Contractor shall be
considered in default of the contract and the City may terminate this Agreement.
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 a report to the
City listing replaced c_ repaired containers incladif ,g service addresses.
February 15, 2017 -46- City of Diamond Bar- Residential
4.6.3.1 Carts
A. Cart Design Requirements
Carts and Cart lids must meet color, size, uniformity and quality requirements of the
City. Existing Carts in good working order and meeting all Agreement requirements
will not be required to be replaced at the start of service under this Agreement.
However, the City will not permit Carts and Cart lids with inconsistent colors or in
poor condition to be used in the City at any time during the term of this Agreement,
and may require Contractor to replace such Carts.
All Carts provided by Contractor utilized in the performance of this Agreement shall be
manufactured by injection or rotational molding and meet the Cart design and
performance requirements as specified below. All Carts selected shall be subject to
City's approval prior to Contractor placing the order.
S. Capacity
The references in Section 4.4 to Cart sizes of 96, 64 and 35 -gallons may be approximate.
The Cart size, excluding lid capacity, may fall within the following range:
30 - 35 gallons
60 - 70 gallons
90 -101 gallons
The selected sizes must be consistent throughout the City for a uniform appearance.
C. Cart Color and Appearance
The Refuse, Recycling and Green Waste Carts will be differentiated by color. The colors
shall be colorfast and resistant to fading as a result of weathering or ultraviolet
degradation. Color must be approved in advance by the City. Cart and Cart lid colors
shall be consistent throughout the City.
D. Cart Labeling and Hot Stamping
Labels used on Carts shall be placed on the inside of the Cart lid, and hot stamps shall
be on the top of the lid and/or on the body of the Cart. Each Cart shall be hot stamped
T1 L;I{i'c- Eilaterlcl t, p:J (e. g., 'L12 uh; FC=^yClln, Q=- 1,/Vas LeVii` English, t L L i IL-1
February 75, 2017 -47- City of Diamond Bar- Residential
Korean. Contractor and the City shall meet and confer to determine textual content for
labels. 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 I II I W disposal information, and
an anti -scavenging warning.
4.6.3.2 Cart Maintenance and Replacement Responsibilities
Contractor shall be responsible for Cart repair and maintenance, graffiti removal and
replacing lost, stolen or damaged Carts within three (3) business days, at no additional
charge to the Customer or to City, unless Contractor can demonstrate to the City
Manager beyond a reasonable doubt that the damage or loss was due exclusively to
Customer's intentional or negligent behavior. City Manager shall make the final
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 ha 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 -48- Ciiy of Diamond Bar- Resider "Tial
Container within three (3) business days of request by City or Customer. Contractor is
required to proactively look for graffiti when Collecting Bins, with all graffiti removed
from Containers in no later than three (3) business days after any Collection without
notification.
B. Bin Identification and Color. Each Bin placed in City by Contractor shall be
clearly labeled on the front of the Bin with the Bin type (Refuse, Recycling, Cardboard,
Green Waste) and the name of Contractor and phone number in letters not less than
three (3) inches high on the exterior of the Bin so as to be visible when the Bin is placed
for use. Alternatively, the Bin type (Refuse, Recycling, Cardboard, Green Waste) may be
identified with an affixed sign. Labels shall also be placed on the inside of the Bin lid.
Labels shall include English, Mandarin, Korean and graphic instruction on what
materials should and should not be placed in each Bin, and an anti -scavenging warning.
Contractor shall have labels approved by City prior to ordering and placement on Bins.
Labels shall be replaced when worn, and when information on the label is in need of
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.
Contractor shall provide Roll -off Boxes clean, free from graffiti, equipped with
reflectors, and with the name and phone number of Contractor in letters not less than
three (3) inches high on the exterior of the Roll -off Box so as to be visible when the Roll-
off Box is placed for use. Contractor shall properly cover all open Roll -off Boxes during
transport as required by the State Vehicle Code.
4.6.4 Litter Abatement
A. Minimization of Spills. Contractor shall use due care to prevent Solid Waste or
fluids from leaking, being spilled and/or scattered during the Collection or transporta-
tion process and shall clean up any leaks or spills from its vehicles per the National
Pollutant Discharge Elimination System (NPDES) permit in effect at the time. No fluids
shall be washed into storm drains at any time. All NPDES dry-cleaning measures shall
be complied with. All Collection Vehicles must be equipped with absorbent for such
cleanup efforts and shall carry a broom, shovel, absorbent, and containment materials at
all times for this purpose. See Section 11.3.B.2.d.
February 15, 2017 -49- City of Diamond Bar- Residential
Contractor shall not transfer loads from one vehicle to another on any public street,
unless it is necessary to do so because of mechanical failure, accidental damage to a
vehicle, or a pre -approved method of Solid Waste transfer between vehicles, without
prior written approval by City.
B. Clean Up. During the Collection or transportation process, Contractor shall
clean up all litter spilled during Collection or otherwise caused by Contractor.
Contractor shall leave a "red tag" notice for Customer if litter not caused by Contractor
is found in Container enclosure or around Containers. Contractor may charge
Customers in accordance with the approved rate schedule for the cleaning of Container
enclosures or around the Container if it is littered due to overflowing Containers.
Contractor may address habitual offenders in accordance with Section 4.1.8.
In the event of a spill of materials (vehicle fluids, Green Waste leachate, etc.), Contractor
shall provide a cleanup of the spill to the satisfaction of City and other governing
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 persormel as may be
necessary to provide the services required by this Agreement in a satisfactory, safe,
economical and efficient manner. All drivers shall be trained and qualified in the
operation of vehicles they operate and must possess a valid license, of the appropriate
class, issued by the California Department of Motor Vehicles.
B. Hazardous Waste Employee Training. Contractor shall establish and vigorously
enforce an educational program which will train Contractor's employees in the
identification of Hazardous Waste. Contractor's employees shall not knowingly place
such Hazardous Waste in the Collection Vehicles, nor knowingly dispose of such
Hazardous Wastes at the processing Facility or Disposal Site.
February 15, 2017 -50- Ciy cf Diamond Bar- Residentiai
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 this Agreement.
4.6.5 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 -51- City or Diamond Bar- Residential
4.6.9 Report of Accumulation of Solid Waste; Unauthorized Dumping
Contractor shall direct its drivers to note (1) the addresses of any Premises serviced
under this Agreement at which they observe that Solid Waste is accumulating and
which is not being placed out for Collection; and (2) the address, or other location
description, at which Solid Waste has been dumped in an apparently unauthorized
manner. Contractor shall deliver the address or description to City within one (1)
working day of such observation.
4.7 Transportation of Solid Waste
Contractor shall transport all Refuse Collected to a City -approved Facility (e.g. Transfer
Station, Waste -to -Energy Facility, Green Waste Processing Facility, MRF, Disposal Site).
Contractor agrees to make all reasonable efforts to separate Recyclable Materials from
Refuse for Diversion from landfill Disposal.
Contractor shall maintain accurate records of the quantities of Solid Waste transported
to all Facilities utilized and will cooperate with City in any audits or investigations of
such quantities.
Contractor shall cooperate with the operator of any Facility it uses with regard to
operations therein, including, for example, complying with directions from the operator
to unload Collection vehicles in designated areas, accommodating to maintenance
operations and construction of new facilities, cooperating with its Hazardous Waste
exclusion program, and so forth.
4.8 Approved Facilities
The Contractor shall dispose of Refuse Collected that is not required to be processed at
the approved Disposal Site. Contractor must receive written advance approval from
City to use each transfer station, transformation facility, processing facility or other
Facility used by Contractor in the fulfillment of this Agreement. Contractor is
responsible for ensuring that each Facility it uses is properly permitted prior to
requesting City approval to use such Facility. Unless and until the City instructs
otherwise, the designated Disposal Site and other Facilities are: Puente Hills Material
Recovery Facility, El Sobrante Landfill, Allan Company, Azusa Land Reclamation, Inc.
Material Recovery Facility and Landfill, Downtown Diversion, Grand Central Transfer
Stat i_on:; ar1:? POIliOtla Tr"ci?S:'rP SLttiot;; and Ao 01'1 t'CGy'Oi".^'O'r.
February 15, 2017 -52- City of Diamond Bar- Residential
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 coramingled 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.
4.11 Route Audit
Once during the fust year, and subsequently upon request by the City or as initiated by
Contractor, but in no event more than four (4) times 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 r ainh-num,
the following information for each account:
Route Number;
o Truck Number;
a Number and size of Carts/ Bins by waste stream (Refuse, Recycling, Green Waste).
Within forty-five (45) days after the completion of the route audit, Contractor shall
submit to City a report summarizing the results of the audit. This summary shall
include:
Identification of the routes;
Route map;
o Truck numbers;
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February 15, 2017 53- Ciiy of Diamond Bar- Residential
Confirmation that all routes are dedicated exclusively to City Customers;
Number and type of exceptions observed;
Total monthly service charge, pre -audit;
Total monthly service charge, post -audit (subsequent to corrections of identified
exceptions).
The report shall include a description of the procedures followed to complete the route
audit. This description shall include the names and titles of those supervising the route
audits and the name and titles of those performing the observations.
The report shall also include a description of the changes and Contractor's plans to
resolve the exceptions. The results of the audit, and supporting back-up data, shall be
available for review by City or its representative.
February 45, 2017 -54- City of Diamond Bar- Residential
ARTICLE 5
OTHER SERVICES
5.1 Customer Billing and Contractor Compensation
5.1.1 Billing
Contractor shall Bill Customers quarterly in accordance with the approved rate
schedule attached as Exhibit 2. Billing Customers for services provided during prior
invoicing periods, up to and including the prior three (3) months, shall only be
permitted subsequent to Contractor receiving approval by the City.
Cart customers shall be Billed quarterly, with invoice dated no sooner than the first day
of the quarter Billed for, and payment shall be due no sooner than 30 days after invoice
date. The quarters shall begin on February 1, May 1, August 1 and November 1. Extra
Bulky Item pickups or extra overage pickups may be added to quarterly Billing, or may
be Billed at time of service.
Customers' temporary Bin and Roll -Off Box services may be Billed at the time of, or in
advance of, service, or on a monthly or bi-monthly Billing cycle.
Contractor Compensation is exclusively derived from revenue received as a result of
the Billings for services listed on the approved rate schedule, and Contractor shall
charge no additional fees unless approved in advance by the City. Contractor shall be
responsible for bad debt.
5.1.2 Contractor's Invoices
Bills must be itemized by Container size, frequency of service, discounts per Sections
5.1.3, 5.1.4 and 5.15 described below, and period billed for. City must approve the
format of Contractor billing invoices. All bills must carry a due date, not "due upon
receipt." Bills will not carry an itemization of fees remitted to the City.
5.1.3 Yard Waste Reduction Discount
Customers may apply for a yard waste reduction discount under the following
conditions:
February 15, 2017 -55- City of Diamond Bar- Residential
A. Customer borrows and watches instructional DVD from City regarding backyard
composting or attends a City -sponsored composting class;
B. Customer obtains composting bin during a City -sponsored composting event, or
from a local retailer; and,
C. Contractor removes yard waste Cart from Customer after Customer applies to City
for reduction in green waste services pursuant to Diamond Bar Municipal Code
Chapter 8.16.
D. Customers that reside in master -billed communities and mobile home parks that
utilize landscapers to remove all Green Waste from the property and have no Green
Waste Carts on the Premises.
5.1.4 Disabled Customer Discount
Customers determined to be disabled, either by the issuance of a handicap placard from
the Department of Motor Vehicles or by meeting City -established guidelines, will
receive a 15% discount off the standard monthly rate for one Refuse, Recycling and
Green Waste Cart service or, the Single Family monthly Bin rate. The disabled party
must be the Customer named on the Billing. The discount shall be itemized or
otherwise noted on Customer invoices.
Contractor shall administer the review and processing of Customer discount
applications. Contractor shall provide to the City an annual report containing the name
and service address of all Customers receiving the Disabled Customer Discount.
5.1.5 Senior Discount
Customers entitled to the senior rates included in the approved rate schedule are
Customers that are listed on the Bill, reside at the Premises where service is received
and are 60 years of age or older. The discount shall be itemized or otherwise noted on
invoices.
Contractor shall administer the review and processing of Customer discount
applications. Contractor shall provide to the City an annual report (or more frequently
if requested by City) containing the name and service address of all Customers
receiving the Senior Customer Discount.
February 15, 2017 -56- City of Diamond Bar- Residential
5.1.6 Non -Payment; Suspension of Service
5.1.6.1 Quarterly Cart Billings
The following procedures apply to Customer accounts that are Billed quarterly for
weekly Cart service:
1. For balances outstanding for 60 days after due date, Contractor shall send a
reminder notice to Customer that payment is overdue. Notice should include a
warning that balances outstanding after 75 days shall be assessed a late fee, and that,
if balance remains outstanding after 90 days, service shall be suspended.
2. For balances outstanding for 75 days after due date, Contractor shall send a notice
that that service may be discontinued if overdue balance is not received within 15
days. Contractor shall provide list of these Customers to the City the time these
notices have been sent. Contractor may charge a late fee equal to 10% of balance
outstanding for at least 75 days after due date.
3. For balances outstanding for 90 days, Contractor may provide Customer with notice
that service has been suspended until outstanding balance is paid in full, including
late payment fee, provided Contractor has completed steps 1 and 2 above and has
provided City with a list of Customers being so notified.
5.1.6.2 Temporary Bin and Roll -Off Box Service
1. Contractor may request advance payment for temporary services.
2. Contractor may require outstanding temporary services balances be paid prior to
providing subsequent temporary services.
3. Weekly Cart Collection services shall not be suspended due to outstanding balances
for Bin or Roll -Off Box Services.
5.1.6.3 Collection Proceedings
Contractor may pursue independent collections against Customers. City will not pursue
collections on behalf of Contractor.
February 15, 2017 -57- Cityol Diamond Bar- Residential
5.1.6.4 Continued Provision of Service
In the event of a Billing dispute or to avoid an immediate threat to public health or
safety, Contractor shall continue to provide service to Customers if requested in writing
by City, without regard to the status of said Customer account and at no expense to
City. Billing disputes between Contractor and Customer may be resolved by City, and
City's decision shall be final and binding.
5.2 Customer Service
5.2.1 Local Office
Contractor shall maintain a local office. Said office shall be open ("Office Hours'), at a
minimum, from 7:00 A.M. to 5:00 P.M., Monday through Friday, exclusive of holidays.
A responsible and qualified representative of Contractor shall be available during
Office Hours for personal communication with the public at the local office. Contractor
shall have either a representative, a message machine, or an answering service available
outside of Office Hours. Calls received outside of Office Hours shall be responded to
on the next business day. Contractor shall provide City with a twenty-four (24) hour
emergency number to a live person, not voice -mail.
5.2.2 Complaint Documentation
Service complaints received by City will be directed to Contractor. Contractor shall
keep daily logs of complaints forwarded to it for a minimum of three (3) years.
Contractor shall log all complaints received and said log shall include the date and time
the complaint was received, the name, address and telephone number of the
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.
February 15, 2017 -58- City of Diamond Bar- Residents!
Contractor shall log action taken by Contractor to respond to and remedy the
complaint.
All Customer service records and logs kept by Contractor shall be available to City
upon request. City shall, at any time during regular Office Hours, have access to
Contractor's Customer service department for purposes that may include monitoring
the quality of Customer service or researching Customer complaints.
5.2.3 Customer Service Standards
Customer care is among the most important aspects of the services to be required of the
Contractor. Contractor shall perform customer service at a level that can be measured
by the following two standards:
A. The number of complaints in any one month period totaling no more that 1% of the
number of residential customers served. hi Diamond Bar, there are an estimated
15,475 residential cart customers, meaning that in any given month, there must not
be more than 154 complaints. Any compliant level in excess of this measure will be
considered a separate violation of this Agreement.
B. Sufficient telephone line capacity during normal office hours to ensure that all calls
will be answered in less than an average of thirty (30) seconds.
Contractor shall insure that all incoming calls are answered courteously and
promptly during the office hours stated above. Calls will be answered in less than an
average of thirty (30) seconds, and thereafter will not be placed on hold longer than
an average of one (1) minute before talking to a customer service representative of
the Contractor. This standard must be measured quarterly, and the Contractor shall
not exceed this standard or it will be considered a separate violation of the
Agreement.
Contractor shall track complaints and call ringing and hold requirements, and include
results in its quarterly report to the City. In any 12 -month period, accumulation by the
Contractor of four or more separate customer service violations shall be deemed a
material breach of this Agreement and shall subject Contractor to all remedies which
are available to the City under this Agreement or otherwise. A violation is one month in
which the number of complaints exceeds the maximum permitted under Section
2. (A) or fli ' cal (-,A1darC Va l.'rrL wtdcT, C ^rC'tEan n% of Ca lls pIac c rd b t -Lc t` i, _ _C!_
February 15, 2017 -59- City of Diamond Bar- Residential
its Customers to Contractor are answered by a live customer service representative
before the fourth ring under Section 5.2.3(B).
Contractor shall train its employees in Customer courtesy, shall prohibit the use of loud
or profane language, and shall instruct Collection crews to perform the work quietly.
Contractor shall use its best efforts to assure that all employees present a neat
appearance and conduct themselves in a courteous manner. If any employee is found
to be discourteous or not to be performing services in the manner required by this
Agreement, Contractor shall take all necessary corrective measures including, but not
limited to, transfer, discipline or termination. If City has notified Contractor of a
complaint related to discourteous or improper behavior, Contractor will consider
reassigning the employee to duties not entailing contact with the public while
Contractor is pursuing its investigation and corrective action process.
Contractor shall record Customer complaints regarding Customer service personnel in
accordance with Section 5.2.2. Customer service representatives receiving multiple
complaints are to be transferred from Customer service duties or, with City approval,
disciplined and appropriately trained.
5.2.4 Resolution of Customer Complaints
Disputes between Contractor and Customers regarding the services provided in
accordance with this Agreement may be resolved by City. City's decision shall be final
and binding.
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.
reoruaiy 15, 2017 -60- City or Diamond Bar- Residential
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.
5.2.7 Customer Service Documentation Review
The City reserves the right to review for accuracy documentation ("Green Pages")
provided to Customer Service personnel specific to this Agreement which is used when
responding to Customer inquiries.
5.3 Education and Public Awareness
5.3.1 General
Contractor acknowledges and agrees that education and public awareness are critical
elements of efforts to achieve the requirements of AB 939. Accordingly, Contractor
agrees to take direction from City to exploit opportunities to expand public and
Customer knowledge concerning needs and methods to reduce, reuse and Recycle Solid
Waste and to cooperate fully with City in this regard.
Contractor shall maintain its own program of providing information relevant to needs
and methods to reduce, reuse and recycle Solid Waste to be distributed, when
appropriate, along with its Bills. All public education materials shall be subject to
approval in advance by City and shall be printed in English, Mandarin and Korean.
5.3.2 Implementation and On-going Education Requirements
In order to promote public education, in addition to any other materials it develops,
Contractor shall create the following public education materials and programs at its
expense, which will be distributed as indicated below. All of these materials and
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
February 15, 2017 -61- City of Diamond Bar- Residential
execution of this Agreement. The plan shall address the items described in this section.
The approved plan shall be attached to this Agreement as Exhibit 1.
Initial Mailing -Within forty-five (45) days of the start of Collection service under
this Agreement, Contractor will prepare and mail an initial mailing to all Customers
explaining the transition from the existing Solid Waste Collection Service program
to the new program as defined by this Agreement. The mailing will describe roll-
out of new Carts, program changes, new fees or changes in Collection charges, route
changes if any, dates of program implementation, Recycling and Diversion
programs available, and other pertinent information.
Instructional "How-to" Packets - An information packet shall be provided to each
new Customer throughout the Agreement term. This packet shall: describe
available services, including available Recycling and Diversion programs; provide
instructions for proper use of the Containers (such as how to place Carts or other
permitted items for Collection, the types of materials to be placed in each Cart and
other similar information); detailed holiday Collection schedules; provide billing
and Customer service telephone numbers; identify who to contact with service or
Billing questions; and who to contact for Bulky Item pickups. 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 SerVIC( tela ;eCi I"t'uOr1"nd'CIOI1. MaIlingS Snoula promote and explaLi: aft Solid
February 15, 2017 -62- City of Diamond Bar - Residential
Waste programs offered by City and Contractor (such as Recycling, Green Waste,
Holiday Tree, Bulky Item Collections, and FreeCycle.com) described in detail; the
environmental, regulatory, and other benefits of participating in Recycling; how to
properly dispose of Household Hazardous Waste such as syringes, paint, etc.;
Collection schedules, including holiday schedules; Customers service numbers; and
the procedures to begin and terminate services (if moving from Premises). This
brochure shall be at least four (4) pages, and printed in full color. Contractor is
responsible for all associated costs.
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 shall ensure delivery to
Homeowner Associations is to service recipients rather billing addresses.
Corrective Action Notice - Contractor shall develop a corrective action notification
form for use in instances where a Customer sets out inappropriate materials for
Collection, that explains the appropriate manner for Disposal of such items.
Website - Contractor shall develop and maintain a website to display holiday
schedules, explain proper HHW disposal procedures, which materials are to be
placed in Recyclables Containers and other useful information, as well as informing
Customers how to contact Contractor.
5.3.3 Contractor Representative
Contractor shall retain on its staff an individual who shall, as part of his or her job
function, routinely visit civic groups, school assemblies, and homeowners' associations
to promote and explain the Recycling programs Contractor offers, and participate in
demonstrations, and civic events, and coordinate those visits with the City.
5.3.4 Community Events
At the direction of City, Contractor shall participate in and promote Recycling and
other Diversion techniques at community events and local activities. Such participation
would normally include providing, without cost, educational and publicity information
promoting the goals of City's Solid Waste pro -rain,
Februaiy 15, 2017 -63- City of Diamond Bar- Residentiai
5.4 Waste Generation/Characterization Studies
Contractor acknowledges that City must perform Solid Waste generation and Disposal
characterization studies periodically to comply with the requirements of AB 939.
Contractor agrees to participate and cooperate with City and its agents and to
accomplish studies and data collection and prepare reports, as needed and directed by
City, to determine weights and volumes of Solid Waste Collected and characterize Solid
Waste generated, disposed, transformed, diverted or otherwise handled/ processed, by
Customer type, to satisfy the requirements of AB 939. Contractor will at its sole expense
conduct such a waste generation and characterization study upon request of City, but
not more than once every two years.
February 15, 2017 -64- Ciiy of Diamood Bar - Residentlat
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 mariner and at the times prescribed.
Contractor shall impose no other charges for services provided to Customers unless
approved by the City Manager.
6.2 Initial Rates
The maximum rates that Contractor may charge Customers through the Rate Year
ending June 30, 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 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 hnplemented
for any reason, the next rate adjustment will be measured based on the change in
Febrcraq 15, 2017 -65- City of Diamond Bar- Fesidentia(
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 for all rates excluding temporary services rates according to the method described
below and the formula shown in Exhibits 3A and 3S, 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 for detailed rate adjustment procedures.
Cost Weightings for
Rate Adjustment Factor
Cate or Adjustment78A
Change in the "Driver" Classification to be in effect as of
the date the new rates go into effect (July 1) under the
Agreement between Waste Management of San
Gabriel/Pomona Valley, Inc. and Teamsters Automotive
Labor 24.8% Industrial and Allied Workers Local No. 495(1)
Producer Price Index WPU05522101, Fuels and related
Fuel 3.0% products and power
Producer Price Index, PCU336120336120, Heavy duty truck
Equipment 16.3% manufacturing
Producer Price Index, PCU21232121232104, Construction
Disposal 8% sand and gravel, west
Transfer & Consumer Price Index - All Urban Consumers
Transport 6.0% CUUROOOOSEHG02) Garbage and trash collection
Consumer Price Index for All Urban Consumers
CUURA421SAOLIE), all items less food and energy - Los
All Other 41.9% Angeles -Riverside -Orange County, CA
Total 100.0%
1) F0v ex np1e, U Ae' th'a c _eerneP:_ term- i n,- ee[7 I. ea-A}e_ 70; 7019, these rafies a
February 15, 2017 -66- Cityo(Diamond Bar- Residential
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
All rates, excluding temporary service rates, will be adjusted using the same
methodology and cost component weightings. See Exhibit 3A.
Step One - Calculate the percentage increase or decrease in the index for each cost
category listed in Section 6.4.2. The increase or decrease in the published indices for
fuel, equipment, transfer and transport, disposal, and all other (CPI) will be for the
change in the average annual published index between the calendar vear ended the
December prior to the Rate Year anniversary date and prior calendar year. (See Exhibit
3B for an example average animal change in published index year over year.)
Step Two - The weightings of the cost components for the first rate adjustment are
identified in the table in Section 6.4. Components to be used in subsequent years shall
be calculated in Step Four of the rate adjustment. For Step Two of each subsequent rate
adjustment, use the cost components recalculated in Step Four during the previous rate
adjustment.
The hauler may elect to apply for a one-time reset of cost component weightings prior
to the first rate adjustment based upon actual costs from August 16, 2010 through
February 28, 2011. TI -ds request and supporting data shall be submitted to the City by
March 31, 2011. The revision of the cost component weightings is subject to approval by
the City Manager, which will review the request and supporting data for
reasonableness.
February 15, 2017 -67- City of Diamond Bar- Residential
Multiply the percentage changes for each rate adjustment component by that
component's weighting and add these resulting percentages together to get the total
weighted change to the rates.
Step Three - Multiply the total weighted percent change from Step Two by the existing
Customer rates to calculate the increase or decrease to the maximum rates. Add the rate
increase or decrease to the existing rates to derive the newly adjusted rates.
Step Four - Recalculate weightings for the following year based upon these changes.
6.4.4 Temporary Service Rate Adjustment
Rates for temporary Roll Box service, temporary Bin service and temporary
container rental are equal to the rates for the same services under the City's Bin and
Roll -Off Box Customer Solid Waste Management Services agreement with Valley Vista
Services, and shall remain equal for the duration of the term of the Agreement,
receiving the same rate adjustments as granted under the City's Bin and Roll -Off Box
Customer Solid Waste Management Services agreement.
6.5 Extraordinary Adjustments
Contractor may request an adjustment to maximum rates in the event of extraordinary
changes in the cost of providing service under this Agreement, including changes in a
direct per ton surcharge assessed at the Disposal Site by federal, state or local regulatory
agencies after the Effective Date. These requests, with the exception of changes in a
direct per ton surcharge assessed at the Disposal Site by federal, state or local regulatory
agencies after the Effective Date, if approved, shall only be granted at the time of the
annual July 1 increase per Section 6.3, must be submitted no later than March 31 of each
year, and should be submitted as early as feasible to provide City with sufficient time to
review the request prior to granting the annual July 1 increase. Changes in Disposal
surcharges may be requested at other times. Such changes shall not include changes in
Recyclable Material processing costs, inaccurate estimates by the Contractor of its
proposed cost of operations, or unionization of Contractor's work force. Extraordinary
rate adjustments shall only be effective after approval by City Council and may not be
applied retroactively.
For each request for an adjustment to the maximum rates that Contractor may charge
LusCot a- boni ]__t yv]:Sua t tot,}7: "c.fto L, Co)i acto shall , _it`^ a scheE ryl_e
February 15, 20'U -68- City of Diamond Bar- Residenriai
documenting the extraordinary costs. Such request shall be prepared in a form
acceptable to City with support for assumptions made by Contractor in preparing the
estimate. Contractor shall also submit a schedule showing how its total costs and total
revenues have changed over the past three years for the services provided under this
Agreement.
City may request a copy of the Contractor's annual financial statements in connection
with the City's review of Contractor's extraordinary rate adjustment request. City shall
review the Contractor's request and, in City's sole judgment and absolute, unfettered
discretion, make the final determination as to whether an adjustment to the maximum
rates will be made, and, if an adjustment is permitted, the appropriate amount of the
adjustment. City will confine receipt of a request for an extraordinary rate adjustment
within sixty (60) days of receipt of Contractor's request and will promptly coordinate
with Contractor to assess the request. City may consider increases or decreases in the
Contractor's total revenues and total cost of services when reviewing an extraordinary
rate adjustment request.
6.6 Effect of Rate Challenge
If a rate adjustment cannot be implemented due to a majority protest or a final court
judgment finding that the Rates implemented are not consistent with applicable law,
the following procedure shall be followed. Within thirty (30) days of a majority
protest being found by the City Council to exist or the final court judgment being
entered, the Contractor shall have the right to file a written request with the City to
negotiate in good faith a reduction in programs, services, or fees to compensate the
Contractor for any negative material impact on Contractor's business operations
from such action. If the parties are unable to reach an agreement within sixty (60)
days after the City's receipt of Contractor's notice or the City fails to commence
good faith negotiations within thirty (30) days of receipt of Contractor's notice, the
Contractor may provide written notice that it is terminating this Agreement. The
effective date of the termination shall be no earlier than three -hundred (300) days
from the date of the City's receipt of Contractor's notice of termination. In the event
Contractor terminates this Agreement under this paragraph, neither party shall be
liable to the other party for any claims, actions, losses or other remedies such party
might otherwise have under this Agreement. The failure by Contractor to file its
written request with the City within the thirty (30) -day period shall be deemed to
February 15, 2017 -69- Ciiy or Diamond Bar- Residential
be a waiver by the Contractor of any right to the rates not implemented and
Contractor shall continue to perform under the Contract.
6.7 Residential Recyclables Rebate to Customers
By March 31 of each year, Contractor shall provide the City with a report that includes:
1) The number of tons of Residential curbside Recyclables sold under this Agreement
during the preceding calendar year: and,
2) Recyclables revenue received from the sale of recovered materials from Residential
curbside Recyclables under this Agreement for the preceding calendar year.
The reported Recyclables revenue and tormage shall exclude, for purposes of this
section, Green Waste and Construction and Demolition Debris tonnage, Bulky Items, or
other material not Collected as part of the regularly scheduled Residential curbside
Recycling program.
Fifty percent (50%) of revenue in excess of $85.00 per ton on average for the preceding
calendar year shall be rebated to Customers once per year in the form of a credit on
each Customer's Billing account. The credit will post on the account for the Billing
period that includes July 1 of the year following the calendar year in which the revenue
was received. The $85.00 per ton threshold shall be fixed for the Term of the Agreement.
The rebate shall be calculated per the example calculation below:
February 15, 207 -70- City o'Diamond Bar- Residential
Example of Recycling Rebate Credit Calculation
Recyclables Revenue Received in Year 1: 250,000
Tonnage Sold in Year 1: 5,000
Average Annual Revenue Per Ton in Year 1: 50.00
Average Annual Revenue per ton Over $85.00: 5.00
If less than $0, no rebate shall be distributed.
If greater than $0, multiply by Tonnage Sold in Year 1: 25,000
Recyclables Revenue to be Rebated - 50%: 12,500
Number of Customers July 1 Year 2, when rebate is distributed: 15,500
Rebate per Customer (Rebate/Customers): 0.81
In this example, each resident billed for service July 1 of Year 2 would receive a credit of
0.81 on the July 1, Year 2 Billing.
February95, 2017 71- City of Diamond Bar- Residential
ARTICLE 7
REVIEW OF SERVICES AND PERFORMANCE
7.1 Performance Review Meeting
City may hold a meeting annually to review Contractor's Solid Waste Collection efforts,
source reduction, processing and other Diversion services and overall performance
under this Agreement (the "Solid Waste Services and Performance Review Meeting').
The purpose of the Solid Waste Services and Performance Review Meeting is to provide
for a discussion and review of technological, economic, and regulatory changes in
Collection, source reduction, Recycling, processing and Disposal to achieve a
continuing, advanced Solid Waste Collection, source reduction and Recycling and
Disposal system; and to ensure services are being provided by Contractor with
adequate quality, effectiveness and economy, and in full compliance with the terms of
this Agreement. Topics for discussion and review at the Solid Waste Services and
Performance Review Meeting shall include, but shall not be limited to, services
provided, feasibility of providing new services, application of new technologies,
Customer complaints, amendments to this Agreement, developments in the law, new
initiatives for meeting or exceeding AB 939's goals, regulatory constraints, results of
route audits, and Contractor performance. City and Contractor may each select
additional topics for discussion at any Solid Waste Services and Performance Review
Meeting.
City shall notify Contractor of its intent to hold a Solid Waste Services and Performance
Review Meeting at least sixty (60) days in advance thereof. Thirty (30) days after
receiving notice from City of a Solid Waste Services and Performance Review Meeting,
Contractor shall submit a report to City which may contain such information as it
wishes to have considered, and shall contain the following:
a) Current Diversion rates and a report on Contractor's outreach activities for the
past year.
b) Recommended changes and/or new services to improve City's ability to meet the
goals of AB 939 and to contain costs and minimize impacts on rates. A specific
plan for AB 939 compliance shall be included.
C) Any specific plans for for nevV or changer;. s;'_. -vices. Ly Co-nL--'actor.
February 15, 2017 -72- City or Diamond Bar- Residential
The reports required by this Agreement regarding Customer complaints shall be used
as one basis for review of Contractor's performance, and Contractor may submit other
relevant performance information and reports for consideration at the Solid Waste
Services and Performance Review Meeting. In addition to the above, City may request
Contractor to submit any other specific information relating to its performance for
consideration at the Solid Waste Services and Performance Review Meeting, and any
Customer may submit comments or complaints during or before the Meeting, either
orally or in writing. Contractor shall be present at and participate in the Solid Waste
Services and Performance Review Meeting.
As a result of its findings following any Solid Waste Services and Performance Review
Meeting, City may require Contractor to provide expanded or new services within a
reasonable time and City may direct or take corrective actions for any performance
inadequacies (although nothing contained in this provision should be construed as
requiring City to hold a Solid Waste Services and Performance Review Meeting in order
to enforce any rights or remedies it has pursuant to the terms hereof.) Should City
require expanded or new services as a remedy for Contractor's failure to perforin its
obligations hereunder, no additional compensation shall be due for such services.
Otherwise, any new or expanded services required of Contractor shall be subject to the
provisions of Section 2.10.
7.2 Performance Satisfaction Survey
If requested by the City, Contractor will create and conduct a survey at Contractor's
expense. If City would like to present results at a Solid Waste Services and Performance
Review Meeting, City shall notify Contractor of its desire for such a survey at least 90
days in advance of the Solid Waste Services and Performance Review Meeting. The
purpose of the survey is to determine Customer satisfaction with current Collection
services and Customer service provided by Contractor. The Survey will be distributed
to a minimum of ten percent (10%) of the Customers, selected at random. Contractor
shall obtain City's approval of the survey's content, format, and mailing list prior to its
distribution. City may require that Contractor have Customer responses to the survey
returned directly to City. The survey results shall be made available to the City thirty
30) days prior to the Solid Waste Services and Performance Review Meeting.
February 15, 2017 -73- City of Diamond Bar- Residential
ARTICLE 8
RECORDS, REPORTS AND INFORMATION REQUIREMENTS
8.1 General
Contractor shall maintain such accounting, statistical and other records related to its
performance under this Agreement as shall be necessary to develop the financial
statements and other reports required by this Agreement. Also, Contractor agrees to
conduct data collection, information and record keeping, and reporting activities
needed to comply with applicable laws and regulations and to meet the reporting and
Solid Waste program management needs of City. To this extent, such requirements set
out in this and other Articles of this Agreement shall not be considered li niting or
necessarily complete. In particular, this Article is intended to only highlight the general
nature of records and reports and is not meant to define exactly what the records and
reports are to be and their content. Further, with the written direction or approval of
City, the records and reports to be maintained and provided by Contractor in
accordance with this and other Articles of this Agreement shall be adjusted in number,
format, or frequency.
8.2 Records
8.2.1 General, Right to Inspect
Contractor shall maintain records required to conduct its operations, to support
requests it may make to City, and to respond to requests from City in the conduct of
City business. Adequate record security shall be maintained to preserve records from
events that can be reasonably anticipated such as a fire, theft and earthquake.
Electronically maintained data/records shall be protected and backed up. All records,
with the exception of records to be maintained under Section 8.2.4, shall be maintained
for five (5) years, and shall continue to be available for five (5) years after the expiration
of this Agreement. After minimum holding periods are met, Contractor will notify City
Manager and City Attorney ninety (90) days before destroying records and offer
records to the City.
City shall have the right to inspect or review the specific documents or records required
expressly or by inference pursuant to this Agreement, or any other similar records or
February 15, 2017 -74- City of Diamond Bar- Residential
reports of Contractor or its Affiliates that City shall deem, in its sole discretion,
necessary to evaluate reports, and Contractor's performance provided for in this
Agreement. Contractor agrees that such records shall be provided or made available to
City and its official representatives. Account histories shall be accessible to the City by
computer for a minimum of five (5) years after termination of the Agreement.
Contractor shall make all records and documents to be reviewed and inspected by City
as a part of any audit or other record review conducted by City, available for City's
review, inspection and copying for the above purposes within five (5) days of receiving
written notice from City requesting the same. Additionally, City may review records at
Contractor's local facility for the above purposes 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).
8.2.5 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 paymc11i records;
February 15, 2017 -75- City cf Diamond Bar-- Residentiai
b) Records of tons Collected, processed, diverted and disposed by waste stream
Refuse, Recycling, Green Waste), by Customer type (Cart, Bin, Roll -Off Box),
and the Facilities (Transfer Station, MRF, or landfill) where such material was
taken;
c) Quantity of Recyclable Materials recovered by material type, as well as quantity
of material diverted from landfills in compliance with AB 939;
d) Bulky Item results and Special Event tonnages, including tons disposed and
diverted;
e) Routes;
f) Facilities, equipment and personnel used;
g) Facilities and equipment operations, maintenance and repair;
h) Number and type of Refuse, Recycling and Green Waste Containers in service;
i) Complaints; and
j) Missed pickups.
8.2.4 CERCLA Defense Records
City views the ability to defend against the Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA) and related litigation as a matter of great
importance. For this reason, City regards the ability to prove where Solid Waste
Collected in the City was taken for Disposal, as well as where it was not taken, to be
matters of concern. Contractor shall maintain data retention and preservation systems
which can establish where Solid Waste Collected in the City was landfilled (and
therefore establish where it was not landfilled) for not less than twenty-five (25) years
following the termination of this Agreement, and agrees to notify City Manager and
City Attorney before destroying such records thereafter. At any time, including after
the expiration of the Term hereof, Contractor shall provide copies of such records to
City upon request. The requirements of this section shall survive the expiration of the
Term of this Agreement.
February 15, 2017 -76- City of Diamond Bar- Residential
8.2.5 Section Deleted
8.2.6 Other Programs' Records
Records for other programs shall be tailored to specific needs. In general, they shall
include:
a) Plans, tasks, and milestones; and,
b) Accomplishments in terms such as dates, activities conducted, quantities of
products used, produced or distributed, and numbers of participants and
responses.
City may conduct an audit of Contractor at any time. The scope of the audit, and
auditing party, will be determined by City, and the scope may include, but is not
limited to compliance with terms of this Agreement, Customer service levels and
Billing, fee payments, Gross Receipts, tonnage, and verification of Diversion rate. The
first audit, to be performed during calendar year 2012, will be based on the Contractor's
reports and records from the start of the Agreement through calendar year 2011. Audits
will be performed every third year thereafter. Contractor will 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
i=ry any underpayment o;. ees and/or refund to Ccrr-ractor's Customers or to City, as
February 15, 2017 -77- Ciiyor'Diamond Bar- Residenia(
directed by City, any overcharges within thirty (30) days following the date of the audit.
Contractor shall pay interest to the City for any underpayment or overcharges at an
annual rate of 12%. Undercharges shall not be billed in arrears for more than ninety
90) days of service, with any remaining undercharges absorbed by Contractor. Should
an audit disclose that fees were overpaid, City shall credit such amounts against future
fees payable by Contractor.
8.3 Reports
8.3.1 Report Formats and Schedule
Records shall be maintained in forms and by methods that facilitate flexible use of data
contained in them to structure reports, as needed. Contractor 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 Reports
The information listed below shall be the minimum reported:
February 95, 2017 -78- City of Diamond Bar -,residential
a) Solid Waste Collected by Contractor, sorted by type of Solid Waste Collected and
diverted (Refuse, Recycling, Green Waste) in tons, including contamination and
Diversion rates for each wastestream and Customer type (Cart, Bin, Roll -Off Box)
and the Facilities where the tons were processed or disposed. Bulky Item tons
Collected and diverted shall also be reported as a separate line item.
b) Number of warning notices issued for contaminated Recyclable Materials and
Green Waste Containers, and I IHW 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 Am1ua1 Report is to be essentially in the form and content of the monthly report,
but shall also include:
a) A summary of the number of Containers in service as of December 31 by size
number of gallons/ yards), service frequency, and type of service (Refuse,
Recycling, Green Waste).
b) Records of tons Collected, processed, diverted and disposed by waste stream
Refuse, Recycling, Green Waste), by Customer type (Cart Bin, Roll -Off Box), and
the Facilities (Transfer Station, MRF, or landfill) where such material was taken.
c) Gross Receipts by sector (Cart, Bin, Roll -Off Box)].
d) A complete inventory of vehicles used to provide all services, including make,
year, type, fuel used, use, California license number and whether or not it is used
as a spare.
e) Number of routes and route hours per day by type of service as of December 31.
f) General information about the Contractor and its most recent annual report.
CLt-!!?l- -f rmaiion po_i
8.3.4 Financial Report
The City may, at City's option, request and be provided with Contractor's financial
reports/ statements for the most recently completed fiscal year in connection with any
audit, extraordinary rate adjustment request, or verification of other information
required under this Agreement.
Financial statements shall include a supplemental combining schedule showing
Contractor's results of operations, including the specific revenues and expenses in
connection with the operations provided for in this Agreement, separated from others
included in such financial statements. The financial statements and footnotes shall be
prepared in accordance with Generally Accepted Accounting Principles (GAAP).
Financial Statements for the parent company guarantor shall be audited, in accordance
with Generally Accepted Auditing Standards (GAAS) by a certified public accountant
CPA) licensed (in good standing) to practice public accounting in the State of
California as determined by the State of California Department of Consumer Affairs
Board of Accountancy. The cost for preparation of the financial statements and audit
shall be borne by Contractor as a direct cost of service. In addition, Contractor shall
provide to City the supplemental schedule on a compiled basis.
8.4 Reporting Adverse Information
Contractor shall provide City two copies (one to the City Manager, one to the City
Attorney) of all reports, pleadings, applications, notifications, Notices of Violation,
communications or other material relating in any way to Contractor's performance of
services pursuant to this Agreement, submitted by Contractor to, or received by
Contractor from, the United States or California Environmental Protection Agency,
CalRecycle, the Securities and Exchange Commission or any other federal, state or local
agency, including any federal or state court. Copies shall be submitted to City within
thirty (30) days of receipt by Contractor, or sooner if reasonably apparent that to do so
is time critical, and any responses by Contractor shall be submitted to City
simultaneously with Contractor's filing or submission of such matters with said
agencies. Contractor's routine correspondence to said agencies need not be routinely
submitted to City, but shall be made available to City promptly upon City's written
request.
February 15, 2017 -80- Ciiy of Diamond Bar- Residenffa/
8.5 Failure to Report
The refusal or failure of Contractor to file any required reports, or to provide required
information to City, or the inclusion of any materially false or misleading statement or
representation by Contractor in such report shall be deemed a material breach of this
Agreement as described in Section 11.1 and shall subject Contractor to all remedies
which are available to the City under this Agreement, the Diamond Bar Municipal Code
or otherwise.
February 15, 2017 -$1- City of Diamond Bar- Residential
ARTICLE 9
INDEMNIFICATION, INSURANCE, BOND AND LETTER OF CREDIT
9.1 Indemnification
Contractor hereby agrees to and shall indemnify and hold harmless City, its elected and
appointed boards, commissions, officers, employees, consultants and agents
collectively, "Indemnitees") from and against any and all loss, liability, penalty,
forfeiture, claim, demand, action, proceeding or suit in law or equity of any and every
kind and description (including, but not limited to, injury to and death of any Person
and damage to property, or for contribution or indemnity claimed by thud 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 in part by any of the Indermiitees' negligence, but shall not
extend to matters resulting from the Indemnitees' sole negligence, or willful
misconduct. Contractor further agrees to and shall, upon demand of City, at
Contractor's sole cost and expense, defend (with attorneys acceptable to City) the
hldemnitees against any claims, actions, suits in law or equity or other proceedings,
whether judicial, quasi-judicial or administrative in nature, arising or resulting from
any of the aforementioned events, and to reimburse City for any and all costs and
expenses City incurs in providing any such defense, either before, during or after the
time Contractor elects to provide such defense, including any and all costs incurred in
overseeing any defense to be provided herein by Contractor.
Contractor, upon demand of City, made by and through the City Attorney, shall protect
City and appear in and defend the Indemnitees in any claims or actions by third parties,
February 15, 2017 -82- City of Diamond Bar- P.esidenfial
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
9.2 Hazardous Substances Indemnification
A. Without regard to any insurance coverage or requirements, and without limiting the
above general indemnification obligation in any way, Contractor specifically agrees to
and shall, to the maximum extent permitted by law, defend (with counsel acceptable to
City, which acceptance shall not be unreasonably withheld), reimburse, indemnify, and
hold harmless Indemnitees 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, 20178S- City of Diamond Bar- Residentiai
S. 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 -84- CMM ofDiamond Bar - Residenrial
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 unposed 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 stream Collected under this Agreement.
B. Contractor warrants and represents that it is familiar with City's waste
characterization study as set forth in City's Source Recovery and Recycling Element
SRRE), and that it has the ability to and will provide sufficient programs and services
to ensure City will meet or exceed the Diversion requirements (including, without
liunitation, 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 conriection with Contractor's
performance hereunder or the actions or, inactions of any of Contractor's officers,
agents, representatives, employees, or subcontractors in connection with Contractor's
performance. The insurance requirements hereunder in no way limit Contractor's
various defense and indemnification obligations, or any other obligations as set forth
herein.
A. Minimum Scope of Insurance. Coverage shall be at least as broad as:
1. The most recent editions of Insurance Services Office Commercial General
Liability coverage ("occurrence" form CG 00 01).
February 15, 2017 -85- City of Diamond Bar- Residential
2. The most recent editions of Insurance Services Office form number CA 00 01
covering Automobile Liability, code 1 "any auto" and endorsement CA 00 25.
3. Workers' Compensation insurance as required by the Labor Code of the
State of California and Employers Liability insurance.
B. Minimum Limits of Insurance. Contractor shall maintain in force for the term
of this Agreement limits no less than:
1. Comprehensive General Liability: Ten Million Dollars ($10,000,000) limit
aggregate and Ten Million Dollars ($10,000,000) limit per occurrence for
bodily injury, Personal injury and property damage.
2. Automobile Liability: Five Million Dollars ($5,000,000) single limit per
accident for bodily injury and property damage.
3. Workers' Compensation and Employers Liability: Workers' compensation
limits as required by the Labor Code of the State of California or provide
evidence of State approval to be self-insured. Employers Liability in the
minimum amount of $1,000,000.
C. Deductibles and Self -Insured Retentions. Any deductibles or self-insured
retentions are for the account of Contractor, and payable solely by Contractor. In the
event that the City forms a reasonable belief that Contractor is unable to pay any
deductibles or self-insured retentions, Contractor shall procure a performance 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, hired or borrowed by Contractor. The coverage shall
February 15, 2017 -86- City or Diamond Bar- Residential
contain no special limitations on the scope of protection afforded to
the Indemnitees.
b) Contractor's insurance coverage shall be primary insurance as
respects the inderm-d lees. 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 City, its officials, elective and
appointive boards, commissions, employees, agents or volunteers.
d) Coverage shall state that Contractor's insurance shall apply
separately to each insured against whom claim is made or suit is
brought, except with respect to the limits of the insurer's liability.
2. Workers' Compensation and Employers Liability Coverage - The insurer
shall agree to waive all rights of subrogation against the Indemnitees for
Iosses arising from work performed by Contractor for City.
3. All Coverages - Each insurance policy required by this clause shall be
endorsed to state that coverage shall not be canceled 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. City reserves the right to review complete, certified copies of
all required L-Lsu'ance pc1_iries at any ii -me.
February 15, 2017 -87- City of Diamond Bar- Residential
Renewal certificates will be furnished promptly upon renewal to City to demonstrate
maintenance of the required coverage throughout the Term.
G. Required Endorsements
1. Insurance policies shall contain an endorsement in substantially the
following form:
Thirty (30) days prior written notice (ten (10) days written notice in the
event of cancellation for non-payment) by certified mail, return receipt
requested, shall be given to City in the event of cancellation, reduction in
coverage, or non -renewal of this policy. Such notice shall be sent to:
City Manager
City of Diamond Bar
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."
3. "Inclusion of City as an insured shall not affect City's rights as respects
any claim, demand, suit or judgment brought or recovered against
Contractor. This policy shall protect Contractor and City u1 the same
manner as though a separate policy had been issued to each, but this shall
not operate to increase Contractor's liability as set forth in the policy
beyond the amount shown or to which Contractor would have been liable
if only one party had been named as an insured."
February 15, 2017 -88- City of Diamond Bar- Residential
H. Other Insurance Requirements
1. In the event any services are delegated to another company or
subcontractor, Contractor shall require such Contractor or subcontractor
to provide statutory workers' compensation insurance and employer's
liability insurance for all of the Contractor or subcontractor's employees
engaged in the work in accordance with this Section 9.4. The liability
insurance required by this Section 9.4 shall cover all Contractor or
subcontractors or the Contractor or subcontractor must furnish evidence
of insurance provided by it meeting all of the requirements of this Section
9.4.
2. Contractor shall comply with all requirements of the insurers issuing
policies. The carrying of insurance shall not relieve Contractor from any
obligation under this Agreement. If any claim exceeding the amount of
any deductibles or self-insured reserves is made by any third Person
against Contractor or any Contractor or subcontractor on account of any
occurrence related to this Agreement, Contractor shall promptly report
the facts in writing to the insurance carrier and to City.
If Contractor fails to procure and maintain any insurance required by this
Agreement, City may take out and maintain, at Contractor's expense, such
insurance as it may deem proper and recover costs from the Contractor's
Letter of Credit and/or Performance Bond provided under Sections 9.5
and 9.6.
9.5 Faithful Performance Bond
Concurrently with execution of this Agreement, Contractor shall deliver to City a
performance bond in the sum of the amount of One Hundred Twenty-five Thousand
Dollars ($125,000), similar to the form provided in Exhibit 5, which secures the faithful
performance of this Agreement, including, without limitation, payment of any penalty
and the funding of any work to cure a breach of tlis 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
February 15, 2017 -89- City of Diamond Bar- Residential
and remain in force during the entire term of the Agreement and shall be released only
upon written release from City per Section 9.9,
9.6 Faithful Performance Letter of Credit
A. In addition to a corporate surety bond as noted in Section 9.5 above, Contractor
shall furnish an irrevocable letter of credit in the amount of One Hundred Twenty-five
Thousand Dollars ($125,000), from a financial institution acceptable to the City and in a
form acceptable to the City Attorney as security for the performance of this Agreement
the "LOC"). The LOC shall be the sole responsibility of Contractor, shall be
unconditional and remain in force during the entire term of the Agreement and shall be
released only upon written release from City per Section 9.9.
B. As an alternative to providing the performance bond and letter of credit required
under 9.5 and 9.6.A, Contractor may provide a letter of credit in the amount of $250,000.
The letter of credit shall be from a financial institution acceptable to the City in a form
acceptable to the City Attorney as security for the performance of this Agreement. The
LOC shall be the sole responsibility of Contractor, shall be unconditional and remain in
force during the entire term of this Agreement and shall be released only upon written
release from City per Section 9.9.
9.7 Forfeiture of Performance Bond
In the event Contractor shall for any reason become unable to, or fail in any way to,
perform as required by this Agreement, City may declare a portion or all of the
performance bond forfeited to the City up to an amount which is necessary to
recompense and make whole the City. Upon partial or full forfeiture of the
performance bond, Contractor shall restore the performance bond to its face amount
within thirty (30) days of the City's declaration. Failure to restore the performance
bond to its full amount within thirty (30) days shall be a material breach of this
Agreement.
9.8 Forfeiture of Letter Of Credit
Thirty (30) days following City providing Contractor with written notice of its failure to
pay City any amount owing under this Agreement, the LOC may be drawn upon by
City for purposes including, but not limited to:
February 15, 2017 -90- Cify of Diamond Bar- Residential
a. Payment of sums due under the terms of this Agreement which Contractor has
failed to timely pay to City
b. Reimbursement of costs borne by City to correct violations of this Agreement not
corrected by Contractor, including but not lnnited to the liquidated damages
described in Section 11.3.
City may draw upon the entire LOC and convert it to a cash deposit if Contractor fails
to cause the LOC to be extended or replaced with another satisfactory letter of credit no
later than 60 days prior to its expiration during the term hereof. If City partially draws
down LOC, Contractor must restore it to full amount within 30 days of City's draw.
Failure to restore the LOC to its full amount within thirty (30) days shall be a material
breach of this Agreement.
9.9 Performance Security Beyond Service Term
Some Agreement requirements extend beyond the Term and other requirements, such
as minimum Diversion rates per Section 4.2.5, will not be substantiated until after the
final service date. Therefore, the Contractor shall not terminate the performance bond
or letter of credit, and will renew them to ensure continuous availability to the City,
until receiving a written release from the City or until the second annual 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, 2017 -91- City of Diamond Bar- Pesideiriial
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 95, 20 /7 -92- City of Diamond Bar - Residential
ARTICLE 11
DEFAULT, REMEDIES AND LIQUIDATED DAMAGES
11.1 Events of Default
Each of the following provisions, without limitations, are considered material and shall
constitute an event of default by the Contractor.
A. Fraud or Deceit or Misrepresentation. If the Contractor engages in, or attempts
to practice, any fraud or deceit upon City or makes a misrepresentation regarding
material information to City.
B. Insolvency or Bankruptcy or Financial Irresponsibility. If Contractor becomes
insolvent, unable, or unwilling to pay its debts, files a bankruptcy petition or takes steps
to liquidate its assets.
C. Failure to Maintain Coverage. If Contractor fails to provide or maintain 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. Subject to Contractor's opportunity to cure in
subsection L1. below, 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 mariner as provided for in the
Agreement.
February 15, 2017 -93- City of Diamond Bar- Residential
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 i 5, 2077 -94- Ciiy of Diamond Gar- Ro-sideniial
L. Suspension or Termination of Service. Any termination or suspension of the
transaction of business by Contractor, including, without limitation, due to labor unrest
including strike, work stoppage or slowdown, sick-out, picketing, or other concerted
job action lasting more than seven (7) consecutive days, unless, and only to the extent,
performance is excused pursuant to Section 11.4.
M. Failure to Provide Assurance of Performance. If Contractor fails to provide
reasonable assurances of performance as required under Section 11.6.
N. Commingling of Recyclables With Refuse/Landfilling of Recyclables. Subject
to the requirements of Section 4.2.3, if Contractor empties a Container of properly set
out Recyclable Materials or Green Waste into a Refuse load, or transports Recyclable
Materials or Green Waste to a landfill or other location at which the material will not be
diverted from landfilling (with the exception of Green Waste used as alternative daily
cover provided full Diversion credit is received).
O. Failure to Meet Diversion Goals. Contractor fails to achieve diversion goals
specified in Section 4.2.5, for two consecutive calendar years (the initial calendar year
triggering a compliance plan as described in Section 4.2.5 and a second year in which to
approved compliance plan is implemented), begin-dng with calendar year 2011.
P. Lapse of Performance Bond and/or Letter of Credit. Contractor fails to restore
the full balance of the Performance Bond and/or Letter of Credit required under
Sections 9.5 and 9.6 to the full required value within 30 days of being depleted due to
payment to City under Sections 9.7 or 9.8, or Contractor allows either security at any
time for any other reason to lapse or fall below required miuumums 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 -95- Ciiy of Diamond Bar- Residei iial
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 o_` this Agreeinent might be available at
Febmani 15, 2017 -96- City of Diamond Bar- Residential
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 commitment in entering this Agreement with it. The Parties further
recognize that some quantified standards of performance are necessary and appropriate
to ensure consistent and reliable service and performance. The Parties further recognize
that if Contractor fails to achieve the performance standards, or fails to submit required
documents in a timely manner, City and its residents will suffer damages and that it is
and will be impractical and extremely difficult to ascertain and determine the exact
amount of damages which City will suffer. Therefore, without prejudice to City's right
to treat such breaches as an event of default under this Article 11, the Parties agree that
the following liquidated damage amounts represent a reasonable estimate of the
amount of such damages for such specific breaches, considering all of the circumstances
existing on the date of this Agreement, including the relationship of the sums to the
range of harm to City that reasonably could be anticipated and the anticipation that
proof of actual damages would be costly or impractical. In placing their initials at the
places provided, each party specifically confirms the accuracy of the statements made
above and the fact that each party has had ample opportunity to consult with legal
counsel and obtain an explanation of the liquidated damage provisions at the time that
the Agreement was made.
Contractor
Initial Here
Contractor agrees to pay (as liquidated damages and not as a penalty) the amounts set
forth below:
February 15, 2017 -97- City of Diamond Bar- Residen[iai
1. Collection Reliability
a) For each failure to commence service to a new Customer account within
seven (7) days after order, which exceeds five (5) such failures annually:
100.00
b) For each failure, which exceeds ten (10) such failures annually, to Collect
Solid Waste from any established Customer account on the scheduled
Collection day and not make up the Collection within the time allotted per
Section 4.6.1: $100.00
c) For each instance in which Contractor stops service to a Customer, other
than at Customer request due to Customer vacating premises, without the
advance written approval of the City: $100.00
2. Collection Quality
a) For each occurrence of failure to properly return empty Containers to avoid
pedestrian or vehicular traffic impediments or to place Containers upright
which exceeds ten (10) such occurrences amlually: $100.00
b) For each occurrence of excessive noise or discourteous behavior which
exceed ten (10) amlually: $250.00
c) For each occurrence of Collecting Solid Waste during unauthorized hours
which exceeds five (5) such occurrences annually: $250.00
d) For each failure to clean up Solid Waste spilled from Solid Waste Containers
within ninety (90) minutes that exceeds ten (10) such failures annually:
150.00
3. Customer Responsiveness
a) For each failure to initially respond to a Customer complaint within one (1)
business day, and for each additional day in which the complaint is not
addressed, which exceed five (5) annually: 150.00
b) For each failure to process Customer complaints as required by Article 5,
which exceed rive (5) annually: $150.00
February 95, 2017 -98- City of Diamond Bar- Residential
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 wluch Contractor has
failed to undertake good faith efforts to resolve a claim for damages within
thirty (30) days from the claim date: $100.00
g) For each violation under Section 5.2.3 (one month of excessive complaints or
one quarter of excessive delays in answering customer service calls):
500.00
h) For each occurrence of inaccurate information being provided to Customers
by Contractor's customer service department which exceeds ten (10) such
occurrences arulually:
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 45% of the Solid
Waste Contractor Collected under this Agreement:
25 for each ton below tonnage level
necessary to meet 45% Diversion goal
b) For every Green Waste Cart Collected as Refuse without issuing a red tag
per Section 4.2.3: 50.00 per Cart
c) For each failure to process Construction and Demolition Debris loads from
Construction and Demolition sites or otherwise identified as such by
C sto- —r as _cquiredby Sectio,, -z-.2.6:
February 15, 2017 -99- City of Diamond Bar- Residential
611
6.
7,
200 per load
d) For each calendar year, beginning January 1, 2018, in which Contractor fails
to provide support to the City within thirty (30) days of year-end,
documenting that it diverted at least 45 % of the Solid Waste Contractor
Collected under this Agreement, as such percentage may be adjusted under
Section 4.2.5, excluding Roll -Off and Temporary Bin loads: $25 for each
ton below tonnage level
necessary to meet 45 % Diversion goal
e) For each calendar year, beginning calendar year 2018, in which Contractor
fails to provide support to the City within thirty (30) days of year-end,
documenting that it diverted at least 75 %, or the State -mandated
Construction and Demolition diversion percentage (as such percentage may
be adjusted by the State), 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.
Timeliness of Submissions to
Any report shall be considered late until such time as a correct and complete
report is received by City. For each calendar day a report is late, the daily
liquidated damage amount shall be:
i) Monthly Reports:
ii) Annual Reports:
Accuracy of Billing
100.00 per day
200.00 per day
Each Customer invoice that is not prepared in accordance with the City's
approved rate schedule, in excess of ten (10) annually: $25.00
Cooperation with Service Provider Transition
a) For each day routing information requested by City in accordance with
ec;-o n 123 is received aftel, C4;,i7- established dLie dates, bo0L fo-r
February 15, 2017 -100- Cify or"Diamond Bar- Residential
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 mariner, in addition to the daily liquidated damages for
breach under 7(a) and 7(b) above, liquidated damages of: $35,000.00
8. General Contract Adherence
For each day that Franchisee fails to provide services required under the
Agreement, or comply with terms of the Agreement, five (5) business days after
receipt of written notification from City that such services are not being provided
or terms are not being met: 300.00/ day
City may determine the occurrence of events giving rise to liquidated damages through
the observation of its own employees or 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 testunony at
the meeting of its employees and others relevant to the incident(s)/non-performance.
City Manager will provide Contractor with a written explanation of its determination
on each incident(s)/non-performance prior to authorizing the assessment of liquidated
damages. The decision of City Manager shall be final.
February 15, 2017 -101- City of Diamond Bar- Resi'dentisi
C. Amount. City may assess liquidated damages for each calendar day or event, as
appropriate, that Contractor is determined to be liable in accordance with this
Agreement.
D. Timing of Payment. Contractor shall pay any liquidated damages assessed by
City within ten (10) days after receipt of notice that liquidated damages are being
assessed. If they are not paid within the ten (10) day period, City may proceed against
the performance bond or letter of credit required by the Agreement or find Contractor
in default and terminate this Agreement pursuant to Section 11.2, or both.
11.4 Suspension of Performance
11.4.1 Force Majeure
The Parties shall be excused from performing their respective obligations hereunder in
the event they are prevented from so performing by reason of floods, earthquakes, other
natural disasters, war, civil insurrection, riots, acts of any government (including
judicial action), and other similar catastrophic events which are beyond the control of
and not the fault of the party claiming excuse from performance hereunder.
The interruption or discontinuance of Contractor's services caused by one (1) or more of
the events excused shall not constitute a default by Contractor under this Agreement
provided that other services delivered to properties in Diamond Bar (such as and
without limitation electricity, gas, water, or commercial solid waste collection services)
have been similarly disrupted as a direct result of the catastrophic event.
Notwithstanding the foregoing, however, if Contractor is excused from performing its
obligations hereunder for any of the causes listed in this section, 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 this 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 folllnw, ng requL" e_ _"Len1tS are -"2t:
February 15, 2017 -102- City of Diarnond Bar- Resideutia!
Contractor provides a contingency plan to the City prior to the execution of this
Agreement demonstrating how services will be provided. Plan is subject to City
Manager approval and Contractor shall amend plan until it meets City
requirements, including reasonably demonstrating how City's basic Collection and
sanitary needs will be met to the City's satisfaction.
Contractor shall meet all requirements of this plan; if Contractor does not meet all
requirements, City may choose to revoke this excuse from performance offered
under this Agreement and may choose to use enforcement provisions under this
Agreement, including Sections 11.1, 11.2 and 11.3.
The party claiming excuse from performance shall, within two (2) days after such party
has notice of such cause, give the other party notice of the facts constituting such cause
and asserting its claim to excuse under this section.
The interruption or discontinuance of Contractor's services caused by labor -related
events excused under this Section 4.4.2 shall not constitute a default by Contractor
under this Agreement. Notwithstanding the foregoing, however, if Contractor is
excused from performing its obligations hereunder for any of the causes listed in this
section for a period of thirty (30) days or more, City shall nevertheless have the right, in
its sole discretion, to terminate this Agreement by giving ten (10) days' notice, and may
contract with another party for Solid Waste Collection Services.
11.5 Dispute Resolution; Administrative Remedies; Termination
Except as may otherwise be set forth expressly herein, all disputes arising under this
Agreement shall be resolved as set forth in this section.
11.5.1 Negotiation and Mediation
The Parties shall attempt in good faith to resolve any dispute arising out of or relating
to this Agreement promptly by negotiations between the Parties' authorized
representatives. The disputing Party shall give the other Parties written notice of any
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
3_1eeting, any Party __-ay iaitiaie a mediation 'i7,e dispr_ie. The 1TE9iia-iCln
Febuari 15, 2017 -103- City of Diamond Bar- Residential
facilitated by a mediator that is acceptable to all Parties and shall conclude within thirty
30) days of its commencement, unless the Parties agree to extend the mediation process
beyond such deadline. Upon agreeing on a mediator, the Parties shall enter into a
written agreement for the mediation services with each Party paying a pro rata share of
the mediator's fee, if any. The mediation shall be conducted in accordance with the
Commercial Mediation Rules of the American Arbitration Association; provided,
however, that no consequential damages shall be awarded in any such proceeding and
each Party shall bear its own legal fees and expenses.
11.5.2 Confidentiality
All negotiations and any mediation conducted pursuant to this section shall be
confidential and shall be treated as compromise and settlement negotiations, to which
Section 1152 of the California Evidence Code shall apply, which Section is incorporated
in this Agreement by reference.
11.5.3 Injunctive Relief
Notwithstanding the foregoing provisions, a Party may seek a preliminary injunction or
other provisional judicial remedy if in its judgment such action is necessary to avoid
irreparable damage or to preserve the status quo.
11.5.4 Continuing Obligation
Each Party shall continue to perform its obligations under this Agreement pending final
resolution of any dispute arising out of or relating to this Agreement.
11.5.5 Failure of Mediation
If after good faith efforts to mediate a dispute under the terms of this Agreement the
parties cannot agree to a resolution of the dispute, any party may pursue whatever legal
remedies may be available to it at law or in equity before a court of competent
jurisdiction and with venue in Los Angeles County.
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,
rtt such `q''o E 2' TfiJS r_1ce as CYE may r- i'i2i _. T- f G" i.r2CLO f'' O'C . - t, Sw
February 15, 2017 -10 City of Diamond Bar- Residential
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 -105- CRy of Diamond Bar- Residential
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 sei vices 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 95, 2017 -106- City of Diamond Bar - Residential
With respect to venue, the Parties agree that this Agreement is made in and will be
performed in Los Angeles County.
12.5 Assignment
Contractor shall not assign its rights, nor delegate, subcontract or otherwise transfer its
obligations under this Agreement (collectively referred to as an "assignment") to any
other Person without the prior written consent of City. Any such assignment made
without the consent of City shall be void and the attempted assignment shall constitute
a material breach of this Agreement.
For purposes of this section the term "assignment" shall be given the broadest possible
interpretation, and shall include, but not be limited to (i) a sale, exchange or other
transfer of substantially all of Contractor's assets dedicated to service under this
Agreement to a thud party; (ii) a sale, exchange or other transfer of outstanding
common stock of Contractor to a third party provided said sale, exchange or transfer
may result in a change of control of Contractor; (iii) any dissolution, reorganization,
consolidation, merger, re -capitalization, stock issuance or re -issuance, voting trust,
pooling agreement, escrow arrangement, liquidation or other transaction which results
in a change of ownership or control of Contractor; (iv) any assignment by operation of
law, including those resulting from mergers or acquisitions by or of Contractor of any
of its Affiliates, insolvency or bankruptcy, making assignment for the benefit of
creditors, writ of attachment for an execution being levied against this Agreement,
appointment of a receiver taking possession of Contractor's property, or transfer
occurring in the event of a probate proceeding; and (v) any combination of the
foregoing (whether or not in related or contemporaneous transactions) which has the
effect of any such transfer or change of ownership, or change of control of Contractor.
Contractor acknowledges that this Agreement involved rendering a vital service to
City's residents and businesses, and that City has selected Contractor to perform the
services specified herein based on (1) Contractor's experience, skill and reputation for
conducting its Solid Waste Collection Services in a safe, effective and responsible
fashion, at all times in keeping with applicable Environmental Laws, regulations and
best Solid Waste management practices, and (2) Contractor's financial resources to
maintain the required equipment and to support its indemnity obligations to City under
this Agreement. City has relied on each of these factors, among others, in choosing
Coin acl to perfo3mn. tiles G2";:C S `o r rendered b to rider tl-ds
February 15, 2017 -107- City of Diamond Bar - Residential
If Contractor requests City's consideration of and consent to an assignment, City may
deny or approve such request in its sole discretion. Any request for an assignment
must be approved by the City Manager in writing, and no request by Contractor for
consent to an assignment need be considered by City unless and until Contractor has
met (or with respect to matters that would only occur upon completion of the
assignment if approved, made reasonable assurances that it will meet) the following
requirements:
a) Contractor shall pay City its reasonable expenses for attorney's fees and
investigation costs necessary to investigate the suitability of any proposed
assignee, and to review and finalize any documentation required as a condition
for approving any such assignment. An advance payment towards expenses
may be requested by City prior to City consideration of any assignment request
and Contractor shall be responsible to pay all costs incurred by City in
considering a request for assigranent, including those in excess of the aforesaid
deposit amount, regardless of whether City consents to the assignment.
b) Except with respect to an assignment to an Affiliate where the parent guaranty is
unchanged, Contractor shall pay the City a transfer fee equal to one percent (1%)
of the Gross Receipts it, or its assignee, will receive during the remaining term of
the Agreement at rates and service levels in effect at the time of the assignment,
as estimated by City.
c) Except with respect to an assignment to an Affiliate where the parent guaranty is
unchanged, Contractor shall furnish City with audited financial statements for
itself, and the proposed assignee's operations for the immediately preceding
three (3) operating years.
d) Except with respect to an assignment to an Affiliate where the parent guaranty is
unchanged, a proforma financial statement (income statement and balance sheet)
for the proposed assignee with the projected results of operations assuming that
the assignment is completed. Such proforma financial statement shall reflect any
debt to be incurred by the assignee as part of the acquisition of Contractor's
operations.
e) Except with respect to an assignment to an Affiliate where the parent guaranty is
unchanged, Contractor shall furnish City with satisfactory proof: (f) that the
February 15, 2017 -108- City ol'Diamond Bar- Residential
proposed assignee has at least ten (10) years of Solid Waste management
experience on a scale equal to or exceeding the scale of operations conducted by
Contractor under this Agreement; (ii) that in the last five (5) years, the proposed
assignee has not suffered any significant citations or other censure from any
federal, state or local agency having jurisdiction over its Solid Waste
management operations due to any significant failure to comply with state,
federal or local Environmental Laws and that the assignee has provided City
with a complete list of any such citations and censures; (iii) that the proposed
assignee has at all times conducted its operations in an environmentally safe and
conscientious fashion; (iv) that the proposed assignee conducts its Solid Waste
management practices in accordance with sound Solid Waste management
practices in full compliance with all federal, state and local laws regulating the
Collection and Disposal of Solid Waste including Hazardous Substances; and, (v)
of any other information required by City to ensure the proposed assignee can
fulfill the terms of this Agreement in a timely, safe and effective manner.
Under no circumstances shall City be obliged to consider any proposed assigmnent by
City if Contractor is in default at any time during the period of consideration. Should
City consent to any assignment request, such assignment shall not take effect until all
conditions relating to City's approval have been met in accordance with Chapter 8.16 of
the Diamond Bar Municipal Code, as amended from time to time.
12.6 Contracting or Subcontracting
Contractor shall not engage any contractors or subcontractors for the Collection of Solid
Waste.
12.7 Binding on Assigns
The provisions of this Agreement shall inure to the benefit to and be binding on the
permitted assigns (if any) of the Parties.
12.8 Cooperation in Preparation for Termination or Expiration of Contract
Prior to, and at the end of the Term or iri 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
li1Cl 1CTC, V'iJ_' -_:)t be ' .4_ tlt;
February 95, 2017 -109- City of Diarnond Bar- Residential
providing route lists, Billing information and other operating records needed to service
all Premises covered by this Agreement. The failure to cooperate with City following
termination shall be conclusively presumed to be grounds for specific performance of
this covenant and/or other equitable relief necessary to enforce this covenant.
Contractor shall provide a new service provider with all keys, security codes and
remote controls used to access garages and Bin enclosures. Contractor shall be
responsible for coordinating transfer immediately after Contractor's final pickups, so as
not to disrupt service. Contractor shall provide City with detailed route sheets
containing service names and addresses, Billing names and addresses, monthly rate and
service levels (number and size of Containers and pickup days) at least 90 days prior to
the transition date, and provide an updated list two weeks before the transition and a
final list of changes the day before the transition. Contractor shall provide means of
access to the new service provider at least one full business day prior to the first day of
Collection by another party, and always within sufficient time so as not to impede in
any way the new service provider from easily servicing all Containers.
12.9 Parties in Interest
Nothing in this Agreement, whether express or implied, is intended to confer any rights
on any Persons other than the Parties to it and their representatives, successors and
permitted assigns.
12.10 Waiver
The waiver by either party of any breach or violation of any provisions of this
Agreement shall not be deemed to be a waiver of any breach or violation of any other
provision nor of any subsequent breach of violation of the same or any other provision.
The subsequent acceptance by either Party of any moneys which become due hereunder
shall not be deemed to be a waiver of any pre-existing or concurrent breach or violation
by the other Party of any provision of this Agreement.
12.11 Contractor's Investigation
Contractor has made an independent investigation (satisfactory to Contractor) of the
conditions and circumstances surrounding the Agreement and the work to be
performed by it.
February 15, 2017 110- Ciiy of Diamond Bar -Residential
12.12 Section Deleted
12.13 Notice
All notices, demands, requests, proposals, approvals, consents and other
communications which this Agreement requires, authorizes or contemplates, unless
otherwise specified in this Agreement, shall be in writing and shall either be personally
delivered to a representative of the Parties at the address below or be deposited in the
United States mail, first class postage prepaid, addressed as follows:
If to City: City Manager
City of Diamond Bar
21810 Copley Drive
Diamond Bar, CA 91765
If to Contractor:
USA Waste of California, Inc.
Attn: District Manager
13940 East Live Oak Avenue
Baldwin Park, CA 91706
Copy to: Waste Management—Southern California Market Area
9081 Tujunga Avenue
Sun Valley, CA 91352
Attn: Legal Counsel
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
Lo OMP -= '_1 C3/ emP!..'y _es and may lje ` i' loyees, _" -,.cl 1, to FJ .t_e son -Le Ot` V
February 15, 2017 111- City of Diamond Bar - Residentiai
all of such authority to subordinate employees. Contractor may rely upon actions taken
by such delegates if they are within the scope of the authority so delegated to them.
Contractor_ shall, by the Effective Date, designate in writing a responsible officer who
shall serve as the representative of Contractor in all matters related to this Agreement
and shall inform City in writing of such designation and of any limitations upon his or
her authority to bind Contractor. City may rely upon action taken by such designated
representative as actions of Contractor unless they are outside the scope of the authority
expressly delegated to him/her by Contractor as communicated to City.
12.15 City Free to Negotiate with Third Parties
City may investigate all options for the Collection, transporting, Recycling, processing
and Disposal of Solid Waste for periods during which this Agreement has expired or
been terminated. Without limiting the generality of the foregoing, City may solicit
proposals from Contractor and from third parties for the provision of Solid Waste
Collection Services which are the subject of this Agreement, including without
limitation Collection services, Disposal services, Recycling services, Green Waste
services and processing, and any combination thereof, and may negotiate and execute
agreements for such services which will take effect upon the expiration or earlier
termination of this Agreement pursuant to Section 11.2 or otherwise.
12.16 Compliance with Municipal Code
Contractor shall comply with those provisions of the municipal code of City which are
applicable, and with any and all amendments to such applicable provisions during the
term of this Agreement. To the extent that an amendment to the Code results in a
material change in the cost of services provided by Contractor, such changes will be
addressed as a change in scope in accordance with Section 2.10.1.
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 aufiiorization of the Customer. This provision shall not be construed to
p "ecI de C 01- "` _tCr from p,"epe_', g, h ,_rr y a, ti1Ag hi, o c ss is cl i n i i p epa ati0P J,
February 15, 2017 Ii2- Ciiy of Diainond Bar- Residenfiai
waste characterization studies or waste stream analyses which may be required by AB
939. This provision shall not apply to reports or records provided to City pursuant to
this Agreement.
12.18 Proprietary Information, Public Records
The City acknowledges that a number of the records and reports of Contractor are
proprietary and confidential. Contractor is obligated to permit City inspection of its
records on demand and to provide copies to City where requested. City will endeavor
to maintain the confidentiality of all proprietary information provided by Contractor.
Notwithstanding the foregoing, any documents provided by Contractor to City that are
public records may be disclosed pursuant to the California Public Records Act.
12.19 Guarantee of Contractor's Performance
Pursuant to a guarantee in substantially the form attached as Exhibit 4, Waste
Management Inc., a corporation which owns all of the issued and outstanding common
stock of Contractor, has agreed to guarantee Contractor's performance of this .
Agreement. The Guarantee is being provided concurrently with Contractor's execution
of flus Agreement.
Februanl 15, 2017 -113- City of Diamond Bar- Residential
13.1
13.2
13.3
13.4
13.5
ARTICLE 13
MISCELLANEOUS PROVISIONS
Entire Agreement
This Agreement contains the entire integrated agreement and understanding
concerning the subject matter herein and supersedes and replaces any prior
negotiations, promises, proposals (including Contractor's Proposal), and agreements
between the Parties, whether written or oral. The Parties acknowledges this document
has been executed with the consent and upon the advice of counsel. Each of the Parties
acknowledges that no Party or agent or attorney of any other party has made any
promise, representation, or warranty, express or implied, not contained in this
Agreement, to induce the other Party to execute this instrument.
Section Headings
The article headings and section headings in this Agreement are for convenience of
reference only and are not intended to be used in the construction of this Agreement
nor to alter or affect any of its provisions.
References to Laws and Other Agreements
All references in this Agreement to laws shall be understood to include such laws as
they may be subsequently amended or recodified, unless otherwise specifically
provided.
Interpretation
This Agreement, including the Exhibits attached hereto, shall be interpreted and
construed reasonably and neither for nor against either Party, regardless of the degree
to which either Party participated in its drafting.
Agreement
This Agreement may not be modified or amended in any respect except by a writing
signed by the Parties.
February 15, 2017 -114- City of Diamond Bar- Residential
13.6 Severability
Invalidation of any of the provisions contained in this Agreement, or of the application
thereof to any person, by judgment or court order, shall in no way affect any of the
other provisions hereof or the application thereof to any other person or circumstance,
and that same shall remain in full force and effect, unless enforcement of this
Agreement, as so invalidated, would be unreasonable or inequitable under all the
circumstances or would frustrate the purposes of this Agreement and/or the rights and
obligations of the parties hereto.
13.7 Exhibits
Each of Exhibits identified as Exhibit "1" through "6" is attached hereto and
incorporated herein and made a part hereof by this reference.
13.8 Attorneys' Fees
If either Party to this Agreement is required to initiate or defend or made a party to any
action or proceeding between the Parties in any way connected with this Agreement,
the prevailing Party in such action or proceeding, in addition to any other relief which
may be granted, whether legal or equitable, shall be entitled to recover its reasonable
attorney's fees and costs from the opposing Party. Attorneys' fees shall include
attorney's fees on any appeal. A Party entitled to attorney's fees shall be entitled to all
other reasonable costs for investigating such action, taking depositions and discovery,
expert fees, and all other necessary costs the court allows which are incurred in such
litigation. All such fees shall be deemed to have accrued on commencement of such
action.
13.9 Effective Date
This 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 -115- City ol` Diamond Bar - Residential
IN WITNESS WHEREOF, City and Contractor have executed this Agreement as of the day and
year first above written.
CITY OF DIAMOND BAR
City")
DATED:
CITY OF DIAMOND BAR
By:
fries DeStefdno
City Manager
ATTEST':
To ye Clerk
City Clerk:
r
DATED: t l
CONTRACTOR
By:
NAW Larrfmelter
President - Southern California Area
TITLE
USA Waste of California, Inc.
NAME OF COMPANY
9081 Tujunga Ave., Sun VAlley, CA 91352
ADDRESS
818-252-3140
TELEPHONE
February 15, 2017 -116- City of Diamond Bar - Residential
to be attached after City approval per Section 5.3.2)
February 15, 2017 City of Diamond Bar- Residential
Following are the rates through June 30, 2018:
Residential Service Rate
Cart Service - one each refuse, recycling, and green waste cart
Standard Rates
35 -gallon refuse cart 22.06 per month
64 -gallon refuse cart 27.18 per month
96 -gallon refuse cart 32.62 per month
Senior Reduced Rates
35 -gallon refuse cart 18.98 per month
64 -gallon refuse cart 23.45 per month
96 -gallon refuse cart 27.96 per month
Additional Carts
35 -gallon refuse cart 6.90 per month
64 -gallon refuse cart 10.34 per month
96 -gallon refuse cart 13.82 per month
Additional Recycling Cart (beyond two carts) 1.92 per month
Additional Green Waste Cart (beyond one cart) 4.88 per month
Additional Cart Rates and Services
Backyard Service Surcharge 22.88 per month
Yard Waste Reduction Discount 3.31 per month
Additional Special Overage Pickup for Automated Cart
Customers (in excess of two pickups per year)
9.32 per pickup
Additional Bulky Item pickups (in excess of permitted annual
free pickups)
34.92 per item
Cart Exchange (after free -exchange period) 17.46 per request
Emergency Service Rates - one crew and one collection truck 98.96/hour
Including all fees retained by, or paid to, City.
February 15, 2017 2-1 City of Diamond Bar- Residential
EXHIBIT 2
INITIAL MAXIMUM RATES' (continued)
Following are the rates through June 30, 2018:
Temporary Services" Rate
Temporary Roll -Off Box, 40 -cubic yards - including container rental,
pull and disposal costs up to 6 tons
592.94
Temporary Roll -Off Box, Low Boy - including container rental, pull
and disposal costs up to 6 tons
628.94
Temporary Bins - 3 cubic yards 133.75
Temporary Bins - 6 cubic yards 165.17
Container Rental Fee - for temporary containers retained beyond seven
days without being serviced
24.18 day
Redelivery/Return Trip Fee 104.21
Including all fees retained by, or paid to, City.
Rates to be set equal to rates in City's Bin and Roll -Off Service Customer Solid Waste Management Services
agreement with Valley Vista Services.
February 15, 2017 2 - 2 City of Diamond Bar- ,Residential
EXHIBIT 3A
EXAMPLE RATE ADJUSTMENT FORMULA - RESIDENTIAL RATES
Step One: Calculate percentage change in indices
Step Two: Determine components
G
A B C
Row Adjustment Factor Index Old Index Value New Index Value '
Percent Change in
Index ((Column B+
Column A)-1)
1 Labor 1) 20.91 2145 26%
2 Fuel 2) 200.8 176.6 12.1%
3 Equipment 3) 139.3 142.0 1.9%
4 Disposal 4) 105.8 2-1 4.7%
5 Transfer/Transport 5) 425.8 432.0 1.5%
6 AI Other 6) 1 240.9 1 245.4 1.9%
Step Two: Determine components
Step Three: Apply percentage change to rates
G
D E E
Row Adjustment Factor Index
Cost Component
Weightedosa%of
Component Total (7)
Percent Changeinlndex
from Column C)
Total Weighted Change
Column DxColvmn E)
7 Labor 1) 24.8% 2.6% 0.6%
8 Fuel 2) 3.0% 12.1% 0.4%
9 Equipment 3) 16.3% 1.9% 0.3%
10 Disposal 4) 8.0% 4.7% 0.4%
11 Transfcr/Traosport 5) 6.0%
Is 0.63 1 $ 35.52
12 All Other 6) 41.9% 1.9% 0.8%
13 jTohd 1 100.0% c`o ,;d 1.8%
Step Three: Apply percentage change to rates
Step Four: Re -weight cost components
G a t J
Row Rate Category(8) Existing Customer Rate
Total Weighted
Percentage Change(Row
13, Column F)
Rate Increase or
Decrease (Column Gx
Column H)
Adjusted Rate
Column G+Column l)
14 96-galloncentservice 32.59 1.8% 0.59 33.18
15 64-galloncartservice 27.15 1.8% 0.49 27.64
16 35-galloncwtserrice 22.04 1.8% 0.40 2244
17 96 -gallon senior service 27.93 1.8% 0.50 28.43
18 Extra Bulky Item 34.89 1.8% Is 0.63 1 $ 35.52
Step Four: Re -weight cost components
1) Rate increased for a "Driver" as described in the Articles of Agreement bebceen Waste Management of San Gabriel/Pomona Valley, Inc. and Teamsters
Automotive Industrial mid Allied Workers Local Na 495.
2) Producer Price Index, WPUO5522101 Puels and related products and power.
3) Producer Price Index, PCU336120336120, Heavy duty truck manufacturing - average amoral change.
4) Producer Price Index, PCU21232121232104 for Construction sand mid gravel, West- average annual change.
5) Consumer Price Index for All Urban Consumers (CUIIR0000SEFIG02) Garbage and trash collection
6) Consumer Price Index for All Urban Commoners (CUURA421SAOLIE), all items less food and energy index - Los Angeles -Riverside -Orange County - average
annual change.
7) July 1, 2018 rate adjustment weightings come from Article 6.4.2. Subsequent yeas' weightings twill come from (Irmou2O of the previous year rate adjustment
8) Example rates listed below. Adjustment applies to all applicable rate categories.
9) Rounded down by 0.1% to allow One Total in Line 25 to equal 100.0%.
February 15, 2017 3-1 City of Diamond Bar - Residential
K L M N O
Row Adjustment Eactor Index Weighting
Cost Component
Column D)
Percent Change as
Applied to Rate
Adjustment (Column E)
Increase in Cost
Componcorb(Coluarrn
K x Column L)
Cost Component
Increased(Columr K+
Column M)
CostComponentsRe-
weighted to Equal 100%
19 Labor 1) 24.8% 2.6% 0.6% 25.4% 25.0%
20 Fuel 2) 3.0% 12.1% 0.4% 2.6% 2.6%
21 Equipment 3) 16.3% 1.9% 03% 16.6% 16.3%
22 Disposal 4) 8.0% 4.7% 0.4% 8.4% 8.3%
23 Transfer/Transport 5) 6.0% 1.5% 0.1% 6.1% 6.0%
24 All Other 6) 41_9% 1.9% 0.8% 42.7% 41.8% (9)
25 Totat 100.0% 1o1.8% 100.0%
1) Rate increased for a "Driver" as described in the Articles of Agreement bebceen Waste Management of San Gabriel/Pomona Valley, Inc. and Teamsters
Automotive Industrial mid Allied Workers Local Na 495.
2) Producer Price Index, WPUO5522101 Puels and related products and power.
3) Producer Price Index, PCU336120336120, Heavy duty truck manufacturing - average amoral change.
4) Producer Price Index, PCU21232121232104 for Construction sand mid gravel, West- average annual change.
5) Consumer Price Index for All Urban Consumers (CUIIR0000SEFIG02) Garbage and trash collection
6) Consumer Price Index for All Urban Commoners (CUURA421SAOLIE), all items less food and energy index - Los Angeles -Riverside -Orange County - average
annual change.
7) July 1, 2018 rate adjustment weightings come from Article 6.4.2. Subsequent yeas' weightings twill come from (Irmou2O of the previous year rate adjustment
8) Example rates listed below. Adjustment applies to all applicable rate categories.
9) Rounded down by 0.1% to allow One Total in Line 25 to equal 100.0%.
February 15, 2017 3-1 City of Diamond Bar - Residential
EXHIBIT 3B
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, CUUSA421SAOLIE
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 242.003 242.806 243.957 244.138 244.800 245.236 245.394 245.896 246.488 247.539 248.120 248.140 245.376
Average Change: 1.9%
February 15, 201 3-2 City of Diamond Bar - Residential
CORPORATE GUARANTY
Guaranty
THIS GUARANTY (the "Guaranty) is given as of the _ day of 2009.
THIS GUARANTY is made with reference to the following facts and circumstances:
A. USA Waste of California dba Waste Management of San Gabriel/Pomona Valley,
hereinafter ("Owner") is a corporation organized under the laws of the State of
California, all of the issued and outstanding stock of which is owned by Waste
Management, Inc. (Guarantor).
B. Owner and the City have negotiated an Agreement for collection, processing,
and disposal of solid waste dated as of (hereinafter "Agreement"). A
copy of this Agreement is attached hereto.
C. It is a requirement of the Agreement, and a condition to the City entering into the
Agreement, that Guarantor guaranty Owner's performance of the Agreement.
D. Guarantor is providing this Guaranty to induce the City to enter into the
Agreement.
NOW, THEREFORE, in consideration of the foregoing, Guarantor agrees as follows:
1. Guaranty of the Agreement. Guarantor hereby irrevocably and unconditionally
guarantees to the City the complete and timely performance, satisfaction and
observation by Owner of each and every term and condition of the Agreement which
Owner is required to perform, satisfy or observe. In the event that Owner fails to
perform, satisfy or observe any of the terns and conditions of the Agreement,
Guarantor will promptly and fully perform, satisfy or observe them in the place of the
Owner or cause them to be performed, satisfied or observed. Guarantor hereby
guarantees payment to the City of any damages, costs or expenses which might become
recoverable by the City from Owner due to its breach of the Agreement.
2. Guarantor's Obligations Are Absolute. The obligations of the Guarantor
hereunder are direct, immediate, absolute, continuing, unconditional and unlimited,
February 15, 2017 4-1 City of Diamond Bar- Residential
and with respect to any payment obligation of Owner under the Agreement, shall
constitute a guarantee of payment and not of collection, and are not conditional upon
the genuineness, validity, regularity or enforceability of the Agreement. In any action
brought against the Guarantor to enforce, or for damages for breach of, its obligations
hereunder, the Guarantor shall be entitled to all defenses, if any, that would be
available to the Owner in an action to enforce, or for damages for breach of, the
Agreement (other than discharge of, or stay of proceedings to enforce, obligations
under the Agreement under bankruptcy law).
3. Waivers. Except as provided herein the Guarantor shall have no right to
terminate this Guaranty or to be released, relieved, exonerated or discharged from its
obligations under it for any reason whatsoever, including, without limitation: (1) the
insolvency, bankruptcy, reorganization or cessation of existence of the Owner; (2) the
actual or purported rejection by a trustee in bankruptcy of the Agreement, or any
limitation on any claim in bankruptcy resulting from the actual or purported
termination of the Agreement; (3) any waiver with respect to any of the obligations of
the Agreement guaranteed hereunder or the impairment or suspension of any of the
City's rights or remedies against the Owner; or (4) any merger or consolidation of the
Owner with any other corporation, or any sale, lease or transfer of any or all the assets
of the Owner. Without limiting the generality of the foregoing, Guarantor hereby
waives the rights and benefits under California Civil Code Section 2819.
The Guarantor hereby waives any and all benefits and defenses under California Civil
Code Section 2846, 2849, and 2850, including without limitation, the right to require the
City to (a) proceed against Owner, (b) proceed against or exhaust any security or
collateral the City may hold now or hereafter hold, or (c) pursue any other right or
remedy for Guarantor's benefit, and agrees that the City may proceed against
Guarantor for the obligations guaranteed herein without taking any action against
Owner or any other guarantor or pledgor and without proceeding against or exhausting
any security or collateral the City may hold now or hereafter hold. City may
unqualifiedly exercise in it sole discretion any or all rights and remedies available to it
against Owner or any other guarantor or pledgor without impairing the City's rights
and remedies in enforcing this Guaranty.
Any assignment of the Agreement which does not require City's approval shall not
affect the liability of the Guarantor. The Guarantor hereby expressly waives
diligence, presentment, demand for paymeizc or performance, protest and all notices
February 15, 2017 4-2 City of Diamond Bar - Residential
whatsoever, including, but not limited to, notices of non-payment or non-performance,
notices of protest, notices of any breach or default, and notices of acceptance of this
Guaranty. If all or any portion of the obligations guaranteed hereunder are paid or
performed, Guarantor's obligations hereunder shall continue and remain in full force
and effect in the event that all or any part of such payment or performance is avoided or
recovered directly or indirectly from the City as a preference, fraudulent transfer or
otherwise, irrespective of (a) any notice of revocation given by Guarantor or Owner
prior to such avoidance or recovery, and (b) payment in full of any obligations then
outstanding.
4. Term. This Guaranty is not limited to any period of time, but shall continue in
full force and effect until all of the terms and conditions of the Agreement have been
fully performed or otherwise discharged and Guarantor shall remain fully responsible
under this Guaranty without regard to the acceptance by the City of any performance
bond or other collateral to assure the performance of Owner's obligations under the
Agreement. Guarantor shall not be released of its obligations hereunder so long as
there is any claim by the City against Owner arising out of the Agreement based on
Owner's failure to perform which has not been settled or discharged.
5. No Waivers. No delay on the part of the City in exercising any rights under this
Guaranty or failure to exercise such rights shall operate as a waiver of such rights. No
notice to or demand on Guarantor shall be a waiver of any obligation of Guarantor or
right of the City to take other or further action without notice or demand. No
modification or waiver of any of the provisions of this Guaranty shall be effective unless
it is in writing and signed by the City and by Guarantor, nor shall any waiver be
effective except in the specific instance or matter for which it is given.
6. Attorney's Fees. In addition to the amounts guaranteed under this Guaranty,
Guarantor agrees in the event of Guaranty's breach of its obligations to pay reasonable
attorney's fees and all other reasonable costs and expenses incurred by the City in
enforcing this Guaranty, or in any action or proceeding arising out of or relating to this
Guaranty, including any action instituted to determine the respective rights and
obligations of the parties hereunder.
7. Governing Law: Jurisdiction. This Guaranty is and shall be deemed to be a
contract entered into in and pursuant to the laws of the State of California and shall be
governed and coast- neA- i__ accordance vai0n thle lavas o,' California W i:t1,7Li v-zavd; to its
February 15, 2017 z - 3 City or Diamond Bar- Residential
conflicts of laws, rules for all purposes including, but not limited to, matters of
construction, validity and performance. Guarantor agrees that any action brought by
the City to enforce this Guaranty may be brought in any court of the State of California
and Guarantor consents to personal jurisdiction over it by such courts. Guarantor
appoints the following person as its agents for service of process in California:
With a copy by certified mail to:
8. Severability. If any portion of this Guaranty is held to be invalid or
unenforceable, such invalidity will have not have an affect upon the remaining portions
of this Guaranty, which shall be severable and continue in full force and effect.
9. Binding On Successors. This Guaranty shall inure to the benefit of the City and
its successors and shall be binding upon Guarantor and its successors, including
transferee(s) of substantially all of its assets and its shareholder(s) u1 the event of its
dissolution or insolvency.
10. Author i . Guarantor represents and warrants that it has the corporate power
and authority to give this Guaranty, that its execution of this Guaranty has been
authorized by all necessary action under its Article of Incorporation and By -Laws, and
that the person signing this Guaranty on its behalf has the authority to do so.
11. Notices. Notice shall be given in writing, deposited in the U.S. mail, registered
or certified, fust class postage prepaid, addressed as follows:
To the City: City Manager
City of Diannond Bar
21810 Copley Drive
Diamond Bar, CA 91765
February 15, 2017 4-4 City of Diamond Bar- Residential
with a copy to the City Attorney at the same address.
To the Guarantor:
By:
title)
By:
title)
February 75, 2017 4-5 City of Diamond Bar- Residential
EXHIBIT 5
Contractor's Faithful Performance Bond
KNOW ALL MEN BY THESE PRESENTS:
That , a California , as PRINCIPAL, and
a Corporation organized and doing business by
virtue of the laws of the State of California, and duly licensed for the purpose of
making, guaranteeing, or becoming sole surety upon bonds or undertakings required or
authorized by the laws of the State of California, as SURETY, are held and firmly bound
to City, hereinafter called OBLIGEE, in the penal sum of one hundred twenty five
thousand dollars ($125,000) lawful money of the United States, for the payment of
which, well and truly to be made, we and each of us hereby bind ourselves, and our
and each of our heirs, executors, administrators, successors, and assigns, jointly and
severally, firmly by these presents.
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH THAT:
WHEREAS, the above bounden PRINCIPAL has entered into a contract, entitled
RESIDENTIAL SOLID WASTE MANAGEMENT SERVICES" with City, to do and
perform the following work, to wit: Collect, Process and dispose of Solid Waste
generated within City, in accordance with the contract.
NOW, THEREFORE, if the above bounden PRINCIPAL shall well and truly perform, or
cause to be performed each and all of the requirements and obligations of said contract
to be performed by said PRINCIPAL, as in said contract set forth, then this BOND shall
be null and void; otherwise it will remain in full force and effect.
And the said Surety, for value received hereby stipulates and agrees that no change,
extension of time, alteration or addition to the terms of the contract or to the work to be
performed thereunder or the specifications accompanying the same shall in any wise
affect its obligations on this BOND, and it does hereby waive notice of any such change,
extension of time, alteration or addition to the terms of the contract or to the work or to
the specifications.
February 15, 2017 5-1 City of Diamond Sar- Resideniial
In the event suit is brought by OBLIGEE to enforce the provisions of this bond, said
Surety will pay to OBLIGEE a reasonable attorney's fee, plus costs of suit, in an amount
to be fixed by the court.
IN WITNESS WHEREOF, said PRINCIPAL and said SURETY have caused these presents to be
duly signed and sealed this
a California Corporation
By:
PRINCIPAL)
SEAL)
DAY OF 1200.
SURETY
By:
ATTORNEY IN FACT)
SEAL)
February 15, 2017 5 - 2 Ciiy of Diamond Bar- Residential
FIRST AMENDMENT TO FRANCHISE AGREEMENT
THIS FIRST AMENDMENT TO AGREEMENT BETWEEN CITY OF DIAMOND BAR AND USA
WASTE OF CALIFORNIA DBA WASTE MANAGEMENT OF SAN GABRIEL/POMONA VALLEY
FOR RESIDENTIAL CART CUSTOMER SOLID WASTE MANAGEMENT SERVICES
Amendment") is executed as of /-);,Y,-.„ ;a i 2012 by and between the City of Diamond Bar,
California, a municipal corporation (" it the USA Waste of California, dba Waste
Management of San Gabriel/Pomona Valley ("Contractor"), hereinafter together occasionally
referred to as "the parties'.
RECITALS
A. In August 2010, Contractor entered into an Agreement for Integrated Solid Waste
Management Services ("Agreement") with the City to provide for the collection, transportation,
recycling, processing, and disposal of residential solid waste and other solid waste services.
B. The parties desire to amend the Agreement to establish a service resumption fee.
NOW THEREFORE, in consideration of the foregoing, City and Consultant hereby agree to
amend the Agreement as follows:
A new paragraph 4 is added Section 5.1.6.1 of Article 5 of the Agreement to read:
4. Contractor is authorized to charge a service resumption fee of $35.00 to recover
its administrative costs incurred in resuming service to customers whose service has been
suspended pursuant to this Section.
IN WITNESS WHEREOF, the parties have executed this Amendment to Professional
Services Agreement as of the date and year first written above.
Dated: ' 9'= 2012
Dated: Aug. 31,2012
APPROVED A§`1TO FORM
City Attorney ` 1
Circ F DIAMOND BAR
By:
James DeStefano
City Manager
STLXTA CONTRACTOR
By:
dr y T7 to
ItS: ViSP sident
Agenda 9 6 5
Meeting Date: August 21 2012
CITY COUNCIL AGENDA REPORT
i
TO: Honorable Mayor and Members of the City Council
VIA: James DeStefano, City Maa
TITLE: APPROVAL OF THE FIRS AMENDMENT TO THE FRANCHISE
AGREEMENT WITH WASTE ANAGEMENT ESTABLISHING A SERVICE
RESUMPTION FEE .
RECOMMENDATION:
Approve,
FINANCIAL IMPACT:
The proposed amendment would not result in any cost to the City. The fee would be accounted
for in Waste Management's (WM) annual gross revenue totals, but it is not expected that the
new fee would generate substantive revenue to the City.
BACKGROUND/DISCUSSION:
To resume residential solid waste services that have been discontinued or suspended due to
non-payment (after 90 days past due), WM incurs costs, including:
Costs of picking up and restoring containers to customers after the service suspension
has been lifted (upon payment of the delinquent account)
Communications and systems costs related to restoring the customer to the route
Administrative overhead to process payments and clear delinquencies
Because the current franchise agreement does not establish a service resumption fee, WM
has requested that the City approve the implementation of a fee of $35 to recover these costs.
The proposed fee is not a property -related fee under Proposition 218, and would be collected
directly by the hauler. The City would not collect the fee or bill the customer.
Since the fee reimburses WM for incurred costs and can be easily avoided by Diamond Bar
residents by simply keeping their accounts current, staff recommends the Council approve the
proposed fee and First Amendment to the Franchise Agreement.
PREPARED BY
Ryan an, Assistant to the City Manager
FIRST AMENDMENT TO FRANCHISE AGREEMENT
THIS FIRST AMENDMENT TO AGREEMENT BETWEEN CITY OF DIAMOND BAR AND USA
WASTE OF CALIFORNIA DBA WASTE MANAGEMENT OF SAN GABRIEL/POMONA VALLEY
FOR RESIDENTIAL CART CUSTOMER SOLID WASTE MANAGEMENT SERVICES
Amendment") is executed as of , 2012 by and between the City of Diamond Bar,
California, a municipal corporation ("City") and the USA Waste of California, dba Waste
Management of San Gabriel/Pomona Valley ("Contractor"), hereinafter together occasionally
referred to as "the parties°.
RECITALS
A. In August 2010, Contractor entered into an Agreement for Integrated Solid Waste
Management Services ("Agreement") with the City to provide for the collection, transportation,
recycling, processing, and disposal of residential solid waste and other solid waste services.
The parties desire to amend the Agreement to establish a service resumption fee.
NOW THEREFORE, in consideration of the foregoing, City and Consultant hereby agree to
amend the Agreement as follows:
A new paragraph 4 is added Section 5.1.6.1 of Article 5 of the Agreement to read:
4. Contractor is authorized to charge a service resumption fee of $35.00 to recover
its administrative costs incurred in resuming service to customers whose service has been
suspended pursuant to this Section.
IN WITNESS WHEREOF, the parties have executed this Amendment to Professional
Services Agreement as of the date and year first written above.
Dated: ,2012 CITY OF DIAMOND BAR
By:
James DeStefano
City Manager
Dated: 12012 CONSULTANT
By:
APPROVED AS TO FORM
City Attorney
Its: