HomeMy WebLinkAboutCity Valley Vista Contract August 2009.pdfAGREEMENT
BETWEEN
CITY OF DIAMOND BAR
AND
VALLEY VISTA SERVICES
FOR
BIN AND ROLL -OFF BOX CUSTOMER SOLID WASTE
MANAGEMENT SERVICES
August 6, 2009
AGREEMENT
BETWEEN
CITY OF DIAMOND BAR
AND
VALLEY VISTA SERVICES
FOR
BIN AND ROLL -OFF BOX SOLID WASTE
MANAGEMENT SERVICES
TABLE OF CONTENTS
RECITALS
Pale
E
ARTICLE1.................................................................................................................................................3
DEFINITIONS.........................................................................................................................................................................3
1.1
AB 939......................................................................................................................................................................
3
1.2
AFFILIATE.................................................................................................................................................................3
1.3
BILLINGS...................................................................................................................................................................4
1.4
BIN...............................................................................................................................................................I............4
1.5
BINSERVICE...............................................................................................................................P.........I...................4
1.6
BULKY ITEMS..................................................................................................................................
4......................... 4
1.7
CART...............................................................................................................................................................4........
5
1.8
CITY..........................................................................................................................................................................5
1.9
COLLECT/COLLECTION...........................................................................................................................................5
1.10
COMMERCIAL SERVICES, ... I ..... "I .... w ............ & ......................
4 .......... .11 ........ ... I I ... I'll ''* *&&LWWWr*rWr ... I.. ..... 1 1'* W W I I W W 1 5
1.11
COMMERCIAL PREMISES.....................................................................................................................................
5
1.12
CONTRACTOR......................................................................................................................................................6
1.13
CONTRACTOR COMPENSATION ............. .......... .........
... ...... ...... ...................... ................... ....... ................... ........ 6
1.14
CONSTRUCTION AND DEMOLITION DEBRIS ....... .............
............................................. .................. 1. 1................. 6
1.15
CONTAINER.........................................................................................................................................................6
1.16
CPI.............................................................................................................................................................0........
6
1.17
CUSTOMER...........................................................................................................................................................6
1.18
DISPOSAL ............ ........ ............... _............... ...... ..............
............... ..... .............................. ................... ............... , 6
1,19
DISPOSALSITE(S).................................................................................................................................................6
1.20
DIVERSION...........................................................................................................................................................7
1.21
ENVIRONMENTAL LAWS.....................................................................................................................................7
1..22
FACILITY..............................................................................................................................................................7
1.23
GREEN WASTE ... ................ ............... .... ................
.......... ....... .................. ...._.................... .... ........... .............. .....7
1.24
GREEN WASTE PROCESSING FACILITY.............................................................................................................
1.8
1,25
GROSS RECEIPTS..................................................................................................................................................8
1.26
HAZARDOUS SUBSTANCE.......................................................................................................................
I........... 8
1.27
HAZARDOUS WASTE.........................................................................................................................................
1. 9
1.28
HOUSEHOLD HAZARDOUS WASTE("HI-IW")...............................................................................
a ....... ,... 1... 1. 1. 9
1.29
MATERIALS RECOVERY FACILITY ("MRF").......................................................................................................
9
1.30
MULTI -FAMILY DWELLING, I I I.. I .............. .......
.............. l.k ........... ............. I... 1 1. . I ..... p ................ 111." 9
1.31
PERSON................................................................................................................................................................9
August 6, 2009 City of Diamond Bar - Commercial
1.32
PREMISES.............................................................................................................................................
4.......... I.... 9
1.33
RATEYEAR.....................................................................................................................................4..................10
1.34
RECYCLING...........................................................................................................................I...........................410
1.35
RECYCLABLE MATERIALS.......................................................................................................
1. I........ I.............. 10
1.36
REFUSE....................................................................................................................................4..........................10
1.37
RESIDENTIAL SERVICES.....................................................................................................................................
10
1.38
RESIDENTIAL CUSTOMERS................................................................................................................................
10
1.39
RESIDENTIAL PREMISES.....................................................................................................................
I...... I........ 10
1.40
ROLL -OFF BOX...................................................................................................................................................
I 1
1.41
SINGLE FAMILY DWELLING..............................................................................................................................
I I
1.42
SOLID WASTE................................................................................................................................I...................
11
1.43
SOLID WASTE COLLECTION SERVICES...............................................................................................
1..4........... 11
1.44
SOURCE SEPARATED. . ... ........ ............................... I ...... I I .......... I ..... I ...... 11.1.14
.... 4 ..... 41..4 ... 4... 4.......................... I 1
1.45
STATE..... I I I . I . I W . . I . . I I 1 4 1 . . . I I I I I I I I I I . . . . I . I . I I I I I . . I . I . . . I . I I I I I I I I I . . . . I I I I . . . I I . I I . . . I I I . I I 1 0 k b ' b I I I W
I ' W W W I I 1 4 1 1 4 ' ' 1 4 1 1 1 W ' I . I I ' W . W 1 4 . . I . . I . 4 . I I .
1.46
'TEMPORARY SERVICE... I I I k . . W . I . . . . . . . I ...................... .................. ...........
1111.11W ... II..I ....... 4.1tIp"1.1W.W .... W ........ 12
1.47
TRANSFORMATION.. ... ...... I .............. I"IW.,ww.ww
... wI.wI ...... 4.4 .... t ..... ........... III ........ 12
1.48
TRANSFER STATION....................................................................................................................................
I..... 12
1.49
WASTE GENERATOR. I. w w w I. 1.. 4 ........... 4 1 ...... I.. I.. I W'W'W W'W ... III .... 1 4 ... I ... I .... 0"Ll't ..... IIIII.44.p.'
..... .... 4.4 4..4 1 1. 1.. 1....... 1. 1.......1.. 12
ARTICLE2...............................................................................................................................................1
GRANT
AND ACCEPTANCE OF FRANCHISE................4.41111:..404....................10000900.0111111..10101110.....0....0............1011..10..13
2.1
GRANT AND ACCEPTANCE OF FRANCHISE, INDEMNITY OF AWARD ...........................................
I....................., 4 13
2.2
SECTION DELETED.................................................................................................................................................
13
2.3
EFFECTIVE DATE.............................................................:......................................................................................
13
2.4
TERM OF AGREEMENT...........................................................................................................................................
13
2.5
CITY'S OPTION To EXTEND TERM.........................................................................................................................
14
2,6
REPRESENTATIONS AND WARRANTIES OF CONTRACTOR....................................................................................
14
2.7
CONDITIONS TO EFFECTIVENESS OF AGREEMENT................................................................................................
16
2.8
DELEGATION OF AUTHORITY...............................................................................................................
I . . I............. 16
2.9
LIMITATIONS TO SCOPE.....................................................................................................................
4... I............... 17
2,10
CITY'S RIGHT TO DIRECT CHANGES...........................................................................................
I ........ ............. 18
2,10.1
General. I I I I I I I I . . I . . . . I I I . . I I . . . I . . . . . I . I . . . . . . . I I I . . I I I I I I . I I I I I I I I I . . . I I . I I . I . I I
I . . . . . . I W W W I I I I . I I . . . . I I . . I I A . I . I . . I..I.......18
2.10.2
New Diversion Programs .... ........................................................................................................I............
19
2.11
OWNERSHIP OF SOLID WASTE..........................................................................................................................
20
2.12
PERMITS AND LICENSES.......................................................................................................................:............
20
ARTICLE3...............................................................................................................................................21
FEESPAID TO THE CITY...................................................................................................................................................21
3.1 CONTRACTING FEE.................................................................................................................................... 6........... 21
3.2 OTHER CITY FEES........................................................................................................................................... 4....... 21
3.2.1 Franchise Fee ... ......................................................................................................... ................. I ... ........ ....... 21
3.2.2 AB 939 Fee......................................................................................................................................I............. 21
3.2.3 Section Deleted ............. ......................................................_..............................................I.I.......................22
3.24 Section Deleted ...... ....... ...................................................................................................I....... I...................122
3.2.5 Late Payment of Fees............................................................................................................I....................... 22
3.3 FUTURE FEES..........................................................................................................................................................22
ARTICLE4...............................................................................................................................................23
DIRECTSERVICES..............................................................................................................................................................23
4.1 REFUSE......................................................................................................................................................0...........123
4.1.1 General. . ...... 4 w ....... w w .......... W W W W W W ......... 44.444 ............ 4 .... 4 .... I ..... I I . . I . . I I I I I I A I I I . . . . I ' I I ' I . I . I . . I I I I I I I I . . I I I W W . . . W W I I . W I I I I . . I I I I I . . I ... 23
4.1.2 Section Deleted,-.... ... 44 .... W , W W W W W ....... WW ... ..... I ... 4W ....... 4'..4 ...... 4 ...... 1.4 ... ..... ww .................... w .... w,w ..... w ....... 23
Augusf 6, 2009 City of Diamond Bar -Commercial
4.1.3
Section Deleted.............................................................................................................................................23
4.1.4
Section Deleted.. ........................... b—b.b ....... d ............................ III .... .... .... ......... _A . ....... b.. b.. b
...... b.b ..... L.bA.0 23
4.1.5
Section Deleted ....... .... ..... ....... ....................... ........ .............. .... ............ .........................................
... ............. 23
4.1.6
Bin Refuse Collection....................................................................................................................................
23
4.1.7
Determination of Service Type ............. ........................................._.......... .......... ..... _.......A.... ......
L..._....... _ 24
4.1.8
Overflowing Containers ....... ......................................................... ._......_............. ...................
.... ......... ......24
4.1.9
Permanent Roll -off Box Service...... ............................. bb.b ... ddb.d ... d.b.d.b .......... b ...... & ..... I ... b.bb4 ....................
d.bbb.. 25
4.1.10
Temporary Bin and Temporary Roll -Off Box Service ... ...................... ............................... a.....................
25
4.1.11
Bin Pushout Service ..... ......... .................................................. ...... ._...................... ..................
A ... ..........26
4.1.12
Scout Service ............. ..._................................................................................ ...... ..... .... .......
........ ............ 26
4.1.13
Locking Bins... .... ............................._..._...............................................................,......I...I...........I.........I.26
4.1.14
Redelivery/Return Trip Fee ...... ......................................................_...... .............. ... ... a.._ ..........
........ I ... ... 26
4.1.15
On -Call BulkyItem Pickup....................................._..............................................................................26
4.1.16
Bulky Item Diversion ... ... ........ .... ...... .....................................................................................I.....I....I......
27
4.1.17
Disposal of Electronic and Other Special Wastes....................................................................................
28
4.1.18
Door -to -Door HHW Collection...............................................................................................................
28
4.1.19
SECTION DELETED.,....., ....... F .......... ......... 1.44 ..... t ...... 4 ............ W.. w .... 4...4F ........... I.
I. I.., ....... ........ 28
4.1.20
Service Exceptions; Hazardous Waste Notifications ....... ........... .......... ...................................
...... ..... ....28
4.2
RECYCLING
.............................................................................................................................................................
29
4.2.1
Recyclables Collection. ...................................._.._........................................................................................
29
4.22
Processing of Solid Waste ...... ................. ...... ................................... ................ ....................................
....... W. 29
4.2.3
Section Deleted ... .................................................................................................................I....................I...
30
4.2.4
Marketing and Sale of Recyclable Materials .... .................. ........................... .... ...... ....... a ..... ......
... ........ .....IF 30
4.2.5
Minimum Recycling Requirements .......... ... .................................... ........... ...... ..................................
.......... 30
4.2.6
Construction and Demolition Debris Diversion.. ............................_..._........................_............__............
31
4.2.7
Optional Food Waste Diversion Progran2....................................................................................................
31
4.3
GREEN WASTE PROGRAM......................................................................................................................................
31
4.3.1
Residential Green Waste Collection.. ..... .......... ....W ......... W ....................... w.ww.w .........
w ............... 31
4.3.2
Holiday Tree Collection Program.............................................................................................I...
I............... 32
4.3.3
Roll -Off Green Waste...................................................................................................................................
32
4.3.4
End Uses for Green Waste . ............. ........... ..... .... ............ ........................ ...........................................
........... 32
4ASECTION
DELETED....................................................................................................................................
I . . I......... 33
4.5
CITY
SERVICES'.. ................ ww'F ....... W *,m .......... d . . I I I I I I . I I W . I . . I I I I I . 1 4 W W . . . I I . . I W . k , I I . w . . . I . . . . . . 4 4 1 w . . . . . . . w . . I d , w w , , I I , m
m , , w m . . I I . & . w w , . W . . . . . 33
4.5.1
City Facilities Collection .... ............... .............. ............ ..................... .._............ .............. ...............
.... ......... .. 33
4.5.2
City Sponsored Events..................................................................................................................................
33
4,5.3
Emergency Collection and Disposal Service. ... .._.........................................................................................
34
4.5.4
Abandoned Item Collection from City Right -of -Way or Other Public Property ................... 4......................
34
4.5.5
Community Development Review Services .................. ........ ............. ......_..................... .....................
.... ..... 34
4.5.6
Large Venue Event Assistance, Event Recycling ........... ....... ............... ....................... .... .................
......... ...34
4.5.7
Confiscation of Unauthorized Containers....................................................................................................
34
4.5.8
Provision of Storage Containers...................................................................................................................
35
4.6
OPERATIONS
..........................................................................................................................................................
35
4.6.1
Schedules; Missed Pickups ... ..........................................................................._................................_
.... ..... 35
4,6.2
Vehicles..................................._............................_......_............._............................_................_.._._........36
4.6.3
Containers.....................................................................................................................................................40
4.6.3.1
Carts ... .................................. ......... ..... .................................._............. ............................ ...
........... .......... 40
4.6.3.2
Cart Maintenance and Replacement Responsibilities..............................................................................
41
4.6.3.3
Bins ............ ................. ......._........................................ ............. ............. _.......... .......... .......................
..... 41
4.6.3A
Roll -off Boxes . ........... ...... .................... ...... .._......................................................,....................................42
4.6.4
Litter Abatement... ...... www..w .... I .............. F.F ............ ......... ...... a ...... & ......... __ ....... & .... m.
a.. ........... F ...... 42
4.6.5
Personnel.._.................................................................................................................................................143
4.6.6
Identification Required .................................................... _..... _.... ................. _.,... ... .... ...... ..............
............ .. 44
4.6.7
Unauthorized Fees and Gratuities.... - m .... d ....... m.d ................................ wF.& .... w,a ...... F ... t ............ w ......................
444
August 6, 2009 City of Diamond Bar -Commercial
4.6.8
Non-Discrimination..........................................................................................................................I..........44
4.6.9
Report of Accumulation of Solid Waste; Unauthorized Dumping.. ............... III ...... I.W4 ...
I .......... 45
4.7
TRANSPORTATION OF SOLID WASTE...............................................................................................
I... I ... .............. 45
4.8
APPROVED FACILITIES..........................................................................................................................................
145
4.9
STATUS OF DISPOSAL SITE ............................................. ... ........ .........................:.................. III
................... I.......... 46
4.10
DEDICATED ROUTES.........................................................................................................................................
46
4.11
ROUTE AUDrr....................................................................................................................................................
46
ARTICLE5...............................................................................................................................................48
OTHERSERVICES.................:.............................................................................................................................................
48
5.1
CUSTOMER BILLING AND CONTRACTOR COMPENSATION..................................................................................
1 48
5.1.1 Billing..........................................................................................................................................................148
5.1.2 Contractor's Invoices....... .... .. I 1 4 ...... I 4,k, -k P I. , ow .............. 4 ...... 1...................1.
48
5.1.3 Section Deleted ... ........ .............._..................................................................... III ... .......... ......1..Am.
4...... I .... 0....48
5.1.4 Section Deleted.....................................................................................................................I............1....4.4...48
5.1.5 Section Deleted...................................................................................................................................I....4....48
5.1.6 Non -Payment; Collections; Suspension of Service.... ..................._...................................A....................a.....
48
5.2
CUSTOMERSERVICE...............................................................................................................................................
49
5.2.1 Local Office ... ........... ......... ............... ......... ....................................................... ............. .......... a ...........
a ......... 49
5.2.2 Complaint Documentation .... ....... .._..._.....................................................................................................149
52.3 Customer Service Standards.........................................................................................................................
50
5.2.4 Resolution of Customer Complaints ........................................ ...... ..... ......... ............ ...... I ......... ....
... I ......... I... 51
5.2.5 Contract Liaison...........................................................................................................................................
52
52.6 Service Liaison ................... ..... ................ .... ............... ................................ .......... .......... .......................
I ..... .. 52
5.3
EDUCATION AND PUBLIC AWARENESS ........ ......... ................ ........ ...... ................. .............. ...... ..................
I.. I...... 1 52
5.3.1 General..........................................................................................................................................................52
5.3.2 Implementation and On -going Education Requirements... .... &I ...... I ......... .,,ww .... .............
&.k ... A 4 1 1 1 1 1 1 1 1 1 52
5.3.3 Contractor Representative...........................................................................................................................154
5.3.4 Community Events. I I I 4..w ...................... 4 1 1 1 1 1 1 1 1 1 1 1 4.4w I I I I I I I 1 4 1 4 4 1 1 1 1 1 1 1 1 1 1 1 1 44 1 1 1 4 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 AI'L ......... W1111 I I I 1 11
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 54
5A
WASTE GENERATION/ CHARACTERIZATION STUDIES........._ :............................... .... .... ..... .... ..... I ... ........
.... ........ 54
ARTICLE6..........:....................................................................................................................................56
COMPANY COMPENSATION AND RATES................................................................................................................. 56
6.1 GENERAL'...,.....,.., ..... ........... ................... I............... 56
6.2 INITIAL RATES......................................................................................................................... I.............................. 56
6.3 SCHEDULE OF FUTURE ADJUSTMENTS..................................................................................... I............................ 56
6.4 METHOD OF ADJUSTMENTS......................................................................................................... 7..... 4.... I.............. 56
6.4.1 General........................................................................................... ..................... .............. P.m.I...... 7........... 7.... 56
6.4.2 Cost Components for Rate Adjustment Indices..., ...... I&&& ..... III ......... .A ......... I ...... 7 ................................1 mm..7 57
6.4.3 Rate Adjustment Steps for Bin, Temporary and Other Services..........................................._...............I..... 58
6.4.4 Rate Adjustment Steps for Pull Plus Dump Roll -Off Rates.......................................................................1 59
6.5 EXTRAORDINARY ADJUSTMENTS........................................................................................................................... 59
6.6 EFFECT OF PROPOSITION 21.8................................................................................................................................. 60
ARTICLE7.............................................................................................................................................................................. 62
REVIEW OF SERVICES AND PERFORMANCE............................................................................................................62
7.1 PERFORMANCE REVIEW MEETING......................................................................................................... 1.............. 62
7.2 PERFORMANCE SATISFACTION SURVEY................................................................................................................ 63
ARTICLE8...............................................................................................................................................64
RECORDS, REPORTS AND INFORMATION REQUIREMENTS............................................................................. 64
8.1 GENERAL.................................................................................................................................... 4.4... 4..................... 64
8.2 RECORDS................................................................................................................................................................ 64
August 6, 2009 City of Diamond Bar - Commercial
8.2.1
General.... I I I I I . . . . . . . . . I I I I I I I I I 1 4 1 1 1 1 1 1 1 . . . . I I . . I I I I I I I I I I I I . I . . I I . . I . I . I I I I I I I I I . I I I I I I . . I . I I I I I I .
. . I I I I I I . I I I . I I I I . I . I I I I I I I I I I I I I I I . . I I I I I I I I I . . . . . I I I I . I V If
8.2.2
Financial Records.........................................................................................................................................1
65
8.2.3
Solid Waste Records... ............. I ..... I . I I . . I I I I . I I I I A 0 . I . .
I I I I . I I I A I . 65
8.2.4
CERCLA Defense Records.411..1111..11...........101144..........................................................._..........................I....1
66
8.2.5
Section Deleted.............................................................................................................................................
67
8.2.6
Other Programs' Records ... .................... ............ .........._............................__.._._...............
................. I.I....67
8.2.7
Audit....... . . . . . . I I I a I I I I I I I I I I . . . 4 . I . I . I I I I . I I I I I I I I I I . . I . . . . I I . I I I I I I I I I I I I I . I I I . . . . I I I I I . I I I I I b A I .
I I I I I I I I . . . I . I . . I I . I . . . . . . . I I I I I I I I I I . I I I I I I I I I I I I I I I I I I 1 67
8.2.8
Payments and Refunds......_..........................................................................................................I..............
67
8.3
REPORTS.................................................................................................................................................................
68
8.3.1
Report Formats and Schedule . ............. ...... .................... WWII ..... ............
............... ........ ...... .............. I .... ......... 68
8.3.2
Monthly/Quarterly Reports ... ................. .... ..... ....... .... ........ ...................................................................I.I...168
8.3.3
Annual Report.. ....................................................................................._.........................................I...........
69
8.3.4
Financial Report...........................................................................................................................................
70
8AREPORTING
ADVERSE INFORMATION...........................................................................................................
4.4...... 70
8.5
FAILURE TO REPORT.............................................................................................................................................
1 71
ARTICLE9...............................................................................................................................................72
9.1 INDEMNIFICATION.................................................................................................................................................
72
9.2 HAZARDOUS SUBSTANCES INDEMNIFICATION.................................................................................. I ..... ........
I... 173
9.3 AB 939 INDEMNIFICATION AND GUARANTEE. ... 44w ............. I ................ www ....... I .... o ... 4,w ........... I ..........................
W.W.. 75
9.4 INSURANCE............................................................................................................................................ I.............
P. 75
9.5 FAITHFUL PERFORMANCE BOND......................................................................................................................
I.... 79
9.6 FAITHFUL PERFORMANCE LETTER OF CREDIT.............................................................................................
I...... 1.80
9.7 FORFEITURE OF PERFORMANCE BOND .................................... I ................... ......_.............1114111............... I........
4..... 80
9.8 FORFEITURE OF LETTER OF CREDIT OR DEPOSIT..................................................................................................
81
9.9 PERFORMANCE SECURITY BEYOND SERVICE TERM.....................................................................................
4....... 4 81
ARTICLE10
.............................................................................................................................................82
CITY'S RIGHT TO CONTRACT WITH THIRD PARTIES TO PERFORM FRANCHISED SERVICES .............
82
ARTICLE11.............................................................................................................................................83
DEFAULT, REMEDIES AND LIQUIDATED DAMAGES..........................................................................................183
11.1 EVENTS OF DEFAULT........................................................................................................................... I"
...... I.... 83
11.2 RIGHT TO TERMINATE UPON DEFAULT AND RIGHT TO SPECIFIC PERFORMANCE .......... I. I ............... I.....
I . . . I.1 86
11.3 LIQUIDATED DAMAGES.......................................................................................................... I................
I........ 86
11.4 SUSPENSION OF PERFORMANCE.......................................................................................................... I............
91
11.4.1 Force Majeure............ ...................................................................................................... I .... I ..........
........ 91
11.4.2 Labor Unrest ......... ............ .......... ....... ................ .................. ......... .............. .......... .......... III .... W....I............
92
11.5 DISPUTE RESOLUTION......................................................................................................................................
1 92
11.51 Negotiation and Mediation ............. ....................... ........... ............. ...................................._...........I.......
93
11.5.2 Confidentiality ........ ........ ....._....... ...... ..............._............. ............. ...... ...... ........ .................. I .................
a.93
11.5.3 Injunctive Relief ......... ............................. ........ I ................... AI ....... ............. ......... ....... a..... a ...........
........... 93
11.5.4 Continuing Obligation ....... ...... ..................... ......... ...................... .......................... ............... I..................
93
11.5.5 Failure of Mediation ................ .............................................._.................................. . ............. .........
....... 194
11.6 ASSURANCE OF PERFORMANCE........................................................................................................................
94
ARTICLE12............................................................................................................................................095
OTHERAGREEMENTS OF THE PARTIES ...................................... .........................................................a.........
........... 95
12.1 RELATIONSHIP OF PARTIES............................................................................................................................
1.. 95
12.2 COMPLIANCE WITH LAW .... .... .......... ....... ............. ....... ........................................ ....... ....................... I.............
95
12.3 GOVERNING LAW..............................................................................................................................................
95
12.4 JURISDICTION................................................................................................................................... I................
95
August 6, 2009 City of Diamond Bar -Commercial
12.5
ASSIGNMENT.......................................................................................................................... 4......................4...
96
12.6
CONTRACTING OR SUBCONTRACTING................................................................................ I. I. w........................
98
12.7
BINDING ON ASSIGNS.......................................................................................................................................
98
12.8
COOPERATION IN PREPARATION FOR TERMINATION OR EXPIRATION OF CONTRACT ............ I ......................
98
12.9
PARTIES IN INTEREST.........................................................................................................................................
99
12.10
WAIVER.............................................................................................................................................................99
12.11
CONTRACTOR'S INVESTIGATION. . 4 . . 4 ........... 4 ... w . w w .............. w I w w w w I w I I w 1 4 1 1 P * 4 . 4 w . w . * . w * * . . . . . . . . w , . w . . w w . w w . I w w w w w .
. . . . . . w w . . b . . . . . . . 99
12.12
SECTION DELETED.............................................................................................................................................
99
12.13
NOTICE...........................................................................................................................................4.........1.1...1100
12.14
REPRESENTATIVES OF THE PARTIES...............................................................................................................
4 100
12.15
CITY FREE TO NEGOTIATE WITH THIRD PARTIES...........................................................................................
101
12.16
COMPLIANCE WITH MUNICIPAL CODE.....................................................................................................
4.... 101
12.17
PRIVACY..........................................................................................................................................................101
12.18
PROPRIETARY INFORMATION, PUBLIC RECORDS...........................................................................
4............... 101
ARTICLE13...........................................................................................................................................103
MISCELLANEOUSPROVISIONS, . I I I I I I I I I 16 1111111 v I v I I I . . 0 0 1 & h & * 4 110 14 10 9 0 10 119 111 * I I I I I q I I 14 9 1 q I q I I I I I I I I I I I I I I I v 9 11 % I I I I 1 1 4 1 w I I I 10 v 10 . I t 4 10 1 . I I 10 11 , 0
v 4 . v * P v 9 103
13.1
ENTIRE AGREEMENT..........................................................................................................4..... 4. 4.. 4.................
103
13.2
SECTION HEADINGS.... 1 4 . w . . w . I . w w k . , . 0 . w w . . w w , 0 . , , w . . 0 . . . . . . . . 4 . . . . . . . . . . . 4 . , 4 . . . . . . . . . 4 . . . . . . 4 ' ' 4 4 . . . . . . . . . b 4 1 . . . . . 1 0 L b ' ' 1 1 4 1
W W I ' W ' W I 103
13.3
REFERENCES TO LAWS AND OTHER AGREEMENTS.......................................................... I............ I. I.......
I. I.... 103
13.4
INTERPRETATION.... w. I . I . w . w I . w I . w I I w . w . I . 0 1 w I I I . 1 1 4 0 1 P W I I ' L L I I I ' ' I I ' ' I ' I ' ' 4 1 . . . . . . . I . . . . . . . . 4 . . . 4 . . . . . . I t I I ' I I P 4 1 W I ' W I W W L I I W . W W k . 0 4 4
W W * . W W W 103
13.5
AGREEMENT..... w w 4 . 4 P w k * *...Pl* . . . . . . 4 . t . . . . . . . . . . '4.'t . t . . . . . . . . . . . 4 4 . . w . . . . . . . . ........... 4 4 . . 4 . . 4 4 . 4 . . 4 . 4 ....... . . . . . . . t . d . .
. . . . . . 4 , 103
13.6
SEVERABILITY..........................................................................................................................................
I....... 104
13.7
EXHIBITS..........................................................................................................................................:...............
104
13.8
ATTORNEYS' FEES................................................................................................................................. 4......
4.. 104
Exhibits
1. Public Education Plan
2. Initial Maximum Rates
3. Rate Adjustment Formula
4. Corporate Guarantee
5. Faithful Performance Bond
6 Notary Certification
Augusi 6, 2009 City of Diamond Bar -Commercial
AGREEMENT
This Agreement for Integrated Solid Waste Management Services (hereinafter the
"Agreement") is entered into this day of , 2009, by and between the City of
Diamond Bar, California, ("City") and Valley Vista Services, Inc. ("Contractor"), for the
collection, transportation, recycling, processing, and disposal of commercial solid waste
and other services related to meeting the goals and requirements of the California
Integrated Waste Management Act,
RECITALS
WHEREAS, the Legislature of the State of California, by enactment of the California
Integrated Waste Management Act of 1989 (AB 939) (California Public Resources Code
Sections 49100 et seq.), has declared that it is in the public interest to authorize and
require local agencies to make adequate provisions for solid waste handling within
their jurisdictions; and,
WHEREAS, pursuant to California Public Resources Code Section 49300 and 49500-49524,
the City of Diamond Bar has determined that the public health, safety, and well-being
require that an exclusive franchise for commercial solid waste collection services, be
awarded to a qualified company for the collection, transfer and transportation,
recycling, processing, and disposal of solid waste and other services related to meeting
the diversion goals required by AB 939, and other requirements of the California
Integrated Waste Management Act; and,
WHEREAS, City desires to maintain reasonable rates and quality service related to the
collection, transfer and transportation, recycling, processing, and disposal of solid waste
an
d other services; and,
WHEREAS, Contractor is the current commercial solid waste hauler for the City and the
current agreement under which it operates in the City will expire on August 16, 2010;
and,
WHEREAS, City and Contractor ("Parties") have negotiated, and desire to enter into this
Agreement in order that Contractor continue to serve s the City's exclusive bin and off customer customer solid waste hauler for the term hereof; and,
August 6, 2009 -1- City of Diamond Bar -Commercial
WHEREAS, City and Contractor are mindful of the provisions of the laws governing the
safe collection, transport, recycling, processing and disposal of solid waste, including
AB 939, the Resource Conservation and Recovery Act ("RCRA"), and the
Comprehensive Environmental Response, Compensation and Liability Act
("CERCLA"). City and Contractor desire to leave no doubt as to their respective roles
and to memorialize that by entering into this Agreement, City is not thereby becoming
an "arranger" or a "generator" as those terms are used in CERCLA, and that it is
Contractor, not City, that is "arranging for" the collection from premises in the City,
transport for disposal, composting or other processing, and recycling of municipal solid
waste which may contain hazardous substances; and further to confirm that as a
material inducement to City entering into this Agreement, Contractor has agreed to
fully indemnify City in connection with any claims, losses, liabilities, lawsuits or actions
relating to the inadvertent or intentional collection, transportation and/or disposal of
hazardous materials that may occur in connection with Contractor's performance under
this Agreement; and,
WHEREAS, Contractor has agreed, as part of this Agreement, acting as an independent
contractor to provide such personnel, equipment and supplies as are necessary to
ensure City complies with the requirements of Public Resources Code Section 49100, et
seq.
NOW, THEREFORE, inconsideration of the premises above stated and the terms,
conditions, covenants and agreements contained herein, the Parties do hereby agree as
follows:
August 6, 2009 -2- City of Diamond Bar -Commercial
ARTICLE 1
DEFINITIONS
The terms used in this Agreement shall have the meaning set forth in this Article 1. In
the event a term is not defined in this Article 1, then it shall have the meaning set forth
in the Diamond Bar Municipal Code or in Division 30, Part 1, Chapter 2 of the
California Public Resources Code (with precedence given to definitions in the Diamond
Bar Municipal Code over conflicting definitions contained in the Public Resources
Code). Except as provided in Article 1, words beginning with lower case letters are
being used with their common ordinary meanings, not as defined terms. Otherwise, the
following capitalized words and terms shall have the following meanings:
1.1 AB 939
"AB 939" means the California Integrated Waste Management Act of 1989 (California
Public Resources Code Section 40000 et seq.), as it may be amended from time to time.
1.2 Affiliate
"Affiliate" means all businesses (including corporations, limited and general
partnerships and sole proprietorships) which are directly or indirectly related to
Contractor by virtue of direct or indirect ownership interest or common management.
These shall be deemed to be "Affiliated with" Contractor and included within the term
"Affiliates" as used herein. An Affiliate shall include a business in which Contractor
owns a direct or indirect ownership interest, a business which has a direct or indirect
ownership interest in Contractor and/or a business which is also owned, controlled or
managed by any business or individual which has a direct or indirect ownership
interest in Contractor. For purposes of determining whether an indirect ownership
interest exists, the constructive ownership provisions of Section 318(a) of the Internal
Revenue Code of 1986, as in effect on the date of this Agreement, shall apply; provided,
however, that (i) "ten percent (10%)" shall be substituted for "fifty percent (50%)" in
Section 318(a)(2)(C) and in Section 318(a)(3)(C) thereof; and (ii) Section 318(a)(5)(C) shall
be disregarded. For purposes of determirung 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
Augusf 6, 2009 -3- City of Diamond Bar -Commercial
the basis of the percentage of voting interest or value which the ownership interest
represents, whichever is greater.
Ito Billings
"Billings" or "Billing" or "Bill" means the statements of charges provided to Customers
for services rendered by Contractor.
1.4 Bin
"Bin' means a metal Container with hinged lids and wheels with a capacity of less than
ten (10) cubic yards.
1.5 Bin Service
"Bin Service' means Solid Waste Collection Services in which a Bin is used for the
Collection of Solid Waste,
1.6 Bulky Items
"Bulky Items' means Solid Waste that cannot and/or would not typically be
accommodated within the Solid Waste Container at the Premises including specifically:
furniture (including chairs, sofas, mattresses, and rugs); appliances (including
refrigerators, ranges, washers, dryers, water heaters, dishwashers, plumbing, small
household appliances and other similar items, commonly known as "white goods");
unusually large amounts of yard debris and Green Waste and small pieces of wood
limited to one cubic yard of contained material; electronic equipment (including stereos,
televisions, computers and monitors, VCRs, microwaves and other similar items
commonly known as "brown goods" and "e-waste"); and clothing. Bulky Items do not
include car bodies, Construction and Demolition Debris or items requiring more than
two persons to remove. Other items not specifically included or excluded above will be
Collected provided that they are not more than eight feet in length, four feet in width,
or more than 150 pounds. In the event a question ever arises as to whether a specific
item or category of items meets the definition of Bulky Items, City shall be responsible
to determine whether said definition shall apply, which determination shall be final and
binding on the Parties.
August 6, 2009 -4- Crty of Diamond Bar -Commercial
1.7 Cart
"Cart" means a plastic Container with a hinged lid and wheels serviced by an
automated or semi -automated truck with a capacity of no less than 32- and no greater
than 101-gallons.
y" means City of Diamond I a municipal corporation, and all the
territory lying within the municipal boundaries of City as presently existing or as such
boundaries may be modified during the term of this Agreement.
1.9 Collect/Collection
"Collect" or "Collection" means to take physical possession, transport, and remove Solid
Waste within and from City.
1.10 Commercial Services
"Commercial Services" refer to Solid Waste Collection Services performed at or for
Commercial Premises.
1.11 Commercial Premises
"Commercial Premises" means Premises upon which business activity is conducted,
including but not limited to retail sales, services, wholesale operations, manufacturing
and industrial operations, but excluding Residential Premises upon which business
activities are conducted when such activities are permitted under applicable zoning
regulations and are not the primary use of the property. Notwithstanding any
provision to the contrary herein, in the Diamond Bar Municipal Code, or otherwise, for
purposes of this Agreement, Premises upon which the following uses (as defined in the
Diamond Bar Municipal Code) are occurring shall be deemed to be Commercial
Premises: Assisted Living Facilities, Convalescent Homes, Dormitories, Extended Stay
Motels, Hotels, and Motels.
Augusf 6, 2009 5- City of Diamond Bar -Commercial
1.12 Contractor
"Contractor" means Valley Vista Services, a corporation organized and operating under
the laws of the State of California and its officers, directors, employees, agents,
companies and subcontractors.
1.13 Contractor Compensation
"Contractor Compensation" means the revenue received by the Contractor from
Customers in return for providing services in accordance with this Agreement.
1.14 Construction and Demolition Debris
"Construction and Demolition Debris" means Solid Waste generated at a Premises that
is directly related to construction or demolition activities occurring thereon.
1.15 Container
"Container"
means
any and all types of Solid Waste receptacles,
including Carts, Bins
and Roll -off
Boxes,
"CPI" means the Consumer Price Index for All Urban Consumers (CPI-U), all items
index less food and energy - Los Angeles -Riverside -Orange County, CA,
CUURA421S.AOUE.
1.17 Customer
"Customer' means a Person receiving Solid Waste Collection Services from Contractor
pursuant to the terms of this Agreement.
1.18 Disposal
"Disposal" means the ultimate disposition of Solid Waste Collected by Contractor at a
landfill or otherwise in full regulatory compliance.
1.19 Disposal Site(s)
"Disposal Site(s)" means the Solid Waste handling Facility or Facilities utilized for the
ultimate Disposal of Solid Waste Collected by Contractor.
August 6, 2009 -6- City of Diamond Bar -Commercial
1.20 Diversion
"Diversion' means any combination of waste prevention (source reduction), recycling,
reuse, composting and Transformation activities that reduces waste disposed at
landfills, provided such activities are recognized by the California Integrated Waste
Management Board ("ClWMB") as Diversion in its determination of the City's
Diversion rate and compliance with AB 939. Transformation tonnage that will be
considered toward the 25% Diversion goal under this Agreement is limited to 10% of
Solid Waste Collected by Contractor each calendar year under this Agreement.
1.21 Environmental Laws
"Environmental Laws" means all federal and state statutes, county, local and City
ordinances concerning public health, safety and the enviromnent including, by way of
example and not limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 USC §9601 et seq.; the Resource
Conservation and Recovery Act, 42 USC §6902 et seq.; the Federal Clean Water Act, 33
USC §1251 et seq.; the Toxic Substances Control Act,15 USC §1601 et seq.; the California
Hazardous Waste Control Act, California Health and Safety Code §25100 et seq.; the
California Hazardous Substance Account Act, California Health and Safety Code
§25300 et seq.; the Porter -Cologne Water Quality Control Act, California Water Code
§13000 et seq.; the Safe Drinking Water and Toxic Enforcement Act, California Health
and Safety Code §25249.5 et seq.; as currently in force or as hereafter amended, and all
rules and regulations promulgated thereunder.
1.22 Facility
"Facility" means any plant or site, owned or leased and maintained, operated or used by
Contractor for purposes of performing under this Agreement.
1.23 Green Waste
"Green Waste" means tree trimmings, small pieces of wood, grass cuttings, dead plants,
leaves, branches, flowers, plant stocks, and dead trees (not more than four (4) inches in
diameter or 48 inches in length) and similar materials.
August 6, 2009 -7- City of Diamond Bar -Commercial
1.24 Green Waste Processing Facility
"Green
Waste Processing Facility" means a permitted Facility where
Green Waste is
sorted,
mulched or separated for the
purposes of Recycling, reuse or
composting:
1.25 Gross Receipts
"Gross Receipts' means any and all revenue received from Billings, and compensation
in any form, of Contractor or subsidiaries, parent companies or other Affiliates of
Contractor, for the Collection and transportation of Solid Waste pursuant to this
Agreement, in accordance with Generally Accepted Accounting Principles, including,
but not limited to, Customer fees for Collection of Solid Waste, without subtracting
Disposal fees, City fees or other fees or any other cost of doing business. Gross Receipts
does not include revenue from the sale of Recyclables.
1.26 Hazardous Substance
"Hazardous Substance" shall mean any of the following: (a) any substances defined,
regulated or listed (directly or by reference) as "Hazardous Substances" "hazardous
materials", "Hazardous Waste" "toxic waste", "pollutants" or "toxic substances" or
similarly identified as hazardous to human health or the environment, in or pursuant to
(i) the Comprehensive Environmental Response, Compensation and Liability Act of
1980, 42,USC §9601 et seq. (CERCLA); (h) the Hazardous Materials Transportation Act,
49 USC §1802, et seq.; (iii) the Resource Conservation and Recovery Act, 42 USC §6901 et
seq.; (iv) the Clean Water Act, 33 USC §1251 et seq.; (v) California Health and Safety
Code §§25115-25117, 25249.8, 25281, 25316, 25501 and 25501.1; (vi) the Clean Air Act, 42
USC §7901 et seq.; and (vii) California Water Code §13050; (b) any amendments, rules or
regulations promulgated thereunder to such enumerated statutes or acts currently
existing or hereafter enacted; and (c) any other hazardous or toxic substance, material,
chemical, waste or pollutant identified as hazardous or toxic or regulated under any
other applicable federal, state or local Environmental Laws currently existing or
hereinafter enacted, including, without limitation, friable asbestos, polychlorinated
biphenyl's ("PCBs"), petroleum, natural gas and synthetic fuel products, and by-
products.
August 6, 2009 8- City of Diamond Bar - Commerciai
1.27 Hazardous Waste
"Hazardous Waste" means all substances defined as Hazardous Waste, acutely
Hazardous Waste, or extremely Hazardous Waste by the State of California in Health
and Safety Code §25110.02, §25115, and §25117 or in the future amendments to or
recodifications of such statutes or identified and listed as Hazardous Waste by the US
Environmental Protection Agency (EPA), pursuant to the Federal Resource
Conservation and Recovery Act (42 USC §6901 et seq.), all future amendments thereto,
and all rules and regulations promulgated thereunder.
1.28 Household Hazardous Waste ("HFIW")
"Household Hazardous Waste" means Hazardous Waste generated at Residential
Premises.
1.29 Materials Recovery Facility ("MRF")
"Materials Recovery Facility" means a permitted Solid Waste Facility where Solid
Wastes or Recyclable Materials are sorted or separated for the purposes of Recycling,
processing or composting.
1.30 Multi -Family Dwelling
"Multi -Family Dwelling" means any building or lot containing two or more dwelling
units. Multi -Family Dwelling units generally receive Refuse Collection service through
the use of shared Bins, but may use Carts. Multi -Family Dwelling Units receiving Bin
Refuse Collection are included in this Agreement.
1.31 Person
"Person" means any individual, firm, association, organization, partnership, limited
liability company, corporation, business trust, joint venture, the United States, the State
of California, the County of Los Angeles, cities, and special purpose districts.
1.32 Premises
"Premises" means any land, or building in City where Solid Waste is generated or
accumulatedI
August 6, 2003 -9- City of Diamond Bar -Commercial
1.33 Rate Year
"Rate Year"
means the period
July 1
to June 30, for each year during the Term
of this
Agreement.
For the first year
of this
Agreement, the Rate Year is August 16 to
June 30,
1.34 Recycling
"Recycling" means the processing of Recyclable Materials for the purpose of returning
them to the economy in the form of raw materials for new, reused, or reconstituted
products. The Collection, transportation or Disposal of Solid Waste not intended for, or
capable of, reuse is not Recycling. Recycling does not include use of Solid Waste for
conversion to energy.
1.35 Recyclable Materials
"Recyclable Materials" means Solid Waste that is Source Separated, has some potential
economic value, and is set aside, handled, packaged, or offered for Collection in a
manner different from Refuse in order to allow it to be processed for Recycling.
1.36 Refuse
"Refuse" means putrescible and non-putrescible Solid Waste.
1.37 Residential Services
"Residential Services" refer to Solid Waste Collection Services performed at and for
Residential Premises included under this Agreement.
1.38 Residential Customers
"Residential Customer" means all Customers on Residential Premises that are included
under this Agreement.
1.39 Residential Premises
"Residential Premises' means Premises upon which dwelling units exist, including,
without limitation, Single Family and Multi -Family Dwellings, apartments, Uoarding 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
August 6, 2009 -10- City of Diamond Bar - Commercial
purposes of this Agreement, Premises upon which the following uses are occurring
shall not be deemed to be Residential Premises, and rather shall be deemed to be
Commercial Premises: Assisted Living Facilities, Convalescent Homes, Dormitories,
Extended Stay Motels, Hotels, Motels, and any other businesses not specifically listed at
which residency is transient in nature and hence should be classified as Commercial
Premises as determined by City on a case by case basis.
1.40 Roll -off Box
"Roll -off Box' means Solid Waste Collection Containers of 10 cubic yards or larger.
1.41 Single Family Dwelling
"Single Family Dwelling" means a Residential Premises that includes only one dwelling
unit. Single Family Dwellings may receive either Cart or Bin Service,
1.42 Solid Waste
"Solid Waste" means all discarded putrescible and non-putrescible solid, semisolid, and
liquid wastes, including Refuse, Construction and Demolition Debris, Bulky Items,
Recyclable Materials, and Green Waste, or any combination thereof which are permitted
to be disposed of in a Class III landfill, and which are included in the definition of
'Non -hazardous Solid Waste' set forth in the California Code of Regulations.
1.43 Solid?Haste Collection Services
"Solid Waste Collection Services' means the Collection, transfer, transport, Recycling,
processing, and Disposal of Solid Waste placed for Collection pursuant to this
Agreement.
1.44 Source Separated
"Source Separated" means the segregation by the Waste Generator of individual
components of Solid Waste, which otherwise would become Refuse (such as glass
bottles, metal cans, newspapers, plastic containers, etc.) into separate Container(s) for
the purpose of allowing the Recycling of such materials.
L45 State
"State' means the State of California.
August 6; 2003 -11- City of Diamond Bar -Commercial
1.46 Temporary Service
"Temporary Servicemeans Solid Waste Collection Services provided to a Premises on
a temporary, as needed basis to any Premises within the City in conjunction with
construction, demolition, cleanup or other projects, and by use of temporarily placed
Bins or Roll -off Boxes
1.47 Transformation
"Transformation" means incineration, pyrolysis, distillation, gasification, or biological
conversion other than composting.
1.48 Transfer Station
"Transfer Station' means a Facility that received Solid Waste from collection vehicles
and transfers the material to larger vehicles for transport to landfills and other facilities.
Transfer Stations may or may not also include MRFs, transferring residual Refuse
(Refuse left after the sorting of Recyclable Materials) to landfills and Recyclable
Materials (including, for example, Green Waste and/or Construction and Demolition
debris), to processors, brokers or end -users.
1.49 Waste Generator
"Waste Generator" means any Person whose act or process produced Solid Waste as
defined in the Public Resources Code, or whose act first causes Solid Waste to become
subject to regulation.
August 6, 2009 -12- City of Diamond Bar -Commercial
ARTICLE 2
GRANT AND ACCEPTANCE OF FRANCHISE
2.1 Grant and Acceptance of Franchise, Indemnity of Award
Subject to the terms and conditions of this Agreement (including but not limited to the
exclusions set forth in Section 2.9 hereof) and applicable State laws, and to the rights of
State, county and school district facilities to use a Solid Waste enterprise other than
Contractor, City hereby grants to Contractor and Contractor hereby accepts from City,
for the Term hereof, the exclusive franchise, right and privilege to provide Solid Waste
Collection Services at all Commercial Premises, and all Residential Premises that receive
Commercial style Bin Refuse service (the "Franchise")
Contractor agrees to and shall timely take all actions that are reasonably necessary to
defend the validity and enforceability of this Agreement and shall pay all costs related
to such defense. Contractor shall defend, indemnify, protect and hold harmless, the
City, its officers, agents and employees from any and all claims, actions or proceedings
to attack, set aside, void, annul or seek monetary damages resulting from an approval
by the City of this Agreement. The City shall promptly notify Contractor of any such
claim, action, or proceeding. The City and Contractor shall meet in good faith in an
effort to come to a mutual agreement for a joint defense; provided that the City shall be
entitled to select legal counsel of its choice to conduct the defense if an agreement
cannot be reached. Contractor's obligations to pay all costs, defend, indemnify, protect
and hold harmless under this section shall not be altered in the event City retains
separate counsel.
2.2 Section Deleted
2.3 Effective Date
The "Effective Date' of this Agreement shall be the date on which the City Council
approves this Agreement.
2.4 Term of Agreement
The term of this Agreement (the "Term") shall be eight (8) years, commencing on
August 16, 2010, and expiring August 15, 2018, subject to extension as provided herein.
August 6, 2009 -13- City of Diamond Bar - Commercial
Notwithstanding the foregoing, the unexcused failure or refusal of Collector to perform
any material term, covenant, obligation or condition contained in this Agreement shall
give rise to the right, in favor of City, for earlier termination of this Agreement for cause
in accordance with the procedures elsewhere contained herein.
2.5 City's Option to Extend Term
City shall have the sole option to extend the Term of this Agreement for up to twelve
(12) months following expiration of the initial contract Term under Section 2.4. The City
may, upon at least ninety -days (90-days) advance written notice to the Contractor prior
to the expiration of the Term of this Agreement, exercise this extension option. If City
provides this extension notice, the Agreement will automatically renew up to a
maximum of twelve (12) months. This extension period shall terminate, upon the
earlier of: (i) the expiration of the aforementioned twelve (12) months, or (fi) ninety (90)
days following the date upon which City gives Contractor written notice of final
termination.
2.6 Representations and Warranties of Contractor
Contractor hereby covenants, represents, and warrants the following to City for the
purpose of inducing City to enter into this Agreement and to consummate the
transaction contemplated hereby, all of which shall be true as of the date of this
Agreement and as of the Effective Date:
a) Contractor is validly existing as a corporation under the laws of the State of
California.
U) Neither the execution of this
Agreement nor the delivery by Contractor
of
services nor the performance
by Contractor
of its obligations hereunder:
(1)
conflicts with, violates or results in a breach of any applicable law; (2) conflicts
with, violates or results in a breach of any term or condition of any judgment,
decree, agreement (including, without limitation, the certificate of incorporation
of Contractor) or instrument to which Contractor is a party or by which
Contractor or any of its properties or assets are bound, or constitutes a default
under any such judgment, decree, agreement or instrument; or (3) will result in
the creation or imposition of any encumbrance of any nature whatsoever upon
any of the properties or assets of Contractor.
Augusf 6, 2009 -14- City of Diamond Bar -Commercial
c) There is no action, suit or other proceeding as of the date of this Agreement, at
law or in equity, or to the best of Contractor's knowledge, any investigation,
before or by any court or governmental authority, pending or threatened against
Contractor that is likely to result in an unfavorable decision, ruling or finding
that would materially and adversely affect the validity or enforceability of this
Agreement or any such agreement or instrument entered into by Contractor in
connection with the transactions contemplated hereby, or that could materially
and adversely affect the ability of Contractor to perform its obligations
hereunder or that would have a material adverse effect on the financial condition
of Contractor.
d) Contractor has no knowledge of any applicable law in effect as of the date of this
Agreement that would prohibit the performance by Contractor of this
Agreement and the transactions contemplated hereby.
e) Contractor has made an independent investigation, satisfactory to it, of the
conditions and circumstances surrounding this Agreement and the work to be
performed by it, and is satisfied that those conditions and circumstances will not
impair its ability to perform the work and provide the Collection services
required by this Agreement.
f) The information supplied by Contractor in all suUmittals made in connection
with negotiation and execution of this Agreement, including all materials in
Exhibits to this Agreement, and all representations and warranties made by
Contractor throughout this Agreement are true, accurate, correct and complete in
all material respects on and as of the Effective Date of this Agreement.
g) Contractor's representative, designated in Section 5.2.5, shall have authority in
all daily operational matters related to this Agreement. City may rely upon
action taken by such designated representative as action of Contractor unless the
actions taken are not within the scope of this Agreement.
h) Contractor is duly organized, validly existing and in good standing under
applicable laws. It is qualified to transact business in the State of California and
has the power to own its properties and to carry on its business as now owned
and operated and as required by this Agreement.
Augusf 6, 2009 -35- City of Diamond Bar -Commercial
i) Contractor has the authority to enter into and perform its obligations under this
Agreement. The Board of Directors or partners of Contractor (or the
shareholders, if necessary) have taken all actions required by law, its articles of
incorporation, its bylaws or otherwise to authorize the execution of this
Agreement. The Persons signing this Agreement on behalf of Contractor have
authority to do so. Contractor shall authorize one employee for the City as a
single point of contact for issues arising under this Agreement, and Contractor
acknowledges and agrees that City may expect and assume that this employee's
actions are taken on behalf of and with the full approval of the Contractor.
2.7 Conditions to Effectiveness of Agreement
The satisfaction of each and all of the conditions set out below, each of which may be
waived in whole or in part by City in writing, is a condition precedent to the
effectiveness of this Agreement, and a condition of Contractor's continued right to the
benefits conveyed herein:
a) Accuracy of Representations. All representations and warranties made by
Contractor and set forth in this Agreement shall be accurate, true and correct on
and as of the Effective Date.
b) Absence of Litigation. There shall be no litigation pending in any court
challenging the award of this Franchise to Contractor or the execution of this
Agreement or seeking to restrain or enjoin its performance.
c) Furnishing of Insurance, Bond, and Letter of Credit. Contractor shall have
furnished evidence of the insurance, bonds, deposit and letter of credit required
by Article 9, and shall comply with all ongoing requirements relating thereto.
d) Contractor shall have paid the contracting fee to City, as provided in Section 3.1.
2.8 Delegation of Authority
The administration of this Agreement by City shall be under the supervision and
direction of City Manager's office and the actions speced in this Agreement, unless
otherwise stated, shall be taken by the City Manager, or his or her designee.
August 6, 2009 -16- City of Diamond Bar - Commercial
19 Limitations to Scope
Notwithstanding any provision to the contrary contained herein, the exclusive
franchise, right and privilege to provide Solid Waste Collection Services at Premises
within City granted to Contractor by this Agreement (Commercial and Residential
Premises that receive weekly Refuse Collection using Bins) specifically excludes the
following services, which services may be provided by Persons other than Contractor
and which may be the subject of other permits, licenses, franchises or agreements issued
or entered by City:
a) The sale or donation of source -separated Recyclable Material by the Waste
Generator to any Person or entity other than Contractor; provided, however, if
the Generator is required to pay any monetary or non -monetary consideration,
directly or indirectly, for the Collection, transportation, transfer, or processing of
Recyclable Material, it shall not be considered a sale or donation and shall not be
exempt;
b) Solid Waste, including Recyclable Materials and Green Waste, that is removed
from any Premises by the Waste Generator by means of "self -hauling" (as
described in the Diamond Bar Municipal Code), and that is transported
personally by such Generator (or by his or her full-time employees) to a
processing or Disposal Facility in a manner consistent with all applicable laws
and regulations;
c) Green Waste removed from a Premises by a gardening, landscaping, or tree
trimming Contractor, utilizing its own equipment, as an incidental part of a total
service offered by that Contractor rather than as a hauling service;
d) The Collection, transfer, transport, Recycling, processing, and disposal of animal
remains from slaughterhouse or butcher shops for use as tallow;
e) The Collection, transfer, transport, Recycling, processing, and disposal of by-
products of sewage treatment, including sludge, sludge ash, grit and screenings;
£) The Collection, transfer, transport, Recycling, processing, and disposal of
Hazardous Substances, Hazardous Waste, Household Hazardous Waste and
radioactive waste regardless of its source;
August 6, 2009 -17- City of Diamond Bar -Commercial
g) Construction and Demolition Debris which is removed by a duly -licensed
construction or demolition company or as part of a total service offered by said
licensed company or by the City, where the licensed company utilizes its own
equipment in compliance with Construction and Demolition Debris
requirements of the Diamond Bar Municipal Code;
h) Collection services provided exclusively by City's Residential Franchisee under
its Cart Customer Solid Waste Management Services Agreement. Contractor
shall service, under this Agreement, Single Family Dwelling Units that received
Bin service, and the City's Residential contractor shall provide service to Single
Family Customers that request regularly scheduled Cart Refuse service;
i) The Collection, transfer, transport, Recycling, processing, and Disposal of Solid
Waste by City through City officers or employees in the normal course of their
City employment; and,
j) Solid Waste Collection Services for governmental agencies other than City, which
may have facilities in City, but over which City has no jurisdiction in connection
with the regulation of Solid Waste, such as State, county and school district
facilities.
The exclusive franchise, right and privilege to provide Solid Waste Collection Services
within City granted to Contractor by this Agreement shall be interpreted to be
consistent with all applicable state and federal laws, now in effect and adopted during
the term of this Agreement, and the scope of this Agreement shall be limited by all
applicable current and developing laws and regulations. In the event that future
interpretations of current law, future enactments or developing legal trends limit the
ability of City to lawfully grant Contractor the scope of services as specifically set forth
herein, Contractor agrees that the scope of this Agreement will be limited to those
services and materials which may be lawfully provided, and that City shall not be
responsible for any lost profits claimed by Contractor as a result thereof.
2.1Q 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
August 6, 2009
-18-
City of Diamond Bar -
Commercial
services. Pilot programs and innovative services which may entail new Collection
methods, and different kinds of services and/or new requirements for Waste
Generators are included among the kinds of changes which City may direct. Contractor
acknowledges that State law may increase the Diversion requirement during the term of
this agreement and Contractor agrees to propose services to meet such Diversion
requirements. Contractor shall be entitled to an adjustment in its Contractor
Compensation for providing such additional or modified services, including a profit
factor equal to ten percent (10%) of the incremental cost of such additional or modified
services. City may utilize cost components included in the Contractor's Proposal in
calculating equitable rate adjustments. Agreed upon rates and service enhancements
require approval of the City Council. If City and Contractor cannot agree on
compensation for new or additional services, then City may contract with other parties
for such services, which shall be considered exempt from the exclusivity provisions of
Section 2.1.
Contractor shall not receive a rate increase to provide additional services implemented
to bring Contractor into compliance with contractually -required minimum diversion
rates per Section 4.2.5 or as a remedy for failure to perform under Section 7.1,
Additional or modified services shall be included in written amendment and shall
require approval of the City Council.
2.10.2 New Diversion Programs
Contractor shall present, within thirty (30) business days of a request to do so by City, a
proposal to provide additional or expanded Diversion services. The proposal shall
contain a complete description of the following:
• Collection methodology to be employed (equipment, manpower, etc.).
• Equipment to be utilized (vehicle number, types, capacity, age, etc.).
Labor requirements (number of employees by classification).
• Type(s) of Containers to be utilized.
• Type(s) of material to be Collected.
• Provision for program publicity/education/marketing.
August 6, 2009 -19- Cify of Diamond Bar -Commercial
• Annual projection of the financial results of the programs operations m an operating
statement format including documentation of the key assumptions underlying the
projections and the support for those assumptions.
2.11 Ownership of Solid Waste
City and Contractor understand and agree that it is Contractor, and not City, who will
arrange to Collect Solid Waste; that City has not, and, by this Agreement does not,
instruct Contractor on its Collection methods, nor supervise the Collection process; nor
do the Parties intend to place title to Solid Waste Collected by Contractor in City.
Rather, the Parties intend that whatever, if any, title in and to the Solid Waste that is
Collected by Contractor which otherwise might exist in or with City in the absence of
this Agreement is hereby transferred to Contractor; and further that if Contractor gains
title to such Solid Waste it is by operation of law and agreement with its Customers and
is not the result of this Agreement. Subject to the provisions of this Agreement, and
unless City exercises its rights to direct the location for Disposal and processing of Solid
Waste, Contractor shall have the right to retain, Recycle, process, dispose of, and
otherwise use Solid Waste Collected pursuant to the terms hereof in any lawful fashion
or for any lawful purpose; and, further, shall have the right to retain any benefit
resulting from its right to retain, Recycle, process, dispose of, or reuse the Solid Waste
which it Collects. Ownership of Solid Waste properly placed for Collection shall
transfer to Contractor when Customer places it at point of Collection.
2.12 Permits and Licenses
Contractor shall acquire and maintain all necessary permits and licenses for the
Collecting, transporting, processing, and storing of Solid Waste and Recyclables,
disposing of Solid Waste, and the Recycling of Recyclables as required under this
Agreement. Failure to maintain all required permits shall be deemed a material breach
of contract for which City may terminate this Agreement as provided in Section 11.2.
Contractor must follow requirements of the Diamond Bar Municipal Code, including,
but not limited to, obtaining a City of Diamond Bar business license.
August 6, 2009 -20- City of Diamond Bar -Commercial
ARTICLE 3
FEES PAID TO THE CITY
In addition to any other consideration set or herein, as part of its consideration for
entering into this Agreement, and for the exclusive franchise, right and privilege to
provide Solid Waste Collection Services as specified herein, Contractor shall provide
the following:
3.1 Contracting Fee
Contractor shall pay to City a Contracting Fee in a one-time lump sum payment of
seventy five thousand dollars ($75,000) within seven days of execution of this
Agreement to reimburse the City for costs it incurred in connection with entering this
Agreement.
3.2 Other City Fees
3.2.1 Franchise Fee
Inconsideration of the exclusive right to Collect provided in Section 2.1 of this
Agreement, throughout the Term of this Agreement Contractor shall pay to City a
Franchise Fee in an amount equal to five percent (5%) of the Gross Receipts received by
Contractor for all services provided in City pursuant to the terms of this Agreement.
Payments shall be made quarterly. The initial payment shall be due by October 30, 2010,
covering the period August 16 to September 30, and each subsequent payment shall be
due within 30 days of the end of the calendar quarter (January 30, April 30, July 30,
October 30), for the prior calendar quarter.
3.2.2 AB 939 Fee
In support of the City's outreach and administration of various Solid Waste programs
and public educatione ors, Contractor shall pay an amount equal to thirteen percent
(13%) of the Gross Receipts received by Contractor for all services provided in City
pursuant to the terms of this Agreement.
August 6, 2009 -21- City of Diamond Bar -Commercial
Payments shall be made quarterly. The initial payment shall be due by October 30, 2010,
covering the period August 16 to September 30, and each subsequent payment shall be
due within 30 days of the end of the calendar quarter (January 30, April 30, July 30,
October 30), for the prior calendar quarter.
3.2.3 Section Deleted
3.2.4 Section Deleted
3.2.5 Late Payment of Fees
If any of the fees provided for in this Section 3.2 are not paid on or before the due date,
Contractor shall pay to City a penalty in an amount equal to ten percent (10%) of the
amount owing for that month, plus interest at a rate of one and one-half (1.5%) per
month.
3.3 Future Fees
In the event that City implements a new fee not included in Section 3.2, or increases the
amount of an existing fee, Contractor shall be entitled to a rate adjustment in an amount
sufficient to recover the fee from Customers. City may elect to have Contractor pay in
accordance with the requirements of fee payments made in Section 3.2, or on another
schedule as City identifies with associated deadlines and late fees.
August 6, 2009 -22- Cify of Diamond Bar -Commercial
ARTICLE 4
DIRECT SERVICES
4.1 Refuse
4.1.1 General
The work to be done by Contractor pursuant to this Agreement shall include, but not be
limited to, the furnishing of all labor, supervision, equipment, materials, supplies, and
all other items necessary to perform the services required. The enumeration of, and
specification of requirements for, particular items of labor or equipment shall not
relieve Contractor of the duty to furnish all others, as may be required, whether
enumerated elsewhere in this Agreement or not.
The work to be done by Contractor pursuant to this Agreement shall be accomplished
n a thorough and professional manner so that all Customers are provided reliable,
courteous and high -quality Solid Waste Collection Services at all times. The
enumeration of, and specification of requirements for, particular aspects of service
quality shall not relieve Contractor of the duty of accomplishing all other aspects in the
manner provided in this section, whether such other aspects are enumerated elsewhere
in this Agreement or not.
4.1.2 Section Deleted
4.1.3 Section Deleted
4.1.4 Section Deleted
4.1.5 Section Deleted
4.1.6 Bin Refuse Collection
Contractor shall provide Bins and Bin Service to its Customers that request such service.
Contractor shall Collect and remove all Refuse that is placed in Bins from the property
of Customers receiving Bin Service, at least once per week and more frequently if
required to handle the waste generated at the Premises where the Bins are located. To
resolve a dispute between Contractor and Customers, or if the City has health or safety
concerns, City shall make final determination as to the number and size of Containers,
August 6, 2009 -23- City of Diamond Bar -Commercial
and frequency of Collection to be provided to Customers. Special consideration shall be
given when determining the pickup areas to ensure that the flow of traffic is not
impeded.
Contractor shall provide . 12, 3, 4 and 6 cubic yard Bins upon request. Contractor will
service Bins equipped with compaction devices (known as compactors) that attach to
the Bins if requested by Customer. The provision, sale or lease of the compaction device
itself is outside this Agreement. Contractor is not required to provide the compaction
device.
4.1.7 Determination of Service Type
Contractor may not transition a Customer from Bin to Cart service without prior
advance written approval of the City. If Contractor and Customer have a disagreement
as to whether a Refuse Bin is appropriate, or if City determines the Collection in a
Refuse Bin causes health and safety or other concerns, or if the City determines Cart
service is more appropriate, City shall make the final determination as to whether
Refuse Collection shall be from a Bin, or from a Cart. In all cases, City retains absolute
discretion in the determination of which type of service a Customer shall receive, and
therefore which with hauler will provide service.
4.1.8 Overflowing Containers
Customers that regularly produce more Solid Waste than their current level of service
can accommodate may have their service level increased in accordance with the
following procedure:
First Incident in Three Month Period - If more material is placed for Collection than fits
in a Container, Contractor shall photograph the overflowing Container, Collect the
Solid Waste, and send to the Customer (at both the service and billing addresses) the
picture and a letter instructing that further instances of an overflowing Container may
result in an increase in the level of service.
Second Incident in Three Month Period -Upon the second event of an overfilled
Container in a three-month period, Contractor shall photograph the overflowing
Container, Collect the Solid Waste, and send to the Customer the picture and a letter
requesting that Customer increase its service level. If the Customer declines, Contractor
August 6, 2009 -24- City of Diamond Bar - Commercial
may petition City to permit Contractor to increase the service level to accommodate the
higher demand for service.
Contractor shall send City via e-mail or U.S. mail a copy of each letter and picture sent
to a Customer under this Section 4.1.8.
4.1.9 Permanent Roll -off Sox Service
Contractor shall provide exclusive (as limited by Section 2.9) permanent Roll -off Box
Collection service upon request. Contractor will provide standard Roll -off Boxes. Rates
shall be charged as "pull plus dump," a set rate for the service component plus the per
on charge based on actual tonnage Collected. The provision, sale or lease of compactor
Roll -Off Boxes, which are enclosed Containers attached to a compaction devise, is not
included in this Agreement; however, providing service to such compactor Roll -Off
Boxes is included. Rates for permanent Roll -Off Box services are included in the
approved rate schedule attached as Exhibit 2.
4.1.10 Temporary Bin and Temporary Roll -Off Box Service
Contractor shall provide exclusive (as limited by Section 2.9) temporary Bin and
temporary Roll -Off Box Service to Customers upon request, with the exclusion of
providing such service to existing Residential Cart Refuse Customers. Customers
receiving Cart Refuse services under the City's residential Cart franchise agreement,
and construction contractors providing services to such a Customer's premises, shall
receive temporary Bin and Roll -Off Box services from their Refuse Collection service
provider or other hauler authorized to Collect in the City. Services requested for all new
construction and instances not limited by Section 2.9 shall be exclusively provided
under this Agreement. In the event Temporary Services are required for a project
involving multiple Customers that receive service under both the City's Residential and
Commercial franchisees, this service shall be provided under this Commercial
Agreement. Contractor must deliver a temporary Bin or Roll -Off Box to a Customer
within forty-eight (48) hours of request (Saturdays and Sundays excluded). Rates for
Temporary Services are listed separately in the approved rate schedule, attached as
Exhibit 2.
Contractor will provide Roll -off Boxes and Bins for Temporary Services. There will be
no charges other than the specific charges identified in the approved rate schedule.
August 6, 2009 -25- City of Diamond Bar - Commercial
Contractor shall confirm that Customer has obtained an encroachment permit from the
City prior to Contractor placing a Container in the public right-of-way.
4.1.11 Bin Pushout Service
Contractor may not charge a fee for pushing or rolling Bins to point of Collection.
4.1.12 Scout Service
Upon request, Contractor shall provide scout service, whereby Contractor will access
Containers using a small vehicle either to move Containers to street for Collection, or
Collecting Solid Waste directly from Container storage location. In the event of a
dispute between Contractor and Customer as to whether scout service will be used,
City will make the final determination.
4.1.13 Locking Bins
Contractor shall provide locking Bin Service (providing the hasp and lock and servicing
the lock) to Customers that request such service in accordance with the approved rate
schedule, based upon a monthly fee per locking Bin.
4.1.14 Redelivery/Return Trip Fee
Contractor may charge a fee, per the approved rate schedule, in the event that
Contractor arrives on time for a scheduled Collection of Bins or Roll -Off Boxes, is
impeded from Collection due to Container being blocked or otherwise unable to be
Collected due to issues within the Customer's control, and Contractor must return a
second time for Collection. Charge may be assessed for the trip, not per Bin, in the event
of a Customer with multiple Bins.
4.1.15 On -Call Bulky Item Pickup
Contractor shall provide Bulky Item pickup service to all Residential Customers. Each
Residential Dwelling Unit shall be entitled to four Bulky Item pickups per calendar year
at no additional charge.
The above mentioned Customers may put out up to four (4) Bulky Items at each pickup.
Contractor may instruct Customers to provide Contractor with a minimum of one
business day's notice for the items, which shall be Collected on the Customer's regular
August 6, 2009 -26- City of Diamond Bar - Commercial
Collection day. Contractor shall Collect all Bulky Items as defined in Section 1.0
including items referred to as electronic waste or "e-waste." The following provisions
shall apply to this program:
• No single item that cannot be handled by two workers will be accepted.
• The following items will not be picked up: Hazardous Substances, Hazardous
Waste, including waste oil or anti -freeze, with the exception of Bulky Items per
Section 1.6 (including without limitation, universal wastes such as fluorescent bulbs,
household batteries, and televisions, monitors and other items commonly referred to
as "e-waste" that will be Collected by and disposed of by Contractor in accordance
with this section as well as Sections 4.1.16 and 4.1.17.)
• Contractor shall record by class and weight (in tons) the Solid Waste Collected from.
Bulky Item pickups. Contractor shall record the kinds and weights (in tons) of this
Solid Waste that is diverted from the landfill through Recycling, reuse,
Transformation or other means of Diversion. Contractor shall include this
information in its monthly reporting per Section 8.3.2(a),
12esidential Customers that exceed the number of free pickups and Commercial
Customers may receive Bulky Item Collection under the same terms for a fee, in
accordance with the approved rate schedule in Exhibit 2.
4.1.16 Bulky Item Diversion
Bulky Items Collected by Contractor in accordance with Section 4.1.15, or otherwise
Collected under this Agreement, may not be landfilled or disposed of until the
following hierarchy of Diversion efforts has been followed by Contractor:
1) Reuse as is
2) Disassemble for reuse or Recycling
3) Recycle
4) Disposal
This hierarchy is intended to preclude the use of front or rear loading packer vehicles
for Bulky Items unless the compaction mechanism is not used to compact the Bulky
Items. An exception maybe made for items that have been designated for Disposal.
August 6, 2009 -27- City of Diamond Bar - Commercial
4.1.17 Disposal of Electronic and Other Special Wastes
Contractor shall divert waste requiring special handling, such as universal or electronic
waste, or "e-waste;' Collected in accordance with Sections 4.1,15, 4.1.16 or 4.5.4, or by
other means under this Agreement, by taking these goods to a properly permitted
Facility, and not by landfilling.
4.1.18 Door -to -Door HHW Collection
Contractor shall provide Residential Customers with door-to-door call -in HHW
Collection service at no additional cost. Items to be Collected include, at a minimum:
syringes and other Sharps; paint and paint products including but not limited to
thinners, glues, caulking, stains, wood preservatives and strippers; household cleaners;
automotive wastes; swimming pool chemicals; garden chemicals; fluorescent tubes;
thermometers; household batteries; and electronic wastes.
Contractor may direct Residential Customers to use the Bulky Item pickup option for
televisions, computers and other HHW that may safely and legally be Collected as
Bulky Items.
4.1.19 Section Deleted
4.1.20 Service Exceptions; Hazardous Waste Notifications
A. Failure ±o CeLect When Solid Waste is not Collected from any Solid �Iaste
service recipient, Contractor shall notify its service recipient in writing, at the time
Collection is not made, through the use of a "red tag" or otherwise, of the reasons why
the Collection was not made, such as the placement of Hazardous Waste in the
Container.
B. Hazardous Waste Inspection and Reporting. Contractor reserves the right to
inspect Solid Waste put out for Collection and to reject Solid Waste observed to be
contaminated with Hazardous Waste and the right not to Collect Hazardous Waste put
out with Solid Waste. Contractor shall notify all agencies with jurisdiction, if
appropriate, including the California Department of Toxic Substances Control and
Local Emergency Response Providers and the National Response Center of reportable
quantities of Hazardous Waste, found or observed in Solid Waste anywhere within
City. In addition to other required notifications, if Contractor observes any substances
August 6, 2009 -28- City of Diamond Bar- Commercial
which it or its employees reasonably believe or suspect to contain Hazardous Wastes
unlawfully disposed of or released on any City property, including storm drains, streets
or other public rights of way, Contractor will immediately notify City Manager or City
Manager's designee. Contractor shall implement and maintain a training program that
will assist its employees in identifying and properly disposing of any Hazardous Waste
that may come into their possession.
C. Hazardous Waste Diversion Records. Contractor shall maintain records
showing the types and quantities, if any, of Hazardous Waste found in Solid Waste and
which was inadvertently Collected from service recipients within City, but diverted
from landfilling.
4.2 Recycling
4.2.1 Recyclables Collection
Contractor agrees to provide, in accordance with the approved rate schedule in Exhibit
2, Recycling Collection service to Customers requesting it from the Contractor.
Contractor may purchase Recyclable Materials from its Customers as well. The
Contractor agrees to provide Recycling Bins or Carts to such Customers in sufficient
quantities to meet the Recycling needs of each Customer. Contractor shall continue to
make Recyclables Collection service available to Customers receiving such service as of
the execution of this Agreement (approximately 25 Bins Collected weekly) in
accordance with the approved rate schedule.
Contractor shall take whatever actions may be appropriate, lawful and effective to
discourage the unauthorized removal of Recyclable Materials from the Solid Waste
stream, commonly referred to as scavenging.
4.2.2 Processing of Solid Waste
Contractor shall process all Solid Waste Collected at a materials recovery facility in
order to maximize recovery of Recyclables. Contractor will deliver all mixed Solid
Waste to the Grand Central Recycling and Transfer Station for processing. The only
exception to this processing requirement is that Contractor may elect to Collect Refuse
from food service establishments on a separate route, and the mixed waste from food
establislunents is not required to be processed. This exception is limited to Customers
whose primary business is food service. This exception does not extend to the
August 6, 2009 -29- City of Diamond Bar - Commercial
processing of Solid Waste Collected from shopping centers, strip malls or office
buildings that may include food waste generating tenants.
4.2.3 Section Deleted
4.2.4 Marketing and Sale of Recyclable Materials
Contractor shall be responsible for marketing and sale of all Recyclable Materials
Collected pursuant to this Agreement. Contractor may retain revenue from the sale of
Recyclable Materials, and shall report the amount of such revenues to City upon
request.
4.2.5 Minimum Recycling Requirements
Contractor shall divert from landfilling a minimum of 25% of all Solid Waste Contractor
Collects under this Agreement.
Contractor shall divert from landfilling a minimum of 25% of all Roll -Off Box loads,
excluding Construction and Demolition Debris loads, that Contractor Collects under
this Agreement. And Contractor shall divert from landfilling a minimum of 75% of all
Construction and Demolition Debris loads it Collects under this Agreement.
Construction and Demolition Debris tonnage shall be included in the overall 25%
Eversion calculation.
Compliance with each of these minimums will be measured, initially, for the first
period from August 16, 2010 to December 31, 2010, and subsequently on a calendar year
basis. Recycling of materials not Collected by the Contractor is not to be counted
towards meeting this requirement. If Contractor fails to comply with these diversion
rate requirements, Contractor must submit a plan for compliance, including without
limitation implementation of applicable portions of City's Source Reduction and
Recycling Element, within sixty (60) days of the end of the calendar year. Contractor's
plan is subject to approval by the City Manager, and to be approved must constitute a
good faith plan to implement applicable portions of City's Source Reduction and
Recycling Element and be reasonably likely to achieve compliance with the above
requirement. Costs for providing the services in the compliance plan to meet this
existing obligation will be borne by Contractor and shall not be the subject of a rate
adjustment.
August 6, 2009 -30- Cify of Diamond Bar -Commercial
If, following implementation of the plan for compliance, Contractor does not achieve
compliance with the above requirement for the calendar year in which the plan was
submitted, liquidated damages shall be assessed under Section 11.3 for failure to meet
this requirement.
In Lite event the State increases diversion rate goals, City may require Contractor to
implement programs to meet the goal, and parties shall negotiate a rate adjustment.
Should parties fail to reach a mutually acceptable agreement, City may hire a third
party to provide those services or terminate the Agreement.
4.2.6 Construction and Demolition Debris Diversion
Contractor will bring all loads of mixed Construction and Demolition Debris to a C&D
processing facility designated per Section 4.8 for separation and recovery of this
material. Contractor may deliver separated loads of Construction and Demolition
Debris, such as clean dirt, concrete or rebar, to facilities specializing in the reuse of such
materials, provided this material is diverted from landfilling. Contractor shall divert
from landfilling a minimum of 75% of all Construction and Demolition Debris
Collected,
4.2.7 Optional Food Waste Diversion Program
City reserves the right to require Conhactor to implement a program to divert food
waste. Contractor would be entitled to a rate adjustment for the reasonable additional
costs incurred in processing the waste and in transporting the waste in accordance with
Section 2.10. Transportation costs may increase or decrease, depending upon the
location of the food waste processing facility to be used.
4.3 Green Waste Program
4.3.1 Residential Green Waste Collection
Upon Customer request, Contractor shall provide Residential Customers with a
sufficient number of Carts or Bins for Collection of Green Waste ("Green Waste
Cart(s)" ). Contractor shall Collect all Green Waste placed in Green Waste Carts or Bins,
as well as all Green Waste bundled as set forth below, and put out for Collection by
Customers not less than once per week. Contractor shall have a Green Waste Recycling
August 6, 2009 -31- City of Diamond Bar - Commercial
program whereby it, at a minimum, Collects the types of Green Waste defined in
Section 1.23.
Contractor shall only be obligated to Collect Green Waste set out for Collection in
bundles if it is a maximum of four (4) feet long and eighteen (18) inches in diameter
from Customers with Green Waste Cart service.
4.3.2 Holiday Tree Collection Program
Contractor shall operate an annual holiday tree Collection program from December 26
through the second Sunday in January. During this period all holiday trees placed out
for Collection by Residential Customers shall be Collected by Contractor. After this
period, trees will be Collected as Bulky Items under Section 1.6. Trees up to seven (7)
feet in length will be Collected and diverted without Customers needing to cut them.
Contractor may request that Customers with larger trees cut the trees to pieces no
longer than seven (7) feet. Contractor will divert all holiday trees from landfilling.
4.3.3 Roll -Off Green Waste
Contractor shall provide Roll -Off Box Green Waste service at rates no more than
comparable Refuse pull rates, and per ton Disposal at no more than the actual Green
Waste processing fee.
4.3.4 End Uses for Green Waste
Contractor shall divert Green Waste materials Collected through weekly Cart and
bundle Collection, holiday tree. Collection, Roll -off Box Collection and mixed waste
processing from Disposal. Contractor must provide end uses for Green Waste that
maximize Diversion credit for City according to regulations established by the
California Integrated Waste Management Board, Green Waste may be used as
alternative daily cover ("ADC') only to the extent that the City will get full Diversion
credit for its use. Contractor is responsible for monitoring how the Green Waste will be
diverted at selected facilities and for selecting alternative facilities if necessary to ensure
full Diversion credit. Failure to do so places the Contractor in default. City has the
option, but not obligation, to direct Contractor where to deliver the material.
August 6, 2009 -32- City of Diamond Bar -Commercial
4A Section Deleted
4.5 City Services
4.5.1 City Facilities Collection
Contractor shall Collect and dispose of all Refuse, Recyclable Material, and Green
Waste put in Containers for Collection at Premises owned and/or operated by the City
now and in the future at no charge. Service levels and number of facilities serviced may
increase during the Term of this Agreement without any additional compensation paid
to the Contractor. Such Premises include, but are not limited to, City Hall, City offices,
parks, City yard and street maintenance operations. Solid Waste at City yard will
nclude Solid Waste Collected from street litter Containers. Collections shall be
scheduled at a time mutually agreed upon Uy Contractor and City.
4.5.2 City Sponsored Events
Contractor shall provide Solid Waste and Recycling Collection and Disposal/processing
service for City -sponsored events. This shall include providing Containers (Bins, Roll -
off Boxes, clearly labeled Recycling Containers and cardboard waste boxes with liners)
to Collect and dispose of, or process, all Solid Waste and Recyclable Materials, The
Contractor shall provide these services at City -sponsored events upon City request, at
no cost to City or ratepayers. The City's intent will be to alternate events assigned to
Contractor with those events it assigns to the City's residential cart services franchisee;
however, City does not guarantee that events will be evenly distributed based upon
either level of effort or number of events. City -sponsored events include, but are not
limited to:
• Concerts in the Park
• City Birthday Celebration
• Fourth of July
• Fun Fall Festival
• Winter Snow Fest
• Arbor Day
• Easter Egg Hunt
August 6, 2009 -33- City of Diamond Bar -Commercial
4.5.3 Emergency Collection and Disposal Service
Contractor will assist City at the City request with emergency Collection and Disposal
service (in the event of major disaster, such as an earthquake, storm, riot or civil
disturbance), or as otherwise determined necessary by the City, by providing Collection
equipment and drivers normally assigned to City. Contractor may charge City for
actual Disposal costs plus service rates per the approved rate schedule.
4.5.4 Abandoned Item Collection from City Right -of -Way or Other Public Property
Contractor will Collect and dispose of, at no additional charge, within one business day
of notification from City, all items left in the City's right-of-way, such as sidewalks,
alleys, streets, and parkways. Contractor will not be required to Collect Hazardous
Waste (with the exclusion of electronic waste and universal wastes as provided in this
Agreement), liquid wastes, or automobile parts that are individually too large for
Collection by two people, but will be required to Collect any items defined as Bulky
Items. Contractor will properly divert from landfilling or Dispose of such items in
accordance with Sections 4.1.16 and 4.1.17. City will contact either the residential or
commercial franchisee to provide this service, depending on the location of the
abandoned item.
4.5.5 Community Development Review Services
Upon City request and at no additional charge, Contractor will review building permit
applicants' plans and advise regarding adequacy of Container storage space and access,
particularly to accommodate Recycling containers.
4.5.6 Large Venue Event Assistance, Event Recycling
Contractor will assist planners of large venue events with reporting and planning needs
as may be useful in meeting the requirements of AB 2176, found at California Public
Resources Code 42648, et seq. at no additional charge. Contractor shall provide
Recycling services upon request to special event planners.
4.5.7 Confiscation of Unauthorized Containers
City authorizes Contractor to confiscate illegal Collection Containers located within the
City's pubic rights -of -way. Upon notification from City, or Contractor's locating of an
August 6, 2009 -34- City of Diamond Bar - Commercial
iRegally 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 the Container not be removed
by the hauler that Container may be removed without warning. If the company can
be identified and its address ascertained, Contractor shall mail the warning as well.
2. Notify City of the notice and request authorization to impound the Container.
3. With writtexx City approval, impound the Container if it has not yet been removed
by the illegal hauler.
For subsequent violations by the same company after the initial notice has been
posted, and after Contractor has mailed a warning to the company, Contractor may
request written approval from City to remove company's Containers immediately,
mailing a notice if address is known as to where the Container may be retrieved and
impound and storage costs. If address is unknown, Contractor shall place the notice
as close as feasible to where the Container was located.
Written approval from City under this section will include, but is not limited to,
approval sent by e-mail or facsimile.
4.5.8 Provision of Storage Containers
Contractor will provide the City with eleven 40-cubic-yard portable storage containers
to be used for storage at City facilities and schools for the duration of the Agreement,
and will maintain them in a condition satisfactory to the City. Contractor may transfer
ownership of these storage containers to City, provided Contractor will remove and
Dispose of these containers when requested to by City.
4.6 Operations
4.6.1 Schedules; Missed Pickups
To preserve peace and quiet, Solid Waste shall only be Collected between 6:30 a.m. and
6:30 p.m. Collection is only permitted Monday through Saturday. Contractor may not
August 6, 2009 -35- City of Diamond Bar - Commercial
make exceptions to these Collection days and times without advance written approval
from the City. If the regularly scheduled Collection day falls on New Year's Day,
Memorial Day, Fourth of July, Labor Day, Thanksgiving Day, or Christmas Day,
Collection days for the remainder of that week shall all be postponed one Collection
day. Collection on Saturday holidays shall be made up on the prior Friday or the
following Monday.
Contractor shall review its operations plan outlining the Collection routes, intervals of
Collection and Collection times for all materials Collected under this Agreement with
City upon thirty (30) days written notice requesting said review. Contractor shall
submit a copy of its schedule and route map within seven (7) business days if requested
by City. If the plan is determined to be inadequate by City, Contractor shall revise it
incorporating any changes reasonably necessary to make it satisfactory to City within
thirty (30) days. Change in schedules and routing shall not be implemented without
City approval and not until at least fifteen (15) business days following notification to
Customers. The City may restrict the timing and frequency of any route changes based
upon the City's Municipal Code or any other applicable law or requirement.
When notified of a missed pickup (which was not justified under the provisions of this
Agreement) prior to 12:00 p.m., Contractor shall Collect the Refuse, Recyclable
Materials, and/or Green Waste that was not Collected the same day. If notified after
12:00 p.m., Collection must take place no later than the next business day. If Contractor
determined that the missed pickup was justified under this Agreement, Contractor will
notify Customer as to the reason within this same time period.
4.6.2 Vehicles
A. General. Contractor is responsible for providing all vehicles that may be
required for the Collection of Solid Waste that are sufficient in number and capacity to
efficiently perform the work required by this Agreement in strict accordance with its
terms. Contractor is expressly obligated to provide such Collection Vehicles and routes
as are required to meet the service standards set forth herein. Contractor shall have
available on Collection days sufficient back-up vehicles for each type of Collection
Vehicle used to respond to complaints and emergencies. All equipment of Contractor
used to provide the services set forth in this Agreement shall be subject to inspection by
City upon request.
August 6, 2009 -36- City of Diamond Bar -Commercial
B. Specifications. Within twelve months of the start of service under this
Agreement, all Collection vehicles used to provide service under this agreement,
including spares, shall use exclusively liquefied natural gas or compressed natural gas.
No Collection vehicle, including spares, used in the City shall be more than 10 years old
at any time during the Agreement Term. Such vehicles must be registered with the
California Department of Motor Vehicles and shall have water -tight bodies designed to
prevent leakage, spillage or overflow. At all times during the term of this Agreement,
Contractor's Collection vehicles shall comply with South Coast Air Quality
Management District Requirements and the California Air Resource Board
requirements as they are currently in force and as they may be approved for Refuse
removal vehicles, as well as other Federal, State and local laws and regulations that may
be enacted during the term of this Agreement.
C. Vehicle Identification and Labeling. Each Collection vehicle shall be marked
with Contractor's name, toll free phone number, and a vehicle identification number
designated by Contractor for each Collection Vehicle which shall be prominently
displayed on all such Vehicles, in lettering at least six inches in height. City must
approve truck labeling.
D. Cleaning and Maintenance
1) Contractor shall maintain all vehicles and equipment used in providing service
under this Agreement in a good, safe, neat, clean and operable condition at all
times.
2) Collection Vehicles shall be painted, thoroughly washed, and thoroughly steam
cleaned on a regular basis so as to present a clean appearance. Contractor shall
make all Collection Vehicles available to the County of Los Angeles for
inspection regarding health concerns and requirements at any frequency it
requests. Contractor agrees to replace or repair to the City's satisfaction, any
Collection Vehicle which City determines to be of unsightly appearance, leaking,
or in unsatisfactory operating condition.
3) Contractor shall repaint any or all Collection Vehicles within thirty (30) days'
notice from City, if City determines that their appearance warrants painting.
City may not require a vehicle to be repainted if it has been repainted within the
previous thirty (36) months.
August 6, 2009 -37- City of Diamond Bar -Commercial
4) Contractor shall inspect each Collection Vehicle daily to ensure that all
equipment is operating properly. Collection Vehicles which are not operating
properly shall be removed from service until repaired and operating properly.
Contractor shall perform all scheduled maintenance functions upon Collection
Vehicles in accordance with the manufacturer's specifications and schedule.
Contractor shall keep accurate records of all Collection Vehicle maintenance,
recorded according to date and shall make such records available to City upon
request.
5) Contractor shall repair, or arrange for the repair of, all of its vehicles and
equipment for which repairs are needed because of accident, breakdown or any
other cause so as to maintain all equipment in a safe and operable condition.
Contractor shall maintain accurate records of repair, which shall include the
date, nature of repair and the verification by signature of a maintenance
supervisor that the repair has been properly performed.
6) Upon request, Contractor shall furnish City a written inventory of all equipment,
including Collection Vehicles, used in providing service pursuant to this
Agreement. This inventory shall list all equipment by manufacturer, year of
production, ID number, date of acquisition, type, capacity, and whether the
vehicle is a spare.
'� All vehicles used to provide services under this Agreement shall at all times have
in the cab the registration of the truck, a certificate of insurance and an
identification card with the name of whom to telephone in case of an accident or
emergency. Each truck shall be equipped with a mhnfmum 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.
August 6, 2009 -38- City of Diamond Bar -Commercial
E. Operation. Vehicles shall be operated in compliance with the California Vehicle
Code, and all applicable safety and local ordinances. Contractor shall not load vehicles
in excess of the manufacturer's recommendations or limitations imposed by state or
local weight restrictions on vehicles.
Contractor's equipment shall comply with US EPA noise emission regulations,
currently codified at 40 CFR Part 205 and other applicable noise control regulations, and
such noise control features shall be incorporated throughout the entire fleet of
Collection Vehicles. Noise levels of equipment used for Collection shall comply with
Diamond Bar Municipal Code Chapter 8.16 and in no event shall the noise level exceed
75 dba when measured at a distance of 25 feet from the vehicle, five feet from the
ground. Contractor shall store all equipment in safe and secure locations in accordance
with City's applicable zoning regulations.
Contractor shall be responsible for any damage, normal wear and tear excepted,
resulting from or directly attributable to any of its operations, and which it causes to:
City's driving surfaces, whether or not paved, public or private; associated curbs,
gutters and traffic control devices; and all other public and private improvements.
F. City Inspection Per Code. City may cause any vehicle used in performance of
this Agreement to be inspected and tested at any commercially reasonable time and in
such manner as may be appropriate to determine that the vehicle is being maintained in
compliance with the provisions of the State Vehicle Code, including, but not limited to,
California Vehicle Code Sections 27000(b), 23114, 23115, 42030, 42032, and all Vehicle
Code Sections regarding smog equipment requirements. City may direct the removal of
any vehicle from service if that vehicle is found not to be in conformance with
applicable codes. No vehicle directed to be removed from service shall be returned to
service until it conforms with, and its return to service has been approved by City.
G. Vehicle Inspections. Upon City request, Contractor shall submit the Safety
Compliance Report/Terminal Record Update from its Biennial Inspection of Terminal,
or BIT. If Contractor receives a terminal rating below satisfactory, Contractor shall
notify the City, and Contractor is in violation of this Agreement. Contractor has the
time allowed by the Department of California Highway Patrol ("CHP") to cure
violations and bring the terminal rating up to satisfactory. If the CHP does not adjust
the rating to satisfactory or better within six (6) months, then the Contractor shall be
considered in default of the contract and the City may terminate this Agreement.
August 6, 2009 -39- City of Diamond Bar - Commercial
H. Correction of Defects. Following any inspection, the City Manager shall have
the right to cause Contractor, at its sole cost and expense, to recondition or replace any
vehicle or equipment found to be unsafe, unsanitary or unsightly. The City Manager's
determination may be appealed to the City Council, whose decision shall be final.
4.6.3 Containers
Contractor will provide Containers to be used under this Agreement.
4.6.3.1 Carts
A. Cart Design Requirements
Carts and Cart lids must meet color, size, uniformity and quality requirements of the
City. The City will not permit Carts and Cart lids with inconsistent colors or in poor
condition to be used in the City at any time during the term of this Agreement, and may
require Contractor to replace such Carts.
All Carts provided by Contractor utilized in the performance of this Agreement shall be
manufactured by injection or rotational molding and meet the Cart design and
performance requirements as specified below. All Carts selected shall be subject to
City's approval.
B. Section Deleted
C. Cart Color and Appearance
The Recycling and Green Waste Carts will be differentiated by color.
The colors shall be colorfast and resistant to fading as a result of weathering or
ultraviolet degradation. Color must be approved in advance by the City. Cart and Cart
lid colors shall be consistent throughout the City.
D. Cart Labeling and Hot Stamping
Labels used on Carts shall be placed on the inside of the Cart lid, and hot stamps shall
be on the top of the lid and/ or on the body of the Cart. Each Cart shall be hot stamped
"Recycling' or "Green Waste' in English, Mandarin and Korean. Design for both the
labels and the hot stamps must be approved by City prior to ordering labels or Carts.
City shall approve what information is included on the label and in the hot stamp, as
August 6, 2009 -40- City of Diamond Bar -Commercial
well as approve design and quality. Labels shall be replaced when worn, and when
information on the label is in need of updating, but no later than 90 days of request
from City. Information on the Carts shall include the telephone number to call for
Contractor, Bulky Item pickups and HHW disposal information, and shall include an
anti -scavenging warning.
4.6.3.2 Cart Maintenance and Replacement Responsibilities
Contractor shall be responsible for Cart repair and maintenance, graffiti removal and
replacing lost, stolen or damaged Carts within three (3) business days, at no additional
charge to the Customer or to City, unless Contractor can demonstrate to the City
Manager beyond a reasonable doubt that the damage or loss was due exclusively to
Customer's intentional or negligent behavior. City Manager shall make the final
determination. If City permits a repair or replacement charge to be assessed against a
Customer, charge shall be no more than the actual cost of repair or the Contractor's
purchase price for a new Cart, whichever is lower. All repairs must restore the Cart to
its full functionality. Unsightly/worn-out Carts shall be replaced by Contractor upon
Customer request at no additional charge.
4.6.3.3 Bins
A. Cleaning. Contractor shall maintain Bins in a clean, sound condition free from
putrescible residue. All Bins in use shall be constructed of heavy metal, or other
suitable, durable material, and shall be watertight and well painted. Wheels, forklift
slots, and other apparatuses, which were designed for movement, loading, or unloading
of the Bin shall be maintained in good repair.
Upon Customer or City request, or if required to maintain the Containers in a clean
condition, Contractor shall clean all Bins once per year at no additional charge.
Contractor shall perform cleaning or replacement of Bins more frequently if necessary
to prevent a nuisance caused by odors or vector harborage, or if requested by Customer
or City, for an additional fee in accordance with the approved rate schedule. When a
Bin is removed for cleaning, Contractor shall replace the Bin, either temporarily or as a
change -out, with another Container. Contractor shall remove graffiti from any
Container within three (3) business days of request by City or Customer. Contractor is
requireA to proactively look for graffiti when Collecting Bins, with all graffiti removed
August 6. 2009 -41- City of Diamond Bar - Commercial
from Containers in no later than three (3) business days after any Collection without
notification.
B. Bin Identification and Color. Each Bin placed in City by Contractor shall be
clearly labeled on the front of the Bin with the Bin type (Refuse, Recycling, Cardboard,
Green Waste) and the name of Contractor and phone number in letters not less than
three (3) inches high on the exterior of the Bin so as to be visible when the Bin is placed
for use. Alternatively, the Bin type (Refuse, Recycling, Cardboard, Green Waste) may
be identified with an affixed sign. Labels shall also be placed on the inside of the Bin lid.
Labels shall include English, Korean, Mandarin and graphic instruction on what
materials should and should not be placed in each Bin, and shall include an anti -
scavenging warning. Contractor shall have labels approved by City prior to ordering
and placement on Bins. Labels shall be replaced when worn, and when information on
the label is in need of updating, but no later than 90 days of request from City.
Contractor shall repaint Bins upon City's request if the City deems it necessary to
maintain a neat appearance.
4.6.3.4 Roll -off Boxes
Contractor shall provide sufficient Roll -off Boxes to meet Customer demand
throughout the Term of the Agreement, and will keep all Roll -off Boxes clean, free from
graffiti, equipped with reflectors, and with the name and phone number of Contractor
in letters not less than three (3) inches high on the exterior of the Roll -off Box so as to be
visible when the Roll -off Box is placed for use. Contractor shall properly cover all open
Roll -off Boxes during transport as required by the State Vehicle Code,
4.6.4 Litter Abatement
A. Minimization of Spills. Contractor shall use due care to prevent Solid Waste or
fluids from leaking, being spilled and/ 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.
August 6, 2009 -42- City of Diamond Bar -Commercial
Contractor shall not transfer loads from one vehicle to another on any public street,
unless it is necessary to do so because of mechanical failure, accidental damage to a
vehicle, or a pre -approved method of Solid Waste transfer between vehicles, without
prior written approval by City. See Section 11.3.13.2.d.
B. Clean Up. During the Collection or transportation process, Contractor shall
clean up all litter spilled during Collection or otherwise caused by Contractor.
Contractor shall leave a "red tag" notice for Customer if litter not caused by Contractor
is found in Container enclosure or around Containers. Contractor may charge
Customers in accordance with the approved rate schedule for the cleaning of Container
enclosures or around the Container if it is littered due to overflowing Containers.
Contractor may address habitual offenders in accordance with Section 4.1.8.
In the event of a spill of materials (vehicle fluids, Green Waste leachate, etc.), Contractor
shall provide a cleanup of the spill to the satisfaction of City and other governing
agencies. Cleanup methods may include pressure washing (Contractor must capture
and reclaim water) or other similar clean-up methods.
C. Covering of Loads. Contractor shall properly cover all open debris boxes during
transport to the Disposal Site or processing facility.
4.6.5 Personnel
A. qualified Personnel. Contractor shall furnish such qualified drivers,
mechanical, supervisory, clerical, management and other personnel as may be
necessary to provide the services required by this Agreement in a satisfactory, safe,
economical and efficient manner. All drivers shall be trained and qualified in the
operation of vehicles they operate and must possess a valid license, of the appropriate
class, issued by the California Department of Motor Vehicles.
B, Hazardous Waste Employee Training. Contractor shall establish and vigorously
enforce an educational program which will train Contractor's employees in the
identification of Hazardous Waste. Contractor's employees shall not knowingly place
such Hazardous Waste in the Collection Vehicles, nor knowingly dispose of such
Hazardous Wastes at the processing Facility or Disposal Site.
August 6, 2009 -43- City of Diamond Bar -Commercial
co Unauthorized Material Removal. Contractor shall dismiss or discipline
employees who remove documents or any other material from Containers, other than
specifically for the purposes of Disposal and Diversion as described in this Agreement.
D. Training. Contractor shall provide suitable operations, health and safety
training for all of its employees who use or operate equipment or who are otherwise
directly involved in Collection or other related operations.
4.6.6 Identification Required
Contractor shall provide its employees, companies and subcontractors with
identification for all individuals who may make personal contact with residents or
businesses in City. City may require Contractor to notify Customers yearly of the form
of said identification. Contractor shall provide a list of current employees, companies,
and subcontractors to City upon request.
City reserves the right to perform a security and identification check through the City's
Police Department on the Contractor and all their present and future employees
employed by Contractor to work in the City, in accordance with accepted procedures
established by City, or for probable cause.
4,6.7 Unauthorized Fees and Gratuities
Contractor shall not, nor shall it permit any agent, employee, or subcontractors
employed by it to request, solicit or demand, either directly or indirectly, any
compensation or gratuity for services authorized to be performed under this Agreement
except as described in this Agreement, in accordance with Exhibit 2 as updated and
approved by City throughout the Term of the Agreement.
4.6.8 Non -Discrimination
Contractor shall not discriminate in the provision of service or the employment of
persons engaged in performance of this Agreement on account of race, color, religion,
sex, sexual orientation, age, physical handicap or medical condition in violation of any
applicable federal or State law.
August 6, 2009 -44- City of Diamond Bar -Commercial
4.6.9 Report of Accumulation of Solid Waste; Unauthorized Dumping
Contractor shall direct its drivers to note (1) the addresses of any Premises serviced
under this Agreement at which they observe that Solid Waste is accumulating and
which is not being place out for Collection; and (2) the address, or other location
description, at which Solid Waste has been dumped in an apparently unauthorized
manner. Contractor shall deliver the address or description to City within one (1)
working day of such observation.
4.7 Transportation of Solid Waste
Contractor shall hansport all Refuse Collected to aCity-approved Facility (e.g. Transfer
Station, Waste -to -Energy Facility, Green Waste Processing Facility, MRF, Disposal Site).
Contractor agrees to make all reasonable efforts to separate Recyclable Materials from
Refuse for Diversion from landfill Disposal.
Contractor shall maintain accurate records of the quantities of Solid Waste transported
to all Facilities utilized and will cooperate with City in any audits or investigations of
such quantities.
Contractor shall cooperate with the operator of any Facility it uses with regard to
operations therein, including, for example, complying with directions from the operator
to unload Collection vehicles in designated areas, accommodating to maintenance
operations and construction of new facilities, cooperating with its Hazardous Waste
exclusion program, and so forth.
4.8 Approved Facilities
The Contractor shall dispose of Refuse Collected that is not required to be processed at
the approved Disposal Site. Contractor must receive written advance approval from
City to use each transfer station, transformation facility, processing facility or other
Facility used by Contractor in the fulfillment of this Agreement. Contractor is
responsible for ensuring that each Facility it uses is properly permitted prior to
requesting City approval to use such Facility. Unless and until the City instructs
otherwise, the designated Disposal Site and other Facilities are: Grand Central
Recycling and Transfer Station.
August 6, 2009 -45- City of Diamond Bar -Commercial
4.9 Status of Disposal Site
Any Disposal Site utilized by Contractor, shall be designed and constructed in
accordance with 23 California Code of Regulations Section 2510 et seq. ( Subchapter 15")
Any such landfill shall have been issued all permits from federal, state, regional, county
and city agencies necessary for it to operate as a Class III Sanitary Landfill and is in full
regulatory compliance with all such permits.
4.10 Dedicated Routes
Solid Waste Collected in the City shall not be commingled in Collection vehicles with
Solid Waste from other jurisdictions. All routes shall be dedicated exclusively to City of
Diamond Bar Solid Waste.
4.11 Route Audit
Once during the first year, and subsequently upon request by the City, but in no event
more than once per year, Contractor shall conduct an audit of its Collection routes in
the City. In setting these audit dates, City will establish due dates for Contractor
providing routing and account information, and later, the report, to City.
The route audit, at minimum, shall consist of an independent physical observation by
person(s) other than the route driver of each Customer in City. This person(s) is to be
approved in advance by City. The route audit information shall include, as a minimum,
the following information for each account:
• Route Number;
• Truck Number;
• Account Name;
• Account Number;
• Account Service Address;
• Account Type (Residential, Commercial, Roll -Off);
• Service Level per Contractor Billing system (Quantity, Size, Frequency);
• Observed Containers (Quantity and Size);
• Container condition;
® Proper signage;
• Graffiti.
August 6, 2009 -46- City of Diamond Bar -Commercial
Within forty-five (45) days after the completion of the route audit, Contractor shall
submit to City a report summarizing the results of the audit. This summary shall
include:
• Identification of the routes;
• Route map;
• Truck numbers;
• Number of accounts, by route and in total;
• Confirmation that all routes are dedicated exclusively to City Customers;
• Number and type of exceptions observed;
• Total monthly service charge (Residential, Commercial and Roll -Off Box), pre -audit;
• Total monthly service charge (Residential, Commercial and Roll -Off Box), post -audit
(subsequent to corrections of identified exceptions).
The report shall include a description of the procedures followed to complete the route
audit. This description shall include the names and titles of those supervising the route
audits and the name and titles of those performing the observations.
The report shall also include a description of the changes and Contractor's plans to
resolve the exceptions. The results of the audit, and supporting back-up data, shall be
available for review by City or its representative.
August 6, 2009 -47- City of Diamond Bar - Commercial
ARTICLE 5
OTHER SERVICES
5.1 Customer Billing and Contractor Compensation
5.1.1 Billing
Contractor shall Bill Customers in accordance with the approved rate schedule attached
as Exhibit 2. Contractor Compensation is exclusively derived from revenue received as
a result of the Billings for services listed on the approved rate schedule, and Contractor
shall charge no additional fees unless approved in advance by the City.
Contractor will accept major credit cards for payment from Customers who request
temporary Roll -off Box or temporary Bin service that do not have an account with
Contractor. Customers without such an account who do not use credit cards may be
required by the Contractor to post a security deposit or to pay on a "Cash on Delivery'
(C.O.D.) basis. Any unused portion of a security deposit will be refunded to the
Customer within five business days of the termination of service.
Contractor shall be responsible for bad debt.
5.1.2 Contractor's Invoices
Bills must be itemized by Container size, frequency of service and period billed for. City
must approve the format of Contractor billing invoices. All bills must carry a due date,
not "due upon receipt." Bills will not carry an itemization of fees remitted to the City.
Section Deleted
5.1.4 Section Deleted
Section Deleted
5.1.6 Non -Payment; Collections; Suspension of Service
In the event of non-payment by a Commercial Customer Billed by Contractor,
Contractor must follow these steps before suspending service:
August 6, 2009 -48- City of Diamond Bar - Commercial
First Notice - If payment is not received by 15 days after due date, Contractor shall
notify Customer in writing of the non -receipt of payment and that non-payment can
result in suspension of service.
Second Notice - If payment is not received within 15 days of the mailing of the first
notice of non -receipt of payment, Contractor shall mail a second notice of non -receipt of
payment, warning that 1) service will be suspended in 15 days if payment is not
received and that City will undertake code enforcement against the delinquent
Customer, and 2) Contractor may assess a penalty of up to 10% on balances outstanding
for sixty (60) days after the invoice date.
Contractor shall not suspend service without prior approval from City.
Notwithstanding the above, in the event of a Billing dispute or to avoid a negative
impact on public health or safety, Contractor shall continue to provide service to all
Customers unless permitted otherwise by City, without regard to the status of said
Customer account. Contractor may be required to continue Residential service despite
lack of payment due to health and safety concerns.
5.2 Customer Service
5.2.1 Local Office
Contractor shall maintain a local office. Said office shall be open ("Office Hours"), at a
minimum, from 7:00 A.M. to 5:00 P.M., Monday through Friday, exclusive of holidays.
A responsible and qualified representative of Contractor shall be available during
Office Hours for personal communication with the public at the local office. Contractor
shall have either a representative, a message machine, or an answering service available
outside of Office Hours. Calls received outside of Office Hours shall be responded to
on the next business day. Contractor shall provide City with a twenty-four (24) hour
emergency number to a live person, not voice -mail.
5.2.2 Complaint Documentation
Service complaints received by City will be directed to Contractor. Contractor shall
keep daily logs of complaints forwarded to it for a minimum of three (3) years.
Contractor shall log all complaints received and said log shall include the date and time
the complaint was received, the name, address and telephone number of the
August 6, 2009 -49- City of Diamond Bar - Commercial
caller/complainant, a description of the complaint, the name of the employee recording
the complaint and the action taken by Contractor to respond to and remedy the
complaint. The log shall also include each instance that Solid Waste and/or Recyclables
are not Collected and the form of notification used to inform the participants of the
reasons for non -Collection and the end result or means of resolution of the incident.
All written Customer complaints and inquiries shall be date -stamped when received.
All complaints shall be initially responded to within one (1) business day of receipt.
Contractor shall use best efforts to resolve complaints within two (2) business days.
Contractor shall log action taken by Contractor to respond to and remedy the
complaint.
All Customer service records and logs kept Uy Contractor shall be available to City
upon request. City shall, at any time during regular Office Hours, have access to
Contractor's Customer service department for purposes that may include monitoring
the quality of Customer service or researching Customer complaints.
Contractor shall record Customer complaints regarding Customer service personnel in
accordance with this Section 5.2.2. Customer service representatives receiving multiple
complaints are to be transferred from Customer service duties or, with City approval,
disciplined and appropriately trained.
5.2.3 Customer Service Standards
Customer care is among the most important aspects of the services to be required of the
Contractor. Contractor shall perform customer service at a level that can be measured
by the following two standards:
1. The number of complaints in any one month period totaling no more that 2.5% of
the number of residential customers served. In Diamond Bar, there are an estimated
300 accounts, meaning that in any given month, there must not be more than 8
complaints. Any compliant level in excess of this measure will be considered a
separate violation of the agreement.
2. Sufficient telephone line capacity during normal office hours to ensure that all calls
will be answered in less than an average of thirty (30) seconds.
August 6, 2009 -50- City of Diamond Bar - Commercial
Contractor shall insure that all incoming calls are answered courteously and
promptly during the office hours stated above. Calls will be answered in less than an
average of thirty (30) seconds, and thereafter will not be placed on hold longer than
an average of one (1) minute before talking to a customer service representative of
the Contractor. This standard must be measured quarterly, and the Contractor shall
not exceed this standard or it will be considered a separate violation of this
Agreement,
Contractor shall track complaints and call ringing and hold requirements, and include
results in its quarterly report to the City. In any 12-month period, accumulation by the
Contractor of four or more separate customer service violations shall be deemed a
material breach of this Agreement and shall subject Contractor to all remedies which
are available to the City under this Agreement or otherwise. A violation is one month in
which the number of complaints exceeds the maximum permitted under Section
5.2.3(A) or one calendar quarter in which fewer than 90% of calls placed by the City and
its Customers to Contractor are answered by a live customer service representative
before the fourth 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.
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.
August 6, 2009 -51- City of Diamond Bar -Commercial
Intervention by City is not a condition precedent to any rights or remedies third parties
might otherwise have in any dispute with Contractor. Nothing in this section is
intended to affect the remedies of third parties against Contractor.
5.2.5 Contract Liaison
Contractor shall designate in writing a "Contract Liaison" who shall be responsible for
working with City and/or City's designated representative(s) to resolve Agreement -
related issues. City shall have the right to approve the Contractor's choice for a liaison.
City shall be notified in advance of any change in Contract Liaison.
5.2.6 Service Liaison
Contractor shall designate in writing a field supervisor as "Service Liaison" who shall
be responsible for working with City and/or City's designated representative(s) to
resolve Customer service related complaints. City shall have the right to approve the
Contractor's choice for a liaison. City shall be notified in advance of any change in
Service Liaison.
5.3 Education and Public Awareness
5.3.1 General
Contractor acknowledges and agrees that education and public awareness are critical
elements of efforts to achieve the requirements of AB 939. Accordingly, Contractor
agrees to take direction from City to exploit opportunities to expand public and
Customer knowledge concerning needs and methods to reduce, reuse and Recycle Solid
Waste and to cooperate fully with City in this regard.
Contractor shall maintain its own program of providing information relevant to needs
and methods to reduce, reuse and recycle Solid Waste to be distributed, when
appropriate, along with its Bills. All public education materials shall be subject to
approval in advance by City and shall be printed in English, Mandarin and Korean.
5.3.2 Implementation and On -going Education Requirements
In order to promote public education, in addition to any other materials it develops,
Contractor shall create the following public education materials and programs at its
expense, which will be distributed as indicated below. All of these materials and
August 6, 2009 -52- City of Diamond Bar - Commercial
programs shall be produced and/or available in English, Mandarin and Korean
languages, including pictures wherever applicable. All brochures, mailings, and other
educational materials are subject to approval by City in advance of distribution. A
Public Education Plan shall be submitted to City for review within sixty (60) days of the
execution of this Agreement. The plan shall address the items described in this section.
The approved plan shall be attached to this Agreement as Exhibit 1.
• Instructional "How-to" Packets - An information packet shall be provided to each
Customer at the start of service under this Agreement and to each new Customer
throughout the Agreement term. This packet shall: describe available services,
including available Recycling and Diversion programs; provide instructions for
proper use of the Containers (such as the types of materials to be placed in each type
of Container and other similar information); detailed holiday Collection schedules;
and provide billing and Customer service telephone numbers; identify who to
contact with service or Billing questions; and who to contact for Bulky Item pickups.
The packet
should also clearly indicate
what materials, such as syringes
and other
Household
Hazardous Wastes (HHW),
should not be disposed of in the
Containers.
The packet
shall include instructions on
how Customers should dispose
of HHW.
• Container Labels and Hot Stamps - Recyclables and Green Waste Containers shall
carry stickers/labels and hot stamps as described in Sections 4.6.3.1.13 and 4.6.3.3.B.
• Billing Inserts -City may require Contractor to insert notices in Contractor's
Billings up to four (4) times per year. City may instruct Contractor to prepare such
notices at Contractor's expense, or may choose to provide such notices for insertion.
Additionally, City may periodically request that Contractor include informative
language directly on the invoices it sends.
• Annual Brochures/Mailings -Not less than once per year during each Rate Year,
Contractor shall prepare and distribute to each Customer a mailing to update
Customers regarding program basics, program changes, holiday schedules and
other service related information. Mailings should promote and explain: all Solid
Waste programs offered by City and Contractor (such as Recycling, Green Waste,
Holiday Tree and Bulky Item Collections) described in detail; the environmental,
regulatory, and other benefits of participating in Recycling; how to properly dispose
of Household Hazardous Waste such as syringes, paint, etc.; Collection schedules,
August 6, 2009 -53- City of Diamond Bar - Commercial
including holiday schedules; Customers service numbers; and the procedures to
begin and terminate services (if moving from Premises). This brochure shall be at
least four (4) pages, and printed in full color. Contractor is responsible for all
associated costs.
• Corrective Action Notice - Contractor shall develop a corrective action notification
form for use in instances where a Customer sets out inappropriate materials for
Collection, that explains the appropriate manner for Disposal of such items.
• Website -Contractor shall develop and maintain a website to display holiday
schedules, explain proper HHW disposal procedures, describe which materials are
to be placed in Recyclables Containers and other useful information, as well as
informing Customers how to contact Contractor.
5.3.3 Contractor Representative
Contractor shall retain on its staff an individual who shall, as part of his or her job
function, routinely visit civic groups, school assemblies, homeowners' associations,
Multi -Family complexes and businesses, to promote and explain the Recycling
programs Contractor offers, and participate in demonstrations, and civic events, and
coordinate those visits with the City.
5.3.4 Community Events
At the direction of City, Contractor shall participate in and promote Recycling and
other Diversion techniques at community events and local activities. Such participation
would normally include providing, without cost, educational and publicity information
promoting the goals of City's Solid Waste program.
5.4 Waste Generation/Characterization Studies
Contractor acknowledges that City must perform Solid Waste generation and Disposal
characterization studies periodically to comply with the requirements of AB 939.
Contractor agrees to participate and cooperate with City and its agents and to
accomplish studies and data collection and prepare reports, as needed and directed by
City, to determine weights and volumes of Solid Waste Collected and characterize Solid
Waste generated, disposed, transformed, diverted or otherwise handled/processed, by
Customer type, to satisfy the requirements of AB 939. Upon request of City, Contractor
August 6; 2009 -54- Cify of Diamond Bar -Commercial
will at its sole expense conduct a waste generation and characterization study relating
only to the Solid Waste Contractor Collects, but not more than once every three years.
August 6, 2009 -55- City of Diamond Bar -Commercial
ARTICLE 6
COMPANY COMPENSATION AND RATES
6.1 General
The maximum rates set forth in Exhibit 2, and as more fully defined as Contractor
Compensation in this Article, shall be the maximum amount Contractor may charge
Customers as full, entire and complete compensation due pursuant to this Agreement
for all labor, equipment, materials and supplies, taxes, insurance, bonds, letters of
credit, overhead, Disposal, transfer, profit and all other things necessary to perform all
the services required by this Agreement in the manner and at the times prescribed.
Contractor shall impose no other charges for services provided to Customers unless
approved by the City Manager,
6.2 Initial Rates
The maximum rates that Contractor may charge
Customers through
the Rate
Year
ending June 30, 2011, shall not exceed the maximum
rates set forth in
Exhibit
2,
6.3 Schedule of Future Adjustments
Beginning with the Rate Year starting July 1, 2011 and ending on June 30, 2012 and for
all subsequent Rate Years, Contractor may request an annual adjustment to the
maximum rates shown in Exhibit 2. The Contractor shall submit its request in writing,
to be received by City in Person or via certified mail, by the preceding March 30, and
shall be based on the method of adjustment described in Section 6.4. Failure to submit a
written request by March 30 shall constitute a waiver by Contractor of its right to
request such an increase for the subsequent Rate Year. Adjustment to the maximum
rates is subject to the approval of the City Manager.
6.4 Method of Adjustments
6.4.1 General
Pursuant to Section 6.3, the Contractor may request an adjustment to the maximum
rates according to the method described below and the formula shown in Exhibit 3,
August 6, 2009 -56- City of Diamond Bar - Commercial
subject to review and approval of City. All future adjustments are to be effective July 1
of the same calendar year, following the March 30 submission deadline.
6.4.2 Cost Components for Rate Adjustment Indices
The approved rates consist of the following cost component categories. Each cost
component may be adjusted by the change in the corresponding index below. See
Section 6.4.3 and Section 6.4.4 for detailed rate adjustment procedures.
Initial
Cost
Weightings
Rate Adjustment Factor
Category
Section
Section
6.4.3
6AA
Change in the "Driver" Classification to be in effect as of
the date the new rates go into effect (July 1) under the
Agreement between Waste Management of San
Gabriel/Pomona Valley, Inc. and Teamsters Automotive
Labor
25.7%
32.5%
Industrial and Allied Workers Local No. 495
Producer Price Index WPU 0531, Fuels and related
Fuel
8.4%
products and power, natural as
Producer Price Index, PCU336120336120, Heavy duty
Equipment
25.8%
truck manufacturing
r21,0
The actual change in landfill gate fee per ton at the
approved landfill, inclusive of taxes and fees included in
Disposal
n/a
gate fee
Consumer Price Index for All Urban Consurners
(CUURA421SAOLIE), all items less food and energy - Los
All Other
26.3%
33.3%
An eles-Riverside-Oran e County, CA
Total
100.0%
100.0%
1 For example, under the agreement terminatin October 1, 2009, these rates are:
Contract Date
10/ 1/ 06
IV/ 1 / 07
10/ 1/ 08
Hourly Rate
$17.25
$18.15
$18.80
Rate Adjustment Date
n/a
7/01/08
7/01/09
Change to Labor
Component
n/a
5.2%
3.6%
Comparable rates from subsequent labor agreements will similarly apply. If a
subsequent labor contract has not been executed prior to a rate adjustment calculation,
the percentage change in the labor cost component used in the prior year's adjustment
calculation will be used. In the event that the estimated labor component change is
August 6, 2009 -57- City of Diamond Bar - Commercial
higher or lower than the actual change after a new labor contract is executed, no
compensation adjustment shall be provided for prior periods.
6.4.3 Rate Adjustment Steps for Bin, Temporary and Other Services
All rates, except for those specifically adjusted under Section 6.4.4, will be adjusted
using the same methodology and cost component weightings. See Exhibit 3.
Step One -Calculate the percentage increase or decrease in the index for each category
listed in Section 6.4.2. The increase or decrease in the published indices for fuel,
equipment and all other (CPI) will be for the change in the average annual published
index between the calendar year ended the December prior to the Rate Year anniversary
date and prior calendar year.
Step Two -The weightings of the cost components for the first rate adjustment are
identified in the table in Section 6.4.2. Components to be used in subsequent years shall
be calculated in Step Four of the rate adjustment. For Step Two of each subsequent rate
adjustment, use the cost components recalculated in Step Four during the previous rate
adjustment.
The hauler may elect to apply for aone-time reset of cost component weightings prior
to the first rate adjustment based upon actual costs from August 16, 2010 through
February 28, 2011. This request and supporting data shall be submitted to the City by
March 30, 2011. The revision of the cost component weightings is subject to approval by
the City Manager, which will review the request and supporting data for
reasonableness.
Multiply the percentage changes for each rate adjustment component by that
component's weighting and add these resulting percentages together to get the total
weighted change to the rates.
Step Three -Multiply the total weighted percent change from Step Two by the existing
Customer rates to calculate the increase or decrease to the maximum rates. Add the rate
increase or decrease to the existing rates to derive the newly adjusted rates.
Step Four -Recalculate weightings for the following year based upon these changes.
August 6, 2009 -58- City of Diamond Bar -Commercial
6.4.4 Rate Adjustment Steps for Pull Plus Dump Roll -Off Rates
This section shall apply exclusively to the adjustment of permanent Roll -Off Box rates
that consist of a pull rate, or service component, plus a per ton Disposal/processing
cost. See Exhibit 3B for an example rate adjustment procedure.
Service or "Pull" Component
Step One -Calculate the percentage increase or decrease in the index for each cost
category listed in Section 6.4.2, with the exclusion of the Disposal index. The increase or
decrease in the published indices for fuel, equipment and all other (CPI) will be for the
change in the average annual published index between the calendar year ended the
December prior to the Rate Year anniversary date and prior calendar year.
Ste�Two -The cost components for the first rate adjustment shall be calculated as a
percentage of total costs, based upon actual Contractor costs for the twelve-month
period ended December 31, 2010, with subsequent components calculated in Step Four
of the rate adjustment. For Step Two of each subsequent rate adjustment, use the cost
components recalculated in Step Four during the previous rate adjustment.
Multiply the percentage changes for each rate adjustment component by that
component's weighting and add these resulting percentages together to get the total
weighted change to the rates.
Step Three -Multiply the total weighted percent change from Step Two Uy the existing
Customer rates to calculate the increase or decrease to the maximum rates. Add the rate
increase or decrease to the existing rates to derive the newly adjusted rates.
Step Four -Recalculate weightings for the following year based upon these changes.
Disposal/Processing Component -The Disposal/processing component of these rates
will be adjusted based upon the increase or decrease in the average annual CPI index
between the calendar year ended the December prior to the Rate Year anniversary date
and prior calendar year.
6.5 Extraordinary Adjustments
Contractor may request an adjustment to maximum rates in the event of extraordinary
changes in the cost of providing service under this Agreement, including changes in a
August 6, 2009 -59- City of Diamond Bar - Commercial
Erect per ton surcharge assessed at the Disposal Site by federal, state or local regulatory
agencies after the Effective Date. These requests, with the exception of changes in a
direct per ton surcharge assessed at the Disposal Site by federal, state or local regulatory
agencies after the Effective Date, if approved, shall only be granted at the time of the
annual July 1 increase per Section 6.3, must be submitted no later than March 30 of each
year, and should be submitted as early as feasible to provide City with sufficient time to
review the request prior to granting the annual July 1 increase. Changes in Disposal
surcharges may be requested at other times. Such changes shall not include changes in
Recyclable Material processing costs, changes in the market value of Recyclables,
inaccurate estimates by the Contractor of its proposed cost of operations, or
unionization of Contractor's work force. Extraordinary rate adjustments shall only be
effective after approval by City Council and may not be applied retroactively.
For each request for an adjustment to the maximum rates that Contractor may charge
Customers brought pursuant to this section, Contractor shall prepare a schedule
documenting the extraordinary costs. Such request shall be prepared in a form
acceptable to City with support for assumptions made by Contractor in preparing the
estimate. Contractor shall also submit a schedule showing how its total costs and total
revenues have changed over the past three years for the services provided under this
Agreement.
City may request a copy of the Contractor's annual financial statements in connection
with the City's review of Contractor's extraordinary rate adjustment request. City shall
review the Contractor's request and, in City's sole judgment and absolute, unfettered
discretion, make the final determination as to whether an adjustment to the maximum
rates will be made, and, if an adjustment is permitted, the appropriate amount of the
adjustment. City will confirm receipt of a request for an extraordinary rate adjustment
within sixty (60) days of receipt of Contractor's request and will promptly coordinate
with Contractor to assess the request. City may consider increases or decreases in the
Contractor's total revenues and total cost of services when reviewing an extraordinary
rate adjustment request.
6.6 Effect of Proposition 218
If a rate adjustment approved by the City Manager or City Council is prevented from
implementation due to a protest under Proposition 218, and City does not otherwise
compensate Contractor for amount of the adjustment due, Contractor is permitted to
August 6, 2009 -60- City of Diamond Bar - Commercial
terminate this Agreement upon one-year notice. Parties do not believe and do not
intend to imply that Proposition 218 applies to Contractor's charges.
Augus# 6, 2009 -61- City of Diamond Bar -Commercial
ARTICLE i
REVIEW OF SERVICES AND PERFORMANCE
7.1 Performance Review Meeting
City may hold a meeting annually to review Contractor's Solid Waste Collection efforts,
source reduction, processing and other Diversion services and overall performance
under this Agreement (the "Solid Waste Services and Performance Review Meeting').
The purpose of the Solid Waste Services and Performance Review Meeting is to provide
for a discussion and review of technological, economic, and regulatory changes in
Collection, source reduction, Recycling, processing and Disposal to achieve a
continuing, advanced Solid Waste Collection, source reduction and Recycling and
Disposal system; and to ensure services are being provided by Contractor with
adequate quality, effectiveness and economy, and in full compliance with the terms of
this Agreement. Topics for discussion and review at the Solid Waste Services and
Performance Review Meeting shall include, but shall not be limited to, services
provided, feasibility of providing new services, application of new technologies,
Customer complaints, amendments to this Agreement, developments in the law, new
initiatives for meeting or exceeding AB 939's goals, regulatory constraints, results of
route audits, and Contractor performance. City and Contractor may each select
additional topics for discussion at any Solid Waste Services and Performance Review
Meeting.
City shall notify Contractor of its intent to hold a Solid Waste Services and Performance
Review Meeting at least sixty (60) days in advance thereof. Thirty (30) days after
receiving notice from City of a Solid Waste Services and Performance Review Meeting,
Contractor shall submit a report to City which may contain such information as it
wishes to have considered, and shall contain the following:
a) Current Diversion rates and a report on Contractor's outreach activities for the
past year.
b) Recommended changes and/ or new services to improve City's ability to meet the
goals of AB 939 and to contain costs and minimize impacts on rates. A specific
plan for AB 939 compliance shall be included.
c) Any specific plans for provision for new or changed services by Contractor.
August 6, 2009 -62- City of Diamond Bar -Commercial
The reports required by this Agreement regarding Customer complaints shall be used
as one basis for review of Contractor's performance, and Contractor may submit other
relevant performance information and reports for consideration at the Solid Waste
Services and Performance Review Meeting. In addition to the above, City may request
Contractor to submit any other specific information relating to its performance for
consideration at the Solid Waste Services and Performance Review Meeting, and any
Customer may submit comments or complaints during or before the Meeting, either
orally or in writing. Contractor shall be present at and participate in the Solid Waste
Services and Performance Review Meeting.
As a result of its findings following any Solid Waste Services and Performance Review
Meeting, City may require Contractor to provide expanded or new services within a
reasonable time and City may direct or take corrective actions for any performance
inadequacies (although nothing contained in this provision should be construed as
requiring City to hold a Solid Waste Services and Performance Review Meeting in order
to enforce any rights or remedies it has pursuant to the terms hereof.) Should City
require expanded or new services as a remedy for Contractor's failure to perform its
obligations hereunder, no additional compensation shall be due for such services.
Otherwise, any new or expanded services required of Contractor shall be subject to the
provisions of Section 2.10,
7.2 Performance Satisfaction Sixrvey
If requested by the City, Contractor will create and conduct a survey at Contractor's
expense. If City would like to present results at a Solid Waste Services and Performance
Review Meeting, City shall notify Contractor of its desire for such a survey at least 90
days in advance of the Solid Waste Services and Performance Review Meeting. The
purpose of the survey is to determine Customer satisfaction with current Collection
services and Customer service provided by Contractor. The Survey will be distributed
to one hundred percent (100%) of the Customers. Contractor shall obtain City's
approval of the survey's content, format, and mailing list prior to its distribution. City
may require that Contractor have Customer responses to the survey returned directly to
City. The survey results shall be made available to the City thirty (30) days prior to the
Solid Waste Services and Performance Review Meeting,
August 6, 2009 -63- City of Diamond Bar -Commercial
ARTICLE 8
RECORDS, REPORTS AND INFORMATION REQUIREMENTS
8.1 General
Contractor shall maintain such accounting, statistical and other records related to its
performance under this Agreement as shall be necessary to develop the financial
statements and other reports required by this Agreement. Also, Contractor agrees to
conduct data collection, information and record keeping, and reporting activities
needed to comply with applicable laws and regulations and to meet the reporting and
Solid Waste program management needs of City. To this extent, such requirements set
out in this and other Articles of this Agreement shall not be considered limiting or
necessarily complete. In particular, this Article is intended to only highlight the general
nature of records and reports and is not meant to define exactly what the records and
reports are to be and their content. Further, with the written direction or approval of
City, the records and reports to be maintained and provided by Contractor in
accordance with this and other Articles of this Agreement shall be adjusted in number,
format, or frequency.
8.2 Records
8.2.1 General
Contractor shall maintain records required to conduct its operations, to support
requests it may make to City, and to respond to requests from City in the conduct of
City business. Adequate record security shall be maintained to preserve records from
events that can be reasonably anticipated such as a fire, theft and earthquake.
Electronically maintained data/records shall be protected and backed up. All records,
with the exception of records to be maintained under Section 8.2.4, shall be maintained
for five (5) years, and shall continue to be available for five (5) years after the expiration
of this Agreement. After minimum holding periods are met, Contractor will notify City
Manager and City Attorney ninety (90) days before destroying records and offer
records to the City.
City shall have the right to inspect or review the specific documents or records required
expressly or by inference pursuant to this Agreement, or any other similar records or
August 6, 2009 -64- City of Diamond Bar - Commercial
reports of Contractor or its Affiliates that City shall deem, in its sole discretion,
necessary to evaluate annual reports, and Contractor's performance provided for in this
Agreement. Contractor agrees that the records of any and all companies conducting
operations addressed in the Agreement shall be provided or made available to City and
its official representatives. Account histories shall be accessible to the City by computer
for a minimum of five (5) years after termination of the Agreement. Contractor shall
make all records and documents to be reviewed and inspected by City as a part of any
audit or other record review conducted by City, available for City's review, inspection
and copying within five (5) days of receiving written notice from City requesting the
same. Additionally, City may review records at Contractor's local facility during
normal business hours, within five (5) days of request during normal business hours.
Such records include, but are not limited to, financial, Solid Waste, CERCLA and
Disposal records.
8.2.2 Financial Records
Contractor shall maintain financial records relating to its operations pursuant to this
Agreement separate and segregated from such records relating to its other operations.
Contractor shall maintain at least the following records:
• Audited financial statements for Contractor or, if a guarantee was provided, for the
parent company guarantor as a whole;
• Financial statements (compiled, reviewed or audited) of revenue and expense for
this Agreement segregated from the other operations of Contractor (including
without limitation those operations of Contractor in City and surrounding
jurisdictions which are not covered by this Agreement), including a description of
segregation methodology; and
• Complete descriptions of related party transactions (corporate and/or regional
manaCD ement fees, inter -company profits from transfer, processing or Disposal
operations).
5.2.3 Solid Waste Records
Contractor shall maintain and make available to the City upon request the following
records
relating
to its operations
pursuant to
this Agreement:
August 6, 2009
-65-
City of Diamond Bar - Commercial
a) Customer services and Billing/City payment records;
b) Records of tons Collected, processed, diverted and disposed by waste stream
(Refuse, Recycling, Green Waste), by Customer type (Cart, Bin, Roll -Off Box),
and the Facilities (Transfer Station, MRF, or landfill) where such material was
taken;
c) Quantity of RecyclaUle 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.
0.2.4 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.
August 6, 2009 66- City of Diamond Bar -Commercial
8.2.5 Section Deleted
8.2.6 Other ProgramsRecords
Records for other programs shall be tailored to specific needs. In general, they shall
include:
a) Plans, tasks, and milestones; and,
b) Accomplishments in terms such as dates, activities conducted, quantities of
products used, produced or distributed, and numbers of participants and
responses.
8.2.7 Audit
City may conduct an audit of Contractor at any time. The scope of the audit, and
auditing party, will be determined by City and the scope may include, but is not limited
to, compliance with terms of this Agreement, Customer service levels and Billing, fee
payments, Gross Receipts, tonnage, and verification of Diversion rate. The first audit, to
be performed during calendar year 2012, will be based on the Contractor's reports and
records from the start of the Agreement through calendar year 2011. Audits will be
performed every third year thereafter. Contractor will reimburse to the City the cost of
such audits (including audits conducted by City staff) up to $50,000 for the first audit,
and $35,000 for each subsequent audit in 2012 dollars. After 2012, the $35,000 amount
shall be increased annually by the change in CPI using the formula for the change in the
'all other' component of the rates in Section 6.4.
Should an audit conducted or authorized by the City disclose that fees payable by
Company were underpaid by two percent (2%) or more, that tonnage was mis-reported
by 2% or more, or that more than two percent (2%) of the Customers were inaccurately
billed based on the auditor's sampling, for the period under review, City may expand
the scope of the audit and recover all additional audit costs from the Contractor.
8.2.5 Payments and Refunds
Should an audit disclose that fees payable by the Contractor were underpaid to City or
that Customers were overcharged for the period under review, Contractor shall pay to
City any underpayment of fees and/or refund to Contractor's Customers or to City, as
directed by City, any overcharges within thirty (30) days following the date of the audit.
August 6. 2009 -67- City of Diamond Bar - Commercial
Contractor shall pay interest to the City for any underpayment or overcharges at an
annual rate of 12%. Undercharges shall not be billed in arrears for more than ninety
(90) days of service, with any remaining undercharges absorbed by Contractor. Should
an audit disclose that fees were overpaid, City shall credit such amounts against future
fees payable by Contractor.
8.3 Reports
8.3.1 Report Formats and Schedule
Records shall be maintained informs and by methods that facilitate flexible use of data
contained in them to structure reports, as needed. Contractor may propose report
formats that are responsive to the objectives and audiences for each report. The format
of each report shall be approved by City, which may require changes and/or additions
to the format.
Reports shall be submitted within thirty (30) calendar days after the end of the
reporting period. Annual reports shall be submitted within thirty (30) calendar days
after the end of the calendar year. If requested, Contractor's complaint summary,
described in Section 5.2.2, shall be sent to the City within five (5) business days of
request.
All reports shall be submitted in elechonic format compatible with City's
software/computers, at no additional charge, to the Public Works Director and/or
other City staff designated by the Public Works Director at e-mail addresses to be
provided by City. City may additionally request hard copies, which would be delivered
to:
Public Works Director
City of Diamond Bar
21825 Copley Drive
Diamond Bar, CA 91765
MonthlyJQuarterly Reports
The information listed below shall be the minimum reported monthly:
a) Solid Waste Collected by Contractor, sorted by type of Solid Waste Collected and
diverted (Refuse, Recycling, Creen Waste) in tons, including contamination and
Diversion rates for each wastestrearn and Customer type (Cart, Bin, Roll -Off Box)
August 6„ 2009 -68- City of Diamond Bar - Commercial
and the Facilities where the tons were processed or disposed. Bulky Item tons
Collected and diverted shall also be reported as a separate line item.
The information listed below shall be the minimum reported quarterly:
a) Solid Waste Collected by Contractor, sorted by type of Solid Waste Collected and
diverted (Refuse, Recycling, Green Waste) in tons (including contamination and
Diversion rates for each wastestream and Customer type (Cart, Bin, Roll -Off Box)
and the Facilities where the tons were processed or disposed. Bulky Item tons
Collected and diverted shall also be reported as a separate line item.
b) Number of warning notices issued for contaminated Recyclable Materials and
Green Waste Containers, and HHW improperly placed for Disposal.
c) Narrative summary of problems encountered and actions taken with
recommendations for City, as appropriate.
d) Quantity of Recyclable Materials recovered by material type, as well as quantity
of material diverted from landfills in compliance with AB 939,
e) Description of Contractor outreach activities and copies of promotional and
public education materials sent during the month.
f) Other information or reports that City may reasonably request or require.
8.3.3 Annual Report
The Annual Report is to be essentially in the form and content of the monthly report,
but shall also include:
a)
b)
c)
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).
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.
Gross Receipts by sector (Cart, Bin, Roll -Off Box)],
August 6, 2009 -69- City of Diamond Bar -Commercial
d) A complete inventory of vehicles used to provide all services, including make,
year, type, fuel used, use, California license number and whether or not it is used
as a spare.
e) Number of routes and route hours per day by type of service as of December 31.
f) General information about the Contractor and its most recent annual report.
g) Other information or reports that City may reasonably request or require.
8.3.4 Financial Report
The City may, at City's option, request and be provided with Contractor's financial
reports/statements for the most recently completed fiscal year in connection with any
audit, extraordinary rate adjustment request, or verification of other information
required under this Agreement.
Financial statements shall include a supplemental combining schedule showing
Contractor's results of operations, including the specific revenues and expenses in
connection with the operations provided for in this Agreement, separated from others
included in such financial statements. The financial statements and footnotes shall be
prepared in accordance with Generally Accepted Accounting Principles (GAAP) and
audited, in accordance with Generally Accepted Auditing Standards (GAAS) by a
certified public accountant (CPA) licensed (in good standing) to practice public
accounting in the State of California as determined by the State of California
Department of Consumer Affairs Board of Accountancy. The cost for preparation of the
financial statements and audit shall be borne by Contractor as a direct cost of service. hn
addition, Contractor shall provide to City the supplemental schedule on a compiled
basis.
8.4 Reporting Adverse Information
Contractor shall provide City two copies (one to the City Manager, one to the City
Attorney) of all reports, pleadings, applications, notifications, Notices of Violation,
communications or other material relating in any way to Contractor's performance of
services pursuant to this Agreement, submitted by Contractor to, or received by
Contractor from, the United States or California Environmental Protection Agency, the
California Integrated Waste Management Board, the Securities and Exchange
Commission or any other federal, state or local agency, including any federal or state
August 6, 2009 -70- City of Diamond Bar- Commercial
court. Copies shall be submitted to City within thirty (3u) days of receipt by Contractor,
or sooner if reasonably apparent that to do so is time critical, and any responses by
Contractor shall be submitted to City simultaneously with Contractor's filing or
submission of such matters with said agencies. Contractor's routine correspondence to
said agencies need not be routinely submitted to City, but shall be made available to
City promptly upon City's written request.
8.5 Failure to Report
The refusal or failure of Contractor to file any required reports, or to provide required
information to City, or the inclusion of any materially false or misleading statement or
representation by Contractor in such report shall be deemed a material breach of this
Agreement as described in Section 11.1 and shall subject Contractor to all remedies
which are available to the City under this Agreement, the Diamond Bar Municipal Code
or otherwise.
August 6, 2009 -71- City of Diamond Bar -Commercial
ARTICLE 9
INDEMNIFICATION, INSURANCE, BOND AND LETTER OF CREDIT
9.1 Indemnification
Contractor hereby agrees to and shall indemnify and hold harmless City, its elected and
appointed boards, commissions, officers, employees, consultants and agents
(collectively, "Indemnitees") from and against any and all loss, liability, penalty,
forfeiture, claim, demand, action, proceeding or suit in law or equity of any and every
kind and description (including, but not limited to, injury to and death of any Person
and damage to property, or for contribution or indemnity claimed by third parties)
arising or resulting from and in any way connected with (1) the negligence or willful
misconduct of Contractor, its officers, employees, agents, contractors and/or
subcontractors in performing services under this Agreement; (2) the failure of
Contractor, its officers, employees, agents, contractors and/or subcontractors to comply
in all respects with the provisions of this Agreement, applicable laws (including,
without limitation, the Environmental Laws), ordinances and regulations, and/or
applicable permits and licenses; and (3) the acts of Contractor, its officers, employees,
agents, contractors and/or subcontractors in performing services under this Agreement
for which strict liability is imposed by law (including, without limitation, the
Environmental Laws). The foregoing indemnity shall apply regardless of whether such
loss, liability, penalty, forfeiture, claim, demand, action, proceeding, suit, injury, death
or damage is also caused in part by any of the Indemnitees' negligence, but shall not
extend to matters resulting from the Indemnitees' sole negligence, or willful
misconduct. Contractor further agrees to and shall, upon demand of City, at
Contractor's sole cost and expense, defend (with attorneys acceptable to City,
acceptance of which shall not be unreasonably withheld) the Indemnitees against any
claims, actions, suits in law or equity or other proceedings, whether judicial, quasi-
judicial or administrative in nature, arising or resulting from any of the aforementioned
events, and to reimburse City for any and all costs and expenses City incurs in
providing any such defense, either before, during or after the time Contractor elects to
provide such defense, including any and all costs incurred in overseeing any defense to
be provided herein by Contractor.
August 6, 2009 72- City of Diamond Bar -Commercial
Contractor, upon demand of City, made by and through the City Attorney, shall protect
City and appear in and defend the Indemnitees in any claims or actions by third parties,
whether judicial, administrative or otherwise, including, but not limited to disputes and
litigation over the definitions of "Solid Waste' or "Recyclable Material," the scope of
the rights granted herein, conflicts between the rights granted herein and rights
asserted by other Persons, or the limits of City's authority with respect to the grant of
licenses, or agreements,�exclusive or otherwise, or asserting rights under the United
States or California Constitutions or any federal or state law to provide Solid Waste
Collection Services in the City.
THE PROVISIONS OF THIS SECTION SHALL NOT TERMINATE OR EXPIRE,
SHALL BE GIVEN THE BROADEST POSSIBLE INTERPRETATION AND SHALL
SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS
AGREEMENT,
9.2 Hazardous Substances Indemnification
A. Without regard to any insurance coverage or requirements, and without limiting the
above general indemnification obligation in any way, Contractor specifically agrees to
and shall, to the maximum extent permitted by law, defend (with counsel acceptable to
City), reimburse, indemnify, and hold harmless Indemnities from and against any and
all claims, actions, liabilities, damages, demands, judgments, losses, costs, liens,
expenses, suits, actions, attorneys' fees, consultant fees, penalties and any and all other
losses, damages, fees and expenses of whatever kind or nature ("Claims") (including but
not limited to response costs, investigative costs, assessment costs, monitoring costs,
treatment costs, cleanup costs, removal costs, remediation costs, and similar costs,
damages and expenses) that arise out of or are alleged to arise out of or in any way
relate to any action, inaction or omission of Contractor that:
1. results in any demand, claim, notice, order, or lawsuit, asserting that any
Indemnitee is liable, responsible or in any way obligated to investigate, assess,
monitor, study, test, treat, remove, remediate, or otherwise cleanup, any
Hazardous Contaminant (as defined herein); or
2. relates to material Collected, transported, recycled, processed, treated or
disposed of by Contractor.
August 6, 2009 -73- City of Diamond Bar - Commerciai
B. Contractor's obligations pursuant to this section shall apply, without limitation, to:
1. any Claims brought pursuant to or based on the provisions of any
Environmental Law;
2. any Claims based on or arising out of or alleged to be arising out of the
ownership, use, lease, sale, design, construction, maintenance or operation of
Contractor of any Facility;
3. any Claims based on or arising out of or alleged to be arising out of the
marketing, sale, distribution, storage, transportation, Disposal, processing or use
of any materials recovered by Contractor;
4. any Claims based on or arising out of or alleged to be arising out of any
breach of any express or implied warranty, representation or covenant arising
out of or in connection with this Agreement.
C. The foregoing indemnity and defense obligations shall apply irrespective of the
negligence or willful misconduct of Contractor or any Affiliate of Contractor.
D. The foregoing indemnity shall apply regardless of whether such loss, liability,
penalty, forfeiture, claim, demand, action, proceeding, suit, injury, death or damage is
also caused in part by any of the Indemnitees' negligence, but shall not extend to
matters resulting from the Indemnitees' sole negligence, or willful misconduct.
E. For purposes of this section, the term "Hazardous Contaminant" shall mean any
Hazardous Substance, any Hazardous Waste, any crude oil or refined or unrefined
petroleum product or any fraction or derivative thereof; and any asbestos or asbestos -
containing material. The term "Hazardous Contaminant" shall also include any and all
amendments to any referenced statutory or regulatory provisions made before or after
the date of execution of this Agreement.
F. In the event that the City exercises its right under Sections 2.11 and 4.8 to direct
Contractor to use a facility other than a site approved in this Agreement, and such
facility is not owned and operated by Contractor or any parent, affiliate or guarantor of
the Contractor, this indemnification shall not apply for the tonnage directed by the City
to such facility.
August 6, 2009 -74- City of Diamond Bar - Commercial
G. THE PROVISIONS OF THIS SECTION SHALL NOT TERMINATE OR EXPIRE,
SHALL BE GIVEN THE BROADEST POSSIBLE INTERPRETATION AND SHALL
SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS
AGREEMENT,
9.3 AB 939 Indemnification and Guarantee
A. To the extent authorized by law, Contractor agrees to indemnify and hold harmless
City from and against all fines and/or penalties imposed by the California Integrated
Waste Management Board in the event the source reduction and Recycling goals or any
other requirement of AB 939 are not met by City with respect to the waste stream
Collected under this Agreement.
B. Contractor warrants and represents that it is familiar with City's waste
characterization study as set forth in City's Source Recovery and Recycling Element
(SRRE), and that it has the ability to and will provide sufficient programs and services
to ensure City will meet or exceed the Diversion requirements (including, without
limitation, amounts of Solid Waste to be diverted, time frames for Diversion, and any
other requirements) set forth in AB 939, with respect to that portion of the Solid Waste
generated in City that is the subject of this Agreement.
9.4 Insurance
Contractor shall procure and maintain during the entire Term of this Agreement the
following types of insurance, and shall maintain the following minimum levels of
coverage, which shall apply to any claims which may arise from or in connection with
Contractor's performance hereunder or the actions or inactions of any of Contractor's
officers, agents, representatives, employees, or subcontractors in connection with
Contractor's performance. The insurance requirements hereunder in no way limit
Contractor's various defense and indemnification obligations, or any other obligations
as set forth herein.
A. Minimum Scope of Insurance. Coverage shall be at least as broad as:
The most recent editions of Insurance Services Office Commercial General
Liability coverage ("occurrence" form CG 00 01).
August 6, 2009 -75- City of Diamond Bar -Commercial
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. WorkersCompensation insurance as required by the Labor Code of the
State of California and Employers Liability insurance.
B.
Minimum Limits
of
Insurance. Contractor shall maintain in force for the term
of this
Agreement limits
no
less than:
1. Comprehensive General Liability: Ten Million Dollars ($10,000,000) limit
aggregate and Ten Million Dollars ($10,000,000) limit per occurrence for
bodily injury, Personal injury and property damage.
2. Automobile Liability: Five Million Dollars ($5,000,000) single limit per
accident for bodily injury and property damage.
3. Workers' Compensation and Employers Liability: Workers' compensation
limits as required by the Labor Code of the State of California or provide
evidence of State approval to be self -insured. Employers Liability in the
minimum amount of $1,000,000,
C. Deductibles and Self -Insured Retentions. Any deductibles or self -insured
retentions must be declared to and approved by City. At the option of City, either: the
nsurer shall reduce or eliminate such deductibles or self -insured retention's as respects
City, its officials, employees and agents; or Contractor shall procure a bond
guaranteeing payment of losses and related investigations, claim administration and
defense expenses.
D. Other Insurance Provisions. The policies are to contain, or be endorsed to
contain, the following provisions:
1. General Liability and Automobile Liability Coverages
a) City, its elective and appointive boards, commissions, officials,
employees, agents and volunteers are to be named as additional
insureds as respects: liability arising out of activities performed by
or on behalf of Contractor; products and completed operations of
Contractor; Premises owned, leased or used by Contractor; or
vehicles owned, leased, hired or borrowed by Contractor. The
August 6, 2009 76- City of Diamond Bar -Commercial
coverage shall contain no special limitations on the scope of
protection afforded to City, its elective and appointive boards,
commissions, officials, employees, agents or volunteers.
b) Contractor's insurance coverage shall be primary insurance as
respects City, its elective and appointive boards, commissions,
officials, employees, agents and volunteers. Any insurance or self-
insurance maintained by City, its officials, elective and appointive
boards, commissions, employees, agents or volunteers shall be
excess of Contractor's insurance and shall not contribute with it.
c) Any failure to comply with reporting provisions of the policies
shall not affect coverage provided to City, its officials, elective and
appointive boards, commissions, employees, agents or volunteers.
d) Coverage shall state that Contractor's insurance shall apply
separately to each insured against whom claim is made or suit is
brought, except with respect to the limits of the insurer's liability.
2. Workers' Compensation and Employers Liability Coverage -The insurer
shall agree to waive all rights of subrogation against City, its officials,
elective and appointive boards, commissions, employees, agents and
volunteers for losses arising from work performed by Contractor for City.
3. All Coverages -Each insurance policy required by this clause shall be
endorsed to state that coverage shall not be suspended, voided, canceled
by either party, reduced in coverage or in limits except after thirty (30)
days' prior written notice (ten (10) days written notice in the event of
cancellation for non-payment) by certified mail, return receipt requested,
has been given to City.
E. Acceptability of Insurers. The insurance policies required by this section shall
be issued by an insurance company or companies authorized to do business in the State
of California and with a rating in the most recent edition of Best's Insurance Reports of
sI
ze category VII or larger and a rating classification of A or better.
E. 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,
August 6, 2009 -77- City of Diamond Bar - Commercial
Contractor shall furnish City certificates of each policy of insurance required hereunder,
in form and substance satisfactory to City. Such certificates shall show the type and
amount of coverage, effective dates and dates of expiration of policies and shall have all
required endorsements. If City requests, copies of each policy, together with all
endorsements, shall also be promptly delivered to City.
Renewal certificates will be furnished promptly upon renewal to City to demonstrate
maintenance of the required coverage throughout the Term.
G. Required Endorsements
1. Insurance policies shall contain an endorsement in substantially the
following form:
"Thirty (30) days prior written notice (ten (10) days written notice in the
event of cancellation for non-payment) by certified mail, return receipt
requested, shall be given to City in the event of cancellation, reduction in
coverage, or non -renewal of this policy. Such notice shall be sent to:
City Manager
City of Diamond Bar
21825 Copley Drive
Diamond Bar, CA 91765
2 "This policy shall be considered primary insurance as respects any other
valid and collectible insurance maintained by City, including any self -
insured retention or program of self-insurance, and any other such
insurance shall be considered excess insurance only."
3. "Inclusion of City as an insured shall not affect City's rights as respects
any claim, demand, suit or judgment brought or recovered against
Contractor. This policy shall protect Contractor and City in the same
manner as though a separate policy had been issued to each, but this shall
not operate to increase Contractor's liability as set forth in the policy
beyond the amount shown or to which Contractor would have been liable
if only one party had been named as an insured."
H. Other Insurance Requirements
August 6, 2009 -78- City of Diamond Bar - Commercial
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
9A.
2. Contractor shall comply with all requirements of the insurers issuing
policies. The carrying of insurance shall not relieve Contractor from any
obligation under this Agreement. If any claim exceeding the amount of
any deductibles or self -insured reserves is made by any third Person
against Contractor or any Contractor or subcontractor on account of any
occurrence related to this Agreement, Contractor shall promptly report
the facts in writing to the insurance carrier and to City.
If Contractor fails to procure and maintain any insurance required by this
Agreement, City may take out and maintain, at Contractor's expense, such
insurance as it may deem proper and recover costs from the Contractor's
Letter of Credit and/or Performance Bond provided under Sections 9.5
and 9.6.
9.5 Faithful Performance Bond
Concurrently with execution of this Agreement, Contractor shall deliver to City a
performance bond in the sum of the amount of One Hundred Twenty-five Thousand
Dollars ($125,000), similar to the form provided in Exhibit 5, which secures the faithful
performance of this Agreement, including, without limitation, payment of any penalty
and the funding of any work to cure a breach of this Agreement, unless such
requirement is waived by the City Manager. The bond shall contain the original
notarized signature of an authorized officer of the surety and affixed thereto shall be a
certified and current copy of his power of attorney. The bond shall be unconditional
and remain in force during the entire term of the Agreement and shall be released only
upon written release from City per Section 9.9.
August 6, 2009 -79- City of Diamond Bar -Commercial
9.6 Faithful Performance Letter of Credit
A. In addition to a corporate surety bond as noted m Section 9.5 above, Contractor
shall furnish an irrevocable letter of credit in the amount of One Hundred Twenty-five
Thousand Dollars ($125,000), from a financial institution acceptable to the City and in a
form acceptable to the City Attorney as security for the performance of this Agreement
the "LOC"). The LOC shall be the sole responsibility of Contractor, shall be
unconditional and remain in force during the entire Term of the Agreement and shall be
released only upon written release from City per Section 9.9.
B. As an alternative to providing the performance bond and letter of credit required
under 9.5 and 9.6.A, Contractor may provide a letter of credit in the amount of $250,000.
The letter of credit shall be from a financial institution acceptable to the City in a form
acceptable to the City Attorney as security for the performance of this Agreement. The
LOC shall be the sole responsibility of Contractor, shall be unconditional and remain in
force during the entire Term of the Agreement and shall be released only upon written
release from City per Section 9.9.
C. As an alternative to providing the performance bond and letter of credit required
under 9.5 and 9.6.A, Contractor may deposit funds, on terms satisfactory to City, in an
interest -bearing account at an institution satisfactory to both City and Contractor.
Contractor may replace any required amount of the performance bond requirement, or
the LOC requirement with an equivalent deposit. The deposit shall be accessible to the
City immediately without action required by Contractor. The deposit shall be accessible
to the City immediately without penalty, unless the funds on deposit are increased in
excess of the total $250,000 required under Sections 9.5 and 9.6 by the maximum
amount of the total potential penalty. The funds on deposit shall be the sole
responsibility of the Contractor, shall be unconditional and remain on deposit during
the entire Term of the Agreement and shall be withdrawn to Contractor's custody only
upon written release from City per Section 9.9.
9.7 Forfeiture of Performance Bond
In the event Contractor shall for any reason become unable to, or fail in any way to,
perform as required by this Agreement, City may declare a portion or all of the
performance bond forfeited to the City up to an amount which is necessary to
recompense and make whole the City. Upon partial or full forfeiture of the
August 6, 2009 80- City of Diamond Bar - Commercial
performance bond, Contractor shall restore the performance bond to its face amount
within thirty (30) days of the City's declaration. Failure to restore the performance
bond to its full amount within thirty (30) days shall be a material breach of the
Agreement.
9.0 Forfeiture of Letter Of Credit or Deposit
Thirty (30) days following City provng Contractor with written notice of its failure to
pay City any amount owing under this Agreement, the LOC or deposit may be drawn
upon by City for purposes including, but not limited to:
a. Payment of sums due under the terms of this Agreement which Contractor has
failed to timely pay to City
b. Reimbursement of costs borne by City to correct violations of this Agreement not
corrected by Contractor, including but not limited to the liquidated damages
described in Section 11.3.
City may draw upon the entire LOC and convert it to a cash deposit, or draw upon the
entire deposit, if Contractor fails to cause it to be extended or replaced with another
satisfactory LOC or deposit no later than 60 days prior to its expiration during the term
hereof. If City partially draws down LOC or deposit, Contractor must restore it to full
amount within 30 days of City's draw. Failure to restore the LOC or deposit to its full
amount within thirty (30) days shall be a material breach of the Agreement.
9.9 Performance Security Beyond Service Terrn
Some Agreement requirements extend beyond the Term of this Agreement and other
requirements, such as minimum Diversion rates per Section 4.2.5, will not be
substantiated until after the final service date. Therefore, the Contractor shall not
terminate the performance bond, letter of credit or deposit, and will renew them to
ensure continuous availability to the City, until receiving a written release from the City
or until the fifth annual anniversary of the end of the Term of this Agreement.
Permission from the City to discontinue holding these performance securities does not
relieve Contractor of payments to the City that may be due, or may become due.
August Q 2009 -81- City of Diamond Bar - Commercial
limn [4 rVew-K
CITY RIGHT TO CONTRACT WITH THIRD PARTIES TO PERFORM
FRANCHISED SERVICES
City may contract with another Solid Waste enterprise to Collect and transport Solid Waste in
the event Contractor for any reason (except as provided below regarding Force Majeure)
refuses or is unable to Collect Solid Waste for a period of more than forty-eight (48) hours.
City must provide twenty-four (24) hours prior written notice to Contractor during such time
before contracting with another solid waste enterprise. In such event Contractor must identify
sources from which such substitute solid waste services are immediately available and
reimburse City for all of its expenses for such substitute services during period in which
Contractor does not provide Collection and transportation services required by this
Agreement.
August 6, 2009 -82- City of Diamond Bar -Commercial
ARTICLE 11
11.1 Events of Default
Each of the following provisions, without limitation, are considered material and shall
constitute an event of default by the Contractor.
A. Fraud or Deceit or Misrepresentation. If the Contractor engages in, or attempts
to practice, any fraud or deceit upon City or makes a misrepresentation regarding
material information to City.
B. Insolvency or Bankruptcy or Financial Irresponsibility. If Contractor becomes
insolvent, unable, or unwilling to pay its debts, files a bankruptcy petition or takes steps
to liquidate its assets.
C. Failure to Maintain Coverage. If Contractor fails to provide or maintain in full
force and effect the Workers' Compensation, liability, or indemnification coverage as
required by this Agreement.
D. Violations of Regulations. If Contractor violates any orders or filings of any
regulatory body having jurisdiction over Contractor relative to this Agreement,
provided that Contractor may contest any such orders or filings by appropriate
proceedings conducted in good faith, in which case no breach of the Franchise and this
Agreement shall be deemed to have occurred until a final decision adverse to the
Contractor is entered.
E. Failure to Perform. If Contractor ceases to provide all or a portion of the
Collection, processing or Recycling services, or any other Solid Waste Collection
Services as required under this Agreement for a period of seven (7) consecutive days or
more, unless, and only to the extent, performance is excused pursuant to Section 11.4.
Fo Failure to Pay. If Contractor fails to make any payments required under this .
Agreement and/ or refuses to provide City, within ten (10) days of the demand, with
required information, reports, and/or records in a timely manner as provided for in the
Agreement.
August 6, 2009 -83- City of Diamond Bar -Commercial
G. Failure to Cooperate with Audits. Failure to complete, perform or cooperate
with any audit as described by this Agreement.
H. Failure to Submit Reports or Documentation. Failure to complete or to provide
required reports or documents to City as required by this Agreement.
I. Acts or Omissions.
1. Any act or omission by Franchisee relative to the services provided under this
Agreement which violates the terms, conditions, or requirements of this
Agreement, or AB 939, or any law, statute, ordinance, order, directive, rule, or
regulation issued pursuant to AB 939 not corrected or remedied within the
time set in the written notice of the violation from the issuing entity or, if
Franchisee cannot reasonably correct or remedy the breach within the time
set forth in such notice, if Franchisee should fail to commence to correct or
remedy such violation within the time set forth in such notice and diligently
effect such correction or remedy.
2. Any situation in which Franchisee or any of its officers, directors or
employees are found guilty of any crime related to the performance of this
Agreement, or of any crime related to anti-trust activities, illegal transport or
Disposal of hazardous or toxic materials, or bribery of public officials. The
tern "found guilty" shall be deemed to include any judicial determination
that Franchisee or any of Franchisee's officers, directors or employees is
guilty as well as any admission of guilt by Franchisee or any of Franchisee's
officers, directors or employees including, but not limited to, the plea of
"guilty", "nolo contendere", "no contest", and "guilty to a lesser charge."
J. False or Misleading Statements. Any representation or disclosure made to City
by Contractor in connection with or as an inducement to entering into this Agreement,
or any future amendment to this Agreement, which proves to be false or misleading in
any material respect as of the time such representation or disclosure is made, whether
or not any such representation or disclosure appears as part of this Agreement.
I<. 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.
August 6, 2009 -84- City of Diamond Bar - Commercial
L. Suspension or Termination of Service. Any termination or suspension of the
transaction of business by Contractor, including, without limitation, due to labor unrest
including strike, work stoppage or slowdown, sick-out, picketing, or other concerted
job action lasting more than seven (7) consecutive days, unless, and only to the extent,
performance is excused pursuant to Section 11.4, or Section 5.1.6.
M. Failure to Provide
Assurance of
Performance. If
Contractor
fails to
provide
reasonable assurances of
performance as
required under
Section 11.6.
N. Commingling of Recyclables With Refuse/Landfilling of Recyclables. If
Contractor empties a Container of properly set out Recyclable Materials or Green Waste
into a Refuse load, or transports Recyclable Materials or Green Waste to a landfill or
other location at which the material will not be diverted from landfilling (with the
exception of Green Waste used as alternative daily cover provided full Diversion credit
is received).
O. Failure to Meet Diversion Goals. Contractor fails to achieve diversion goals
specified in Section 4.2.5, for two consecutive calendar years, beginning with calendar
year 2011.
P. Lapse of Performance Bond and/or Letter of Credit and/or Deposit. Contractor
fails to restore the full balance of the Performance Bond and/or Letter of Credit and/or
deposit required under Sections 9.5 and 9.6 to the full required value within 30 days of
being depleted due to payment to City under Sections 9.7 or 9.8, or Contractor allows
any of the securities at any time for any other reason to lapse or fall below required
minimums for any period of time.
Contractor shall have forty-eight (48) hours from the time it is given notification by City
to cure any default arising under subsections E, F, G, H, K, L, M, N, and P provided,
however, that City shall not be obligated to provide Contractor with a notice and cure
opportunity if Contractor has committed the same or similar breach within a twenty-
four (24) month period. It is expressly understood that Contractor is not entitled to
receive notice of default, or to cure such default, with respect to those matters listed in
subsections A, B, C, D, I, J and O above.
August 6, 2009 -85- Cify of Diamond Bar - Commercial
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 quality
h-
quality service, the time required to effect alternative service, and the rights granted by
City to Contractor, the remedy of damages for a breach hereof by Contractor is
inadequate and City shall be entitled to seek injunctive relief and/or specific
performance of any breach of this Agreement.
11.3 Liquidated Damages
A. General. City finds, and Contractor agrees, that as of the time of the execution of
this Agreement, it is impractical, if not impossible, to reasonably ascertain the extent of
damages which shall be incurred by City as a result of a breach by Contractor of certain
specific obligations under this Agreement. The factors relating to the impracticability of
ascertaining damages include, but are not limited to, the fact that: (i) substantial
damage results to members of the public who are denied services or denied quality or
reliable service; (ii) such breaches cause inconvenience, anxiety, frustration, and
deprivation of the benefits of the Agreement to individual members of the general
public for whose benefit this Agreement exists, in subjective ways and in varying
degrees of intensity which are incapable of measurement in precise monetary terms; (iii)
that the services that are the subject of this Agreement might be available at
substantially lower costs than alternative services and the monetary loss resulting from
August 6, 2009 -86- City of Diamond Bar -Commercial
denial of services or denial of quality or reliable services is impossible to calculate in
precise monetary terms; and (iv) the termination of this Agreement for such specific
breaches, and other remedies are, at best, a means of future correction and not remedies
which make the public whole for past breaches.
B. Service Performance Standards; Liquidated Damages for Failure to Meet
Standards. The parties further acknowledge that consistent, reliable Solid Waste
Collection Service is of utmost importance to City and that City has considered and
relied on Contractor's representations as to its quality of service commitment in
entering this Agreement with it. The Parties further recognize that some quantified
standards of performance are necessary and appropriate to ensure consistent and
reliable service and performance. The Parties further recognize that if Contractor fails
to achieve the performance standards, or fails to submit required documents in a timely
manner, City and its residents will suffer damages and that it is and will be impractical
and extremely difficult to ascertain and determine the exact amount of damages which
City will suffer. Therefore, without prejudice to City's right to treat such breaches as an
event of default under this Article 11, the Parties agree that the following liquidated
damage amounts represent a reasonable estimate of the amount of such damages for
such specific breaches, considering all of the circumstances existing on the date of this
Agreement, including the relationship of the sums to the range of harm to City that
reasonably could be anticipated and the anticipation that proof of actual damages
would be costly or impractical. In placing their initials at the places provided, each
party specifically confirms the accuracy of the statements made above and the fact that
each party has had ample opportunity to consult with legal counsel and obtain an
explanation of the liquidated damage provisions at the time that the Agreement was
made.
Contractor
Initial Here
Contractor agrees to pay (as liquidated damages and not as a penalty) the amounts set
forth below:
Collection Reliability
August 6, 2009 -87- City of Diamond Bar -Commercial
2.
3.
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:
Collection Quality_
a) For each occurrence of failure to properly return empty Containers to avoid
pedestrian or vehicular traffic impediments or to place Containers upright
which exceeds ten (10) such occurrences annually: $100.00
b) For each occurrence of excessive noise or discourteous behavior which
exceed ten (10) annually:
$250.00
c) For each occurrence of Collecting Solid Waste during unauthorized hours
which exceeds five (5) such occurrences annually: $250.00
d) For each failure to clean up Solid Waste spilled from Solid Waste Containers
within ninety (90) minutes that exceeds ten (10) such failures annually:
$150,00
e) For each complaint that exceeds the maximum permitted number of
complaints per month in Section 5.2.3: $150.00
Customer Responsiveness
a) For each failure to initially respond to a Customer complaint within one (1)
business day, and for each additional day in which the complaint is not
addressed, which exceed five (5) annually:
$150.00
b) For each failure to process Customer complaints as required by Article 5,
which exceed five (5) annually:
August 6, 2009 -88- City of Diamond Bar -Commercial
4.
5.
c) For each failure to remove graffiti from Containers, or to replace with
Containers bearing no graffiti, within three (3) business days of request from
City or Customer: $ 50.00 per day
d) For each failure to repair or replace a damaged or missing Container within
two (2) business days of request from City or Customer: $ 50.00 per day
e) For each failure to process a claim for damages within thirty (30) days from
the date submitted to Contractor: $100.00
f) For each additional thirty (30) day increment of time in which Contractor has
failed to resolve a claim for damages within thirty (30) days from the claim
date: $100.00
g) For each violation under Section 5.2.3 (one month of excessive complaints or
one quarter of excessive delays in answering customer service calls):
$500.00
Diversion Efforts
a) For each calendar year (Ueginning calendar year 2010) in which Contractor
fails to provide support to the City within thirty (30) days of year-end,
documenting that it diverted at least 25% of the Solid Waste Contractor
Collected under this Agreement: $25 for each ton below tonnage level
necessary to meet 25% Diversion goal
Timeliness of Submissions to City
Any report shall be considered late until such time as a correct and complete
report is received by City. For each calendar day a report is late, the daily
liquidated damage amount shall be:
i) Monthly Reports: $100.00 per day
ii) Annual Reports: $200.00 per day
August 6, 2009 -89- City of Diamond Bar -Commercial
6. Accuracy of Billing
Each Customer invoice that is not
prepared in accordance
with the City
approved rate schedule, in excess
of ten (10)
annually:
$25.00
7. Cooperation with Service Provider Transition
a) For each day routing information requested by City in accordance with
Section 12.8 is received after City -established due dates, both for
preparation of a request for proposals and for new service provider's
implementation of service : $1,non .00/day
b) For each day delivery of keys, access codes, remote controls, or other means
of access to Solid Waste Containers is delayed beyond one (1) day prior to
new service provider servicing Customers with access issues, as described in
Section 12.8: $1,000.00/day
c) For
delay in not meeting
the requirements
contained in Sections 4.11
and
12.8
in a timely manner,
in addition to the
daily liquidated damages
for
breach under 7(a) and 7(b) above, liquidated damages of: $35,000.00
8. General Contract Adherence
For each day that Franchisee fails to provide services required under the
Agreement, or comply with terms of the Agreement, five (5) business days after
receipt of written notification from City that such services are not being provided
or terms are not being met:
$300.00/day
City may determine the occurrence of events giving rise to liquidated damages through
the observation of its own employees or representative or investigation of Customer
complaints. If any failure is permitted or excused by another section of this Agreement,
such a failure shall not count towards assessment of liquidated damages (such as a
failure to Collect would not apply if it were due to the presence of contamination,
provided Contractor left a warning notice).
Prior to assessing liquidated damages, City Manager shall give Contractor notice of its
intention to do so. The notice will include a brief description of the incidents)/non-
performance. Contractor may review (and make copies at its own expense) all
August 6, 2009 -90- City of Diamond Bar - Commercial
information in the possession of City relating to incidents)/non-performance.
Contractor may, within ten (10) days after receiving the notice, request a meeting with
City Manager. Contractor may present evidence in writing and through testimony at
the meeting of its employees and others relevant to the incident(s)/non-performance.
City Manager will provide Contractor with a written explanation of its determination
on each incident(s)/non-performance prior to authorizing the assessment of liquidated
damages. The decision of City Manager shall be final.
C. Amount. City may assess liquidated damages for each calendar day or event, as
appropriate, that Contractor is determined to be liable in accordance with this
Agreement.
D. Timing of Payment. Contractor shall pay any liquidated damages assessed Uy
City within ten (10) days after receipt of notice that liquidated damages are being
assessed. If they are not paid within the ten (10) day period, City may proceed against
the performance bond, letter of credit, or deposit required by the Agreement or find
Contractor in default and terminate this Agreement pursuant to Section 11.2, or both.
11.4 Suspension of Performance
11.4.1 Force Majeure
The Parties shall be excused from performing their respective obligations hereunder in
the event they are prevented from so performing by reason of floods, earthquakes, other
natural disasters, war, civil insurrection, riots, acts of any government (including
judicial action), and other similar catastrophic events which are beyond the control of
and not the fault of the party claiming excuse from performance hereunder.
The interruption or discontinuance of Contractor's services caused by one (1) or more of
the events excused shall not constitute a default by Contractor under this Agreement
provided that other services delivered to properties in Diamond Bar (such as and
without limitation electricity, gas, water, or residential solid waste collection services)
have been similarly disrupted as a direct result of the catastrophic event.
Notwithstanding the foregoing, however, if Contractor is excused from performing its
obligations hereunder for any of the causes listed in this section for a period of thirty
(30) days or more, where Diamond Bar is not significantly impacted by the catastrophic
event, City shall nevertheless have the right, in its sole discretion, to terminate this
August 6, 2009 -91- City of Diamond Bar -Commercial
Agreement by giving ten (10) days' notice, and may contract with another party for
Solid Waste Collection Services.
11.4.2 Labor Unrest
Labor unrest, including work stoppage or slowdown or sick-out conducted by
Contractor's employees or directed at Contractor is excused from performance only to
the extent that the following requirements are met:
• Contractor provides a contingency plan to the City prior to the execution of this
Agreement demonstrating how services will be provided. Plan is subject to City
Manager approval and Contractor shall amend plan until it meets City
requirements, including reasonably demonstrating how City's basic Collection and
sanitary needs will be met to the City's satisfaction.
• Contractor shall meet all requirements of this plan; if Contractor does not meet all
requirements, City may choose to revoke this excuse from performance offered
under this Agreement and may choose to use enforcement provisions under this
Agreement, including Sections 11.1,11.2 and 11.3.
The party claiming excuse from performance shall, within two (2) days after such party
has notice of such cause, give the other party notice of the facts constituting such cause
and asserting its claim to excuse under this section.
The interruption or discontinuance of Contractor's services caused by labor -related
events excused under this Section 11.4.2 shall not constitute a default by Contractor
under this Agreement. Notwithstanding the foregoing, however, if Contractor is
excused from performing its obligations hereunder for any of the causes listed in this
section for a period of thirty (30) days or more, City shall nevertheless have the right, in
its sole discretion, to terminate this Agreement by giving ten (10) days' notice, and may
contract with another party for Solid Waste Collection Services.
11,5 Dispute Resolution
Except as may otherwise be set forth expressly herein, all disputes arising under this
Agreement shall be resolved as set forth in this section.
August 6, 2009 -92- City of Diamond Bar -Commercial
11.5.1 Negotiation and Mediation
The Parties shall attempt in good faith to resolve any dispute arising out of or relating
to this Agreement promptly by negotiations between the Parties' authorized
representatives. The disputing Party shall give the other Parties written notice of any
dispute. Within five (5) days after delivery of such notice, the authorized
representatives shall meet at a mutually acceptable time and place, and thereafter as
often as they reasonably deem necessary to exchange information and to attempt to
resolve the dispute. If the matter has not been resolved within ten (10) days of the first
meeting, any Party may initiate a mediation of the dispute. The mediation shall be
facilitated by a mediator that is acceptable to all Parties and shall conclude within thirty
(30) days of its commencement, unless the Parties agree to extend the mediation process
beyond such deadline. Upon agreeing on a mediator, the Parties shall enter into a
written agreement for the mediation services with each Party paying a pro rata share of
the mediator's fee, if any. The mediation shall be conducted in accordance with the
Commercial Mediation Rules of the American Arbitration Association; provided,
however, that no consequential damages shall be awarded in any such proceeding and
each Party shall bear its own legal fees and expenses.
11.5.2 Confidentiality
All negotiations and any mediation conducted pursuant to this section shall be
confidential and shall be treated as compromise and settlement negotiations, to which
Section 1152 of the California Evidence Code shall apply, which Section is incorporated
in this Agreement by reference.
11.5.3 Injunctive Relief
Notwithstanding the foregoing provisions, a Party may seek a preliminary injunction or
other provisional judicial remedy if in its judgment such action is necessary to avoid
irreparable damage or to preserve the status quo.
11.5.4 Continuing Obligation
Each Party shall continue to perform its obligations under this Agreement pending final
resolution of any dispute arising out of or relating to this Agreement.
August 6, 2009 -93- City of Diamond Bar -Commercial
11.5.5 Failure of Mediation
If after good faith efforts to mediate a dispute under the terms of this Agreement the
parties cannot agree to a resolution of the dispute, any party may pursue whatever legal
remedies may be available to it at law or in equity before a court of competent
jurisdiction and with venue in Los Angeles County,
11.6 Assurance of Performance
City may, at its option and in addition to all other remedies it may have, demand from
Contractor reasonable assurances of timely and proper performance of this Agreement,
in such form and substance as City may require. If Contractor fails or refuses to
provide satisfactory assurances of timely and proper performance in the form and by
the date required by City, such failure or refusal shall be an event of default.
August 6, 2009 -94- City of Diamond Bar -Commercial
ARTICLE 12
OTHER AGREEMENTS OF THE PARTIES
12.1 Relationship of Parties
The Parties intend that Contractor shall perform the services required by this
Agreement as an independent contractor engaged by City and not as an officer or
employee of City nor as a partner of or joint venture with City. No employee or agent
or Contractor shall be or shall be deemed to be an employee or agent of City. Except as
expressly provided herein, Contractor shall have the exclusive control over the manner
and means of conducting the Solid Waste Collection Services performed under this
Agreement, and all Persons performing such services. Contractor shall be solely
responsible for the acts and omissions of its officers, employees, Affiliates, contractors,
subcontractors and agents. Neither Contractor nor its officers, employees, Affiliates,
contractors, subcontractors and agents shall obtain any rights to retirement benefits,
workers' compensation benefits, or any other benefits which accrue to City employees
by virtue of their employment with City.
12.2 Compliance with Law
In providing the services required under this Agreement, Contractor shall at all times,
at its sole cost, comply with all applicable laws and regulations of the United States, the
State of California, and any federal, state, regional or local administrative and
regulatory agencies, now in force and as they may be enacted, issued or amended.
12.3 Governing Law
This Agreement shall be governed by, and construed and enforced in accordance with,
the laws of the State of California.
12.4 Jurisdiction
Except for those matters where Federal Courts have exclusive jurisdiction, any lawsuits
between the Parties arising out of this Agreement shall be brought and concluded in the
courts of the State of California, which shall have exclusive jurisdiction over such
lawsuits.
August 6, 2009 -95- City of Diamond Bar -Commercial
With respect to venue, the Parties agree that this Agreement is made in and will be
performed in Los Angeles County,
12.5 Assignment
Contractor shall not assign its rights, nor delegate, subcontract or otherwise transfer its
obligations under this Agreement (collectively referred to as an "assignment") to any
other Person without the prior written consent of City. Any such assignment made
without the consent of City shall be void and the attempted assignment shall constitute
a material breach of this Agreement.
For purposes of this section the term "assignment" shall be given the broadest possible
interpretation, and shall include, but not be limited to (i) a sale, exchange or other
transfer of substantially all of Contractor's assets dedicated to service under this
Agreement to a third party; (ii) a sale, exchange or other transfer of outstanding
common stock of Contractor to a third party provided said sale, exchange or transfer
may result in a change of control of Contractor; (iii) any dissolution, reorganization,
consolidation, merger, re -capitalization, stock issuance or re -issuance, voting trust,
pooling agreement, escrow arrangement, liquidation or other transaction which results
in a change of ownership or control of Contractor; (iv) any assignment by operation of
law, including those resulting from mergers or acquisitions by or of Contractor of any
of its Affiliates, insolvency or bankruptcy, making assignment for the benefit of
creditors, writ of attachment for an execution being levied against this Agreement,
appointment of a receiver taking possession of Contractor's property, or transfer
occurring in the event of a probate proceeding; and (v) any combination of the
foregoing (whether or not in related or contemporaneous transactions) which has the
effect of any such transfer or change of ownership, or change of control of Contractor.
Contractor acknowledges that this Agreement involved rendering a vital service to
City's residents and businesses, and that City has selected Contractor to perform the
services specified herein based on (1) Contractor's experience, skill and reputation for
conducting its Solid Waste Collection Services in a safe, effective and responsible
fashion, at all times in keeping with applicable Environmental Laws, regulations and
best Solid Waste management practices, and (2) Contractor's financial resources to
maintain the required equipment and to support its indemnity obligations to City under
this Agreement. City has relied on each of these factors, among others, in choosing
Contractor to perform the services to be rendered by Contractor under this Agreement.
August 6, 2009 -96- City of Diamond Bar -Commercial
If Contractor requests City's consideration of and consent to an assignment, City may
deny or approve such request in its sole discretion. Any request for an assignment
must be approved by the City Manager in writing, and no request by Contractor for
consent to an assignment need be considered by City unless and until Contractor has
met (or with respect to matters that would only occur upon completion of the
assignment if approved, made reasonable assurances that it will meet) the following
requirements:
a) Contractor shall pay City its reasonable expenses for attorneys fees and
investigation costs necessary to investigate the suitability of any proposed
assignee, and to review and finalize any documentation required as a condition
for approving any such assignment. An advance payment towards expenses
may be requested by City prior to City consideration of any assignment request
and Contractor shall be responsible to pay all costs incurred by City in
considering a request for assignment, including those in excess of the aforesaid
deposit amount, regardless of whether City consents to the assignment.
b) Contractor shall pay the City a transfer fee equal to one percent (1 %) of the Gross
Receipts it, or its assignee, will receive during the remaining term of the
Agreement at rates and service levels in effect at the time of the assignment, as
estimated by City.
c) Contractor shall furnish City with audited financial statements for itself, and the
proposed assignee's operations for the immediately preceding three (3) operating
years.
d) A proforma financial statement (income statement and balance sheet) for the
proposed assignee with the projected results of operations assuming that the
assignment is completed. Such proforma financial statement shall reflect any
debt to be incurred by the assignee as part of the acquisition of Contractor's
operations.
e) Contractor shall furnish City with satisfactory proof: (i) that the proposed
assignee has at least ten (10) years of Solid Waste management experience on a
scale equal to or exceeding the scale of operations conducted by Contractor
under 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
August 6, 2009 -97- City of Diamond Bar -Commercial
or local agency having jurisdiction over its Solid Waste management operations
due to any significant failure to comply with state, federal or local Environmental
Laws and that the assignee has provided City with a complete list of any such
citations and censures; (iii) that the proposed assignee has at all times conducted
its operations in an environmentally safe and conscientious fashion; (iv) that the
proposed assignee conducts its Solid Waste management practices in accordance
with sound Solid Waste management practices in full compliance with all
federal, state and local laws regulating the Collection and Disposal of Solid
Waste including Hazardous Substances; and, (v) of any other information
required by City to ensure the proposed assignee can fulfill the terms of this
Agreement in a timely, safe and effective manner.
Under no circumstances shall City be obliged to consider any proposed assignment by
City if Contractor is in default at any time during the period of consideration. Should
City consent to any assignment request, such assignment shall not take effect until all
conditions relating to City's approval have been met in accordance with Chapter 8.16 of
the Diamond Bar Municipal Code, as amended from time to time.
12.6 Contracting or Subcontracting
Contractor shall not engage any contractors or subcontractors for the Collection of Solid
Waste.
12.7 Binding on Assigns
The provisions of this Agreement shall inure to the benefit to and be binding on the
permitted assigns (if any) of the Parties.
12.8 Cooperation in Preparation for Termination or Expiration of Contract
Prior to, and at the end of the Term or in the event this Agreement is terminated for
cause prior to the end of the Term, Contractor shall cooperate fully with City and any
subsequent Solid Waste enterprise it designates to assure a smooth transition of Solid
Waste Collection Services. Contractor's cooperation shall include, but not be limited to.,
providing route lists, Billing information and other operating records needed to service
all Premises covered by this Agreement. The failure to cooperate with City following
termination shall be conclusively presumed to be grounds for specific performance of
this covenant and/or other equitable relief necessary to enforce this covenant.
August 6, 2009 -98- City of Diamond Bar - Commercial
Contractor shall provide a new service provider with all keys, security codes and
remote controls used to access garages and Bin enclosures. Contractor shall be
responsible for coordinating transfer immediately after Contractor's final pickups, so as
not to disrupt service. Contractor shall provide City with detailed route sheets
containing service names and addresses, Billing names and addresses, monthly rate and
service levels (number and size of Containers and pickup days) at least 90 days prior to
the transition date, and provide an updated list two weeks before the transition and a
final list of changes the day before the transition. Contractor shall provide means of
access to the new service provider at least one full business day prior to the first day of
Collection by another party, and always within sufficient time so as not to impede in
any way the new service provider from easily servicing all Containers.
12.9 Parties in Interest
Nothing in this Agreement, whether express or implied, is intended to confer any rights
on any Persons other than the Parties to it and their representatives, successors and
permitted assigns.
12.10 Waiver
The waiver by either party of any breach or violation of any provisions of this
Agreement shall not be deemed to be a waiver of any breach or violation of any other
provision nor of any subsequent breach of violation of the same or any other provision.
The subsequent acceptance by either Party of any moneys which become due hereunder
shall not be deemed to be a waiver of any pre-existing or concurrent breach or violation
by the other Party of any provision of this Agreement.
12.11 Contractor's Investigation
Contractor has made an independent investigation (satisfactory to Contractor) of the
conditions and circumstances surrounding the Agreement and the work to be
performed by it.
12.12 Section Deleted
August 6, 2009 -99- City of Diamond Bar -Commercial
12.13 Notice
All,notices, demands, requests, proposals, approvals, consents and other
communications which this Agreement requires, authorizes or contemplates, unless
otherwise specified in this Agreement, shall be in writing and shall either be personally
delivered to a representative of the Parties at the address below or be deposited in the
United States mail, first class postage prepaid, addressed as follows:
If to City:
City Manager
City of Diamond Bar
21825 Copley Drive
Diamond Bar, CA 91765
If to Contractor: Dauid Perez
V.P. Operations
Valley Vista Services
17445 E. Railroad St.
City of Industry, CA 91748
The address to which communications may be delivered may be changed from time to
time by a written notice given in accordance with this section.
Notice shall be deemed
given on the
day it is
personally delivered or, if mailed, three
days from the date it is
deposited in
the mail.
This notice shall also be sent by e-mail to the City Manager.
12.14 Representatives of the Parties
All actions to be taken by City shall be taken by the City Council except as expressly
provided herein. The City Council may delegate authority to the City Manager, and/ or
to other City employees and may permit such employees, in turn, to delegate some or
all of such authority to subordinate employees. Contractor may rely upon actions taken
by such delegates if they are within the scope of the authority so delegated to them.
Contractor shall, by the Effective Date, designate in writing a responsible officer who
shall serve as the representative of Contractor in all matters related to the Agreement
and shall inform City in writing of such designation and of any limitations upon his or
August 6, 2009 -100- City of Diamond Bar - Commercial
her authority to bind Contractor. City may rely upon action taken by such designated
representative as actions of Contractor unless they are outside the scope of the authority
expressly delegated to him/her by Contractor as communicated to City.
12.15 City Free to Negotiate with Third Parties
City may investigate all options for the Collection, transporting, Recycling, processing
and Disposal of Solid Waste for periods during which this Agreement has expired or
been terminated. Without limiting the generality of the foregoing, City may solicit
proposals from Contractor and from third parties for the provision of Solid Waste
Collection Services which are the subject of this Agreement, including without
limitation Collection services, Disposal services, Recycling services, Green Waste
services and processing, and any combination thereof, and may negotiate and execute
agreements for such services which will take effect upon the expiration or earlier
termination of this Agreement pursuant to Section 11.2 or otherwise.
12.16 Compliance with Municipal Code
Contractor shall comply with those provisions of the municipal code of City which are
applicable, and with any and all amendments to such applicable provisions during the
term of this Agreement.
12.17 Privacy
Contractor shall strictly observe and protect the rights of privacy of Customers.
Information identifying individual Customers or the composition or contents of a
Customer's waste stream shall not be revealed to any Person, governmental unit,
private agency, or company, unless upon the authority of a court of law, by statute, or
upon valid authorization of the Customer. This provision shall not be construed to
preclude Contractor from preparing, participating in, or assisting in the preparation of
waste characterization studies or waste stream analyses which may be required by AB
939. This provision shall not apply to reports or records provided to City pursuant to
this Agreement.
12.18 Proprietary lnformation, 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
August 6, 2009 -101- City of Diamond Bar - Commercial
records on demand and to provide copies to City where requested. City will endeavor
to maintain the confidentiality of all proprietary information provided by Contractor.
Notwithstanding the foregoing, any documents provided by Contractor to City that are
public records may be disclosed pursuant to the California Public Records Act.
August 6, 2009 -102- City of Diamond Bar -Commercial
ARTICLE 13
MISCELLANEOUS PROVISIONS
13.1 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.
13.2 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.
13.3 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.
13.4 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.
13.5 Agreement
This Agreement may not be modified or amended in any respect except by a writing
signed by the Parties.
August 6, 2009 -103- City of Diamond Bar -Commercial
13.6 Severability
Invalidation of any of the provisions contained in this Agreement, or of the application
thereof to any person, by judgment or court order, shall in no way affect any of the
other provisions hereof or the application thereof to any other person or circumstance,
and that same shall remain in full force and effect, unless enforcement of this
Agreement, as so invalidated, would be unreasonable or inequitable under all the
circumstances or would frustrate the purposes of this Agreement and/or the rights and
obligations of the parties hereto.
13.7 Exhibits
Each of Exhibits identified as Exhibit "1" through "6" is attached hereto and
incorporated herein and made a part hereof by this reference.
13.8 Attorneys" Fees
If either Party to this Agreement is required to initiate or defend or made a party to any
action or proceeding between the Parties in any way connected with this Agreement,
the prevailing Party in such action or proceeding, in addition to any other relief which
may be granted, whether legal or equitable, shall be entitled to recover its reasonable
attorney's fees and costs from the opposing Party. Attorneys' fees shall include
attorney's fees on any appeal. A Party entitled to attorney's fees shall be entitled to all
other reasonable costs for investigating such action, taking depositions and discovery,
expert fees, and all other necessary costs the court allows which are incurred in such
litigation. All such fees shall be deemed to have accrued on commencement of such
action.
August 6, 2009 -104- City of Diamond Bar -Commercial
IN WITNESS WHEREOF, City and Contractor have executed this Agreement as of the day and
year first above written,
CITY OF DIAMOND BAR
DATED:
CIT
Lei
Apprg, a �c form: °
By:
City Attorney
ATTEST
�, _ Gr
City Clerk
CO1
By:
NA
TITLE
ADDRESS
TELEPHONE
August 6, 200y -105- City of Diamond Bar -Commercial
EXHIBIT 1
PUBLIC EDUCATION PLAN
(to be attached after City approval per Section 5.3.2)
August 6, 2009 City of Diamond Bar -Commercial
EXHIBIT 2
INITIAL MAXIMUM RATES M
Following are the rates for August 16, 2010 through June 30, 2011:
Monthly
Collection Rates
Container
Size
Pickups
per week
1
2
3
4
5
6
Extra
Empty
1.5 Cubic Yard
$87,08
$143,11
extra bin (2)
$78,38
$128,79
2 Cubic Yard
$99,72
172,90
$236,39
$305,89
$379.09
$442,57
$38.07
extra bin (2)
$89,75
$155,61
$212,75
$275.30
$341,18
$398,31
3 Cubic Yard
$123.47
$204.69
$287.42
$373.15
$451.38
$558,22
$44.09
extra bin (2)
$111,12
$184,22
$258,68
$335,84
$411,64
$502.40
4 Cubic Yard
$156.31
$251.57
$349,02
$497.08
$594,51
$722,15
$50,13
extra bin (2)
$140,68
$226.41
$314,11
$447.37
$535,06
$649.94
6 Cubic Yard
$186,59
$308,24
$431,44
$627.07
$748,73
$904,48
$58,23
extra bin (2)
$167,93
$277,42
$388,30
$564,36
$673.85
$814.03
Recycling - 96 gal.
$16,30
Recycling -1.5 yd.
$37,05
$59,01
Recycling - 2 yd.
$42,54
$71,33
$94,67
$122,11
$150.94
$175.61
Recycling - 3 yd.
$61,74
$95,18
$132.86
$172.05
$210.50
$257.32
Scout Service (3)
$62,42
$148.71
$223,07
$297,42
$371.78
$446.13
(1) Including all fees retained by, or paid to, City.
(2) Customers with more than one bin are charged a lower rate for additional bins.
(3) Scout service rates may be charged in addition to collection rates, in accordance with Section 4.1.12 of the
collection agreement, on a per container basis.
August 6, 2009 2 - �, City of Diarnond Bar -Commercial
EXHIBIT 2
INITIAL MAXIMUM RATES (1) (continued)
Following are the rates for August 16, 2010 through June 30, 2011:
Bin Charges
Rate
Temporary Bin - 3 cubic yard
$124.19/pull
Temporary Bin - 6 cubic yard
$153.36/pull
Bin Cleaning (over one per year)
$50.00
Locking Bin, per bin per month
$10,83
Redelivery/Return Trip Fee
$96.75
Roll -off Box Charges
Rate
Standard Roll -Off Box - Rate per pull (including container rental)
12 to 16 yard
$203,45
25 to 30 yard
$195,58
40 to 45 yard
$189,33
Compactor Roll -Off Box - Rate per pull (excluding compactor rental)
30 yard
$302,37
40 yard
$337.68
Container Rental Fee - for use in Excess of 7 days without being
serviced
$24.18/day
Processing Per Ton
$66,76
Temporary Roll -Off Box, 40 yard - rate includes container rental, pull
and disposal up to 6 tons
$550.54
Temporary Roll -Off Box, Low Boy - rate includes container rental, pull,
and disposal up to 6 tons
$583,98
Roll -Off Box Cleaning (above one per year)
$109,81
Redelivery/Return Trip Fee/Dry runs - roll -off box
$142,19
Additional Service Charges
Rate Per Service
Multi -Family Bulky Item Pickup -each pickup above four per
year of up to four items
$30.00per item
Emergency Service Rates - one crew and one collection truck
$85.00/hour
(1) Including all fees retained by, or paid to, City.
August 6, 2009 2 - 2 City of Diamond Bar -Commercial
EXHIBIT 3A
EXAMPLE RATE ADJUSTMENT FORMULA
Bin, Temporary Service and Other Service Rates
Step One: Calculate percentage change in indices
Row
Adjustment Factor
Index
Old Index Value
New Index Value
Percent Change In
Index ((Column B/
Column A) -1)
1
Labor
1 (1)
19.10
18,65
3.0%
2
Fuel
(2)
216.9
235.5
8.6%
3
Equipment
(3)
119.2
130.0
9.1%
5
Disposal
(4)
$ 27.00
$ 22.00
0.0%
6
Ad Other
(5)
205,709
220.000
Eli%
Step Two: Determine components
Raw
Adjustment Factor
Index
Cost Component
Weighted as'a%of
Component Total (7)
Percent Charge In Index
(boor Column C)
Total Weighted Change
7
Labor
Index
25.7%
3A%
0.8%
8
Fuel
(1)
6.6%
8.6%
0.6%
9
Equipment
(2)
204%
9.1%
1.9%
11
Disposal
(3)
21.0%
0.0%
0.0%
12
All Other
(4)
26.3%
6.9%
1.8%
13
Total
6
100.0%
�:
5.1%
Step Three: Apply percentage change to rates
Row
Rate Category(8)
Existing Customer Rate
Total Weighted
Percentage Change (Row
13, Column F)
Rate Increase or
Decrease (Column G x
Column 11)
Adjusted Rate
(Column G+Column [)
14
3 Yd Bin, Ix week
$ 94.68
5.1%
$ 4.83
$ 99,51
15
3Yd Bin 2x week
$ 153.62
5.1%
$ 7.83
$ 161.45
16
Temp. 45-yd roll -off
$ 485.00
5.1%
$ 24.74
$ 509.74
Temp3-yet bin
11010
115.72
$17
18
Extra Empty-3 yd
$ 36.68
5.1%
$ 1.87
$ 38.55
19
Bin Cleaning
$ 92.28
5.1%
$ 4.71
$ 96.99
Step Form Re -weight cost components Change as
Row
Adjustment Factor
Index
Cost Component
Weighting(Column D)
Percent d to Rae
Applied
Adjustment (Column E)
Increase hi Cost
Components (Col)
x Co]umu L)
Cost Component
Increased
r=hl)(Column K+
Colmrur M)
Cost Compto Equal
Reweig 100 to Equal
100
21
Labor
Index
25.7%
3.0%
0.8%
26.5%
25.2%
22
Tel'
e
(1)
6.6%
8.6%
0.6%
7.2%
6.9%
23
Equipment
(2)
20A%
9.1%
L9%
22.3%
21.2%
25
Disposal
(3)
21.0%
0.0%
0.0%
21.0%
20.0%
26
All Other
(4)
26.3%
6.9%
L"
28.1%
26.7%
27
Total
(s)
100.0%
105.1%
100.0%
(1) Driver A/B rate from Agreement between local haulers and Package and General Utility Drivers Local Union396, International Brotherhood of Teamsters.
(2) Producer Price Index, WPU 0531 not seasonally adjusted, Fuels and related products and power, natural gas -average annual change.
(3) Producer Price Index, PCU336120336120, Hcary duty truck manufacturing -average amoral change.
(4) Gate rate at Approved Disposal Site.
(5) Consumer Price Index for All Urban Consumers (CUURA421SA0LIE), ail items less food and energy index- Los Angeles -Riverside -Orange County- average
nual change.
(6) First rate adjustment based on actual costs. After the first rate adjustment, this column comes from Column O of the previous year's rate adjustment worksheet.
(7) First year weightings to come from actual contractor costs for the 12-month period ended December 31, 2010. Subsequent years' weightings will come from
Column O of the previous year.
(8) Example rates listed below. Adjustment applies to all applicable rate categories.
August 6, 2009 3-1 City of Diamond Bar -Commercial
EXAMPLE RATE ADJUSTMENT FORMULA
Permanent Roll -Off Sox Rate Adjustment
step one: cammate puree tege change i mdire,
A
B
C
Row
Adjustment Factor
Index
Old Index Value
New Index Value
Percent Change In Index
((Column 1C Column
A)-t7
1
Service Component (Pall Rate)
Labor
(U
161.3
169.5
5.1%
3
F1el
(2)
56.2
86.9
54.4%
4
Equipment
(3)
100.0
103.0
3.0%
5
All Other
(4)
176.7
180.9
2Ayi
6
Disposal/Processing
(4)
176.7
180.9
2.4%
Step Two! Determine Components
D
C
F
Row
Adjustment Factor
Index
Cost Factor Category
Weighted asa%of
Component Total (6)
Percent Change In Index
(tram Step PercentIn
Total Weighted Change
7
Service Component (Pull Rate)
8
Labor
(1)
32.5%
5.1 0
1.7%
9
Fuel
(2)
9.4%
54.4 0
4.6%
10
Equipment
(3)
25.8%
3.0%
0.8%
11
All Other
1 (4)
333%
2.4t
0.8%
12
Service Component Total
moto
- jl.
7.9%
13
Dispaaal/Processing
(4)
1D0.0%
2.4%
2.4%
Step Thrce: Apply percentage chnuge to rates
G
ll
I
d
Row
Rate Category(7)
Current Customer Rate
Total Weighted Percentage
Change (from Column F)
Rate Increase or Decrease
(Column C x Column 11)
Adjusted Rate
(Column G+Column l)
14
16-yd Falloff Box
$ 172.08
7.9c
$ 13A9
$ 185fi7
15
30-yd Rolloff Box
$ 165.42
7,9/
S 13.07
$ 179.49
16
45-yd Rolloff Box
$ 160.14
7.9%
$ 12.65
S 172.79
17
30-yd Compactor Falloff
S 285.61
7.9%
$ 22.56
$ 308,17
1g
40-yd Compactor Rolloff
$ 255.74
7.9%
S 2020
$ 275.94
19
Por Ton Disposal/Processing
$ 41.46
2.4%
$ 1.00
S 42.46
Step Four: Rewefeht cost
K
L
M
N
U
Rmv
Adjustment Factor
Index
Cos[Compoueut
(Column D)
Percen[Change as Applied
to Rate Adjustment
(Column E)
Increase in Cost
Components (C plmvu Kx
Column L)
K+ntlucm M)
Column K+ColvmnM
(Column
( )
Costdto Equal
Rmxei hteJmE
g qua1100%
20
ILdneor
(1)
325%
1.7%
0.6%
33.1%
32.6%
21
Fuel
(2)
8.4%
4.6%
0.4%
8.8 0
8.7%
?
Equipment
(3)
25.9%
0.9%
0.2%
26.0%
25.6%
23
lAll Other
(4)
33 3%
0.8%
0.3%
33.6%
33.1 %
24
Total
100.0/
101.5%
100.0%
(1) Driver A/e rate From Agreement between local haulers and Package and General Utility Drivers Local Union 396, International Brotherhood of Teamsters.
(2) Producer Price Index, WPU 0531 not seasonally adjusted, Fuels and related products and power, natural gas- average annual change.
(3) Producer Price Index, PCU336120336120, Heavy duty hock manufacturing -average annual change.
(4) Consumer Price hrdex for All Urban Consumers (CUURMOOSADLIE), all items less food and energy index -U.S. city average- average annual change.
(5) Consumer Price Index for All Urban Consumers (CUURA4215A01,1E), all hems less food and energy index - Los Angeles -Riverside -Orange County -average annual change.
(6) First year weightings to come from actual contractor costs for the 12-month period ended December 31, 2010. Subsequent years' weightings will come from Column O of the
pre us yea
(7) Example rates listed below. Adjustment applies to all applicable rate categories.
Augusf 6, 2009 3-2 City of Diamond Bar -Commercial
EXHIBIT 4
(Section Deletedl
August 6, 2008 4 - 1 Gity of Diamond Bar -Commercial