HomeMy WebLinkAbout_ Contract - Waste Management - 202503 Docusign Envelope ID:664FE19A-5E9C-4DCA-AEE6-42577002FAE2
FRANCHISE AGREEMENT FOR SOLID WASTE SERVICES
Between the City of Diamond Bar
and
Waste Management Collection and Recycling, Inc.
This 4t" day of February 2025
Docusign Envelope ID:664FE19A-5E9C-4DCA-AEE6-42577002FAE2
TABLE OF CONTENTS
RECITALS...................................................................................................................................................................7
ARTICLE 1: DEFINITIONS..........................................................................................................................................10
ARTICLE 2:GRANT AND ACCEPTANCE OF FRANCHISE.............................................................................................24
2.1 GRANTANDACCEPTANCEOFFRANCHISE,INDEMNITYOFAWARD..............................................................24
2.2 EXCLUSIVE NATURE OF FRANCHISE...............................................................................................................25
2.3 EFFECTIVE DATE ............................................................................................................................................25
2.4 TERMOFAGREEMENT...................................................................................................................................25
2.5 CITY'S OPTION TO EXTEND TERM..................................................................................................................25
2.6 REPRESENTATIONS AND WARRANTIES OF CONTRACTOR.............................................................................25
2.7 CONDITIONSTOEFFECTIVENESSOFAGREEMENT........................................................................................27
2.8 DELEGATION OF AUTHORITY.........................................................................................................................27
2.9 LIMITATIONS TO THE SCOPE..........................................................................................................................27
2.10 CITY'SRIGHTTODIRECTCHANGES................................................................................................................29
2.10.1 General.................................................................................................................................................29
2.10.2 New Diversion Programs......................................................................................................................29
2.10.3 City's Right To Acquire Services............................................................................................................30
2.11 OWNERSHIP OF SOLID WASTE allo CITY'S RIGHTTO DIRECTSOLID WASTE...................................................30
2.12 CONTRACTOR'S CORPORATE STATUS ...........................................................................................................31
2.13 CONTRACTOR CORPORATE AUTHORIZATION ...............................................................................................31
2.14 ANNEXATIONS...............................................................................................................................................31
2.15 PERMITSANDLICENSES.................................................................................................................................31
ARTICLE 3:SCOPE OF COLLECTION SERVICES ..........................................................................................................32
3.1 SERVICESTO BE PROVIDED—GENERAL.........................................................................................................32
3.2 RESERVED......................................................................................................................................................32
3.3 COMMERCIALAND MULTI-FAMILYCOLLECTION SERVICES..........................................................................32
3.3.1 CONTAINER Sizes..................................................................................................................................32
3.3.2 Commercial And Multi-Family Premises Cart Service...........................................................................33
3.3.3 Container Color.....................................................................................................................................33
3.3.4 Reserved...............................................................................................................................................33
3.3.5 Reserved...............................................................................................................................................33
3.3.6 Scout Service.........................................................................................................................................33
3.3.7 Bin Pushout Service..............................................................................................................................33
3.3.8 Locking Bins..........................................................................................................................................34
3.3.9 Redelivery/Return Trip Fee...................................................................................................................34
3.3.10 Contamination Warning Notices..........................................................................................................34
3.4 ROLL-OFF BOX SERVICE .................................................................................................................................35
3.5 TEMPORARY BIN SERVICE..............................................................................................................................35
3.6 ON-CALL BULKY ITEM PICKUP........................................................................................................................35
3.7 CITYSERVICES................................................................................................................................................36
3.7.1 City Facilities.........................................................................................................................................36
3.7.2 City-Sponsored Events..........................................................................................................................36
3.7.3 Emergency Collection And Dlsposal Service.........................................................................................37
3.7.4 Abandoned Item Collection From City Right-of-Way Public Property..................................................37
3.7.5 Community Development Review Services...........................................................................................37
Diamond Bar—WM i Franchise Agreement for Solid Waste Services
Docusign Envelope ID:664FE19A-5E9C-4DCA-AEE6-42577002FAE2
3.7.6 Large Venue Event Assistance..............................................................................................................37
3.7.7 Confiscation Of Unauthorized Containers............................................................................................38
3.7.8 Provision of Storage Containers...........................................................................................................38
4.1 OPERATIONS .................................................................................................................................................38
4.1.1 Schedules..............................................................................................................................................38
4.1.2 Missed Pickups.....................................................................................................................................39
4.1.3 Holiday Collection Schedule..................................................................................................................39
4.1.4 Change In Collection Schedule..............................................................................................................39
4.1.5 DEDICATED Routes...............................................................................................................................40
4.1.6 Overflowing Containers........................................................................................................................40
4.1.7 Graffiti Removal...................................................................................................................................40
4.1.8 LitterAbatement..................................................................................................................................40
4.1.9 Health And Safety Training...................................................................................................................41
4.1.10 Unauthorized Material Removal..........................................................................................................41
4.1.11 Report Of Accumulation Of Solid Waste;unauthorized Dumping........................................................41
4.1.12 Route Audit...........................................................................................................................................42
4.1.13 Service Exceptions;Excluded Waste Notifications................................................................................43
4.1.14 Collection of Former Contractor's Containers......................................................................................43
4.2 VEHICLE REQUIREMENTS..............................................................................................................................44
4.2.1 General.................................................................................................................................................44
4.2.2 Vehicle Specifications...........................................................................................................................44
4.2.3 Vehicle Identification............................................................................................................................45
4.2.4 Cleaning And Maintenance..................................................................................................................45
4.2.5 Vehicle Operations................................................................................................................................46
4.2.6 City Inspection Per Code.......................................................................................................................46
4.2.7 Vehicle Inspections...............................................................................................................................47
4.2.8 Correction Of Defects...........................................................................................................................47
4.2.9 City Informational Displays...................................................................................................................47
4.2.10 Vehicle And Equipment Inventory........................................................................................................47
4.3 CONTAINER REQUIREMENTS.........................................................................................................................47
4.3.1 Cart Requirements................................................................................................................................47
4.3.2 Bin Requirements..................................................................................................................................51
4.3.3 Roll-Off Box Requirements....................................................................................................................51
4.4 PERSONNEL...................................................................................................................................................52
4.4.1 Qualified Personnel..............................................................................................................................52
4.4.2 Identification Required.........................................................................................................................52
4.4.3 Hazardous Material Employee Training...............................................................................................52
4.4.4 Fees And Gratuities...............................................................................................................................52
4.4.5 Non-Discrimination...............................................................................................................................52
4.4.6 Hiring of Displaced Employees.............................................................................................................52
4.4.7 City Liaison............................................................................................................................................53
4.4.8 Service Liaison......................................................................................................................................53
4.4.9 Environmental Coordinator....................................................................................................................53
4.4.10 City's Right to Approve City and Service Liaison.......................................................................................53
ARTICLE 5: PROCESSING AND DISPOSAL REQUIREMENTS.......................................................................................54
5.1 TRANSPORTATION OF�ISCARDED MATERIALS.............................................................................................54
5.2 DIVERSION AND PROCESSING REQUIREMENTS.............................................................................................54
5.2.1 Processing Of Recyclables And Organics..............................................................................................54
Diamond Bar—WM ii Franchise Agreement for Solid Waste Services
Docusign Envelope ID:664FE19A-5E9C-4DCA-AEE6-42577002FAE2
5.2.2 End Uses For Organics..........................................................................................................................54
5.2.3 Bulky Item Diversion.............................................................................................................................55
5.2.4 Construction And Demolition Debris Diversion.....................................................................................55
5.2.5 Diversion of Electronic, Universal and Other Special Waste.................................................................55
5.3 MARKETING AND SALE OF RECYCLABLES ......................................................................................................55
5.4 USE OF DESIGNATED FACILITIES....................................................................................................................56
5.5 USE OF CONTRACTOR-OWNED APPROVED FACILITIES..................................................................................56
5.6 SOLID WASTE CAPACITY GUARANTEE...........................................................................................................56
ARTICLE 6:OTHER SERVICES ...................................................................................................................................57
6.1 BILLING AND CONTRACTOR COMPENSATION...............................................................................................57
6.1.1 Reserved...............................................................................................................................................57
6.1.2 Commercial Cart and Bin Service..........................................................................................................57
6.1.3 Reserved...............................................................................................................................................57
6.1.4 Reserved...............................................................................................................................................57
6.1.5 Form of Payment for roll-off or temporary bin service.........................................................................57
6.1.6 Temporary Bin and Roll-Off Box Service...............................................................................................57
6.1.7 Automated Billing Payment..................................................................................................................58
6.1.8 Bill Payment by Phone..........................................................................................................................58
6.1.9 Review of Billings..................................................................................................................................58
6.1.10 Suspension Of Service Due To Non-Payment........................................................................................58
6.1.11 Debt Collection.....................................................................................................................................59
6.1.12 Continued Provision Of Service.............................................................................................................59
6.1.13 No Marketing.......................................................................................................................................59
6.2 CUSTOMERSERVICE......................................................................................................................................59
6.2.1 LocalOffice...........................................................................................................................................59
6.2.2 Customer Service Portal........................................................................................................................59
6.2.3 Customer Complaints, Inquiries And Service Requests.........................................................................60
6.2.4 Customer Service Standards.................................................................................................................60
6.2.5 Resolution Of Customer Complaints.....................................................................................................61
6.2.6 Emergency Contacts.............................................................................................................................61
6.2.7 Multi-lingual, TDD Services...................................................................................................................61
6.3 CUSTOMER OUTREACH AND EDUCATION.....................................................................................................62
6.3.1 On-Going Education Requirements......................................................................................................62
6.3.2 Reserved...............................................................................................................................................64
6.4 AB 341,AB 1826,AND SB 1383 COMPLIANCE ...............................................................................................64
6.4.1 Enrollment Of Non-Compliant Customers............................................................................................65
6.4.2 On-Going On-Site Training....................................................................................................................66
6.4.3 581383 Dashboard..............................................................................................................................66
6.4.4 Route Reviews......................................................................................................................................66
6.4.5 Waste Stream Audits............................................................................................................................67
6.4.6 Exemption/WaiverAssistance..............................................................................................................67
6.4.7 Edible Food Recovery............................................................................................................................67
6.4.8 Procurement of Recovered Organic5 Waste Products..........................................................................67
6.4.9 Education& Outreach for A8 341,A81826,And 581383 DIVERSION.................................................68
ARTICLE 7: FRANCHISE fEE,CALRECYCLE COMPLIANCE FEE,VEHICLE IMPACT FEE,AND OTHER FEES.....................69
7.1 FRANCHISE FEE..............................................................................................................................................69
7.2 CALRECYCLE COMPLIANCE FEE......................................................................................................................69
Diamond Bar—WM iii Franchise Agreement for Solid Waste Services
Docusign Envelope ID:664FE19A-5E9C-4DCA-AEE6-42577002FAE2
7.3 RESERVED......................................................................................................................................................70
7.4 RESERVED......................................................................................................................................................70
7.5 CONTRACTING FEE........................................................................................................................................70
7.6 TIME AND METHOD OF FEE PAYMENTS TO THE CITY....................................................................................70
ARTICLE 8: RECORDS, REPORTS AND INFORMATION REQUESTS.............................................................................70
8.1 GENERAL.......................................................................................................................................................70
8.2 RECORDS.......................................................................................................................................................71
8.2.1 General.................................................................................................................................................71
8.2.2 Financial Records..................................................................................................................................71
8.2.3 Solid Waste Records.............................................................................................................................72
8.2.4 CERCLA Defense Records......................................................................................................................73
8.2.5 Other Programs'Records......................................................................................................................73
8.2.6 Audit.....................................................................................................................................................73
8.2.7 Payments And Refunds.........................................................................................................................74
8.3 REPORTS........................................................................................................................................................74
8.3.1 Monthly Reports...................................................................................................................................75
8.3.2 Annual Reports.....................................................................................................................................76
8.3.4 Financial Reports..................................................................................................................................77
8.4 REPORTING ADVERSE INFORMATION ...........................................................................................................77
8.5 RIGHTTOINSPECTRECORDS.........................................................................................................................78
8.6 FAILURE TO REPORT......................................................................................................................................78
ARTICLE 9: REVIEW OF SERVICES AND PERFORMANCE...........................................................................................78
9.1 PERFORMANCE REVIEW MEETING................................................................................................................78
9.2 PERFORMANCE SATISFACTION SURVEY........................................................................................................79
ARTICLE 10:CONTRACTOR COMPENSATION AND MAXIMUM SERVICE RATES........................................................80
10.1 CONTRACTOR COMPENSATION ....................................................................................................................80
10.2 I N ITIAL RATES................................................................................................................................................80
10.3 SCHEDULE OF FUTURE ANNUAL RATE ADJUSTMENTS..................................................................................80
10.4 METHOD OF ADJUSTMENTS..........................................................................................................................81
10.5 EXTRAORDINARY RATE ADJUSTMENTS.........................................................................................................81
ARTICLE 11: INDEMNIFICATION,INSURANCE AND PERFORMANCE BOND..............................................................82
11.1 INDEMNIFICATION OF THE CITY....................................................................................................................82
11.1.1 General.................................................................................................................................................82
11.1.2 Hazardous Material Indemnification....................................................................................................83
11.1.3 AB 9391ndemnification and Guarantee...............................................................................................84
11.1.4 CALRECYCLE Indemnification................................................................................................................85
11.1.5 ELECTRONIC INFORMATION INDEMNIFICATION..................................................................................85
11.1.6 CALPERSELIGIBILITYINDEMNIFICATION..............................................................................................86
11.2 EVALUATION OF LIABILITY.............................................................................................................................86
11.3 SEPARATE COUNSEL......................................................................................................................................86
11.4 CONSIDERATION ...........................................................................................................................................87
11.5 OBLIGATION..................................................................................................................................................87
11.6 COLLECTION SERVICES SUBCONTRACTORS...................................................................................................87
11.7 SURVIVAL......................................................................................................................................................87
11.8 INSURANCE ...................................................................................................................................................87
Diamond Bar—WM iv Franchise Agreement for Solid Waste Services
Docusign Envelope ID:664FE19A-5E9C-4DCA-AEE6-42577002FAE2
11.9 FAITHFUL PERFORMANCE BOND...................................................................................................................91
11.10 FAITHFUL PERFORMANCE LETTER OF CREDIT...............................................................................................91
11.11 FORFEITURE OF PERFORMANCE BOND.........................................................................................................92
11.12 FORFEITURE OF LETTER OF CREDIT................................................................................................................92
11.13 PERFORMANCE SECURITY BEYOND SERVICE TERM.......................................................................................93
ARTICLE 12:CITY'S RIGHT TO CONTRACT WITH THIRD PARTIES TO PERFORM FRANCHISE SERVICES......................93
12.1 GENERAL.......................................................................................................................................................93
12.2 TEMPORARY POSSESSION OF CONTRACTOR'S PROPERTY............................................................................94
12.3 BILLING AND COMPENSATION TO CITY DURING CITY'S POSSESSION............................................................94
12.4 CITY'S RIGHTTO RELINQUISH POSSESSION ...................................................................................................94
12.5 CITY'SPOSSESSIONNOTATAKING................................................................................................................95
12.6 DURATION OF CITY'S POSSESSION ................................................................................................................95
ARTICLE 13: DEFAULT AND REMEDIES.....................................................................................................................95
13.1 EVENTS OF DEFAULT.....................................................................................................................................95
13.2 RIGHTTO TERMINATE UPON DEFAULTAND RIGHTTO SPECIFIC PERFORMANCE.........................................97
13.3 CITY'S REMEDIES IN THE EVENT OF DEFAULT................................................................................................98
13.4 CRIMINALACTIVITY.......................................................................................................................................99
13.5 POSSESSION OF RECORDS UPON TERMINATION...........................................................................................99
13.6 CITY's REMEDIES CUMULATIVE;SPECIFIC PERFORMANCE............................................................................99
13.7 LIQUIDATEDDAMAGES.................................................................................................................................99
13.8 SUSPENSION OF PERFORMANCE.................................................................................................................103
13.8.1 Force Majeure...........................................................................................................................................103
13.8.2 Labor Unrest..............................................................................................................................................103
13.9 DISPUTE RESOLUTION.................................................................................................................................104
13.9.1 Negotiation And Mediation......................................................................................................................104
13.9.2 Confidentiality...........................................................................................................................................104
13.9.3 Injunctive Relief.........................................................................................................................................105
13.9.4 Continuing Obligation...............................................................................................................................105
13.9.5 Failure of Mediation..................................................................................................................................105
13.10 ASSURANCE OF PERFORMANCE..................................................................................................................105
ARTICLE 14:OTHER AGREEMENTS OF THE PARTIES..............................................................................................105
14.1 RELATIONSHIP OF PARTIES..........................................................................................................................105
14.2 COMPLIANCE WITH LAW.............................................................................................................................106
14.3 GOVERNING LAW........................................................................................................................................106
14.4 JURISDICTION..............................................................................................................................................106
14.5 ASSIGNMENT...............................................................................................................................................106
14.6 AFFILIATED COMPANIES..............................................................................................................................107
14.7 CONTRACTING OR SUBCONTRACTING........................................................................................................108
14.8 BINDING ON ASSIGNS..................................................................................................................................108
14.9 TRANSITION TO NEXT CONTRACTOR...........................................................................................................108
14.10 PARTIES IN INTEREST...................................................................................................................................109
14.11 WAIVER.......................................................................................................................................................109
14.12 CONTRACTOR'S INVESTIGATION.................................................................................................................109
14.13 NOTICE........................................................................................................................................................109
14.14 REPRESENTATIVE OF THE PARTIES..............................................................................................................110
14.15 CITY FREE TO NEGOTIATE WITH THIRD PARTIES..........................................................................................110
Diamond Bar-WM v Franchise Agreement for Solid Waste Services
Docusign Envelope ID:664FE19A-5E9C-4DCA-AEE6-42577002FAE2
14.16 COMPLIANCE WITH MUNICIPAL CODE........................................................................................................110
14.17 PRIVACY.......................................................................................................................................................110
14.18 PROPRIETARY INFORMATION,PUBLIC RECOR�S........................................................................................111
ARTICLE 15: MISCELLANEOUS AGREEMENTS.........................................................................................................111
15.1 ENTIREAGREEMENT....................................................................................................................................111
15.2 SECTION HEADINGS.....................................................................................................................................111
15.3 REFERENCESTOLAWSANDOTHERAGREEMENTS......................................................................................111
15.4 INTERPRETATION ........................................................................................................................................111
15.5 AGREEMENT................................................................................................................................................112
15.6 SEVERABILITY..............................................................................................................................................112
15.7 EXHIBITS......................................................................................................................................................112
15.8 ATTORNEYS'FEES........................................................................................................................................112
EXHIBITS1-8:........................................................................................................................................................114
Diamond Bar—WM vi Franchise Agreement for Solid Waste Services
Docusign Envelope ID:664FE19A-5E9C-4DCA-AEE6-42577002FAE2
This Franchise Agreement for Solid Waste Services ("Agreement") is entered into this 4th day of
February, 2025, by and between the City of Diamond Bar and Waste Management Collection and
Recycling, Inc. "Contractor",for the Collection,Transportation, Recycling, Processing, and Disposal
of Solid Waste and other services related to meeting the goals and requirements of the California
Integrated Waste Management Act. In this Agreement,the City and Contractor may be
collectively referred to as the "Parties" and individually referred to as "Party."
RECITALS
WHEREAS,the Legislature of the State of California, by enactment of the California lntegrated
Waste Management Act of 1989 ("Act") and subsequent additions and amendments (codified at
California Public Resources Code Section 40000 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 jurisdiction to meet the goals and requirements of AB 939; and,
WHEREAS, pursuant to California Public Resources Code Section 40059(a)(2),the City Council of
the City of Diamond Bar has determined that the public health, safety, and well-being require that
an exclusive franchise 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,the Legislature of the State of California, in California Public Resources Code Section
41780 et seq., has declared a mandatory commercial Recycling program and that it is the policy
goal of the state that not less than 75 percent of Solid Waste generated be source reduced,
recycled, or composted by the year 2020, and annually thereafter; and,
WHEREAS,the Legislature of the State of California, in California Public Resources Code Section
41781.3 et seq., has declared that as of January 1, 2020,the use of green material as Landfill
alternative daily cover will no longer constitute Diversion through Recycling and will instead be
considered Disposal in terms of ineasuring a jurisdiction's annual 50 percent per capita disposal
rate (AB 1594, Chapter 719, Statutes of 2014); and,
WHEREAS, California Public Resources Code Section 42649 et seq., requires a mandatory
commercial Organic Waste Diversion program; and,
WHEREAS,the Short-Lived Climate Pollutants Bill of 2016 (SB 1383) establishes regulatory
requirements for jurisdictions, generators, haulers, Solid Waste facilities, and other entities to
support achievement of state-wide Organic Waste Disposal reduction targets; and
WHEREAS, SB 1383 requires jurisdictions to implement Collection programs, meet Processing
facility requirements, conduct contamination monitoring, provide education, maintain records,
submit reports, monitor compliance, conduct enforcement and fulfill other requirements; and,
the City has chosen to delegate some of its responsibilities to Contractor, acting as the City's
designee,through this Agreement; and,
Diamond Bar—WM 7 Franchise Agreement for Solid Waste Services
Docusign Envelope ID:664FE19A-5E9C-4DCA-AEE6-42577002FAE2
WHEREAS,the City declares its intention of maintaining reasonable rates and quality service
related to the Collection,Transportation, Recycling, Processing, and Disposal of Solid Waste and
other services; and,
WHEREAS,the California Department of Resources Recycling and Recovery("CalRecycle")
promulgated regulations to implement SB 1383 (the "SB 1383 Regulations") for local jurisdictions,
Generators, haulers, Solid Waste facilities, and other entities to support achievement of statewide
Organic Waste Disposal reduction targets; and,
WHEREAS,the current franchise agreement will expire on August 30, 2025; and,
WHEREAS, in response to a Request for Proposals,the Contractor has submitted a proposal to the
City and the City selected the Contractor on the competitive advantages of that proposal over
other proposals received by the City; and
WHEREAS, City and Contractor("Parties") hereto desire to enter said Agreement; and,
WHEREAS, City and Contractor are mindful of the provisions of the laws governing the safe
Collection,Transport and Transportation, 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 doubts 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, who 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 Material; 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,the State of California has found and declared that the amount of Solid Waste
generated in California, coupled with diminishing Landfill space and potential adverse
environmental impacts from Landfill Disposal and the need to conserve natural resources, have
created an urgent need for State and local agencies to enact and implement an aggressive
integrated waste management program.The State has,through enactment of AB 939 and
subsequent related legislation including, but not limited to: AB 2176 (Chapter 879, Statutes of
2004), SB 1016 (Chapter 343, Statutes of 2008), AB 341 (Chapter 476, Statutes of 2011),AB 1826
(Chapter 727, Statutes of 2014), and SB 1383 (Chapter 395, Statutes of 2016), directed the
responsible State agency, and all local agencies,to promote a reduction in Landfill Disposal and to
maximize the use of feasible waste reduction, Reuse, Recycling, and composting options in order
to reduce the amount of material that must be Disposed; and,
WHEREAS,the City Council of the City of Diamond Bar hereby desires that Contractor be engaged
to provide for both the Collection of Solid Waste within the corporate limits of the City of
Diamond Bar—WM 8 Franchise Agreement for Solid Waste Services
Docusign Envelope ID:664FE19A-5E9C-4DCA-AEE6-42577002FAE2
Diamond Bar and the Transportation of such Solid Waste to appropriate places for Processing,
Recycling, Organics Diversion, and Disposal, and to perform such services on the terms and
conditions set forth in this Agreement; and
WHEREAS, Contractor has agreed, as part of this Agreement, acting as an independent contractor
to provide such personnel, equipment and supplies as are necessary to ensure City complies with
the requirements of Public Resources Code Section 49100 et seq.,
WHEREAS, Contractor agrees to and acknowledges that it shall arrange for the proper Disposal of
all Solid Waste Collected in City and City is not instructing Contractor how to Collect, Process and
Dispose of Solid Waste.
WHEREAS, consistent with provisions of the Act, including Public Resources Code Section 40059,
aspects of Solid Waste Services are of local concern, including frequency of collection, means of
collection and Transportation, level of services, charges and fees,the nature, location, and extent
of providing Solid Waste Services, and whether the services are to be provided by means of a non-
exclusive, partially exclusive, or wholly exclusive franchise, contract, license, or otherwise which
may be granted by the City under terms and conditions prescribed by the City Council; and
WHEREAS,this Agreement has been developed by and is satisfactory to the City and the
CONTRACTOR,
Now,therefore, in consideration of the mutual covenants, conditions and consideration
contained herein,the City and Contractor hereby agree as hereinafter set forth:
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Diamond Bar—WM 9 Franchise Agreement for Solid Waste Services
Docusign Envelope ID:664FE19A-5E9C-4DCA-AEE6-42577002FAE2
ARTICLE 1: DEFINITIONS
For the purpose of this Agreement,the definitions contained in this Article shall apply unless
otherwise specifically stated. If a word or phrase is not defined in this Agreement,the definition
of such word or phrase as contained in the Diamond Bar City Code shall control.
1.1 AFFILIATE
"Affiliate" means all businesses, including, without limitation, corporations, limited and general
partnerships and sole proprietorships,that are directly or indirectly related to the Contractor by
virtue of direct or indirect ownership interest or common management. Such businesses shall be
deemed to be "Affiliated with" the Contractor and included within the term "Affiliates" as used
herein. An Affiliate includes: (i) a business in which the Contractor has a direct or indirect
ownership interest; (ii) a business that has a direct or indirect ownership interest in the
Contractor; and/or(iii) a business that is also owned,controlled or managed by any business or
individual which has a direct or indirect ownership interest in the Contractor. For the purposes of
this definition, "ownership" means ownership as defined in the constructive ownership provisions
of Section 318(a) of the Internal Revenue Code of 1986 (Title 26, U.S. Code), as in effect on the
effective date, provided that 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 Section 318(a)(5)(C) shall be
disregarded. For purposes of determining ownership under this paragraph and constructive or
indirect ownership under Section 318(a), ownership interest of less than ten percent (10%) shall
be disregarded and percentage interests shall be determined on the basis of the percentage of
voting interest of value that the ownership interest represents,whichever is greater. Being an
Affiliate does not exempt a business from the application of assignment requirements under
Section 14.5
1.2 AGREEMENT
"Agreement" means this Franchise Agreement between the City and Contractor for the
Collection,Transportation, Recycling, Processing, and/or Disposal, of Solid Waste, and other
services related to meeting the goals and requirements of AB 939, including all exhibits and
attachments, and any amendments thereto.
1.3 APPLICABLE LAW
"Applicable Law" means all statutes, rules, regulations, guidelines, actions, determinations,
Permits, orders, or requirements of the United States, State, County of Los Angeles, City and local
and regional government authorities and agencies having applicable jurisdiction,that apply to or
govern the Site or the performance of the Parties' respective obligations hereunder, including any
of the foregoing which concern health, safety, fire, environmental protection, labor relations,
mitigation monitoring plans, building codes, zoning, non-discrimination, and prevailing wages if
applicable.All references herein to Applicable Law include subsequent amendments or
modifications thereof, unless otherwise specifically limited in this Agreement.
Diamond Bar—WM 10 Franchise Agreement for Solid Waste Services
Docusign Envelope ID:664FE19A-5E9C-4DCA-AEE6-42577002FAE2
1.4 ASSEMBLY BILL 341 (AB 341)
"AB 341" means the California Jobs and Recycling Act of 2011 (Chapter 476, Statutes of 2011
[Chesbro,AB 341]), also commonly referred to as "AB 341," as it may be amended supplemented,
superseded, or replaced from time to time.
1.5 ASSEMBLY BILL 939(AB 939) (ACT)
"AB 939" means the California lntegrated Waste Management Act of 1989 (California Public
Resources Code Section 40000 et seq.), as it may be amended, supplemented, superseded, or
replaced from time to time.
1.6 ASSEMBLY BILL 1826(AB 1826)
"AB 1826" means the Organic Waste Recycling Act of 2014(Chapter 727, Statutes of 2014
modifying Division 30 of the California Public Resources Code), also commonly referred to as "AB
1826," as amended, supplemented, superseded, and replaced from time to time.
1.7 BILLINGS
"Billings" means any and all statements of charges for services rendered in accordance with this
Agreement, howsoever made, described or designated by City or Contractor, or made by others
for City or Contractor,to Customers in the City.
1.8 BIN
"Bin" means a metal or plastic Container with hinged lid(s) and wheels serviced by a front-end
loading Collection vehicle with a Container capacity of less than (10) cubic yards, including Bins
with compactors attached to increase the capacity of the Bin. Bins are also known as dumpsters.
1.9 BIN SERVICE
"Bin Service" means Solid Waste Collection provided by Contractor to Customers using Bins(s)to
accumulate and store their Discarded Materials for collection.
1.10 BLUE CONTAINER
"Blue Container" has the same meaning as in 14 CCR Section 18982.2(a)(5) and shall be used for
the purpose of storage and Collection of Source Separated Recyclable Materials.
1.11 BULKY ITEMS
"Bulky Items" means Discarded Materials that cannot and/or would not typically be
accommodated within a Cart including specifically: discarded furniture (including chairs, sofas,
mattresses, carpet, and other similar items); 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
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Waste and small pieces of wood limited to one cubic yard of contained material; Electronic
Waste (including stereos, televisions, computers and monitors,VCRs, microwaves and other
similar items commonly known as "brown goods" and "e-waste"); Bulky Items do not include car
bodies,tires, or C&D Debris, or any other items that require more than two (2) Persons to
remove. Other items not specifically included or excluded above will be Collected provided that
they are not more than eight (8)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, Contract Administrator shall be responsible to determine whether said
definition shall apply, which determination shall be final and binding on the Parties.
1.12 BUSINESS DAYS
"Business Days" mean days during which the City's administrative offices are normally open to do
business with the public.
1.13 CALRECYCLE
"CalRecycle" means the State of California's Department of Resources Recycling and Recovery,
and, as this department was structured prior to January 1, 2010,the California lntegrated Waste
Management Board or CIWMB, as well as any successor agency to CalRecycle.
1.14 CART
"Cart" means a heavy plastic receptacle and a rated capacity of at least thirty(30) gallons and not
more than one-hundred one (101) gallons, having a hinged,tight-fitting lid and wheels,that is
approved by the Contract Administrator for use by Customers for Collection services under this
Agreement.
1.15 CITY
"City" means the City of Diamond Bar, California, a municipal corporation, and all the territory
lying within the municipal boundaries of the City as presently existing or as such boundaries may
be modified during the term of this Agreement.
1.16 COLLECT, COLLECTED,COLLECTION
"Collect" or"Collection" means to take physical possession,Transport, and remove Discarded
Materials within and from City.
1.17 COMMENCEMENT DATE
"Commencement Date" means the date specified in Section 2.4 when the Contractor is to begin
providing Solid Waste Services and other related services required by this Agreement.
1.18 COMMERCIAL EDIBLE FOOD GENERATORS
"Commercial Edible Food Generators" includes Tier One Commercial Edible Food Generators and
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Tier Two Commercial Edible Food Generators, or as otherwise defined in 14 CCR Section
18982(a)(7). For the purposes of this definition, Food Recovery Organizations and Food Recovery
Services are not Commercial Edible Food Generators, or as otherwise specified by 14 CCR Section
18982(a)(7).
1.19 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
City 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, Motels, and Multi-Family Premises with five (5) units or more.
1.20 COMMERCIAL EDIBLE FOOD GENERATORS
"Commercial Edible Food Generators" includes Tier One Commercial Edible Food Generators and
Tier Two Commercial Edible Food Generators, or as otherwise defined in 14 CCR Section
18982(a)(7). For the purposes of this definition, Food Recovery Organizations and Food Recovery
Services are not Commercial Edible Food Generators,or as otherwise specified by 14 CCR Section
18982(a)(7).
1.21 COMMUNITY COMPOSTING
"Community Composting" means any activity that composts green material, agricultural material,
food material, and vegetative food material, alone or in combination, and the total amount of
feedstock and Compost on-site at any one time does not exceed 100 cubic yards and 750 square
feet, as specified in 14 CCR Section 17855(a)(4); or as otherwise defined in 14 CCR Section
18982(a)(8).
1.22 COMPOST, COMPOSTING
"Compost" has the same meaning as in 14 CCR Section 17896.2(a)(4),which stated, as of the
effective date of this Agreement,that "Compost" means the product resulting from the controlled
biological decomposition of organic Solid Wastes that are Source Separated from the municipal
Solid Waste stream, or which are separated at a centralized facility.
1.23 CONTRACT ADMINISTRATOR
"Contract Administrator" means the City Manager, or his or her designee, designated by the City
to administer and monitor the provisions of this Agreement.
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1.24 CONTRACTOR
"Contractor" means Waste Management Collection and Recycling, Inc., and its officers, directors,
employees, agents, companies, and Subcontractors.
1.25 CONTRACTOR'S PROPOSAL
"Contractor's Proposal" means the proposal submitted by Contractor to City on August 30, 2023
in response to a Request for Proposals dated May 3, 2023. Contractor's Proposal was selected by
City based on its competitive advantages over other proposals received, and City specifically
relied upon the representations and warranties set forth therein in entering into this Agreement.
Contractor's Proposal is attached as Exhibit 7 and incorporated into this Agreement by reference,
and Contractor represents and warrants that all representations set forth in such proposal are
true and correct.
1.26 CONTRACTOR COMPENSATION
"Contractor Compensation" means the revenue received by the Contractor from Billings,
excluding City fees as defined in Article 7 of this Agreement, in return for providing services in
accordance with this Agreement and any amendments to this Agreement.
1.27 CONSTRUCTION AND DEMOLITION DEBRIS OR C&D OR C&D DEBRIS
"Construction and Demolition Debris" or"C&D Material," means any combination of inert
building materials and Solid Waste resulting from construction, remodeling, repair, cleanup, or
demolition operations as defined in California Code of Regulations,Title 22 Section 66261.3 et
seq.This term includes, but is not limited to, asphalt, concrete, Portland cement concrete, brick,
lumber, gypsum wallboard, cardboard, and other associated packaging; roofing material, ceramic
tile, carpeting, plastic pipe, and steel.The material may be commingled with rock, soil,tree
stumps; and other vegetative matter resulting from land clearing and landscaping for construction
or land development projects. Accepted and prohibited materials are listed in Exhibit 4.
Construction and Demolition Debris is also referred to in the Diamond Bar City Code as
"Construction/Demolition Waste."
1.28 CONTAINER(S)
"Container(s)" means any and all types of Solid Waste receptacles, including Carts, Bins,
dumpsters, debris boxes, Roll-Off Boxes, and Compactors.
1.29 CONTAINER CONTAMINATION
"Container Contamination" means the following: (i) discarded materials placed in the Blue
Container that are not Blue Container Waste; (ii) discarded materials placed in the Green
Container that are not Green Container Waste; (iii) discarded materials placed in the Gray
Container that are Blue Container Waste or Green Container Waste; and, (v) Excluded Waste
items placed in any container.
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1.30 CUSTOMER(S)
"Customer" means the Person having the care and control of any Premises in the City and to
whom Contractor submits its billing invoice and collects payment for Solid Waste Services
provided pursuant to the terms of this Agreement.
1.31 DAY
"Day" means calendar day unless otherwise specified in this Agreement.
1.32 DESIGNATED FACILITY(IES)
"Designated Facility(ies)" means any one of or any combination of Disposal,Transfer, or
Processing facilities including, C&D Processing Facilities; Landfills; High Diversion Organic Waste
Processing Facilities; Organics Waste Processing Facilities, Source Separated Recyclable Materials
Processing Facilities; and Transfer Facilities as defined in this Article and listed in Exhibit 3.Any
such facility utilized by the Contractor shall be designed and constructed in accordance with
Applicable Laws and shall have been issued all permits from federal, state, regional, county and
city agencies necessary for it to operate. Contractor shall notify Contract Administrator within
One Business Day of any change in Designated Facilities and must submit to the Contract
Administrator an up-to-date Designated Facilities list annually.
1.33 DISCARDED MATERIALS
"Discarded Materials" are a form of Solid Waste and shall be regulated as such. For purposes of
this Agreement, material is deemed to have been discarded, without regard to whether it is
destined for Recycling or Disposal, and whether or not it has been separated from other Solid
Wastes, in all cases where a fee or other compensation, in any form or amount, is directly or
indirectly solicited from, or, levied, charged, or otherwise imposed on, or paid by, the Generator
or Customer in exchange for handling services. As used herein, handling services include, without
limitation,the Collection, removal,Transportation, delivery, and Processing and/or Disposal of the
material. Discarded Materials do not include Edible Food that is recovered for human
consumption and is not discarded. For the purposes of this Agreement, Discarded Materials
include Source Separated Recyclable Materials, Source Separated Green Container Organic
Waste, Food Waste, Refuse, and C&D once the materials have been placed in Containers for
Collection.
1.34 DISPOSAL
"Disposal" or"Disposed" mean the final disposition of any Solid Waste Collected by the
Contractor or Residue from Processing activities at a permitted Landfill or other permitted Solid
Waste facility.
1.35 DISPOSAL SITE(S)
"Disposal Site(s)" means the Solid Waste facility or Facilities utilized for the ultimate Disposal of
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Solid Waste Collected by Contractor.
1.36 DIVERT, DIVERSION
"Divert" or"Diversion" means to Divert from Disposal facilities or Transformation facilities
(including incineration, pyrolysis, distillation, gasification biological conversion)through source
reduction, Reuse, salvage, Recycling, and Composting, as provided in Section 41780 of California
Public Resources Code as such act may be hereafter amended or superseded provided that Divert
or Diversion shall include delivery to Transformation facilities if the overall Diversion achieved by
the City is at a level where delivery to such facilities shall be considered Diversion pursuant to the
Act.
1.37 DWELLING UNIT
"Dwelling Unit" means any individual living unit in a Residential Premises intended for, or capable
of being utilized for, Residential living other than a hotel or motel.
1.38 EDIBLE FOOD
"Edible Food" means food intended for human consumption. For the purposes of this Agreement,
Edible Food is not Solid Waste if it is recovered and not discarded. Nothing in this Agreement
requires or authorizes the recovery of Edible Food that does not meet the food safety
requirements of the California Retail Food Code. If the definition in 14 CCR Section 18982(a)(18)
for Edible Food differs from this definition,the definition in 14 CCR Section 18982(a)(18) shall
apply to this Agreement.
1.39 ELECTRONIC WASTE, E-WASTE
"Electronic Waste" or"E-Waste" means discarded electronic equipment and includes, but is not
limited to, stereos,televisions, computers and computer monitors,VCRs, cellular phones, fax
machines, household copiers, computer printers, other electronic items with electric plugs that
are banned from Landfill Disposal, and other similar items commonly known as "brown goods."
1.40 ENFORCEMENT ACTION
"Enforcement Action" means an action of the City to address non-compliance including, but not
limited to, issuing administrative citations,fines, penalties, or using other remedies.
1.41 ENVIRONMENTAL LAW
"Environmental Law" means any federal and state statute, county, local and City ordinance, rule,
regulation, order, consent decree,judgment or common-law doctrine, and provisions and
conditions or permits, licenses and other operating authorizations relating to (i) pollution or
protection of the environment, including natural resources, (ii) exposure of Persons, including
employees,to Hazardous Materials or other products, raw materials, chemicals or other
substances, (iii) protection of the public health or welfare from the effects of by-products,wastes,
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emissions, discharges or releases of chemical substances from industrial or Commercial activities,
or (iv) regulations of the manufacture, use or introduction into commerce of chemical substances,
including, without limitation,their manufacture, formulation, labeling, distribution,
Transportation, handling, storage and Disposal.
1.42 EXCLUDED WASTE
"Excluded Waste" means Hazardous Substance, Hazardous Waste, Biohazardous or Biomedical
Waste,volatile, corrosive, medical waste, infectious, regulated radioactive waste, and toxic
substances or material that Designated Facility operator(s) reasonably believe(s)would, as a
result of or upon acceptance,Transfer, Processing, or Disposal, be a violation of local, State, or
Federal law, regulation, or ordinance, including: land use restrictions or conditions, waste that
cannot be Disposed of in Class III Landfills or accepted at the Facility by permit conditions,waste
that in Contractor's reasonable opinion would present a significant risk to human health or the
environment, cause a nuisance or otherwise create or expose Contractor or City to potential
liability; but not including de minimis volumes or concentrations of waste of a type and amount
normally found in Residential Solid Waste after implementation of programs for the safe
Collection, Processing, Recycling, treatment, and Disposal of batteries and paint in compliance
with Sections 41500 and 41802 of the California Public Resources Code.
1.43 FOOD WASTE
"Food Waste" means all kitchen and table food scraps, animal or vegetable waste that is
generated during or results from the storage, preparation, cooking or handling of food stuffs;
discarded compostable paper that is contaminated with Food Waste;fruit waste, grain waste,
dairy waste, meat, and fish waste, which has been Source Separated from other Solid Waste,
Food Waste is a subset of Organic Materials and excludes Hazardous Waste. Edible Food
separated for Food Recovery shall not be considered Food Waste. See Exhibit 4 for accepted and
prohibited materials.
1.44 FRANCHISE
"Franchise" means the special right granted by City to operate a public utility for Solid Waste
Services within the City.
1.45 FRANCHISE FEE
"Franchise Fee" means the fee paid by Contractor to City for the right to hold the Franchise for
Solid Waste Services granted by this Agreement.
1.46 GRAY CONTAINER
"Gray Container" has the same meaning as in 14 CCR Section 18982(a)(28) and shall be used for
the purpose of storage and Collection of Gray Container Waste or Mixed Waste.
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1.47 GREEN CONTAINER
"Green Container" has the same meaning as in 14 CCR Section 18982(a)(29) and shall be used for
the purpose of storage and Collection of Source Separated Green Container Organic Waste.
1.48 GROSS RECEIPTS
"Gross Receipts" means and includes all revenues actually received by Contractor or subsidiaries,
parent companies or other Affiliates of Contractor from Billings and compensation in any form
arising from, or attributable to,the provision of Solid Waste Services by Contractor to its
Customers in the City pursuant to this Agreement, without deducting Disposal fees, City Fees, or
any other fees or cost of doing business. Gross Receipts does not include any revenue received by
Contractor from the sales of Recyclable Materials.
1.49 HAZARDOUS MATERIAL
"Hazardous Material" is defined to include any hazardous or toxic substance, material or waste
which is or becomes regulated by any local governmental authority,the State of California, or the
United States Government.The term "Hazardous Material" includes, without limitation, any
material or substance which is: (i) petroleum or oil or gas or any direct or derivate product or
byproduct thereof; (ii) defined as a "hazardous waste," "extremely hazardous waste" or
"restricted hazardous waste" under Sections 25115, 25117 or 25122.7, or listed pursuant to
Section 25140, of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous
Waste Control Law); (iii) defined as a "hazardous substance" under Section 25316 of the California
Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance
Account Act); (iv) defined as a "hazardous material," "hazardous substance," or"hazardous
waste" under Sections 25501(j) and (k) and 25501.1 of the California Health and Safety Code,
Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory); (v)
defined as a "hazardous substance" under Section 25281 of the California Health and Safety Code,
Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances); (vi) "used oil" as
defined under Section 25250.1 of the California Health and Safety Code; (vii) asbestos; (viii) listed
under Chapter 11 of Division 4.5 of Title 22 of the California Code of Regulations,or defined as
hazardous or extremely hazardous pursuant to Chapter 10 of Division 4.5 of Title 22 of the
California Code of Regulations; (ix) defined as waste or a hazardous substance pursuant to the
Porter-Cologne Act, Section 13050 of the California Water Code; (x) designated as a "toxic
pollutant" pursuant to the Federal Water Pollution Control Act, 33 U.S.C. Section 1317; (xi)
defined as " hazardous waste" pursuant to the Federal Resource Conservation and Recovery Act,
42 U.S.C. Section 6901, et seq. (42 U.S.C. § 6903); (xii) defined as a "hazardous substance"
pursuant to the Comprehensive Environmental Response, Compensation and Liability Act,42
U.S.C. § 6901); (xiii) defined as "Hazardous Material" pursuant to the Hazardous Materials
Transportation Act 29 U.S.C. Section 5101, et seq.: or(xiv) defined as such or regulated by any
"Superfund" or"Super lien" law, or any other federal, state or local law, statute, ordinance, code,
rule, regulation, order or decree regulating, relating to, or imposing liability or standards of
conduct concerning Hazardous Materials and/or oil wells and/or underground storage tanks
and/or pipelines, as now, or at any time hereafter, in effect; (xv) defined as "medical waste" or
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"biohazardous waste" under applicable Federal or State law, excluding Home Generated Sharps
as defined in Section 1.52.
1.50 HIGH DIVERSION ORGANIC WASTE PROCESSING FACILITY
"High Diversion Organic Waste Processing Facility" means a facility that is in compliance with the
reporting requirements of 14 CCR § 18815.5(d) and meets or exceeds an annual average Mixed
Waste organic content Recovery rate of 50 percent between January 1, 2022 and December 31,
2024, and 75 percent after January 1, 2025, as calculated pursuant to 14 CCR § 18815.51 for
Organic Waste received from the "Mixed waste organic collection stream" as defined in 14 CCR §
17402(a)(11.5); or, as otherwise defined in 14 CCR § 18982(a)(33).
1.51 HOLIDAYS OR DESIGNATED HOLIDAYS
"Holidays" or"Designated Holidays" shall mean New Year's Day, Memorial Day, Independence
Day, Labor Day,Thanksgiving Day, and Christmas Day.
1.52 HOME GENERATED SHARPS
"Home-Generated Sharps" means hypodermic needles, pen needles, syringes, intravenous
needles, lancets, and other devices that are used to penetrate the skin for testing or the delivery
of inedications derived from a household including Residential Dwelling units.
1.53 HOUSEHOLD HAZARDOUS WASTE (HHW)
"Household Hazardous Waste" or"HHW" means material used in residences that may threaten
human health or the environment when improperly discarded and usually has one or more of the
following characteristics; flammable,toxic, corrosive, and/or reactive.
1.54 LANDFILL
"Landfill" means a "Solid Waste Landfill" defined by Public Resources Code Section 40195.1
1.55 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.
1.56 MIXED WASTE PROCESSING
"Mixed Waste Processing" means the separation and sorting of recyclables and other recoverable
materials from Refuse at a MRF where commingled loads of Solid Waste are Processed.
1.57 MULTI-FAMILY PREMISES
"Multi-Family Premises" means any Residential Premises of five (5) or more Dwelling Units (not
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including hotels or motels), irrespective of whether residence therein is transient, temporary or
permanent, which receive Collection services from centralized locations. Multi-Family Premises
generally receive Solid Waste Services through the use of shared Bins, but may use Carts.
1.58 ORGANIC WASTE OR GREEN CONTAINER WASTE
'Organic Waste' or'Organics' means solid wastes containing material originated from living
organisms and their metabolic waste products including, but not limited to, Food Waste, Green
Material, landscape and pruning waste, organic textiles and carpets, lumber,wood, paper
products, printing and writing paper, manure, biosolids, digestate, and sludges, or as otherwise
defined in 14 CCR Section 18882(a)(46); or that is collected in a green container as defined in 14
CCR 18982(a)(29). Biosolids and digestate are as defined by 14 CCR Section 18982(a).The term is
used interchangeably with Green Container Waste.
1.59 ORGANICS MATERIAL PROCESSING FACILITY
"Organic Materials Processing Facility" means a permitted Facility where Organic Material is
sorted, mulched, or separated for the purposes of Recycling, reuse or composting.
1.60 PERSON
"Person" means any individual,firm, limited liability company, partnership, public or private
corporation, business trust,join venture, organization, organization,the United States,the State
of California,the County of Los Angeles, or any political subdivision,government agency,
municipality, and special purpose districts.
1.61 PREMISES
"Premises' means any parcel of land, building and/or structure or portion thereof, in the City
where Solid Waste is produced, generated or accumulated.
1.62 PROCESS, PROCESSED, OR PROCESSING
"Process", "Processed" or"Processing" means the controlled separation, recovery,volume
reduction, conversion, or Recycling of Solid Waste including, but not limited to, organized,
manual, automated, or mechanical sorting,the use of vehicles for spreading of waste for the
purpose of recovery, and/or includes the use of conveyor belts, sorting lines, or volume reduction
equipment, or as otherwise defined in 14 CCR Section 17402(a)(20).
1.63 RATE YEAR
"Rate Year" means the period July 1 to June 30,for each year during the Term of this Agreement.
1.64 RECYCLABLES OR BLUE CONTAINER WASTE
'Recyclable Materials' or 'Recyclables' means non-putrescible and non-hazardous recyclable
wastes, including, but not limited to, bottles, cans, metals, plastics, and glass, or as otherwise
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defined in 14 CCR Section 18982(a)(43); or that is collected in a blue container as defined in 14
CCR 18982(a)(5).The term is used interchangeably with Blue Container Waste or materials. See
Exhibit 4 for accepted and prohibited materials.The City and Contractor agree to meet from time
to time as needed, and in good faith consider modifications to the list in Exhibit 4 of acceptable
Recyclable Material to address developments in processing technologies, emerging uses for
various types of materials, changes in available markets, or other relevant issues.
1.65 RECYCLE, RECYCLING
"Recycle" or"Recycling" means the process of Collecting, sorting, cleansing, treating, Processing
and reconfiguring materials for the purpose of returning them to the economic mainstream in the
form of raw material for new, Reused, or reconstituted products that meet the quality standards
necessary to be used in the marketplace. Recycling includes processes deemed to constitute a
reduction of Landfill Disposal pursuant to 14 CCR, Division 7, Chapter 12, Article 2. Recycling does
not include gasification or transformation as defined in Public Resources Code Section 40201.
1.66 REFUSE OR GRAY CONTAINER WASTE
"Refuse" means discarded waste or garbage that may contain nonorganic material, or processed
industrial materials or that is collected in a gray container as defined in 14 CCR 18982 (a)(28).The
term is used interchangeably with Gray Container Waste. "Refuse" does not include sewage,
Construction and Demolition Debris, Recyclable Materials, and/or Organic Materials placed in
source-separated Containers for Collection.
1.67 RENEWABLE NATURAL GAS OR RNG
"Renewable Natural Gas" or"RNG" means gas derived from Organic Waste that has been
Diverted from Landfill Disposal and Processed at an in-vessel digestion facility that is permitted or
otherwise authorized by 14 CCR to recover Organic Waste, or as otherwise defined in 14 CCR
Section 18982(a)(62).
1.68 RESIDENTIAL
"Residential" refers to services performed at and for Residential Premises, which include both
single-family and Multi-Family Premises.
1.69 RESIDUAL OR RESIDUE
"Residual" or"Residue" means the Solid Waste destined for Disposal,further Transfer/Processing
as defined in 14 CCR Section 17402(a)(30) or 14 CCR Section 17402(a)(31), or transformation
which remains after Processing has taken place and is calculated in percent as the weight of
Residual divided by the total incoming weight of materials.
1.70 ROLL-OFF BOX
"Roll-Off Box" means an open or closed-top metal Container, roll-top Container, or closed
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compactor Container serviced by a roll-off truck and with a Container capacity of 10 cubic yards or
more. Roll-Off Boxes are also known as drop boxes or debris boxes.
1.71 SINGLE-FAMILY,SINGLE-FAMILY DWELLING
"Single-Family," or"Single-Family Dwelling," means,for purposes of this Agreement,
notwithstanding any contrary definition in the Diamond Bar City Code, any detached or attached
house or residence designed or used for occupancy by one (1) family, provided that Collection
Service feasibly can be provided to such Premises as an independent unit, and the owner or
occupant of such independent unit is billed directly for the Collection Service. "Single-Family," or
"Single-Family Dwelling," includes Residential units of a duplex,tri-plex, or four-plex Residential
structure.
1.72 SENATE BILL 1383 (SB 1393)
"SB 1383" means the Short-Lived Climate Pollutants Act of 2016 (Chapter 395, Statutes of 2016),
as it may be amended, supplemented, superseded, or replaced from time to time.
1.73 SOLID WASTE
"Solid Waste" means all Solid Wastes generated by Residential, Commercial, and industrial
sources, including Refuse, Recyclable Materials and Organic Materials, and all Solid Waste
generated at construction and demolition sites, which are Collected and Transported under the
authorization of the City or are self-hauled by residents or contractors. Municipal Solid Waste
does not include agricultural crop residues, mining waste and fuel extraction waste, forestry
wastes, ash from industrial boilers,furnaces and incinerators or Hazardous Material, any waste
which is not permitted to be Disposed of at a Class III Landfill and which fall within the definition
of"Nonhazardous Solid Waste" set forth in Title 23, Chapter 15, Section 2523(a) of the California
Code of Regulations as amended or designated Class II wastes. Materials shall be deemed "Solid
Waste" consistent with the meaning of California Public Resources Code Section 40191, and for
purposes of this Agreement shall be regulated as such, whether or not they may be potentially
Recyclables, in either of the following instances: (a)the material is mixed or commingled with
other types of Solid Waste such that more than 65%of the material consists of Solid Waste rather
than Recyclables, or(b)the payment of a fee, charge, or other consideration, in any form or
amount, is directly or indirectly solicited or received from the generator by any Person or
combination of Persons in exchange for Collection, removal,Transportation, storage, Processing,
handling, consulting, Container rental or Disposal services ("fee for service" Recycling), whether
or not arranged by or through a subcontractor, broker, agent, consultant, or affiliate of the
provider of such service.
1.74 SOLID WASTE SERVICES
"Solid Waste Services" means the Collection,Transfer,Transport, Recycling, Processing, and
Disposal of Solid Waste.
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1.75 SOURCE SEPARATED
"Source Separated" means materials, including commingled Recyclable materials,that have been
separated or kept separate from the Solid Waste stream, at the point of generation, for the
purpose of additional sorting or Processing those materials for Recycling or Reuse in order to
return them to the economic mainstream in the form of raw material for new, reused, or
reconstituted products which meet the quality standards necessary to be used in the
marketplace, or as otherwise defined in 14 CCR Section 17402.5(b)(4). For the purposes of this
Agreement, Source Separated shall include separation of materials by the Generator, Property
Owner, Property Owner's employee, property manager, or property manager's employee into
different Containers for the purpose of Collection such that Source Separated materials are
separated from Gray Container Waste and other Solid Waste for the purposes of Collection and
Processing.
1.76 STATE
"State" means the State of California.
1.77 TRANSFER STATION
"Transfer Station" means a Facility that receives Solid Waste from Collection vehicles and
transfers the material to larger vehicles for Transport to Landfills and other destinations.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 Organic Materials
and/or Construction and Demolition Debris,to processors, brokers, or end-users.
1.78 TRANSPORT OR TRANSPORTATION
"Transport" or"Transportation" means the act of conveying Collected materials from one location
to another.
1.79 TRANSFORMATION
"Transformation" means incineration, pyrolysis, distillation, gasification, or biological conversion
other than composting. "Transformation" does not include composting.
1.80 UNIVERSAL WASTE OR U-WASTE
"Universal Waste" or"u-waste" means any of the following waste that are conditionally exempt
from classification as hazardous wastes pursuant to Title 22 of the California Code of Regulations
(22 CCR), § 66261.9: (i) batteries as described in 22 CCR § 66273.2; (ii)thermostats as described in
22 CCR § 66273.4; (iii) lamps as described in 22 CCR § 66273.5; and (iv) cathode tube materials as
described in 22 CCR § 66273.6; (v) Electronic Waste or E-waste as defined in Section 1.40.
1.81 WORK DAY(S)
"Work Days" or"Working Days" means days on which the CONTRACTOR is required to provide
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regularly scheduled Collection services under this Agreement.
1.82 WASTE GENERATOR
"Waste Generator" means any Person as defined by the Public Resources Code, 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.
1.83 YARD WASTE OR GREEN WASTE
"Yard Waste" or"Green Waste" means leaves, grass clippings, brush, branches, and other forms
of Organics Materials generated from landscapes or gardens, which have been Source-Separated
from other Solid Waste.Yard Waste is a subset of Organics Materials and excludes Hazardous
Materials. See Exhibit 4 for accepted and prohibited materials.
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 Services as defined in this Agreement to all
Commercial Premises and Multi-Family Premises (of five or more units) within the boundaries of
the City (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.To the
maximum extent permitted by law, 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, including but not limited to any action brought by
referendum or under Proposition 218 (Calif. Const. Art. XIIID)to challenge the City's entry into this
Agreement or the setting of Solid Waste rates as set forth in 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. Contractor hereby accepts the Franchise on the terms and conditions set forth
in this Agreement.
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2.2 EXCLUSIVE NATURE OF FRANCHISE
During the term of this Agreement, except as otherwise provided in Section 2.9 below, or as may
otherwise be provided by federal or state law,the rights granted to the Contractor under this
Agreement shall be exclusive to the Contractor.The City will not let any contract to, or enter into
any agreement with, any other Person for the performance of the services herein required to be
performed by the Contractor.
To the extent permitted under state or federal law, the City shall protect the Contractor's
exclusive rights by proper ordinances, and may take action to enforce those ordinances upon
request and at the City's sole and absolute discretion. Should the City take administrative, law
enforcement, or other legal action against any Person that infringes on the Contractor's exclusive
rights, the Contractor shall reimburse the City for its reasonable administrative, law enforcement,
or other legal costs related to any such action.To the extent permitted under state or federal law,
nothing herein shall preclude Contractor from taking such legal action against third parties as it
deems appropriate to protect the exclusive nature of its Franchise.
2.3 EFFECTIVE DATE
The Effective Date of this Agreement shall be thirty(30) days after the date which the City Council
approves this Agreement.
2.4 TERM OF AGREEMENT
The term of this Agreement shall be ten (10) years, commencing September 1, 2025, and
terminating on August 31, 2035, subject to extension as provided herein. Notwithstanding the
foregoing,the unexcused failure or refusal of Contractor to perform any material term, covenant,
obligation, or condition contained in this Agreement shall give rise to the right, in favor of City,for
earlier termination of this Agreement for cause in accordance with the procedures elsewhere
contained herein.
2.5 CITY'S OPTION TO EXTEND TERM
City shall have the sole option to extend the Term for up to twenty-four(24) months following
expiration of the Term under Section 2.4.The City may, upon at least ninety days (90-days)
advance written notice to the Contractor prior to the expiration of the Term, exercise this
extension option. If City provides this extension notice,this Agreement will automatically renew
up to a maximum of twenty-four (24) months.This extension period shall terminate, upon the
earlier of: (i)the expiration of the aforementioned twenty-four(24) months, or(ii) ninety(90)
days following the date upon which City gives Contractor written notice of final termination.
2.6 REPRESENTATIONS AND WARRANTIES OF CONTRACTOR
Contractor hereby covenants, represents, and warrants the following to City for the purpose of
inducing City to enter into this Agreement and to consummate the transaction contemplated
hereby, all of which shall be true as of the date of this Agreement and as of the effective date:
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A. Contractor is validly existing as a corporation under the laws of the State of California.
B. Neither the execution of this Agreement nor the delivery by Contractor of services nor the
performance by Contractor of its obligations hereunder: (1) conflicts with,violates or results
in a breach of any Applicable Law; (2) conflicts with,violates or results in a breach of any term
or condition of any judgment, decree, agreement (including, without limitation,the certificate
of incorporation of Contractor) or instrument to which Contractor is a party or by which
Contractor or any of its properties or assets are bound, or constitutes a default under any
such judgment, decree, agreement or instrument; or(3) will result in the creation or
imposition of any encumbrance of any nature whatsoever upon any of the properties or
assets of Contractor.
C. There is no action, suit or other proceeding as of the date of this Agreement, at law or in
equity, or to the best of Contractor's knowledge, any investigation, before or by any court or
governmental authority, pending or threatened against Contractor or Waste Management,
Inc. which is likely to result in an unfavorable decision, ruling or finding which would
materially and adversely affect the validity or enforceability of this Agreement or any such
agreement or instrument entered into by Contractor or Waste Management, Inc. in
connection with the transactions contemplated hereby, or which could materially and
adversely affect the ability of Contractor to perform its obligations hereunder or which would
have a material adverse effect on the financial condition of Contractor or Waste
Management, Inc.
D. Contractor has no knowledge of any Applicable Law in effect as of the date of this Agreement
that would prohibit the performance by Contractor of this Agreement and the transactions
contemplated hereby.
E. Contractor has made an independent investigation, satisfactory to it, of the conditions and
circumstances surrounding this Agreement and the work to be performed by it,and is
satisfied that those conditions and circumstances will not impair its ability to perform the
work and provide the Collection services required by this Agreement.
F. The information supplied by Contractor in all submittals made in connection with negotiation
and execution of this Agreement, including all materials in Exhibits of 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. Note that inaccuracies in Contractor's Proposal, such as material omissions of
past and pending litigation as requested under the Request for Proposals through which this
Agreement was procured, are grounds for termination of this Agreement.
G. Contractor's representative, as it shall be designated pursuant to Section 14.14 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.
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2.7 CONDITIONS TO EFFECTIVENESS OF AGREEMENT
The obligation of City to permit this Agreement to become effective and to perform its
undertakings provided for in this Agreement is subject to 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.
A. Accuracy of Representations. Representations and warranties made by Contractor throughout
this Agreement are accurate, true and correct on and as of the effective date of this
Agreement.
B. Absence of Litigation.There is 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 as required by Article 11, and shall
comply with all ongoing requirements relating thereto.
D. Effectiveness of City Council Action. City's Resolution approving this Agreement shall have
become effective pursuant to California law.
2.8 DELEGATION OF AUTHORITY
The administration of this Agreement by City shall be under the supervision and direction of the
City Manager's office and the actions specified in this Agreement, unless otherwise stated, shall
be taken by the Contract Administrator, or his or her designee.
2.9 LIMITATIONS TO THE SCOPE
Notwithstanding any provision to the contrary contained in this Agreement,the exclusive
franchise, right and privilege to provide Solid Waste Services at Commercial and Multi-Family
Premises within City granted to Contractor by this Agreement specifically excludes the following
services,which services may be provided by Persons other than Contractor and which may be
subject of other permits, licenses, franchises or agreements issued or entered by City:
A. Solid Waste Services at Residential Premises of less than five units.
B. The sale or donation of Recyclable Materials or Organics Materials by the Generator to any
person or entity other than Contractor; provided, however,to the extent permitted by law, if
the Generator is required to pay monetary or non-monetary consideration for the Collection,
Transport,Transfer, or Processing of Recyclable Materials or Organics Materials,the fact that
the Generator receives a reduction of discount in price (or in other terms of the consideration
the Generator is required to pay) shall not be considered a sale or donation and shall not be
exempt.
C. Solid Waste that is removed from any Premises by the Generator, by means of"self-hauling"
(as described in the Diamond Bar City Code), and Transported personally by such Generator
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(or by his or her full-time employees, but not a subcontractor) to a Processing or Disposal
Facility in a manner consistent with all applicable laws and regulations.
D. Yard Waste removed from the 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.
E. The Collection,Transfer,Transport, Recycling, Processing, and Disposal of animal waste
remains from slaughterhouse or butcher shops for use as tallow.
F. The Collection,Transfer,Transport, Recycling, Processing, and Disposal of by-products of
sewage treatment, including sludge ash, grit and screenings.
G. The Collection,Transfer,Transport, Recycling, Processing, and Disposal of Hazardous
Substances, Hazardous Waste, and radioactive waste regardless of its source.
H. 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 City Code.
I. The Collection,Transfer,Transport, Recycling, Processing, and Disposal of Solid Waste by the
City through City officers or employees in the normal course of their employment.
J. Solid Waste Services for governmental agencies, other than the City, which may have facilities
in the City, but over which the City has no jurisdiction in connection with the regulation of
Solid Waste.
K. Solid Waste Services for Solid Waste originating outside the City from hauling such Solid
Waste over City streets, provided such collectors comply with any governing laws and/or
ordinances.
L. Containers delivered for Recycling under the California Beverage Container Recycling Litter
Reduction Act(California Public Resources Code, Section 14500, et seq.).
M. Edible Food which is collected from a Generator by other person(s), such as a person from a
Food Recovery Organization or Food Recovery Service,for the purposes of Food Recovery, or
which is Transported by the Generator to another person(s), such as a person from a Food
Recovery Organization, for the purposes of Food Recovery, regardless of whether the
Generator donates, sells, or pays a fee to the other person(s)to collect or receive the Edible
Food from the Generator.
N. Food Scraps that are separated by the Generator and used by the Generator or distributed to
other person(s)for lawful use as animal feed, in accordance with 14 CCR Section
18983.1(b)(7). Food Scraps intended for animal feed may be Self-Hauled by Generator or
hauled by another party.
O. Contractor's right to Collect and/or Dispose of Solid Waste shall not be exclusive in the event
of failure to Collect under Article 12 of this Agreement during which Contractor fails to
maintain substantially complete regular Collection services pursuant to this Agreement and
the Collection schedules then in effect, for any reason, including a strike by Contractor's
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employees or similar labor dispute.The City may provide for Collection and/or Disposal
services from persons other than Contractor during such periods, including Contractor's Bin
and/or Roll-Off Box Service Customers.
Contractor acknowledges and agrees that City may permit other Persons besides Contractor to
Collect any or all types of the Solid Waste listed in this Section 2.9 as exempt from Contractor's
Franchise, including Recyclable Materials,without seeking or obtaining approval of Contractor
under this Agreement.This grant to Contractor of an exclusive Franchise, right and privilege to
Collect,Transport, or Process and Dispose of Solid Waste shall be interpreted to be consistent
with all Applicable Laws, now and during the term of the Franchise, and the scope of this exclusive
Franchise shall be limited by current and developing Applicable Laws with regard to Solid Waste
handling, exclusive Franchise, control of Recyclable Materials, Solid Waste flow control, and
related doctrines. In the event that future interpretations of current law, enactment or
developing legal trends limit the ability of City to lawfully provide for the scope of Franchise
services as specifically set forth herein, Contractor agrees that the scope of the Franchise will be
limited to those services and materials which may be lawfully provided for under this Agreement,
and that City shall not be responsible for any lost profits claimed by Contractor to arise out of
further limitations of the scope of the Agreement set forth herein. In such an event, it shall be the
responsibility of Contractor to minimize the financial impact to other services being provided as
much as possible.
2.10 CITY'S RIGHT TO DIRECT CHANGES
2.10.1 GENERAL
City may direct Contractor to perform additional services (including new Diversion programs, etc.)
or modify the manner in which it performs existing services or bills for services. Pilot programs
and innovative services which may entail new Collection methods, and different kinds of services
and/or new requirements for Generators and/or Contractor 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, if Contractor demonstrates that its cost of service would increase,
as set forth in Sections 2.10.2 and 2.10.3. City may utilize cost components included in the
Contractor's Proposal in calculating equitable rate adjustments.
2.10.2 NEW DIVERSION PROGRAMS
Contractor shall present,within sixty(60) 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, staffing, etc.).
• Equipment to be utilized (vehicle number,types, capacity, age, etc.).
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• 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.
• Projection of the annual financial results of the program's operations in an operating
statement format including documentation of the key assumptions underlying the
projections and the support for those assumptions.
• Any other information reasonably requested by the Contract Administrator.
2.10.3 CITY'S RIGHT TO ACQUIRE SERVICES
At any time during the Term of this Agreement, City may permit other Persons besides Contractor
to provide additional Solid Waste Services not otherwise contemplated under this Agreement. If
pursuant to Sections 2.10.1 and 2.10.2, Contractor and City cannot agree on terms and conditions
of such services within ninety(90) days from the date when City first requests a proposal from
Contractor to perform such services, Contractor acknowledges and agrees that City may permit
Persons other than Contractor to provide such services,which shall be considered exempt from
the exclusivity provisions of Section 2.9.
2.11 OWNERSHIP OF SOLID WASTE AND CITY'S RIGHT TO DIRECT SOLID WASTE
Once Solid Waste is placed in Containers and properly placed at the designated Collection
location, ownership and the right to possession shall transfer directly from the Waste Generator
to Contractor by operation of this Agreement. Subject to Contractor's objective to meet the
Source Reduction and Recycling goals which apply to City and City's right to direct Contractor to
Process and Dispose of Solid Waste at a particular licensed Solid Waste facility or to Dispose of
Solid Waste at a particular licensed Disposal Site, if and only if City exercises such right by
providing specific written direction to Contractor, Contractor is hereby granted the right to retain,
Recycle, Process, Dispose of, and otherwise use such Solid Waste, or any part thereof, in any
lawful fashion or for any lawful purpose desired by Contractor; this does not impact Contractor's
right to retain Recyclable Materials revenue under Section 5.3. Subject to the provisions of this
Agreement, Contractor 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. Solid Waste which is
delivered to a Disposal Site or sites (whether Landfilll,Transformation Facility,Transfer Station,
Organic Materials Processing Facility or Material Recovery Facility) shall become the property of
the Owner or operator of the Disposal Site(s) once deposited there by Contractor. City may obtain
ownership or possession of Solid Waste placed for Collection upon written notice of its intent to
do so, however, nothing in this Agreement shall be construed as giving rise to any inference that
City has such ownership or possession unless such written notice has been given to Contractor.
City has the option to provide written direction to the Contractor specifying a Facility for handling,
Processing, and Disposal of Solid Waste. If City directs Contractor to a Facility other than a
Designated Facility as listed in Exhibit 3 of this Agreement, or otherwise requested by Contractor,
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and in doing so it adversely affects the ability of the Contractor to meet either or both of the
requirements of Section 11.1.3 and Section 5.2, then in this event the City and Contractor shall
meet and confer and mutually agree on revised obligations for Sections 11.1.3 and 5.2.The
foregoing notwithstanding, in the event City directs Contractor to a Facility other than a Facility
listed in this Agreement or otherwise requested by Contractor, then Contractor shall be entitled
to a rate adjustment based upon any increase or decrease in costs associated with handling,
Processing, Disposal and Transportation.
2.12 CONTRACTOR'S CORPORATE STATUS
Contractor represents and warrants that it is duly organized, validly existing and in good standing
under Applicable Laws. It is qualified to transact business in the State of California and has the
power to own its properties and to carry on its business as now owned and operated and as
required by this Agreement.
2.13 CONTRACTOR CORPORATE AUTHORIZATION
Contractor represents and warrants that it has the authority to enter into and perform its
obligations under this Agreement.The Board of Directors or partners of Contractor(or the
shareholders, if necessary) have taken all actions required by Applicable Law, its articles of
incorporation, and 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 and authority to
bind Contractor hereunder.
2.14 ANNEXATIONS
This Agreement extends to any territory annexed to the City during the term of this Agreement
except to the extent that Collection by Contractor within that annexed territory would violate the
provisions of Public Resources Code Section 49520. In such event,this Agreement shall become
effective as to such area at the earliest possible date permitted by law, and City agrees that it
shall cooperate with Contractor to fulfill any requirement necessary for Contractor to serve the
annexed area consistent with this paragraph.
2.15 PERMITS AND LICENSES
Contractor shall acquire and maintain all necessary permits and licenses for the Collecting,
Transporting, Recycling, Processing, Disposing, and storing of Solid Waste 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 13.3. Contractor must follow
requirements of the Diamond Bar City Code, including, but not limited to, obtaining a City of
Diamond Bar business license.
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ARTICLE 3: SCOPE OF COLLECTION SERVICES
3.1 SERVICES TO BE PROVIDED—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 the Agreement or
not, unless excused in accordance with Article 13.8.
The work to be done by Contractor pursuant to this Agreement shall be accomplished in a
thorough and professional manner so that Customers within City are provided reliable, courteous
and high-quality Solid Waste 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 the Agreement or not.
3.2 RESERVED
3.3 COMMERCIAL AND MULTI-FAMILY COLLECTION SERVICES
Contractor shall provide a three-Container Collection program for the separate Collection of
Refuse, Source Separated Recyclable Materials, and Source Separated Organic Waste using
Containers that comply with the requirements of Section 4.3. Contractor shall provide a program
sufficient to enable City and Customers to meet or exceed the requirements of SB 1383
Regulations as of the start of Collection services under this Agreement. Commercial Premises
includes multi-family dwellings of five or more units. Recyclable Materials and Organic Waste
acceptable for collection are listed in Exhibit 4.
Collection frequency shall be at least once per week and more frequently if required to the waste
generated at the Premises where the Containers 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, 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.
3.3.1 CONTAINER SIZES
Contractor shall provide 1, 1.5, 2, 3,4 and 6 cubic yard Bins upon request. Contractor will service
Bins equipped with compaction devices (known as compactors)that attach to the Bins if
requested by Customer.The provision, sale, or lease of the compaction device itself is outside this
Agreement. Contractor is not required to provide the compaction device.
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3.3.2 COMMERCIAL AND MULTI-FAMILY PREMISES CART SERVICE
Contractor shall offer Collection in Carts to Customers at Commercial Premises and Multi-Family
Premises of five units or more that do not have space for, or do not generate enough waste to
require the use of Bins for Collection. If Contractor and Customer have a disagreement as to
whether Cart service is appropriate, or if City determines that Collection in Carts causes health
and safety or other concerns, City shall make the final determination as to whether Collection in
Carts may occur.
3.3.3 CONTAINER COLOR
Bins and Carts shall comply with CalRecycle color and labeling requirements under SB 1383
Regulations. Contractor shall provide blue Containers for the Collection of Recyclable Materials,
green Containers for the Collection of Organic Waste and gray or black Containers for the
Collection of Refuse.Alternatively, Contactor may provide Containers with blue,green, and gray
or black lids to meet the Container color requirement.
3.3.4 RESERVED
3.3.5 RESERVED
3.3.6 SCOUT SERVICE
Upon request, Contractor shall provide scout service,whereby Contractor will access Containers
using a small vehicle either to move Containers to street or other public right-of-way for
Collection, or Collecting Solid Waste directly from Container storage location. Under no
circumstance shall Containers remain in the public right-of-way or outside of Container storage
location for a period exceeding two (2) hours. In the event of a dispute between Contractor and
Customer as to whether scout service will be used, Contract Administrator will make the final
determination.
Contractor is responsible for verifying that an encroachment permit has been obtained from the
City prior to placing a Container in the public right-of-way. If the Customer has not obtained an
encroachment permit,the Contractor shall inform the Customer that the Container shall not be
placed in the public right-of-way until the Customer provides Contractor with verification of an
encroachment permit, instructing the Customer as to how to obtain the permit.A copy of the
encroachment permit shall be affixed to the Container.
3.3.7 BIN PUSHOUT SERVICE
Contractor may not charge a fee for pushing or rolling Bins to point of Collection.
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3.3.8 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.
3.3.9 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 for Collection prior to the Customers next scheduled
Collection. Charge may be assessed for the trip, not per Bin, in the event of a Customer with
multiple Bins.
3.3.10 CONTAMINATION WARNING NOTICES
Contractor is responsible for visually inspecting Containers (and may use on-board digital image
technology)for prohibited Container Contamination.Additionally, Contractor shall perform
contamination monitoring and inspections in compliance with the CalRecycle requirements under
SB 1383 Regulations.
Containers shall be considered contaminated if it contains more than ten percent (10%) of
prohibited Container Contamination.
Contractor shall warn Customers who have Container Contamination as required by CalRecycle
under SB 1383 Regulations.
A. 1st instance: Contractor shall take photograph(s) of Container content, Collect the
material from the Container, provide a courtesy notice that explains why the material Collected
was non-conforming, and notify the City.The written notice shall also explain the policy for non-
conforming materials, recommend corrective action, explain the consequences for repeated
instances, provide a list of acceptable and non-acceptable materials in each Container, how to
contact Contractor, and any other information required by CalRecycle.
B. 2nd and subsequent instances: In addition to the requirements under the 1st instance,
Contractor shall have the option of assessing a Contamination Fee included in the approved rate
schedule, or Contractor may refuse to Collect contaminated Containers upon written notification
to Customer indicating the reason for non-Collection, and options for corrective action.A copy of
such notice shall be delivered to the City via email upon request by the Contract Administrator or
designee.
Each written notice and photograph shall be available to the City upon request. If twelve (12)
calendar months have elapsed since a written notification was issued for a non-conforming
Container,the next instance stall be deemed the initial instance. If the Customer has changed,
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and the account is new,with different occupants, owners or lessees,the written notification shall
be considered the initial instance.
3.4 ROLL-OFF BOX SERVICE
Contractor shall provide permanent and temporary Roll-Off Box Collection service upon request.
When accepting an order for Roll-Off Box service, it shall be Contractor's duty to assist Customer
with arranging service that maximizes the Diversion of Solid Waste from Landfill Disposal.
Contractor must deliver a temporary Roll-Off Box to a Customer within forty-eight hours of
request (excluding Saturday, Sunday, and Designated Holidays). 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.
The provision, sale, or lease of compactor Roll-Off Boxes, which are enclosed Containers attached
to a compaction device, is not included in this Agreement. Providing service to such compactor
Roll-Off Boxes is included.
Rates shall be charged at a set rate for the service component (per pull) plus the per-ton charge
(dump) based on actual tonnage Collected. Contractor may charge a fee in the event a scheduled
Roll-Off Box Collection is impeded from Collection due to Container being blocked or otherwise
unable to be Collected and Contractor must return for Collection.There will be no charges other
than the specific charges identified in the approved rate schedule.
Roll-Off Boxes shall comply with SB 1383 Regulations color and labeling requirements.
3.5 TEMPORARY BIN SERVICE
Contractor shall provide temporary Bin Service to Customers upon request. Contractor must
deliver a temporary Bin to a Customer within forty-eight (48) hours of request (excluding
Saturday, Sunday, and Designated Holidays). 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.There will be no charges other than the specific charges identified in the approved rate
schedule.
3.6 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.
Customers may put out up to four (4) Bulky Items at each pickup. Contractor may instruct
Customers to provide Contractor with a minimum of one business days' notice for the items,
which shall be Collected on the Customer's regular Collection day. Contractor shall Collect all
Bulky Items as defined in Section 1.11 including items referred to as Electronic Waste or"E-
waste."
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The following provisions shall apply to this program:
1. No single item that cannot be handled by two workers will be accepted.
2. 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 1.11
(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 3.6 and 5.2.5.)
3. 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 Landfill Disposal through Recycling, reuse,Transformation, or other
means of Diversion. Contractor shall include this information in its monthly reporting per
Section 8.3.1. Commercial Customers may receive Bulky Item Collection for a fee, in
accordance with the approved rate schedule.
3.7 CITY SERVICES
3.7.1 CITY FACILITIES
Contractor shall collect all Solid Waste including but not limited to Recyclables, Organics, Bulky
Items, Electronic Waste, and Construction and Demolition Solid Debris which is generated at City
government Premises at no additional cost to the City.The City shall provide Contractor with a list
of locations and number of containers, sizes, and frequency of collection from which such Solid
Waste shall be collected. Such Premises include, but are not limited to, City Hall, City offices,
parks, City yard and street maintenance operations. Solid Waste at City yard will include Solid
Waste Collected from street litter Containers.The list of City locations and the number of
containers, sizes, and frequency of collection may be modified from time to time by the Contract
Administrator without additional compensation paid to the Contractor. Solid Waste generated by
such City operations shall be collected by Contractor per a schedule provided to Contractor by the
Contract Administrator.
3.7.2 CITY-SPONSORED EVENTS
Contractor shall provide Solid Waste Collection and Disposal/Processing service for City-
sponsored events at no additional charge to City or Ratepayers.This shall include providing
Refuse Containers (Carts, Bins, Roll-off Boxes, and cardboard waste boxes with liners)to Collect
and Dispose of, or Process, all Solid Waste. Contractor shall provide Containers for the Collection
of Recyclables and Organics. It is the City's intent to alternate events assigned to Contractor with
those events it assigns to the City's Residential franchisee; however, City does not guarantee that
events will be evenly distributed based upon either level of effort or number of events.The list of
City-sponsored events may change over time and include, but are not limited to:
• Concerts in the Park
• City Birthday Celebration
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• Fourth of July
• Fall Fun Festival
• Winter Snow Festival
• ArborDay
• Easter Egg Hunt
• Earth Day
• America Recycles Day
3.7.3 EMERGENCY COLLECTION AND DISPOSAL SERVICE
Contractor will assist City at the City' s request with emergency Collection and Disposal service in
the event of major disaster, such as an earthquake, storm, riot or civil disturbance, or as
otherwise determined necessary by the City, by providing Collection equipment and drivers
normally assigned to City. Contractor may charge City for actual Disposal costs plus service rates
per the approved rate schedule.
3.7.4 ABANDONED ITEM COLLECTION FROM CITY RIGHT-OF-WAY PUBLIC PROPERTY
Contractor will Collect and Dispose of, at no additional charge to City or Ratepayers, 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 within the routes/areas served by Contractor. 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 per Section 1.11. Contractor will properly Divert from Landfilling or Dispose of such items in
accordance with Sections 5.2.3.
3.7.5 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.
3.7.6 LARGE VENUE EVENT ASSISTANCE
Contractor will assist planners of large venue events at no additional charge 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. and Contractor shall provide Recycling services upon
request to special event planners.
Diamond Bar—WM 37 Franchise Agreement for Solid Waste Services
Docusign Envelope ID:664FE19A-5E9C-4DCA-AEE6-42577002FAE2
3.7.7 CONFISCATION OF UNAUTHORIZED CONTAINERS
1) City authorizes Contractor to confiscate illegal Collection Containers located within the
City's public rights-of-way subject to the noticing requirements of Diamond Bar City Code
Section 8.16.870. Upon notification from City, or Contractor's locating of an illegally
placed Container, Contractor shall begin the following procedure within 24 hours:
2) 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 Section 8.16.870 of
the Diamond Bar City 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.
3) Notify City of the notice and request authorization to impound the Container.
4) With written City approval, impound the Container if it has not yet been removed by the
illegal hauler.
5) 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.
3.7.8 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.ARTICLE 4: REQUIREMENTS FOR OPERATIONS, EQUIPMENT,AND PERSONNEL
4.1 OPERATIONS
4.1.1 SCHEDULES
To preserve peace and quiet, Commercial and industrial locations may be Collected between 6:00
A.M. and 6:30 P.M. Monday through Saturday.
Contractor may not make exceptions to these Collection days and times without advance written
approval from the City. If the regularly scheduled Collection day falls on a Designated Holiday,
Collection days for the remainder of that week shall all be postponed one Collection day.
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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. Changes to 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 of Diamond Bar Diamond Bar City Code or any other applicable law or
requirement.
4.1.2 MISSED PICKUPS
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, Recyclables, and/or Organics 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.
4.1.3 HOLIDAY COLLECTION SCHEDULE
Contractor shall not be required to provide Collection services or maintain non-emergency office
hours on the Designated Holidays. If the regularly scheduled Collection day falls on a Designated
Holiday, Collection days for the remainder of that week shall all be postponed one Collection day.
Only the City may change the holiday collection schedule.
4.1.4 CHANGE IN COLLECTION SCHEDULE
Contractor shall notify City forty-five (45) days prior to, and Customers not later than thirty(30)
days prior to, any change in Collection operations which results in a change in the day on which
Solid Waste Collection occurs. Contractor will not permit any Customer to go more than seven (7)
days without service in connection with a Collection schedule change. City's approval of any
change in Collection is required prior to such change, and such approval will not be withheld
unreasonably.
Any changes in the route map or Collection schedule shall require the prior approval of the City.
City may require reasonable changes to the route map or Collection schedule,to improve service,
to resolve complaints or for other reasons. Prior to the change of a route schedule, Contractor
shall provide written notice of the change to affected Customers ninety(90) days in advance.
Contractor shall coordinate with the Contract Administrator to ensure that Solid Waste Collection
is compatible with the City's street sweeping operations. Contractor will be required to complete
their designated routes each day so as not to interfere with the City's street sweeping operations.
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4.1.5 DEDICATED ROUTES
Solid Waste Collected in the City shall not be commingled in Collection vehicles with Solid Waste
from other jurisdictions.All routes approved under this Agreement shall be dedicated exclusively
to Solid Waste Collected in the City of Diamond Bar,with the exception of Commercial Organics
routes.
4.1.6 OVERFLOWING CONTAINERS
Customers that regularly produce more Refuse than their current level of service can
accommodate may have their service level increased in accordance with the following procedure:
First Incident: 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: Upon the second event of an overfilled Container, 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 may petition City to permit Contractor to increase the service level to
accommodate the higher demand for service.
Third and Subsequent Incidents: After the second incident of an overflowing Container and
for every subsequent incident, Contractor shall Collect the Container, and charge the
Customer an overage fee in the amount set forth in the approved rate sheet. Contractor may
also increase the Container size, collection frequency, or require an additional Container and
charge the Customer the appropriate rate(s) set forth in the approved rate schedule. City shall
consult with Contractor and consider, and may pursue as applicable, appropriate
enforcement and/or legal remedies against the offending Customer.
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 4.1.6.
4.1.7 GRAFFITI REMOVAL
Contractor shall remove graffiti from any Container within three (3) Business Days (excluding
Saturday, Sunday, and Designated Holidays of request by City or Customer at no additional
charge. Contractor is required to proactively look for graffiti when Collecting Containers,with all
graffiti removed from Containers as stated above after any Collection without notification.
4.1.8 LITTER ABATEMENT
A. Minimization of Spills. Contractor shall use due care to prevent Solid Waste or fluids
from leaking, being spilled and/or scattered during the Collection or Transportation process. If any
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Solid Waste or fluids leak or are spilled during Collection, Contractor shall promptly clean up all
such materials. Each Collection vehicle shall carry a broom and shovel at all times for this purpose.
Contractor shall not transfer loads from one vehicle to another on any public street, unless it is
necessary to do so because of inechanical failure, accidental damage to a vehicle, or a pre-
approved method of Solid Waste transfer between vehicles, without prior written approval by
City.
B. Clean Up. Contractor shall clean up litter in the immediate vicinity of any Solid Waste
storage area if Contractor has caused the litter during the Collection process. Customer shall be
responsible for cleanup of litter in Solid Waste storage area not caused by Contractor. Contractor
shall identify instances of repeated spillage not caused by it directly with the Waste Generator
responsible and will report such instances to City. Contractor may address habitual offenders in
accordance with Section 4.1.6.
In the event of a spill of materials (vehicle fluids, Organic Waste leachate, etc.), Contractor shall
provide a cleanup of the spill to the satisfaction of City and other governing agencies. Cleanup
methods may include pressure washing (Contractor must capture and reclaim water) or other
similar clean-up methods.
C.Covering of Loads. Contractor shall properly cover all open Roll-Off Boxes during Transport
to the Disposal Site.
4.1.9 HEALTH AND SAFETY TRAINING
Contractor shall provide suitable operations, health and safety training on an ongoing basis for all
of its drivers and other employees who use or operate equipment or who are otherwise directly
involved in Collection or other related operations.
4.1.10 UNAUTHORIZED MATERIAL REMOVAL
Contractor shall remove from providing service under this Agreement 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.
4.1.11 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 five (5) Work Days of such observation.
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4.1.12 ROUTE AUDIT
Once during the first year or at City request but not more than once per year, Contractor shall
conduct an audit of its Collection routes in the City. City may use information from the audit to
develop a request for proposals for a new service provider. City may instruct Contractor when to
conduct the audit in order for the results to be available for use in preparation of a request for
proposals or for other City uses. City may also instruct Contractor to conduct an audit at a time
that would produce the most accurate Customer service information for a new service provider to
use in establishing service with Customers. 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;
� Number and size of Containers by waste stream (Refuse, Recycling, Organics)
• Container condition;
• Account Name;
• Account Number;
• Account Service Address;
• Account Type (Service type);
• Service Level per Contractor Billing system (Quantity, Size, Frequency, Waste Stream);
• Observed Containers (Quantity, Size, Frequency, Waste Stream).
• Container condition;
• Proper signage; and,
• Graffiti.
Within thirty (30) 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 (including Service types);
• Confirmation that all Refuse routes are dedicated exclusively to City Customers;
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• Number and type of exceptions observed;
• Total monthly service charge, pre-audit;
• Total monthly service charge, post-audit (subsequent to corrections of identified
exceptions); and,
• 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.
4.1.13 SERVICE EXCEPTIONS; EXCLUDED WASTE NOTIFICATIONS
A. Failure to Collect. When Solid Waste is not Collected from any Solid Waste Customer,
Contractor shall notify its Customer in writing, at the time Collection is not made,through the use
of a "tag" or otherwise, of the reasons why the Collection was not made.
B. Excluded Waste Inspection and Reporting. Contractor reserves the right to reject
Solid Waste observed to be contaminated with Excluded Waste and the right not to Collect
Excluded 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
Excluded Waste,found or observed in Solid Waste anywhere within the City. In addition to other
required notifications, if Contractor observes any substances which it or its employees reasonably
believe or suspect to contain Excluded Waste unlawfully Disposed of or released on any City
property, including storm drains, streets or other public rights of way, Contractor will immediately
notify the City Manager or the City Manager's designee. Contractor shall implement and maintain
a training program that will assist its employees in identifying and properly disposing of any
Excluded Waste that may come into their possession.
C. Excluded Waste Diversion Records. Contractor shall maintain records showing the types
and quantities, if any, of Excluded Waste found in Solid Waste and which was inadvertently
Collected from Customers within the City, but Diverted from Landfill Disposal.
4.1.14 COLLECTION OF FORMER CONTRACTOR'S CONTAINERS
If any Solid Waste enterprise providing Solid Waste Services to Customers prior to the start of
Collection services under this Agreement does not remove the Containers it had in use prior to
the start of Collection services under this Agreement, Contractor shall Collect and
Recycle/Dispose of all such Containers at no additional charge to City or Customers.
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4.2 VEHICLE REQUIREMENTS
4.2.1 GENERAL
Contractor shall provide Collection vehicles sufficient in number and capacity to efficiently
perform the work required by the Agreement in strict accordance with its terms as described in
Contractor's Proposal.Any additional vehicles/routes that may be required to meet the service
standards during the term of this Agreement, above the number included in Contractor's Proposal
shall be done so at Contractor's sole expense. Contractor shall have available on Collection days
sufficient reserve vehicles for each type of Collection vehicle,which can be dispatched within one
(1) hour of any breakdown to complete the Collection routes and to respond to complaints and
emergencies. Such reserve equipment shall correspond in size and capacity to the equipment
used by the Contractor to perform the contractual duties. All equipment of Contractor used to
provide the services set forth in this Agreement shall be subject to inspection by City upon
request.
4.2.2 VEHICLE SPECIFICATIONS
A. All route Collection vehicles will be not older than 2-years and in like-new condition upon
initiation of services under this Agreement. Contractor shall operate no vehicles within
the City over 10-years in age during the initial ten-year term of this Agreement and no
older than 15-years in age during any future extensions of this Agreement.
B. 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. Hoppers
shall be enclosed on top and on all sides to prevent material from leaking, blowing or
falling from the Vehicles. Each Collection vehicle shall be equipped with a shovel and
broom for clean-up of spillage. Collection Vehicles shall never be loaded to exceed the
manufacturer's recommended weight limit or otherwise operated unsafely or in violation
of any Applicable Law.
C. At all times during the term of this Agreement, Contractor's Collection vehicles shall
comply with Department of Transportation requirements, 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.
D. All route Collection vehicles used by Contractor in providing Refuse, Recycling, and
Organics Collection services, excluding spares, Roll-off Box Collection vehicles, scout
vehicles, supervisor vehicles, Container delivery and other specialty vehicles used on a
sporadic basis, shall use alternative fuel such as compressed or liquified natural gas,
liquified petroleum gas, methanol, electricity,fuel cells, or other advanced technologies,
approved by the South Coast Air Quality Management District (SCAQMD) for Solid Waste
Services.
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4.2.3 VEHICLE IDENTIFICATION
Contractor's name, local telephone number, and a unique vehicle identification number designed
by Contractor for each vehicle shall be prominently displayed on all vehicles, in letters and
numbers no less than six (6) inches high. City must approve truck labeling. No advertising shall be
permitted other than the name of the Contractor except promotional advertisement of the
Recyclable Materials and Organic Materials programs, other programs specific to the City, or
information requested by City pursuant to Section 4.2.9.All advertisement must be approved by
the City. Contractor shall not place City's name and/or any City logos on Contractor vehicles.
4.2.4 CLEANING AND MAINTENANCE
1) Contractor shall maintain all of its properties,vehicles, facilities, and equipment used in
providing service under this Agreement in a good, safe, neat, clean, and operable
condition at all times.
2) Vehicles used in the Collection of Refuse, Recyclable Materials, and Organics shall be
painted,thoroughly washed, and thoroughly steam cleaned on a regular basis so as to
present a clean appearance. City may inspect vehicles at any time to determine
compliance with this Agreement. Contractor shall also make vehicles available to the
County of Los Angeles for inspection, at any frequency it requests. Contractor agrees to
replace or repair to the City's satisfaction, any vehicle which City determines to be of
unsightly appearance, leaking, or in unsatisfactory operating condition.
3) Contractor shall repaint all vehicles used in the Collection of Refuse, Recyclable Materials
and Organics at least every five years, and within thirty (30) days' notice from City if City
determines that their appearance warrants painting.
4) Contractor shall inspect each vehicle daily to ensure that all equipment is operating
properly.Vehicles which are not operating properly shall be removed from service until
repaired and operating properly. Contractor shall perform all scheduled maintenance
functions in accordance with the manufacturer's specifications and schedule. Contractor
shall keep accurate records of all vehicle maintenance, recorded according to date and
mileage, 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 and mileage, nature of repair and
the verification by signature of a maintenance supervisor that the repair has been
properly performed.
6) Contractor 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.
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7) Upon request, Contractor shall furnish City a written inventory of all equipment, including
Collection vehicles, used in providing service.The inventory shall list all equipment by
manufacturer, ID number, date of acquisition, type, and capacity.
8) All vehicles used to provide services under this Agreement shall at all times have in the
cab the registration of the truck, evidence of insurance meeting the requirements of this
Agreement and an identification card with the name of whom to telephone in case of an
accident or emergency. Each truck shall be equipped with a minimum of a 20-pound fire
extinguisher that has been certified by the state fire marshal.This fire extinguisher shall
be recharged as needed, but not less than once annually.
9) 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.
4.2.5 VEHICLE OPERATIONS
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 equipment used for Refuse, Recycling, and Organics services shall be registered with
the California Department of Motor Vehicles. Equipment shall comply with US EPA noise emission
regulations, currently codified at 40 CFR Part 205 and other applicable noise control regulations,
and shall incorporate noise control features throughout the entire vehicle. Noise levels of
equipment used for Collection shall comply with the Diamond Bar City 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.
4.2.6 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 to be in nonconformance with
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applicable codes or any provision of this Agreement. No vehicle directed to be removed from
service shall be returned to service until it conforms and its return to service has been approved
by the City.
4.2.7 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,the Contractor is in violation of the Agreement.The 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 months,then the Contractor shall be considered in default of the contract and the City
may terminate the Agreement as provided in Section 13.2.
4.2.8 CORRECTION OF DEFECTS
Following any inspection,the Contract Administrator 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 Contract Administrator's decision will be final.
4.2.9 CITY INFORMATIONAL DISPLAYS
Contractor shall equip all vehicles which Collect Solid Waste within the City with informational
displays.The City shall advise Contractor as to the messages which should be displayed while
vehicles are operating for the City.The City may, at its option, have the messages to be displayed
changed once per year at no additional cost.
4.2.10 VEHICLE AND EQUIPMENT INVENTORY
On or before the effective date of this Agreement,the Contractor shall provide to the Contract
Administrator an inventory of Collection Vehicles and major equipment used by the Contractor
for Collection or Transportation in performance of services under this Agreement.
The inventory shall indicate each Collection vehicle by identification number, DMV license
number,the age of the chassis and body,type of fuel used,the type and capacity of each vehicle,
the date of acquisition, and the maintenance and rebuilt status.
The Contractor shall submit to the Contract Administrator an updated inventory including all of
the information required above in each annual report, or more often at the request of the City.
Each vehicle inventory shall be accompanied by a certification signed by the Contractor that all
Collection Vehicles meet the requirements of this Article.
4.3 CONTAINER REQUIREMENTS
4.3.1 CART REQUIREMENTS
A. Reserved
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B. Cart Design Requirements. Carts 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 approval.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. Contractor shall ensure that all Carts in service
during the terms of this Agreement comply with CalRecycle requirements under SB 1383
Regulations.
C. Cart Colors. The Refuse, Recycling and Organics Carts or Cart lids will be differentiated
by color.The colors shall be colorfast and resistant to fading as a result of weathering or
ultraviolet degradation. Cart and Cart lid colors shall be consistent throughout the City, and shall
comply with CalRecycle requirements under SB 1383 Regulations.
D. Capacity. References to Cart sizes of 35, 64, or 96 gallons are approximate.
Acknowledging the different sizes provided by the various Cart manufacturers,the Carts shall be
uniform in appearance and must conform to the following ranges in size:
• 30 to 40 gallons,
• 60 to 70 gallons, and
• 90 to 101 gallons.
E. Cart Handles.The Cart handles and handle mounts may be an integrally molded part of
the Cart body or molded as part of the lid.The Cart handles will provide comfortable gripping area
for pulling or pushing the Cart or lifting the lid. Pinch points are unacceptable.
F. Cart Lid Performance. Each Container shall be provided with a lid that continuously
overlaps and comes in contact with the Container body or otherwise causes an interface with the
Container body that simultaneously:
• Prevents the intrusion of rainwater, rodents, birds, and flies;
• Prevents the emission of odors;
• Enables the free and complete flow of material from the Container during the dump cycle
without interference with the material already deposited in the truck body or the truck
body itself and its lifting mechanism;
• Permits users of the Container to conveniently and easily open and shut the lid
throughout the serviceable life of the Container;
• Prevent damage to the Cart body,the lid itself or any component parts through repeated
opening and closing of the lid by residents or in the dumping process as intended;
• Remain closed in winds up to 25 miles per hour from any direction. All lid hinges must
remain fully functional and continually hold the lid in the original designed and intended
positions when either opened or closed or any position between the two extremes; and,
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• Lid shall be designed and constructed such that it prevents physical injury to the user
while opening and closing the Container.
• The lid handle shall be an integrally molded part of the lid;
• The lid (and body) must be of such design and weight that would prevent an empty
Container from tilting backward when flipping the lid open; and,
• The lid shall be hinged to the Cart body in such a manner so as to enable the lid to be fully
opened,free of tension,to a position whereby it may rest against the backside of the
Container body.
G. 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 with the material type (e.g., Refuse, Recycling, Organics) in English,
Mandarin, and Korean. Labels shall include graphic instruction on what materials should and
should not be placed in each Cart. Design for both the labels and the hot stamps must be
approved by City prior to ordering labels or Carts. City shall approve what information is included
on the label and in the hot stamp, as well as approve design and quality. Labels shall be replaced
when worn, and when information on the label is in need of updating, but no later than 90 days of
request from City. Information on the Carts shall include the telephone number to call for
Contractor for Bulky Item pickups and for general Customer service. All Carts shall be labeled in
accordance with CalRecycle requirements under SB 1383 Regulations throughout the term of this
Agreement.
H. Cart Performance Requirements.All Carts shall be designed and manufactured to meet
the minimum performance requirements described below.
I. Cart Load Capacity. Depending on the capacity, the Carts shall have a minimum load
capacity as noted below without Container distortion, damage, or reduction in maneuverability or
any other functions as required herein.
Minimum Load
Cart Capacity
Gallons) Capacity
(Ibs)
90-101 200
60-70 130
30-40 70
J. Cart Durability. Carts shall remain durable, and at a minimum, shall meet the following
durability requirements to satisfy its intended use and performance, for the term of this
Agreement:
• Maintain its original shape and appearance;
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• Be resistant to kicks and blows;
• Require no routine maintenance and essentially be maintenance free;
• Not warp, crack, rust, discolor, or otherwise deteriorate over time in a manner that will
interfere with its intended use;
• Resist degradation from ultraviolet radiation;
• Be incapable of penetration by biting or clawing of household pets (i.e., dogs and cats);
• The bottoms of Cart bodies must remain impervious to any damage,that would interfere with
the Cart's intended use after repeated contact with gravel, concrete, asphalt or any other
rough and abrasive surface;
• All wheel and axle assemblies are to provide continuous maneuverability and mobility as
originally designed and intended; and,
• Resist degradation by other airborne gases or particulate matter currently present in the
ambient air of the City.
K. Chemical Resistant. Carts shall resist damage from common household or Residential
products and chemicals. Carts, also, shall resist damage from human and animal urine and feces.
L. Stability and Maneuverability.The Carts shall be stable and self-balancing in the upright
position, when either empty or loaded to its maximum design capacity with an evenly distributed
load, and with the lid in either a closed or open position.The Carts shall be capable of maintaining
an upright position in sustained or gusting winds of up to 25 miles per hour as applied from any
direction.The Carts shall be capable of being easily moved and maneuvered, with an evenly
distributed load equal in weight to its maximum design capacity on a level, sloped or stepped
surface.
M. Cart Repairability Or Replacement. Contractor shall be responsible for Cart repair and
maintenance, and replacing lost, stolen or damaged Carts within three (3) business days of
notification (excluding Saturday, Sunday and Designated Holidays, at no additional charge to the
Customer or to City, unless Contractor can demonstrate to the Contract Administrator that the
damage or loss was due exclusively to the Customer's intentional or wanton destruction. Contract
Administrator shall make the final determination. All repairs must restore the Cart to its full
functionality. If City permits a Cart replacement charge to be assessed against Customer,
Contractor may charge the Customer the Cart Replacement Fee in the approved rate schedule.
Unsightly/worn-out/broken Carts shall be replaced by Contractor upon Customer request at no
additional cost to Customer.
Customers are responsible for the cleanliness and sanitation of Carts. Contractor shall steam clean
Carts upon request of Customers at the rates shown in the approved rate schedule. All Carts in
service for the duration of this Agreement shall comply with color and labeling requirements
specified by CalRecycle under SB 1383 Regulations.
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4.3.2 BIN REQUIREMENTS
A. Cleaning and Maintenance. Contractor shall provide Customers with Bins required
during the term of this Agreement and maintain Containers in safe working condition.The size of
Contractor-provided Bins shall be determined by mutual agreement of Customer and Contractor.
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 Customer Bins once per year at no additional charge.
Contractor shall perform cleaning, repainting, or replacement of Bins as necessary to prevent a
nuisance caused by odors or vector harborage, or if requested by Customer or City for an
additional charge at the rates listed in 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.
B. Bin Identification and Color. Each Bin placed in City by Contractor shall have 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. Bin type (Refuse, Recycling, Cardboard,
Organic Waste) may be identified with an affixed sign.
Bins shall be labeled to include English, Korean, and Mandarin and graphic instruction on what
materials should and should not be placed in each Bin. 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 at the City's request if the City deems it necessary to maintain a neat
appearance. All Bins in service for the duration of this Agreement shall comply with color and
labeling requirements specified by CalRecycle under SB 1383 Regulations.
4.3.3 ROLL-OFF BOX REQUIREMENTS
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.All Roll-Off Boxes in service for the duration of this Agreement shall
comply with color and labeling requirements specified by CalRecycle under SB 1383 Regulations.
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4.4 PERSONNEL
4.4.1 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.
4.4.2 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.
4.4.3 HAZARDOUS MATERIAL EMPLOYEE TRAINING
Contractor shall establish and implement an educational program which will train Contractor's
employees in the identification of Hazardous Material. Contractor's employees shall not
knowingly place such Hazardous Material in the Collection vehicles, nor knowingly Dispose of such
Hazardous Materials at the Processing Facility or Disposal Site.
4.4.4 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 the approved rate schedule.
4.4.5 NON-DISCRIMINATION
Contractor shall not discriminate in the provision of service or the employment of Persons
engaged in performance of this Agreement on account of race, color, religion, sex, age, physical
handicap, or medical condition in violation of any applicable federal or state law.
4.4.6 HIRING OF DISPLACED EMPLOYEES
In accordance with Labor Code Sections 1070, 1072, 1075, and 1076, Contractor shall offer
employment to qualified existing employees of the current contractor that may be displaced if the
current contractor is not retained. Immediately following award of this Agreement, Contractor
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shall work with the current contractor to obtain a complete list of full-time non-management
employees in good standing working exclusively to provide direct Collection services to City and
Collection support services. Contractor shall conduct outreach, complete interviews, and offer
employment to eligible employees. Contractor will not be required to hire for more positions than
the maximum anticipated positions needed to provide the services required by this Agreement or
hire employees for positions if those employees have not been successfully executing duties
similar to those needed by Contractor to provide the services required by this Agreement.
4.4.7 CITY LIAISON
Contractor shall designate a person to serve as agent and liaison between the Contractor and the
City and shall maintain a telephone and a means for contact at all times including during periods
of strike or other emergencies.The Contractor's City Liaison shall meet with the City as necessary
to effectuate the purposes of the Agreement. Contractor shall immediately inform City of any
changes in the designated City Liaison. Contractor shall not change this designation without prior
approval of the City, excluding cases of termination of the employee.
4.4.8 SERVICE LIAISON
Contractor shall designate a field supervisor as the City's "Service Liaison" who shall be
responsible for working with Contract Administrator to resolve Customer service-related
complaints.The Service Liaison shall be accessible via cell phone or radio in the field at all times.
Contractor shall immediately inform City of any changes in the designated Service Liaison.
Contractor shall not change this designation without prior approval of the City, excluding cases of
termination of the employee.
4.4.9 ENVIRONMENTAL COORDINATOR
To achieve a high level of Recycling education and awareness, Contractor will hire at least one
full-time,fully trained and experienced, environmental coordinator.
The environmental coordinator shall develop and conduct all education and outreach activities
required under the Agreement including, providing technical assistance to Multi-Family Premises,
and Commercial Customers; promoting waste reduction, Recycling, and Diversion programs;
submitting monthly reports to the City regarding waste audits, outreach activities, and any other
information requested by the City.The environmental coordinator shall fully cooperate with the
City in implementing the City's Customer Education Plan.
4.4.10 CITY'S RIGHT TO APPROVE CITY AND SERVICE LIAISON
City may request that Contractor change the City and Service Liaisons and shall have the right to
approve the designated liaisons. Contractor shall immediately inform City of any changes in the
designated liaisons.
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ARTICLE 5: PROCESSING AND DISPOSAL REQUIREMENTS
5.1 TRANSPORTATION OF DISCARDED MATERIALS
The Contractor shall Transport all Solid Waste Collected under Article 3 to the Designated
Facilities listed in Exhibit 3.The Contractor shall maintain accurate records of the quantities of
Solid Waste Transported to Solid Waste facilities and will cooperate with the City in any audits or
investigations of such quantities.
5.2 DIVERSION AND PROCESSING REQUIREMENTS
Contractor shall Recycle or Divert from landfilling sufficient Solid Waste to assist the City in its
compliance with current state law requirements. Contractor shall be considered to have met this
requirement under this Agreement if the City's annual report to CalRecycle shows compliance
with the State-mandated diversion, as may be revised by CalRecycle during the Term of this
Agreement.
5.2.1 PROCESSING OF RECYCLABLES AND ORGANICS
Contractor shall deliver all Collected Recyclables and Organics to a fully permitted Processing
Facilities capable of separating and recovering materials to maximize Diversion credit for City in
accordance with CalRecycle regulations.
All expenses related to Recyclable and Organics Material Processing and marketing will be the
sole responsibility of the Contractor. Contractor shall ensure that all Recyclables and Organics
Collected are Diverted and not Disposed of in a Landfill except as a Residue resulting from
Processing or loads rejected by the Processing Facility operator or loads not delivered to the
Processing facility by Contractor due to the presence of excessive contamination rendering the
Recyclable loads unfit for Processing.
Recyclables or Organics loads rejected by the Processing Facility operator or not delivered to the
Processing Facility due to excessive contamination shall be reported to City together with
information regarding the source or route from which it originated. Failure to do so places the
Contractor in default.The City has the option, but not obligation,to direct the Contractor where
to deliver the material.
5.2.2 END USES FOR ORGANICS
Contractor is responsible for monitoring how the Organic Material 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, and if City directs Contractor to an alternative Facility
then Contractor may request a rate adjustment in accordance with Section 2.10.
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5.2.3 BULKY ITEM DIVERSION
Bulky Items Collected by Contractor in accordance with Section 3.6, 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 or market and sell Recyclable Materials for Recycling,
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, unless they have
been designated for Disposal.
5.2.4 CONSTRUCTION AND DEMOLITION DEBRIS DIVERSION
Contractor will bring all loads of mixed Construction and Demolition Debris to a C&D Designated
Processing Facility as listed in Exhibit 3 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 Landfill Disposal. Contractor shall Divert from Landfill Disposal a minimum of 75%or the
State-mandated Construction and Demolition Diversion percentage, whichever is greater, of all
Construction and Demolition Debris Collected.
5.2.5 DIVERSION OF ELECTRONIC, UNIVERSAL AND OTHER SPECIAL WASTE
Contractor shall Divert waste requiring special handling, such as Electronic Waste, or"E-Waste"
Collected in accordance with Sections 3.6, or by other means under this Agreement, by taking
these goods to a properly permitted Facility, and not by Landfill Disposal.
5.3 MARKETING AND SALE OF RECYCLABLES
Contractor shall be responsible for marketing and sale of all Recyclables 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. In the event that Contractor is unable, after
reasonable diligence,to sell or donate certain Recyclable Materials due to the lack of an available
market, Contractor may request, and City may authorize Contractor, in its sole discretion, to
Dispose of said Recyclables without sale, subject to on-going review by the City. In the event
market conditions for said Recyclables change such that they can, once again, be sold by
Contractor, City may withdraw its consent for Contractor to Dispose of said Recyclables and may,
again, require Contractor to sell said Recyclables as otherwise provided in this Agreement.
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5.4 USE OF DESIGNATED FACILITIES
The Contractor,without constraint and as a free-market business decision in accepting this
Agreement, agrees to use the Designated Facilities as listed in Exhibit 3 for the purposes of
Processing and/or Disposing of all Source Separated Recyclable Materials, Source Separated
Organics Materials, Refuse, Bulky Items, and other materials Collected in the City over the Term of
this Agreement. Contractor agrees that such decision by the Contractor in no way constitutes a
restraint of trade.
The Contractor shall not knowingly deliver materials Collected under this Agreement to facilities
that do not comply in all material aspects with Applicable Law.The Contractor, and not the City,
must use reasonable efforts to assure that all Disposal,Transfer, and Processing facilities to which
the Contractor delivers material under this Agreement are properly permitted to receive material
Collected under this Agreement, except for any other facility that the City directs the Contractor
to use. Failure to comply with this provision may result in the Contractor being in default under
this Agreement.
Contractor shall actively work with the Designated Facility(ies) operator(s) throughout the Term
of this Agreement to ensure that Contamination remains below the limits established by
Applicable Law, including, without limitation, SB 1383 Regulations.
Through written notice to the City annually on or before July 1, Contractor shall identify the
facilities to which Contractor will Transport Solid Waste including Source Separated Organic
Waste, Source Separated Recyclable Materials, Refuse, Bulky Items, and other materials Collected
in the City over the Term of this Agreement.
5.5 USE OF CONTRACTOR-OWNED APPROVED FACILITIES
If the Contractor or Affiliate owns and/or operates a Designated Facility, all expenses associated
with permitting, licensing, regulatory compliance, closure and post-closure, etc. and all other
costs associated with the operation and ownership of the Designated Facility is the sole
responsibility of the Contractor.All expenses related to Processing and/or marketing of Organics
and Recyclables will be the sole responsibility of the Contractor. Any request to adjust the
Contractor's rates shall be done in accordance with Article 10.
5.6 SOLID WASTE CAPACITY GUARANTEE
Contractor shall provide City with guaranteed capacity at those Solid Waste facilities owned or
operated by Contractor or Affiliate listed in Exhibit 3 for the Term of this Agreement.
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ARTICLE 6: OTHER SERVICES
6.1 BILLING AND CONTRACTOR COMPENSATION
The Contractor shall be solely responsible for the billing and collection of payments for all
Collection services.The Contract Administrator shall have the right to review and approve the
format of all Customer bills.The Contractor shall be entitled to set rates for all services provided
pursuant to this Agreement, provided that such rates do not exceed the maximum approved rates
in accordance with the approved rate schedule.
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.
6.1.1 RESERVED
6.1.2 COMMERCIAL CART AND BIN SERVICE
Contractor shall be responsible for billing for Commercial Cart and Commercial Bin services and
other special charges as permitted in the approved rate schedule on a monthly basis. Bills must be
itemized by service type, Container size,frequency of service, discounts, and period billed for. All
bills must carry a due date, not"due upon receipt." Bills will not carry an itemization of fees
remitted to the City.
6.1.3 RESERVED
6.1.4 RESERVED
6.1.5 FORM OF PAYMENT FOR ROLL-OFF OR TEMPORARY BIN SERVICE
Contractor will accept major credit cards for payment from Customers who request temporary
Roll-Off Box or temporary Bin service that do not have an account with Contractor. Customers
without such an account who do not use credit cards may be required by the Contractor to post a
security deposit or to pay on a "Cash on Delivery C.O.D." basis. Any unused portion of a security
deposit will be refunded to the Customer within fifteen business days of the termination of
service.
6.1.6 TEMPORARY BIN AND ROLL-OFF BOX SERVICE
1) Customers'temporary Bin and Roll-Off Box services may be Billed at the time of, or in
advance of, service, or on a monthly or bi-monthly Billing cycle.
2) Contractor may request advance payment for temporary services.
3) Contractor may require outstanding temporary services balances be paid prior to
providing subsequent temporary services.
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4) Weekly Cart Collection services shall not be suspended due to outstanding balances for
Bin or Roll-Off Box Services.
6.1.7 AUTOMATED BILLING PAYMENT
Contractor shall make available to all Customers through Contractor's website and customer
service portal, an automated billing and payment system at no additional charge.This system
should allow Customers to view and pay bills, obtain an electronic copy of their bill, request to
cease paper billing and receive e-bills via email or through Contractor's website.The Contractor
will ensure that the electronic billing and payment website conforms to industry-standard
practices for electronic commerce security.The Contractor must ensure that Customers receiving
e-bills are also receiving billing inserts either via electronic mail or via US Postal Service.The
Contractor shall promote the website-based billing and payment system on all paper bills sent to
Customers.
6.1.8 BILL PAYMENT BY PHONE
The Contractor shall make available to all Customers the ability to make bill payment by phone at
no additional charge.
6.1.9 REVIEW OF BILLINGS
Contractor shall review its Billings to Customers to determine that the amount which Contractor is
billing each Customer is correct in terms of the level of service being provided to such Customer
by Contractor. Contractor shall review Customer accounts annually and submit to City a written
report of that review annually on the anniversary of the Effective Day of this Agreement.
6.1.10 SUSPENSION OF SERVICE DUE TO NON-PAYMENT
In the event of non-payment by a Commercial Customer Billed by Contractor, Contractor must
follow these steps before suspending service:
First Notice: If payment is not received by 15 days after due date, Contractor shall notify
Customer in writing of the non-receipt of payment and that non-payment can result in suspension
of service.
Second Notice: If payment is not received within 15 days of the mailing of the first notice of non-
receipt of payment, Contractor shall mail a second notice of non -receipt of payment, wanting
that 1) service will be suspended in 15 days if payment is not received and that City will undertake
code enforcement against the delinquent Customer, and 2) Contractor may assess a penalty of up
to 10%on balances outstanding for sixty (60) days after the invoice date.
Contractor shall not suspend service without prior approval from City.
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6.1.11 DEBT COLLECTION
Contractor shall be responsible for bad debt. Contractor may pursue independent collections
against Customers. City will not pursue collections on behalf of Contractor.
6.1.12 CONTINUED PROVISION OF SERVICE
In the event of a Billing dispute or to avoid an immediate threat to public health or safety,
Contractor shall continue to provide service to Customers if requested in writing by City, without
regard to the status of said Customer account and at no expense to City. Billing disputes between
Contractor and Customer may be resolved by City, and City' s decision shall be final and binding.
6.1.13 NO MARKETING
The Contractor will not market or distribute mailing lists with the name or address of Customers.
The Contractor's obligations under this subsection are in addition to any other privacy rights
accorded Customers under Applicable Law.
6.2 CUSTOMER SERVICE
All service inquiries and complaints shall be directed to the Contractor.A representative of the
Contractor shall be available to receive the complaints during normal business hours.All service
complaints will be handled by the Contractor in a prompt, courteous, and efficient manner.
6.2.1 LOCAL OFFICE
Contractor shall maintain a local office. Office Hours shall be, at a minimum,from 7:00 A.M. to
5:00 P.M., Monday through Friday, exclusive of Designated Holidays. A responsible and qualified
representative of Contractor shall be available during Office Hours for personal communication
with the public at the local office, and to receive payments from Customers. 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
voicemail.
6.2.2 CUSTOMER SERVICE PORTAL
Contractor shall maintain a company website and customer portal for all customer service
matters.The following customer transactions shall be supported both by automation (computer
interaction) and by a live customer service representative, depending on customer preference: (1)
creation of a new account; (2) closing an existing account; (3) requesting modification to service
levels; (4) submitting billing information and inquiries; and (5) identifying the next service date
(when the collection date is impacted by a Designated Holiday or other schedule change).
Customer service shall be ADA compliant.The Contractor's website, mobile applications and
customer service telephone line shall be ADA compliant.
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6.2.3 CUSTOMER COMPLAINTS, INQUIRIES AND SERVICE REQUESTS
Contractor shall maintain a Customer Relationship Manager(CRM) system to record and maintain
records of all customer complaints, inquiries, and service requests received including by
telephone,voicemail, e-mail,text, written, in person or any other communication media.The
record for each incident shall include the date and time of the incident, name, address and
telephone number of caller, description of the compliant, inquiry or request, employee recording
incident, and the action taken by Contractor to respond and remedy the incident. Contractor shall
also record each instance of non-collection 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 correspondence shall be recorded into the CRM system when received and
shall be initially responded to within one (1) business day (excluding Saturday, Sunday, and
Designated Holidays) of receipt. Contractor shall use best efforts to resolve complaints within two
(2) business days.
Service complaints received by City will be directed to Contractor. All forwarded complaints shall
be recorded into the CRM system.
All Customer service records and logs kept by Contractor shall be available to City upon request.
City shall, at any time during regular Office Hours, have access to Contractor's Customer service
department for purposes that may include monitoring the quality of Customer service or
researching Customer complaints.
6.2.4 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 standards:
A. Reserved
6. Commercial. The number of complaints for Contractor's failure to meet its obligations
under this Agreement in any one month shall not exceed 2.5%of the number of commercial
customers served. For example, if 300 commercial accounts are served, any compliant above 8 in
any given month will be considered a separate violation of this Agreement.
C. Call Center Capacity. Contractor must maintain sufficient telephone capacity during
normal office hours to ensure that all calls will be answered in less than an average of thirty(30)
seconds. 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 monthly, and the
Contractor shall not exceed this standard or it will be considered a separate violation of this
Agreement. Contractor shall ensure that all incoming calls are answered courteously and
promptly during the office hours stated above.
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D. Service Standard Tracking. Contractor shall track complaints and call response time
and hold requirements and include results in its monthly 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 6.2.4(B) 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 in less than an average of one
minute and thirty seconds as required in Section 6.2.4(C).
E. Customer Courtesy. 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.
6.2.5 RESOLUTION OF CUSTOMER COMPLAINTS
Disputes between Contractor and its Customers regarding the services provided in accordance
with this Agreement may be resolved by the City.The City's decision shall be final and binding.
Intervention by the 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.To the extent that remedies are warranted through
this Agreement,this section shall apply.
6.2.6 EMERGENCY CONTACTS
Contractor shall provide the Contract Administrator with a twenty-four (24) hour emergency
phone number to a live person, not a voicemail, where the Contractor can be reached.
6.2.7 MULTI-LINGUAL,TDD SERVICES
Contractor shall at all times maintain the capability of responding to telephone calls in English,
Mandarin, and Korean, and such other languages as City may direct. Contractor shall at all times
maintain the capability of responding to telephone calls through Telecommunications Device for
the Deaf(TDD) Services.These capabilities shall be maintained for both the local telephone
number and the emergency telephone number.
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6.3 CUSTOMER OUTREACH AND EDUCATION
The Contractor shall be responsible for Customer outreach and education. Contractor shall
develop and implement outreach and education material that describes and promotes the
Contractor's Solid Waste Services that are available to Customers and that addresses the
requirements of AB 939,AB 341, AB 1826, and SB 1383 Diversion mandates.
Contractor agrees to take direction from City to expand Customer knowledge concerning needs
and methods to reduce, reuse and Recycle Solid Waste and to cooperate fully with City in this
regard.
All materials produced by Contractor relating to services provided under this Agreement,
including, but not limited to: print, radio,television, or internet media before publication,
distribution, and/or release, shall be approved by Contract Administrator prior to being printed
for distribution. A draft of all text and illustrations shall be provided to Contract Administrator at
least two (2) weeks in advance of production of the final document. Comments provided by the
Contract Administrator shall be reasonably incorporated, and the final version of the text and
illustrations shall be acceptable to both City and Contractor. Printed materials shall be printed on
recycled content paper consistent with SB 1383.
All of Customer education materials shall be produced and/or available in English, Mandarin, and
Korean languages, including pictures wherever applicable.
6.3.1 ON-GOING EDUCATION REQUIREMENTS
Contractor will provide a minimum of the following Customer education items to be developed at
Contractor's expense and distributed as indicated below:
A. Initial Mailing. Contractor will prepare and mail an initial mailing to Customers
explaining the transition from the existing Collection program to the new program under this
Agreement.The mailing will describe program changes, route changes, dates of program
implementation, and other necessary information.
B. How-To Instructional Packet. Contractor will prepare and distribute an Instructional
Packet to new Customers when they start service.At a minimum, packet should include the
following information.
• Description of available services,
• Explanation of when,where, and how to place Containers for Collection,
• Explanation of which materials should be placed in each Container,
• Service phone number and who to contact with service or billing questions.
• Designated Holidays
C. Container Labels and Instructions. All Containers shall be labeled in accordance with
CalRecycle requirements under SB 1383 Regulations throughout the term of this Agreement.
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Contractor will place stickers and/or hot stamp, Recyclable and Organics Carts, and will place
stickers on Bins and Roll-Off Boxes to demonstrate to Customers which materials are and are not
acceptable for placement in each Container. Stickers shall be replaced when materials change or
as labels become worn. Markings shall be written in English, Mandarin, and Korean.
D. Annual Brochure/Mailing. 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 services related
information.
Mailings should promote and explain: all Solid Waste programs offered by City and Contractor
(such as Recycling, Organics, Holiday Tree, Bulky Item Collections, and FreeCycle. com) described
in detail;the environmental, regulatory, and other benefits of participating in Recycling; how to
properly Dispose of Household Hazardous Waste such as syringes, paint, etc.; Collection
schedules, including holiday schedules; Customers service numbers; and the procedures to begin
and terminate services(if moving from Premises).
The mailing shall also include all information required in 14 CCR Section 18985.1(a), including but
not limited to the requirements on:
� Information on Organic Waste Generator's requirements to properly separate materials
in appropriate containers.
• Information on methods for the prevention of organic waste generation, recycling organic
waste on-site, sending organic waste to community composting, and any other local
requirements regarding organic waste.
• Information regarding the methane reduction benefits of reducing the Landfill Disposal of
Organic Waste, and the methods of Organic Waste recovery Contractor uses.
• Information regarding how to recover organic waste.
• Information related to public health and safety and environmental impacts associated
with the Landfill Disposal of Organic Waste.
• Information regarding programs for the donation of Edible Food.
• Information regarding self-hauling requirements. Contractor will update and maintain its
website to include all information covered in outreach materials; as well as the multi-
family recycling instructional materials to be utilized by property owners, Front-of-house
container labels, and links to the City's information about Edible Food donation and self-
haul.
This brochure shall be at least four(4) pages and printed in full color. Contractor is responsible for
all associated costs.
E. 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
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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.
F. Second Annual Mailer. Not less than once per year during each Rate Year, Contractor
shall prepare and distribute to each Customer a one (1) page, double-sided mailer printed in full
color. City and Contractor shall meet and confer to determine the subject matter of mailer.
Contractor is responsible for all associated costs.The method of delivery to Customers is at the
City' s discretion.
F. Corrective Action Notice. Contractor shall develop a corrective action notification
form for use in instances where a Customer sets out unacceptable materials for Collection,that
explains the correct manner for Disposal of such items.
G. Technical Assistance. Contractor is responsible for providing technical assistance to
Customers to promote participation in the Diversion programs included in this Agreement, and
future regulatory requirements. Contractor may utilize the services of a consultant to provide
these services upon approval by the City.
H. Website. The Contractor shall develop and maintain a website dedicated to
services provided in the City that is accessible by the public.The web site shall include answers to
frequently asked questions; holiday schedules; rates for Collection services; acceptable materials
and by waste stream (Recyclables, Organics, and Refuse); proper Household Hazardous Waste
Disposal procedures; other useful information, as well as informing Customers how to Contact
Contractor.The Contractor's website shall provide the public with the ability to e-mail complaints
to the Contractor and request services or service changes. (see Section 6.2.2)
6.3.2 RESERVED
6.4 AB 341,AB 1826,AND SB 1383 COMPLIANCE
Contractor shall ensure the City's compliance with AB 341, AB 1826, and SB 1383 Regulations by
implementing the planned tasks, procedures, and proposed staffing assignments required by this
Agreement including those described in this Section 6.4.
Contractor shall provide a comprehensive, ongoing education and outreach program to promote
Recycling and Organics Recycling programs at Commercial and Multi-Family Premises.Throughout
the term of the Agreement, Contractor will monitor the effectiveness of existing public education
and outreach programs and identify and develop new outreach as necessary to meet State
diversion targets.
Contractor's implementation of Commercial Recycling and Organics programs will be supported
by a dedicated SB 1383 regulatory team specializing in policy, regulatory compliance, SB 1383
program development and reporting.The team will monitor SB 1383 Regulations requirements,
overall compliance trends and changes directed by Cal Recycle and will meet regularly with the
City to review progress and advise on emerging issues and challenges. Contractor's SB 1383
regulatory team shall consist of the following personnel.
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• Christine Wolf, Director, Government Affairs
• Brian Bowen, Senior Regulatory Manager
• Brad Cea, SB 1383 Consultant
• Katy Wong, Marketing Project Manager
6.4.1 ENROLLMENT OF NON-COMPLIANT CUSTOMERS
Contractor representative will contact, by telephone, by written correspondence in the form of an
email, or by letter, and via in-person meetings, all Multi-Family and Commercial Customers not
subscribing to Recycling or Organics Collection service as required by State regulation.
Correspondence to the Customer will include educational material regarding the regulations and
provide information on how Contractor can assist Customer to become SB 1383 compliant.
Contractor representative shall assist customers with selecting appropriate Containers and
Container sizing, identifying acceptable Recyclables and Organics for Collection, and attempting to
resolve any logistical detriments to providing Recyclables and Organics Collection service.
Contractor shall provide a written proposal to each AB 341 and A61826/SB 1383 non-compliant
Commercial Customer annually.A proposal template shall be approved by the City prior to
initiation of services under this Agreement.
The proposal shall provide:
1) Pricing for implementing Recycling and Organics service and reducing or'right-sizing'
refuse service to account for materials Diverted through the Contractor provided
programs.
2) A proposed start date for the implementation of new Recycling services.
3) A description of the requirements of AB 341 and AB 1826/SB 1383 and any relevant City
ordinances,
4) A plan for training staff and/or residents; and any other components as directed by the
City.
Electronic copies of all service proposals from site visits that have been submitted to a Customer
shall be provided to the City in an electronic storage format acceptable to the City, such as a
cloud-based file sharing system that can be accessed by the City or its representatives.
If a Customer rejects the proposal from the Contractor or does not provide a response within 30
days of the Contractor submitting the proposal, and, after at least three documented attempts by
the Contractor to follow-up with the Customer,the Customer continues to be non-responsive, the
Contractor may refer the Customer to the City for Enforcement Action.
Such a referral to the City by the Contractor for non-compliant accounts must include
1) A written summary and timeline of the actions taken by the Contractor to implement an
AB 341 and AB 1826/SB 1383-compliant program.
2) A copy of the written proposal submitted to the Customer by the Contractor; and
3) Any written correspondence from the Customer to the Contractor.
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If, after the City begins enforcement proceedings against the Customer, the Customer agrees to
comply and implement an AB 341 and AB 1826/SB 1383 compliant program, the City will notify
the Contractor of the Customer's willingness to comply and the Contractor will coordinate with
the Customer to implement an AB 341 and AB 1826/SB 1383 compliant program.
Contractor will report all Customers that have service levels within the thresholds of AB 341 on
reporting forms provided by the City on a monthly basis.The report will document whether the
Customer receives Recycling service from the Contractor, self-recycles, or receives Recycling from
a third party. Any internal Recycling programs or third-party recycling programs that the
Contractor encounters while conducting Customer site visits shall be documented using a City-
approved electronic reporting form and provided in an electronic format such as a cloud-based
file-sharing system that can be accessed by the City or its representatives.
6.4.2 ON-GOING ON-SITE TRAINING
All Organics Recycling participants shall receive ongoing, on-site training from Contractor for
management, kitchen staff, service employees,janitors, etc.Annually, Contractor will create and
distribute a letter to all Customers that are enrolled in the Contractor's Organics Recycling
program to offer re-training services, printed collateral such as signage and posters, and general
technical assistance. Additional materials may include instructional posters, brochures,
educational presentations, bin signage, enclosure signage, stickers to be attached to internal
recycling receptacles, or other formats as mutually agreed to between City and Contractor. All
outreach materials must be submitted for review and approval by City prior to distribution.
Contractor shall provide a report, on City-approved forms,to the City noting the time, Customer
contact, name of Contractor's staff that contacted the Customer, and result of each meeting and,
if the Customer will not agree to a meeting, provide the time of contact, Customer contact name
and number, and reason for not accepting a meeting. Reports will be updated on a monthly basis
and submitted with Contractor monthly reports to the City.
6.4.3 SB 1383 DASHBOARD
Contractor shall develop an SB 1383 Dashboard to manage customer compliance.The Dashboard
will aggregate key data points from various systems, including customer service levels, any
waivers previously granted by the City, or other mitigating compliance factors, such as internal
third-party recycling programs. Contractor shall provide a list of customers not subscribing to
recycling and/or organics service to the City annually.
6.4.4 ROUTE REVIEWS
Contractor shall conduct route reviews for prohibited container contaminants on randomly
selected Collection routes annually in compliance with the requirements of SB 1383 Regulations
Section 18984.5 (b). Containers may be randomly selected along a Collection route. Contractor
shall report to the City any instances of contamination and actions taken, as well as the
methodology utilized for the route review in such form and format as is needed by the City for
reporting to CalRecycle. Every container on a Collection route does not need to be sampled
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annually. Contractor shall distribute contamination notices complying with education and
notification requirements of SB 1383 Regulations Section 18995.1 (a) (4) subject to City pre-
approval.
6.4.5 WASTE STREAM AUDITS
Contractor will conduct annual waste stream audits to determine quantities of refuse, recyclables,
and organics generated by Customers and to assist Customers in 'right-sizing'their collection
levels.
6.4.6 EXEMPTION/WAIVER ASSISTANCE
Commercial Premises may be granted a waiver by City from recycling,organics recycling for reasons
of self-hauling, alternative arrangements, de minimis generation, or space limitations as may be
specified in City and State regulations. Contractor shall cooperate by evaluating requests for
exemption/waiver from SB 1383 Regulations requirements and providing the City periodic
recommendations for exemption/waiver approval, including a site visit and re-evaluation at least
every five years as required by regulations. City shall provide Contractor with a record of each
granted waiver, and Contractor shall enter each waiver into Contractor's Customer file.
6.4.7 EDIBLE FOOD RECOVERY
Contractor shall assist City with its Edible Food Recovery program by reporting new Commercial
Customers and providing Commercial Customers with information about the program.
Within ninety(90) days of the Effective Date of this Agreement, Contractor shall provide City
information regarding new Commercial customers classifying them as Tier One and Tier Two
Commercial Edible Food Generators including Customer name, service address, contact
information,Tier One or Tier Two classification, and type of business. Annually, Contractor shall
provide City with an updated report identifying Tier One and Tier Two Commercial Edible Food
Generators.
Contractor will create customized educational materials that highlight how and where the City of
Diamond Bar community can participate in edible food recovery and donation. Contractor's
recycling and sustainability manager will serve as liaison between the commercial customers and
food recovery organizations to support a successful food recovery program in the City.
6.4.8 PROCUREMENT OF RECOVERED ORGANICS WASTE PRODUCTS
Contractor shall ensure sufficient capacity of California recovered organics waste products to
meet the mandatory procurement requirements for jurisdictions contained in SB 1383
Regulations, as may be amended, during the term of this Agreement including Agreement
extensions granted by the City as provided in this section.
Contractor shall procure sufficient compost, mulch, and/or renewable natural gas to meet forty
percent (40%) of the City's per capita requirement contained in SB 1383 Regulations. Contractor
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shall provide assurance through the execution of a liability waiver stating that all organic waste
products provided by the Contractor and used within the City are free from pathogens and
inorganic waste material that may be harmful to the health and welfare of the City.The
Contractor shall indemnify and hold harmless the City against any claims arising from
contaminated recovered organic waste products provided by the Contractor as set forth in
Section 11.1. Contractor may meet this obligation by one or a combination of the following
activities:
1) Bulk Compost and/or Mulch Reserved for Jurisdiction. Contractor shall make available
Compost or Mulch for use in City parks and facilities at no cost to the City. Contractor will
work closely with City staff to assist with providing compost/mulch material for the City's
own facility needs.
2) Procurement Credits. Contractor will secure procurement credit for the City to meet SB
1383 Regulations purchasing requirements through the sale of material on behalf of the
City.The transaction will be handled entirely, at its sole expense, by Contractor on the
City's behalf, and documented to meet Cal Recycle reporting requirements with no
liability to the City.
3) Use of Renewable Natural Gas in Collection Vehicles.
6.4.9 EDUCATION &OUTREACH FOR AB 341,AB 1826,AND 56 1383 DIVERSION
Contractor will incorporate education regarding Recyclables and Organics Collection and the State
requirements into materials produced under Section 6.3 and will develop its own Recycling and
Organics-specific instructional materials for use in educating participating Customers including the
following.
1) Community Workshops.The Contractor's Recycling and Sustainability Manager will host
community workshops to discuss recycling programs and services and offer an
opportunity for customers to ask questions and receive answers in-person.The
workshops will cover State mandates, recycling programs, and information about services
provided by Contractor. At the inception of the Agreement, Contractor will conduct as
many workshops as needed with a minimum of bi-annual meetings for the term of the
Agreement.
Contractor will work with the local Chamber of Commerce and other civic groups and
service organizations to conduct presentations to the business community about State
mandates (AB 341,AB 1826, SB 1383), the benefits of recycling services and available
services and programs.
2) HOAs/Property Manager Meetings. Contractor's Recycling and Sustainability Manager
will attend HOA meetings and work closely with HOA's and property management
representatives to reach multi-family tenants directly by using the property's
communication channels such as newsletters, email system, etc.to ensure that tenants
are receiving recycling communication.
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3) Professional How-To Videos. Contractor shall produce how-to videos that address
relevant topics to educate customers on how correctly sort out materials into the correct
containers and to support good recycling habits. Contractor will have How-To videos at
the inception of the agreement and will continue to develop additional videos throughout
the term of the Agreement.
ARTICLE 7: FRANCHISE FEE, CALRECYCLE COMPLIANCE FEE, VEHICLE
IMPACT FEE, AND OTHER FEES
In addition to any other consideration set forth herein, as part of its consideration for entering
into this Agreement, and for the exclusive Franchise, right and privilege to provide Solid Waste
Services as specified herein, Contractor shall provide the following:
7.1 FRANCHISE FEE
Contractor shall pay the City a Franchise Fee of One-Hundred Twenty-Three Thousand dollars
($123,000) annually as adjusted herein.
The Franchise Fee shall be paid in monthly installments over the course of each Rate Year.The
initial monthly payment shall be Ten-Thousand Two-Hundred Fifty dollars ($10,250) due under
the terms of Section 7.6.The foregoing notwithstanding, beginning with Rate Year 2 (July 1, 2026)
and for all subsequent Rate Years,the amount of the Franchise Fee shall be adjusted annually in
an amount equal to the percentage increase in the Consumer Price Index for the Los Angeles-Long
Beach-Anaheim Metropolitan Area, all urban consumers, not seasonally adjusted,for the twelve
(12) month period ending December(CPI). If there is no increase in the CPI or if the CPI decreases,
the Franchise Fee shall remain unchanged from the previous Rate Year.
Contractor and City agree that this Franchise Fee was set through good faith negotiations and
represents the reasonable value of the public right-of-way franchise rights granted to Contractor
under this Agreement and is a cost paid solely by the Contractor. Invoices submitted to Customers
by Contractor shall not reference the Franchise Fee.
7.2 CALRECYCLE COMPLIANCE FEE
Contractor shall pay to the City a CalRecycle Compliance Fee of Three-Hundred Seventy-Five
Thousand dollars ($375,000) annually as adjusted herein.The CalRecycle Compliance Fee amount
represents a reasonable allocation of the City's budgeted costs to comply with State mandates
resulting from the enactment of AB 939 and subsequent related legislation including, but not
limited to: AB 2176 (Chapter 879, Statutes of 2004), SB 1016 (Chapter 343, Statutes of 2008), AB
341 (Chapter 476, Statutes of 2011), AB 1826 (Chapter 727, Statutes of 2014), SB 1383 (Chapter
395, Statutes of 2016) and SB 1383 Regulations,which require jurisdictions to implement solids
waste Collection programs, meet Processing facility requirements, conduct contamination
monitoring, provide education, maintain records, submit reports, monitor compliance, conduct
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enforcement, and fulfill other requirements. Invoices submitted to Customers by Contractor shall
not reference the CalRecycle Compliance Fee.
The CalRecycle Compliance Fee shall be paid in monthly installments over the course of each Rate
Year.The initial monthly payment shall be Thirty-One Thousand Two-Hundred Fifty dollars
($31,250) due under the terms of Section 7.6.The foregoing notwithstanding, beginning with Rate
Year 2 (July 1, 2026) and for all subsequent Rate Years, the amount of the CalRecycle Compliance
Fee shall be adjusted annually to reflect increases in the CPI, as defined in Section 7.1. If there is
no increase in the CPI or if the CPI decreases,the CalRecycle Compliance Fee shall remain
unchanged from the previous Rate Year.
7.3 RESERVED
7.4 RESERVED
7.5 CONTRACTING FEE
Contractor shall make a one-time lump sum payment of One Hundred Thousand Dollars
($100,000)within seven (7) Business Days of execution of this Contract to reimburse the City for
costs it incurred in connection with entering into this Agreement.
7.6 TIME AND METHOD OF FEE PAYMENTS TO THE CITY
On or before the thirtieth (30th) day month following the end of calendar month, during the Term
of this Agreement, Contractor shall remit to City The Franchise Fee and the CalRecycle
Compliance Fee as described in section 7.1 through 7.2.
The fee payments shall be submitted with an itemized statement identifying the amount of each
fee. If the fees are not paid to the City on or before the thirtieth (30th) day following the end of
the calendar month, Contractor shall pay to City a penalty in an amount equal to ten percent
(10%) of the amount of each delinquent fee, or portion thereof, owing for that month. Contractor
shall pay an additional ten percent (10%), on any unpaid balance for each following each thirty
(30) day period the fees remain unpaid. Late payment penalties shall not be included in any
revenue requirement.
ARTICLE 8: RECORDS, REPORTS AND INFORMATION REQUESTS
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 regulation
and to meet the reporting and Solid Waste program management needs of City.To this extent,
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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
the 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 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 90 days before destroying records and offer records to
the City.
City shall have the right to inspect or review the specific documents or records required expressly
or by inference pursuant to this Agreement, or any other similar records or reports of Contractor
or 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 during
normal business hours.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 and expense and revenue information pursuant to its
operations pursuant to this Agreement shall be segregated from other areas served by
Contractor.
Contractor shall maintain at least the following records:
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• Audited financial statements for Contractor or, if a guarantee was provided,for the
parent company guarantor as a whole;
• Financial statements (compiled, reviewed, or audited) of revenue and expense for this
Agreement segregated from the other operations of Contractor(including without
limitation those operations of Contractor in City and surrounding jurisdictions which are
not covered by this Agreement), including a description of segregation methodology; and,
• Complete descriptions of related party transactions (corporate and/or regional
management fees, inter-company profits from Transfer, Processing or Disposal operations
and supporting data).
8.2.3 SOLID WASTE RECORDS
Contractor shall maintain and make available to the City upon request the following records
relating to its operations pursuant to this Agreement:
A. Customer services, billing, and City payment records;
B. Tons Collected, Processed, Diverted, and Disposed by waste stream (Refuse, Recycling,
Organics), by Customer type (Multi-Family, Commercial, and Roll-Off Box), and facilities
(Transfer Station, MRF, Organic Material Processing Facility,Transformation Facility or
Landfill) where such material was taken (Multi-Family versus Commercial tonnage may be
estimated based upon Container distribution or other method approved by City);
C. Quantity of Recyclable Materials recovered by material type;
D. Bulky Item, results including tons Disposed and Diverted;
E. Special Events tons including tons Disposed and Diverted;
F. Routes;
G. Facilities, equipment and personnel used;
H. Facilities and equipment operations, maintenance and repair;
I. Number of Refuse, Recycling and Organics Containers in service;
J. Complaints; and,
K. Missed pickups.
Contractor shall maintain copies of said Billings and receipts, each in chronological order, for a
period of five (5)years after the date of service and shall make said documents available for
inspection by City upon request. Contractor may, at its option, maintain those records in
computer form, on microfiche, or in any other manner, provided that the records can be
preserved and retrieved for inspection and verification in a timely manner, are sufficient to verify
accuracy of any Fees owed to the City, and may be produced in a form and manner sufficient to
establish the existence of Customer obligations in a court of competent jurisdiction.
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8.2.4 CERCLA DEFENSE RECORDS
City views the ability to defend against the Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA), State Hazardous Substance Law, and related litigation as
a matter of great importance. For this reason,the 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) and provide a copy or summary of the reports required in Section 8.3 for five
(5)years after the term during which Collection services are to be provided pursuant to this
Agreement, or to provide copies of such records to City.
Contractor agrees to notify City's Manager and City Attorney before destroying such records and
to offer records to the City.This provision shall survive the expiration of the period during which
Collection services are to be provided under this Agreement.
8.2.5 OTHER PROGRAMS' RECORDS
Records for other programs shall be tailored to specific needs. In general,they shall include:
A. Plans, tasks, and milestones; and,
B. Accomplishments in terms such as dates, activities conducted, quantities of products
used, produced, or distributed, and numbers of participants and responses.
8.2.6 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:
A. Extraordinary rate adjustment request;
B. Compliance with terms of this Agreement;
C. Customer service levels and Billing;
D. Fee payments;
E. Gross Receipts;
F. Tonnage;
G. Complaint log;
H. Compliance with Mandatory Commercial Recycling, Mandatory Commercial Organics, and
SB 1383 Regulations; and
I. Verification of Diversion rate.
The first audit,to be performed during calendar year 2027, will be based on the Contractor' s
reports and records from the start of the Agreement through calendar year 2026.Audits may be
performed every third year thereafter(the triennial audit) and will be based on the period from
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the end of the previous audit through the end of the calendar year before the year in which the
audit is to be performed.
Contractor will reimburse the City the cost of such audits (including audits conducted by City staff)
as shown in the following table.
Audit Performed Audit Amount
2027 $90,000
2030 $98,000
2033 $108,000
Audit payments from the Contractor to the City are due January 1 of the year the audit is being
performed.
Should the Agreement be extended beyond the extension terms as described in Section 2.5, the
audits shall continue every third year, and each additional audit amount shall be increased by ten-
thousand dollars ($10,000) per audit period for audits conducted after 2035.
Should an audit conducted or authorized by the City disclose that Franchise or other fees payable
by the Contractor were underpaid by two percent (2%) or more, or that tonnage was mis-
reported by 2%or more, or that more than 2% of the Customers were inaccurately billed,for the
period under review, City may expand the scope of the audit and Contractor shall pay for
additional audit costs.
8.2.7 PAYMENTS AND REFUNDS
Should an audit by the City disclose that any of the City fees payable by the Contractor were
underpaid or that Customers were overcharged for the period under review, Contractor shall pay
to City any underpayment of City fees and/or refund to Contractor's Customers any overcharges
within sixty (60) days following the date of the audit. Contractor shall pay interest to the City for
any underpayment or overcharges at an annual rate of 6%. Undercharges shall not be billed in
arrears for more than ninety(90) days of service,with any remaining undercharges absorbed by
Contractor. Should an audit disclose that fees were overpaid, City shall credit such amounts
against future fees payable by Contractor with interest of 6%.
8.3 REPORTS
The parties acknowledge that City will require reporting by Contractor at various intervals by
which information important to City can be compiled and analyzed.Throughout the Term the
parties agree to work together to address City's needs with respect to the information to be
contained in reports prepared by Contractor. The following is intended as a starting point in
order to have established an objective baseline for reporting, but the frequency and content of
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the reports called out below may be changed by agreement of the parties, provided any such
change is approved by the City Manager in writing. Records shall be maintained in forms and by
methods that facilitate flexible use of data contained in them to structure reports, as needed.
Reports are intended to compile recorded data into useful forms of information that can be used
to, among other things:
• Determine and set rates and evaluate the efficiency of operations;
• Evaluate past and expected progress toward achieving AB 939 goals and objectives;
• Provide concise and comprehensive program information and metrics for use in fulfilling
reporting requirements under Applicable Law;
• Determine needs for adjustment to programs; Determine Customer compliance with AB
341, SB 1826, SB 1383 Regulations, and any subsequent State-mandated Recycling
requirements;
• Evaluate Customer service and complaints.
The minimum report format is included as Exhibit 7. Contractor may propose additional report
formats that are responsive to the objectives and audiences for each report.The format of each
report requires approval by City. The Contractor agrees to submit all reports by electronic means
in a format compatible with City's software/computers at no additional charge, if requested by
City. Contractor will provide a certification statement, under penalty of perjury, by an authorized
Contractor official,that the report being submitted is true and correct.
Monthly reports shall be submitted within 30 calendar days after the end of the reporting period.
Annual reports shall be submitted within sixty (60) days following the reporting year. If requested,
Contractor's complaint summary, shall be sent to the Contract Administrator within five days of
request.
All reports shall be submitted electronically and in an electronic format compatible with City's
software/computers, at no additional charge,to City Manager and/or other City staff designated
by the City Manager at e-mail addresses to be provided by City. City may additionally request hard
copies, which would be delivered to:
City Manager(or designated representative)
City of Diamond Bar
21810 Copley Driver
Diamond Bar, CA 91765
8.3.1 MONTHLY REPORTS
A. Solid Waste Collected by Contractor for each month, sorted by type of Solid Waste
(Refuse, Recyclable and Organic Materials) and type of Customer( Commercial or Roll-Off
Box Service) in tons, and the facilities where the tons were Processed or Disposed. Bulky
Waste items shall be reported as a separate line item. This report is to be submitted in
Microsoft Excel, or another software as requested by City.
B. Diversion level for each month and the cumulative year-to-date Diversion level, where
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Diversion level shall be calculated as: (Discarded Materials Collected-Solid Waste
Collected—Residue Disposed)/Discarded Materials Collected.
C. Summary of Customer subscription data, including the number of accounts.
D. Number of waivers reviewed and reverification inspections performed.
E. Number of warning notices issued for contaminated Recyclable and Organics Containers,
and tags or notifications for Excluded Waste improperly placed for Collection in
accordance with Sections 3.3.10 and 4.1.13(A).
F. Narrative summary of problems encountered and actions taken with recommendations
for City, as appropriate.
G. Customer complaint logs as described in Section 6.2.3.
H. Number of route reviews conducted.
I. Copies of promotional and public education materials sent during the quarter.
J. Record of the date and to whom the promotional and public education material was
disseminated. For any mass distribution through mailings or bill inserts, provide a record
of the date,the type and number of accounts that received the information.
K. Commercial recycling and organics site visits summary, including the name and address of
Customer,the date of the visit and the contact name and phone number, demonstrating
that the required visits have been made, and reason provided for not establishing a
recycling or organics program, in accordance with Sections 6.4.The site visit summary will
be completed on forms approved by the City.
L. List of Customers that are required to participate in an Organics Recycling program per
Public Resources Code Section 42649.81.
M. List of Commercial and Multi-Family Premises Customers that do and do not participate in
an Organics program, whether the Organics program is provided by Contractor or another
party, and whether the program is for Food Waste and/or Yard Waste (such as a
landscaper that composts or otherwise Diverts Organic Materials).
N. Commercial and Multi-Family Customers participating in food recovery programs.
O. Commercial and Multi-Family Customers using third-party recycling.
P. Additional information that may be requested by CalRecycle or City related to Recycling
and Organics programs.
8.3.2 ANNUAL REPORTS
The Annual Report is to be essentially in the form and content of the monthly reports combined,
but shall also include:
A. A complete inventory of equipment used to provide all services (such as vehicles and
Containers by size and waste stream type Container is used for).
B. Results of route audits.
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C. Number of routes and route hours per day by type of service.
D. Copy of Hazardous Waste Diversion records showing types and quantities, if any, of
Hazardous Waste that was inadvertently Collected, but Diverted from Landfill Disposal.
E. Copies of all public education and outreach distributed during the reporting year including the
date of distribution.
F. A narrative summary of all City-sponsored, civic, and school events attended.
G. Copies of invoices documenting the amount of RNG used to provide services in the City. If
routes are commingled with otherjurisdictions, Contractor must use an allocation method to
quantify the City's allocated amount.
8.3.4 FINANCIAL REPORTS
The City may, at City's option, request the Contractor's audited financial reports/statements (or
parent company, if parent company submits Corporate Guaranty of Performance), and
Contractor's internally prepared supplemental statement of income and expenses related
specifically to the City Diamond Bar operations, for the most recently completed fiscal year in
connection with an extraordinary rate adjustment request, billing audit, Franchise Fee audit, or
verification of other information required under this Agreement.
The financial statements and footnotes shall be prepared in accordance with Generally Accepted
Accounting Principles (GAAP) and audited, in accordance with Generally Accepted Auditing
Standards (GAAS) by a certified public accountant (CPA) licensed (in good standing)to practice
public accounting in the State of California as determined by the State of California Department of
Consumer Affairs Board of Accountancy.The cost for preparation of the financial statements and
audit shall be borne by Contractor as a direct cost of service. In addition, Contractor shall provide
to City the supplemental schedule on a compiled basis 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.
8.4 REPORTING ADVERSE INFORMATION
Contractor shall provide City two copies (one to the Contract Administrator, one to the City
Attorney) of all reports, pleadings, applications, notifications, Notices of Violation,
communications or other material relating specifically to Contractor's performance of services
pursuant to this Agreement, submitted by Contractor to, or received by Contractor from, the
United States or California Environmental Protection Agency, CalRecycle,the Securities and
Exchange Commission or any other federal, state or local agency, including any federal or state
court. Copies shall be submitted to City 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.
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8.5 RIGHT TO INSPECT RECORDS
City shall have the right to inspect or review the specific documents or records required expressly
or by inference pursuant to this Agreement, or any other similar records or reports of Contractor
or its related party entities that City shall deem, in its reasonable discretion, necessary to evaluate
annual reports, compensation applications provided for in this Agreement and Contractor's
performance provided for in this Agreement. Contractor shall make all records and documents to
be reviewed and inspected by the City as a part of any audit or other record review conducted by
the City, available for the City's review, inspection and copying within five business days
(excluding Saturday, Sunday and Designated Holidays) of receiving written notice from the City
requesting the same.
8.6 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 the Agreement and shall subject
Contractor to all remedies which are available to the City under the Agreement,the Diamond Bar
City Code, or otherwise.
ARTICLE 9: REVIEW OF SERVICES AND PERFORMANCE
9.1 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 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
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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.
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.
9.2 PERFORMANCE SATISFACTION SURVEY
If requested by the City, Contractor will create and conduct a Customer satisfaction survey at
Contractor' s expense. If City would like to present results at a Solid Waste Services and
Performance Review Meeting, City shall notify Contractor of its desire for such a survey at least 90
days in advance of the Solid Waste Services and Performance Review Meeting.The purpose of the
survey is to determine Customer satisfaction with current Collection services and Customer
service provided by Contractor.The Survey will be distributed to one hundred percent (100%) of
the Customers. Contractor shall obtain City' s approval of the survey' s content,format, and
mailing list prior to its distribution. City may require that Contractor have Customer responses to
the survey returned directly to City.The survey results shall be made available to the City thirty
(30) days prior to the Solid Waste Services and Performance Review Meeting.
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ARTICLE 10: CONTRACTOR COMPENSATION AND MAXIMUM SERVICE
RATES
10.1 CONTRACTOR COMPENSATION
The maximum approved rates set forth in Exhibit 1, as more fully defined as Contractor
Compensation in this Article, shall be the maximum amount that the Contractor may charge
Customers, as full, entire and complete compensation due pursuant to this Agreement for all
labor, equipment, materials and supplies, fees or surcharges due to the City as applicable,taxes,
insurance, bonds, letters of credit, overhead, Disposal,Transfer, Processing, profit and all other
things necessary to perform all the services required by this Agreement in the manner and at the
times prescribed.
From time to time, Customers may request services for which a rate is not provided in Exhibit 1. In
such cases, Contractor shall so advise the Contract Administrator and the Customer and
Contractor shall negotiate a rate for the requested services. If agreement cannot be reached,the
matter shall be referred to the Contract Administrator for establishment of the rate. Approved
rates for requested services shall be included in Exhibit 1 in the next Rate Year.
The Contractor shall impose no other charges for services provided under this Agreement to
Customers unless approved in advance in writing by the City Manager.
10.2 INITIAL RATES
The rates beginning September 1, 2025 and ending June 30, 2026 shall not exceed those set forth
in Exhibit 1 hereto, unless amended by a written amendment to this Agreement entered into by
and between the City and the Contractor. Contractor has reviewed these maximum rates and
agrees they are reasonably expected to generate sufficient revenues to provide adequate
Contractor Compensation. Unless and until the maximum rates set forth on Exhibit 1 are adjusted,
Contractor will provide the services required by this Agreement, charging no more than the
maximum rates authorized by Exhibit 1, except as provided herein and in Section 10.3.
10.3 SCHEDULE OF FUTURE ANNUAL RATE ADJUSTMENTS
Beginning with Rates Year starting July 1, 2026 and ending on June 30, 2027 and for all
subsequent Rate Years, Contractor may request an annual adjustment to the maximum rates
shown in Exhibit 1.The Contractor shall submit its request in writing, to be received by City in
Person or via certified mail, by the preceding March 31, and shall be based on the method of
adjustment described in Section 10.4.All future adjustments are to be effective July 1 of the same
calendar year,following the March 31 submission deadline.The City shall consider a failure to
submit a written request by March 31 as Contractor's determination not to seek an adjustment
and shall constitute a waiver by Contractor of its right to request such an increase for the
subsequent Rate Year. However,the City reserves the right to initiate a rate adjustment in
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instances where the Contractor fails to submit a written rate adjustment request.Adjustment to
the maximum rates is subject to the approval of the City Manager.
If an annual adjustment that would have resulted in a rate decrease is not implemented for any
reason,the next rate adjustment will be measured based on the change in indices from the last
implemented rate adjustment;the intent is to ensure subsequent rate increases shall be offset
with any decrease not previously implemented.
Any rate adjustment percentage calculated using the procedure described in Section 10.4
resulting in a rate adjustment percentage greater than 5%in any Rate Year shall be capped at 5%.
Any percentage amount over 5%or portion thereof in any one Rate Year will be carried over into
any future Rate Year with a rate adjustment of less than 5%.
10.4 METHOD OF ADJUSTMENTS
Pursuant to Section 10.3,the Contractor may request an adjustment to the maximum rates
shown in Exhibit 1 pursuant to the methodology described in Exhibit 2 and subject to review of
the City.This Agreement incorporates by reference the Excel worksheet titled "Rate Adjustment
Procedure" attached hereto with Exhibit 2.The Contractor agrees that the Excel worksheet shall
be an integral part of this Agreement.
10.5 EXTRAORDINARY RATE ADJUSTMENTS
Contractor or City may request an adjustment to maximum rates at reasonable times other than
that allowed under Section 10.3 in the event of extraordinary changes in the cost of providing
service under this Agreement. Such changes shall not include changes in the market value of
Recyclables from the values assumed in Contractor's Proposal, inaccurate estimates by the
Contractor of its proposed cost of operations or change in wage rates or employee benefits not
already adjusted in accordance with the annual adjustment pursuant to Section 10.3 and Exhibit 2.
Without limiting the generality of the foregoing, Contractor may request an extraordinary
adjustment based on changes in a direct per ton fee incurred or assessed at the Disposal Site or any
Designated Facility due to action(s) by any federal, state, or local regulatory agencies after the
effective date; a change in Applicable Law that requires additional or new Services or obligations
under this Agreement; and any other extraordinary changes in operational costs outside of
Contractor's reasonable control, including increased costs related to fuel and transportation, labor,
and Organic Waste or Recyclable Materials market conditions not already adjusted in accordance
with the annual adjustment pursuant to Section 10.3 and Exhibit 2.
Contractor shall provide justification to support the need for the adjustment. For each request for
an adjustment to the maximum rates 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. The City may request from the
Contractor such further information as it deems necessary to fully evaluate the request and make
its determination. Upon request by the City,Contractor shall provide a report of its annual revenues
and expenses for the services provided in the City, and City shall have the right to audit this
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information in connection with the City's review of Contractor's rate adjustment 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.
The City may,in its 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. Extraordinary rate adjustments shall only be
effective after approval by City Council in compliance with California Constitution Article XIIID
(Proposition 218) and the Proposition 218 Omnibus Implementation Act (Govt. Code Sections
53750 et. seq.) and may not be applied retroactively.
A rate adjustment request made in response to a new service requested by City will be determined
in accordance with Section 2.10.
ARTICLE 11: INDEMNIFICATION, INSURANCE AND PERFORMANCE BOND
11.1 INDEMNIFICATION OF THE CITY
11.1.1 GENERAL
To the maximum extent permitted by law, and without regard to the limits of any insurance
coverage, Contractor agrees to indemnify, defend with counsel acceptable to the City, protect and
hold harmless the City, its representatives, officers, agents and employees,volunteers, and
assignees (collectively, "Indemnitees"), from and against any and all causes of action, claims,
fines, assessments, costs (including but not limited to reasonable attorneys' and expert witness
fees), losses, damages, penalties, forfeitures, demands, proceedings or suits, in law or in equity, of
every kind and description, including, but not limited to, injury to and death of any Person and
damage to property, injunctive relief, obligations, errors, omissions or liabilities, ("claims or
liabilities")that may be asserted or claimed by any person, firm or entity arising out of or in
connection with (i)violations of the commerce clause of the U.S. Constitution,AB 939,the
Comprehensive Environmental Response, Compensation and Liability Act,Title 42 U.S.C. §9601 et
seq. ("CERCLA"), HSAA, RCRA, any other Hazardous Waste laws, other federal, state or local
statutes or regulations, or municipal ordinances, which arise from, challenge any validity of, or
relate to the award of,this Agreement; (ii)the negligent performance of the work or services of
Contractor, its agents, employees, subcontractors, or invitees, provided for in this Agreement; (iii)
the negligent acts or omissions of Contractor hereunder, or arising from Contractor's negligent
performance of or failure to perform any term, provision, covenant or condition of this
Agreement,whether or not there is concurrent passive or active negligence, on the part of the
Indemnitees. The indemnity obligations imposed herein shall not apply to the extent that such
claims or liabilities arise from the sole negligence or willful misconduct of the Indemnitees, but
shall apply if the claims or liabilities are caused by the joint negligence of Contractor and other
Persons, (iv) actions or proceedings to attack, set aside, void, annul or seek monetary damages
resulting from an approval by the City of this Agreement, including but not limited to any
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challenge brought by referendum or under Proposition 218 (Calif. Const.Art.XIIID)to challenge
the City's entry into this Agreement or the setting of Solid Waste rates as set forth in this
Agreement; and in connection therewith:
A. Contractor will defend any action or actions filed in connection with any of said claim or
liabilities and will pay all costs and expenses, including legal costs and attorneys'fees incurred in
connection therewith;
B. Contractor will promptly pay any judgment rendered against the City, its officers, agents,
or employees for any such claims or liabilities arising out of or in connection with the negligent
performance of or failure to perform such work or services of Contractor hereunder; and
Contractor agrees to save and hold the City, its officers, agents and employees harmless
therefrom;
C. In the event the City, its officers, agents or employees is made a party to any action or
proceeding filed or prosecuted against Contractor for such damages or other claims arising out of
or in connection with the negligent performance of or failure to perform the work or services of
Contractor hereunder, Contractor agrees to pay to the City, its officers, agents or employees, any
and all costs and expenses incurred by the City, its officers, agents or employees in such action or
proceeding, including but not limited to, legal costs and attorneys' fees.
D. The obligations herein are subject to the provisions and limitations in Public Resources
Code sections 40059.1 and 40059.2.
Contractor's obligations hereunder shall survive the termination or expiration of this Agreement.
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.
11.1.2 HAZARDOUS MATERIAL 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 Indemnitees harmless 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,
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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.
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. For purposes of this section,the term "Hazardous Contaminant" shall mean any
Hazardous Material 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.
THE PROVISIONS OF TNIS SECTION SHALL NOTTERMINATE OR EXPIRE, SHALL BE GIVEN THE
BROADEST POSSIBLE INTERPRETATION AND SHALL SURVIVE THE EXPIRATION OR EARLIER
TERMINATION OF THIS AGREEMENT
11.1.3 AB 939 INDEMNIFICATION AND GUARANTEE
Contractor unconditionally guarantees compliance with the requirements of AB 939 as amended
from time to time. Contractor shall carry out its obligations under this Agreement so that the City
will meet or exceed the Diversion requirements set forth in AB 939, and all amendments thereto
more fully set forth below. City and Contractor shall reasonably assist each other to meet the
City's AB 939 Diversion requirements. In carrying out the provisions of this Section, Contractor
agrees to perform the following obligations at its cost and expense:
A. Defend, with counsel reasonably acceptable to City, indemnify and hold harmless the City
against all fines and/or penalties imposed by the CalRecycle, if Contractor fails or refuses to
provide information relating to its operations which is required under this Agreement and such
failure or refusal prevents or delays City from submitting reports required by AB 939 in a timely
manner;
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B. Assist City in preparing for, and participating in, CalRecycle's biannual review of the City's
source reduction and recycling element pursuant to Public Resources Code Section 41825;
C. Assist City in responding to inquiries from CalRecycle in applying for an extension under
Public Resources Code Section 41820, if so directed by City; in conducting any hearing conducted
by CalRecycle relating to AB 939; or in any other investigative or enforcement manner undertaken
by any agency;
D. Defend, with counsel reasonably acceptable to City, and indemnify and hold harmless the
City against any fines or penalties levied against it for violation of AB 939's Diversion
requirements, provided that Contractor's obligation to indemnify City shall be subject to the
limitations set forth in Public Resources Code Section 40059.1(c) as may be amended from time to
time;
E. In cooperating with the City, should it seek to become its own enforcement agency, to the
extent it may be permitted under state law.
11.1.4 CALRECYCLE INDEMNIFICATION
Contractor's duty to defend and indemnify herein includes payment of all fines and/or penalties
imposed by CalRecycle, subject to the restrictions set forth in Public Resources Code Section
40059.1, if the requirements of AB 939,AB 341, AB 1826, and/or SB 1383 and corresponding
regulations are not met by the Contractor with respect to the Discarded Materials Collected
under this Agreement, and such failure is: (i) due to the failure of Contractor to meet its
obligations under this Agreement, or, (ii) due to Contractor delays in providing information that
prevents Contractor or City from submitting reports required by AB 939 and SB 1383 Regulations
and corresponding regulations in a timely manner.The provisions of this Section shall survive the
termination or expiration of this Agreement.
11.1.5 ELECTRONIC INFORMATION INDEMNIFICATION
Contractor shall defend with counsel acceptable to City, indemnify, and hold City harmless against
and from any and all related claims, including but not limited to, suits, losses, penalties, damages,
responsibility for costs, regulatory fines, penalties, credit monitoring expenses, and liability for
damages of every name, kind and description, including attorneys'fees and costs incurred,
attributable to the negligence or willful misconduct of Contractor and any Subcontractors used in
performance of this Agreement in handling or protecting Customer information over which
Contractor has exclusive control, including but not limited to billing details, electronic payment(s),
and Customer account information that is not readily available to the general public. Contractor
shall maintain electronic files and Contractor's website in accordance with the industry best
practices for maintaining such information.The indemnity obligations imposed herein shall not
apply to the extent that such claims or liabilities arise from the negligence or willful misconduct of
the Indemnitees or arise from information over which the Indemnitees have control.
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11.1.6 CALPERS ELIGIBILITY INDEMNIFICATION
Contractor's employees, agents, or Subcontractors providing service under this Agreement shall
not: (i) qualify for any compensation and benefit under CaIPERS; (ii) be entitled to any benefits
under CaIPERS; (iii) enroll in CaIPERS as an employee of City; (iv) receive any employer
contributions paid by City for CaIPERS benefits; or(v) be entitled to any other CaIPERS-related
benefit by reason of the services provided under this Agreement that would accrue to a City
employee. Contractor's employees, agents, or Subcontractors hereby waive any claims to benefits
or compensation described herein.
Neither Contractor nor Contractor's officers, employees, agents, and Subcontractors are entitled
to any salary or wages, or retirement, health, leave or other fringe benefits applicable to City
employees.The City will not make any Federal or State tax withholdings on behalf of Contractor.
The City shall not be required to pay any workers' compensation insurance on behalf of
Contractor.
Contractor agrees to defend and indemnify the City for any claim, suit, or demand for tax,
retirement contribution (including any contribution to CaIPERS), social security, salary or wages,
overtime payment, or workers' compensation payment made by Contractor, or any employee of
Contractor,for work performed under this Agreement.
11.2 EVALUATION OF LIABILITY
The Contractor's obligation to defend, hold harmless, and indemnify under Article 11 shall not be
excused because of the Contractor's inability to evaluate an Indemnitee's liability or because the
Contractor evaluates such liability and determines that the Indemnitee is not liable to the
claimant. Within twenty(20) days of receiving written notice from the City of a claim for which
the City is entitled to indemnity,the Contractor shall confirm to the City in writing that the
Contractor will provide a defense to the claim and shall take appropriate actions to provide such
defense.
11.3 SEPARATE COUNSEL
The City may elect to have and consult separate legal counsel from the Contractor at any time
during the pendency of any claim at its sole discretion.The City shall be responsible for paying its
separate counsel unless: (i)the City reasonably determines and notifies Contractor that separate
counsel is required to represent the City during the resolution of any claim; or (ii) a court of
competent jurisdiction rules that the Contractor has refused to satisfy its obligations under this
Article 11. Notwithstanding the preceding sentence or the first sentence of Article 11.1,with
respect to a particular claim, if the Contractor confirms to the City in writing Contractor's
obligation to indemnify and defend the City, without reserving a right to later seek
reimbursement from the City with respect to such claim, the City shall not object to the counsel
representing it being the same counsel that represents Contractor in the defense of such claim
and shall, if permitted by law, provide such written conflict-of-interest waiver as may be required
for such joint representation. If the Contractor provides the aforementioned confirmation, but
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the City declines to consent to such joint representation,the City may retain its own counsel at its
own expense,the City shall have no right of defense or reimbursement of defense costs with
respect to such claim (but the City shall still be entitled to indemnity),the City shall reasonably
cooperate with Contractor in the defense and settlement of such claim. If the Contractor does not
provide the aforementioned confirmation, or if the Contractor provides such confirmation and
the City is prohibited by law from providing such waiver,then the Contractor shall reimburse the
City for the reasonable attorneys'fees and costs of the City's separate counsel with respect to
such claim.
11.4 CONSIDERATION
It is specifically understood and agreed that the consideration inuring to the Contractor for the
execution of this Agreement consists of the promises, payments, covenants, rights and
responsibilities contained in this Agreement and the consideration to the City are the Solid Waste
Services Contractor shall perform pursuant to this Agreement.
11.5 OBLIGATION
The execution of this Agreement by the Contractor shall obligate the Contractor to comply with
the foregoing indemnification provisions; however,the collateral obligation of providing
insurance must also be fully complied with as set forth in Article 11.8 below.
11.6 COLLECTION SERVICES SUBCONTRACTORS
Any Subcontractor(s), independent contractor(s) or any type of agent(s) performing or hired to
perform any term or condition of this Agreement on behalf of the Contractor, or as may be
allowed by this Agreement, shall comply with each term and condition of this Agreement,
including each term and condition of Article 11.8 entitled "INSURANCE" or a more appropriate
level of coverage as determined by the City. This applies to subcontractors performing Collection
services for City facilities. Furthermore,the Contractor shall be responsible for the
Subcontractor's acts, omissions and satisfactory performance of the terms and conditions of this
Agreement. The Contractor shall require all Subcontractors performing Collection services under
the terms of this Agreement to enter into an agreement containing the provisions set forth in this
Article 11 in their entirety and Subcontractor shall fully indemnify the City in accordance with this
Agreement.
11.7 SURVIVAL
Contractor's indemnity obligations shall survive the expiration or termination of this Agreement
and continue until such obligations have been fully satisfied by the resolution of all claims for
which indemnity obligations are owed to the City.
11.8 INSURANCE
Contractor shall procure and maintain during the entire Term the following types of insurance,
and shall maintain the following minimum levels of coverage,which shall apply to any claims
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which may arise from or in connection with Contractor' s performance hereunder or the actions
or inactions of any of Contractor' s officers, agents, representatives, employees, or subcontractors
in connection with Contractor' s performance.The insurance requirements hereunder in no way
limit Contractor' s various defense and indemnification obligations, or any other obligations as set
forth herein.
A. Minimum Scope of Insurance. Coverage shall be at least as broad as:
1. The most recent editions of Insurance Services Office Commercial General Liability
coverage ("occurrence" form CG 00 01).
2. The most recent editions of Insurance Services Office form number CA 00 01 covering
Automobile Liability, code 1 "any auto" and endorsement CA 00 25.
3. Workers' Compensation insurance as required by the Labor Code of the State of California
and Employers Liability insurance.
B. Minimum Limits of Insurance. Contractor shall maintain in force for the term of this
Agreement limits no less than:
1. Comprehensive General Liability:Ten Million Dollars ($10,000, 000) limit aggregate and
Ten Million Dollars ($10,000,000) limit per occurrence for bodily injury, Personal injury
and property damage.
2. Automobile Liability: Five Million Dollars ($5,000,000) single limit per accident for bodily
injury and property damage.
3. Workers' Compensation and Employers Liability: Workers' compensation limits as
required by the Labor Code of the State of California or provide evidence of State
approval to be self-insured. Employers Liability in the minimum amount of One Million
($1,000, 000).
C. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions
must be declared to and approved by City.At the option of City, either:the insurer shall reduce or
eliminate such deductibles or self-insured retentions as respects City, its officials, employees and
agents; or Contractor shall procure a bond guaranteeing payment of losses and related
investigations, claim administration and defense expenses.
D. Other Insurance Provisions.The policies are to contain, or be endorsed to contain, the
following provisions:
1. General Liability and Automobile Liability Coverages
a) The Indemnitees shall be named as additional insureds as respects: liability arising out
of activities performed by or on behalf of Contractor; products and completed
operations of Contractor; Premises owned, leased or used by Contractor; or vehicles
owned, leased, hued or borrowed by Contractor.The coverage shall contain no
special limitations on the scope of protection afforded to the Indemnitees.
b) Contractor's insurance coverage shall be primary insurance as respects the
Indemnitees.Any insurance or self- insurance maintained by the Indemnitees shall be
excess of Contractor' s insurance and shall not contribute with it.
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c) Any failure to comply with reporting provisions of the policies shall not affect
coverage provided to the Indemnitees.
d) Coverage shall state that Contractor's insurance shall apply separately to each insured
against whom claim is made or suit is brought, except with respect to the limits of the
insurer' s liability.
2. Workers' Compensation and Employers Liability Coverage: The insurer shall agree to
waive all rights of subrogation against the Indemnitees for losses arising from work
performed by Contractor for City.
3. All Coverages: Each insurance policy required by this clause shall be endorsed to state
that coverage shall not be suspended, voided, canceled by either party, reduced in
coverage or in limits except after thirty(30) days' prior written notice (ten (10) days
written notice in the event of cancellation for non-payment) by certified mail, return
receipt requested, has been given to City.
E. Acceptability of Insurers.The insurance policies required by this section shall be issued by
an insurance company or companies authorized to do business in the State of California and with
a rating in the most recent edition of Best' s Insurance Reports of size category VII or larger and a
rating classification of A or better.
F. Verification of Coverage. Within thirty (30) days of the execution of this Agreement, or
prior to the start of service under this Agreement, whichever comes first, 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 by certified mail, return receipt requested, shall be
given to City in the event of cancellation (Ten (10) days written notice in the event of
cancellation for non-payment), reduction in coverage, or non -renewal of this policy. Such
notice shall be sent to:
City Manager
City of Diamond Bar
21810 Copley Drive
Diamond Bar, CA 91765
2. "This policy shall be considered primary insurance as respects any other valid and
collectible insurance maintained by City, including any self-insured retention or program
of self-insurance, and any other such insurance shall be considered excess insurance
only."
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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.Thus 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
1. In the event any services are delegated to another company or subcontractor, Contractor
shall require such Contractor or subcontractor to provide statutory workers'
compensation insurance and employer's liability insurance for all of the Contractor or
subcontractor's employees engaged in the work in accordance with this Section 11.8.The
liability insurance required by this Section 11.8 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 11.8.
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 Performance Bond and/or Letter of Credit provided under
Sections 11.8 and 11.10.
I. Cyber Liability. Contractor will maintain cyber liability insurance with a combined single
limit of not less than One Million ($1,000,000) per event. Contractor's cyber policy must include
language related to Contractor data breach. Contractor shall verify by providing City Contract
Manager a copy of the Declarations Page for the policy for City review prior to the
Commencement Date.
The insurance required by this subsection includes:
1. Premises Operations;
2. Independent Contractor's Protective;
3. Automobile Liability that includes Owned, Non-Owned, and Hired Motor Vehicles;
4. Broad Form Property Damage, including Completed Operations.
J. Proof of insurance shall be mailed to the following address or any subsequent address as
may be directed in writing by the City.
City Manager
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City of Diamond Bar
21810 Copley Driver
Diamond Bar, CA 91765
K. Modification of Insurance Requirements.The insurance requirements provided in this
Agreement may be modified or waived by the City, in writing, upon the request of the Contractor
if the City determines such modification or waiver is fin the best interest of the City considering all
relevant factors, including exposure to the City.
L. Rights of Subrogation. All required insurance policies shall preclude any underwriter's
rights of recovery or subrogation against the City with the express intention of the Parties being
that the required insurance coverage protects both Parties as the primary coverage for any and all
losses covered by the above-described insurance.The Contractor shall ensure that any companies
issuing insurance to cover the requirements contained in this Agreement agree that they shall
have no recourse against the City for payment or assessments in any form on any policy of
insurance.The clauses 'Other Insurance Provisions' and 'Insured Duties in the Event of an
Occurrence, Claim or Suit' as it appears in any policy of insurance in which the City is named as an
additional insured shall not apply to the City.
M. Failure to Obtain Insurance. The failure of the Contractor to obtain and maintain any
required insurance shall not relieve Contractor of any liability under this Agreement (and the
Contractor may be answerable to the City for damages or any other remedy on account of such
breach) nor shall the insurance requirements be construed to conflict with or otherwise limit the
obligations of the Contractor concerning indemnification.
N. No Limitation of Liability. By requiring insurance herein, City does not represent
that coverage and limits will necessarily be adequate to protect Contractor, and such coverage
and limits shall not be deemed as a limitation on Contractor's liability under the indemnities
granted to City in this contract.
11.9 FAITHFUL PERFORMANCE BOND
The Contractor shall, prior to the initial date of the term of this Agreement, execute and file with
the Clerk of the Council a surety bond in the penal sum of One-Hundred Twenty-Five Thousand
Dollars ($125,000), similar to the form provided in Exhibit 6 or otherwise in a form with language
that is acceptable to the City, 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 11.11
11.10 FAITHFUL PERFORMANCE LETTER OF CREDIT
A. In addition to a corporate surety bond as noted in Section 11.9 above, Contractor shall
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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
11.11.
B. As an alternative to providing the performance bond and letter of credit required under
11.9 and 11.10, Contractor may provide a letter of credit in the amount of Two-Hundred Fifty
Thousand Dollars ($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 11.11.
C. As an alternative to providing the performance bond and letter of credit required under
11.9 and 11.10, 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 Two-Hundred Fifty Thousand
Dollars ($250,000) required under Sections 11.9 and 11.10A 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 11.11.
11.11 FORFEITURE OF PERFORMANCE BOND
In the event Contractor shall for any reason become unable to, or fail in any way to, perform as
required by this Agreement, City may declare a portion or all of the performance bond forfeited
to the City up to an amount which is necessary to recompense and make whole the City. Upon
partial or full forfeiture of the performance bond, Contractor shall restore the performance bond
to its face amount within thirty (30) days of the City's declaration. Failure to restore the
performance bond to its full amount within thirty (30) days shall be a material breach of the
Agreement.
11.12 FORFEITURE OF LEITER OF CREDIT
Thirty(30) days following City providing Contractor with written notice of its failure to pay City
any amount owing under this Agreement,the LOC 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
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by Contractor, including but not limited to the liquidated damages described in Section 13.7.
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.
11.13 PERFORMANCE SECURITY BEYOND SERVICE TERM
Some Agreement requirements extend beyond the Term and other requirements, such as
minimum Diversion rates per Section 5.2, will not be substantiated until after the final service
date.Therefore,the Contractor shall not terminate the performance bond, letter of credit or
deposit, and will renew them to ensure continuous availability to the City, until receiving a written
release from the City or until the second anniversary of the end of the Term. Permission from the
City to discontinue holding these performance securities does not relieve Contractor of payments
to the City that may be due, or may become due.
ARTICLE 12: CITY'S RIGHT TO CONTRACT WITH THIRD PARTIES TO
PERFORM FRANCHISE SERVICES
12.1 GENERAL
In the event that Contractor, for any reason whatsoever,fails, refuses or is unable to Collect,
Recycle, Process,Transport, or Dispose of any or all Solid Waste which it is required by this
Agreement, at the time and in the manner provided in this Agreement,for a period of more than
two business days, excluding Saturday, Sunday and Designated Holidays, and if, as a result
thereof, Solid Waste should accumulate in City to such an extent, in such a manner, or for such a
time that such accumulation endangers or menaces the public health, safety or welfare,then City
shall have the right, but not the obligation, upon twenty-four(24) hour prior written notice to
Contractor during the period of such emergency as determined by City, (1)to perform, or cause to
be performed, such services itself with its own or other personnel without liability to Contractor;
or (2)to take possession of any or all of Contractor's equipment used in the Collection and
Transportation of Solid Waste, and to use such equipment to Collect and Transport any Solid
Waste generated within City which Contractor would otherwise be obligated to Collect,Transport
and properly Dispose of or Process pursuant to this Agreement. Further,the City shall have access
to the MRF and composting facilities used by the Contractor for the Processing, Recycling and
Organics Diversion of Solid Waste produced or accumulated with the City.
Notice of Contractor's failure, refusal or neglect to Collect,Transport and properly Dispose of or
Process Solid Waste may be given orally by telephone to Contractor at its principal office and shall
be effective immediately.Written confirmation of such oral notification shall be sent to
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Contractor within one business day, excluding Saturday, Sunday and Designated Holidays of the
oral notification. Contractor further agrees that in such event:
A. It will take direction from City to effect the transfer of possession of equipment to City
for City's use.
B. It will, if City so requests, keep in good repair and condition all of such equipment and
provide such other service as may be necessary to maintain said property in operational
condition.
C. City may immediately engage all or any personnel necessary or useful for the Collection
and Transportation of Solid Waste then employed by Contractor.
City agrees that it assumes complete responsibility for the proper and normal use of such
equipment and facilities while in its possession.
If the interruption or discontinuance in service is caused by any of the reasons listed in Section
13.8, City shall pay to Contractor the reasonable rental value of the equipment and facilities,
possession of which is taken by City, for the period of City's possession, if any, which extends
beyond the period of time for which Contractor has rendered bills in advance of service, for the
class of service involved.
12.2 TEMPORARY POSSESSION OF CONTRACTOR'S PROPERTY
If City suffers an interruption or discontinuance of service (including interruptions and
discontinuance due to events described in Section 13.8), City may take possession of and use all of
Contractor's property described above until other suitable arrangements can be made for the
provision of Solid Waste Services which may include the grant of a Franchise to another waste
hauling company.
12.3 BILLING AND COMPENSATION TO CITY DURING CITY'S POSSESSION
During such time that City is providing Solid Waste Services, as above provided, Contractor shall
bill and Collect payment from all users of the above-mentioned services as described in Section
6.1 Contractor further agrees that, in such event, it shall reimburse City for any and all costs and
expenses incurred by City in taking over possession of the above-mentioned equipment and
property for Solid Waste service in such manner and to an extent as would otherwise be required
of Contractor under the Terms of this Agreement. Such reimbursement shall be made from time
to time after submission by City to Contractor of each statement listing such costs and expenses,
but in no event later than five (5)Work Days from and after each such submission.
12.4 CITY'S RIGHT TO RELINQUISH POSSESSION
It is further mutually agreed that City may at any time at its discretion relinquish possession of
any or all of the above-mentioned property to Contractor and thereupon demand that Contractor
resume the Solid Waste Services as provided in this Agreement,whereupon Contractor shall be
bound to resume the same.
Diamond Bar—WM 94 Franchise Agreement for Solid Waste Services
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12.5 CITY'S POSSESSION NOT A TAKING
Except as otherwise expressly provided in the previous paragraph, City's exercise of its rights
under this Article, 1) does not constitute a taking of private property for which compensation
must be paid, 2) will not create any liability on the part of City to Contractor, and 3) does not
exempt Contractor from any of the indemnity and insurance provisions of this Agreement,which
are meant to extend to circumstances arising under this Section provided that the Contractor is
not required to indemnify the City against claims and damages arising from the active negligence
of the City, its elected and appointed boards, commissions, officers, employees and agents in the
operation of Collection vehicles during the time the City has taken possession of such vehicles.
12.6 DURATION OF CITY'S POSSESSION
City's right pursuant to this Article to retain temporary possession of Contractor's facilities and
equipment, and to render Collection services, shall terminate when City determines that such
services can be resumed by Contractor, or when City no longer reasonably requires such property
or equipment. In any case, City has no obligation to maintain possession of Contractor's property
or equipment and/or continue its use for any period of time and may at any time, in its sole
discretion, relinquish possession to Contractor.
ARTICLE 13: DEFAULT AND REMEDIES
13.1 EVENTS OF DEFAULT
Contractor's breach of each and any provision of the Franchise or this Agreement may constitute
a default hereunder to the extent Contractor's performance, services or obligations under this
Agreement are materially and adversely impacted. Events of default by the Contractor include,
but are not limited to, the following.
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. 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, performance bond, letter of credit, or
indemnification coverage as required by this Agreement.
D. Violations of Regulation. 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
Diamond Bar—WM 95 Franchise Agreement for Solid Waste Services
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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 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 13.8.
F. Failure to Pay. If Contractor fails to make any payments required under this
Agreement and/or refuses to provide City,within ten (10) days of the demand, with required
information, reports, and/or records in a timely manner as provided for in the Agreement.
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 pocumentation. Failure to complete or to provide
required reports or documents to City as required by this Agreement.
I. Acts or Omissions.
1. Any act or omission by Contractor relative to the services provided under this
Agreement which violates the terms, conditions, or requirements of this Agreement,the
California lntegrated Waste Management Act of 1989, as it may be amended from time to
time (AB 939), or any law, statute, ordinance, order, directive, rule, or regulation issued
pursuant to AB 939 shall constitute a default by the Contractor.Any failure to correct or
remedy any such violation within the time set in the written notice of the violation or, if
Contractor cannot reasonably correct or remedy the breach within the time set forth in
such notice, Contractor's failure to commence to correct or remedy such violation within
the time set forth in such notice and diligently effect such correction or remedy thereafter
shall constitute a default by Contractor.
2. Any situation in which Contractor or any of its officers, directors or employees are
found guilty of any crime related to the performance of this Agreement, or of any crime
related to anti-trust activities, illegal Transport or Disposal of hazardous or toxic materials,
or bribery of public officials shall constitute a default by Contractor.The term "found
guilty" shall be deemed to include any judicial determination that Contractor or any of
Contractor's officers, directors or employees is guilty as well as any admission of guilt by
Contractor or any of Contractor's officers, directors or employees including, but not
limited to, the plea of"guilty", "nolo contendere", "no contest", and "guilty to a lesser
charge."
J. False or Misleading Statements.Any representation or disclosure made to City by
Contractor in connection with or as an inducement to entering into this Agreement, or any future
amendment to this Agreement,which proves to be false or misleading in any material respect as
of the time such representation or disclosure is made,whether or not any such representation or
disclosure appears as part of this Agreement.
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K. Attachment.The seizure of, attachment of, or levy on,the operating equipment
of Contractor, including, without limits, its equipment, maintenance or office facilities, or any part
thereof.
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 13.8, or Section 6.1.10.
M. Failure to Provide Assurance of Performance. If Contractor fails to provide
reasonable assurances of performance as required under Section 13.10.
N. Commingling of Recyclables With Refuse/Landfilling of Recyclables. If Contractor
negligently or willfully empties Containers of properly set out Recyclable Materials or Organics
into a Refuse load, or Transports a load of Recyclable Materials or Organics to a Landfill or other
location at which the material will not be Diverted from Landfill Disposal.
O. Failure to Comply with Requirements of 5B 1383 Regulations.The Contractor
fails to comply with requirements of the Agreement including public education, reporting,
contamination monitoring, recordkeeping, or other obligations of this Agreement that delegate
City's responsibility and/or authority under SB 1383 Regulations to Contractor.
P. Diversion Requirement. If Contractor does not reach Diversion requirements per
Section 5.2 for two consecutive Rate Years.
Q. Failure to Provide and Maintain 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 11.9 and 11.10 to the full required value
within 30 days of being depleted due to payment to City under Sections 11.11 or 11.12, 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.
13.2 RIGHT TO TERMINATE UPON DEFAULT AND RIGHT TO SPECIFIC PERFORMANCE
The City may terminate this Agreement immediately upon written notice to the Contractor in the
event the Contractor defaults under Article 13.1.Q entitled, "Failure to Provide and Maintain
Performance Bonds and/or Letter of Credit and/or Deposit."
The Contractor shall be given ten (10) Business Days from written notification by the City to cure
any default which, in the CITY's sole opinion, creates a potential public health and safety threat.
The Contractor shall be given ten (10) Business Days from written notification by the City to cure
any default arising under subsections E, F, G, H, K, L, M, N, and Q in Article 13.1 provided,
however,that the City shall not be obligated to provide Contractor with a notice and cure
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opportunity if the Contractor has committed the same or similar breach/default within a twenty-
four(24) month period.
The Contractor shall be given thirty(30) calendar days from written notification by the City to
cure any other default (which is not required to be cured within ten (10) Business Days); however,
the City shall not be obligated to provide Contractor with a notice and cure opportunity if the
Contractor has committed the same or similar breach/default within a twenty-four (24) month
period. Failure to allege breach/default shall not constitute waiver by the City.
13.3 CITY'S REMEDIES IN THE EVENT OF DEFAULT
Upon the Contractor's default,the City shall be entitled to unilaterally terminate this Agreement
or impose other such sanctions as it shall deem proper pursuant to the provisions in this
Agreement or the Diamond Bar City Code, including the following remedies.
A. Waiver of Default.The City may waive any event of default or may waive Contractor's
requirement to cure a default event if the City determines that such waiver would be in the best
interest of the City.The City's waiver of an event of default is not a waiver of future events of
default that may have the same or similar conditions.
B. Suspension of the Contractor's Obligation.The City may suspend Contractor's
performance of its obligations if the Contractor fails to cure default in the time frame specified in
Article 13.2 until such time the Contractor can provide assurance of performance in accordance
with the terms of this Agreement.
C. Liquidated Damages.The City may assess Liquidated Damages for the Contractor's failure
to meet specific performance standards pursuant to Section 13.7.
D. Termination. In the event that the Contractor should default and subject to the right of
the Contractor to cure, in the performance of any provisions of this Agreement, and the default is
not cured for any default within ten (10) calendar days if the default creates a potential public
health and safety threat or arises under Section 13.1. E, F, G, H, K, L, M, Q and or otherwise thirty
(30) calendar days after receipt of written notice of default from the City,then the City may, at its
option,terminate this Agreement.
In the event the CITY decides to terminate this Agreement,the City shall serve twenty(20)
calendar days written notice of its intention to terminate upon Contractor and will not be
required by this Agreement to take any further action such as hold any hearing, commence legal
action, or take any other action.
In the event the City exercises its right to terminate this Agreement,the City may, at its option,
upon such termination, either directly undertake performance of the services or arrange with
other Persons to perform the services with or without a written agreement. Contractor shall not
be entitled to any further revenues from Collection operations authorized hereunder from and
after the date of termination.
This right of termination is in addition to any other rights of the City upon a failure of the
Contractor to perform its obligations under this Agreement.
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E. Other Available Remedies.The City's election of one (1) or more of the remedies
described herein shall not limit the City from any and all other remedies at law and in equity
including injunctive relief and/or specific performance of any breach of this Agreement.
13.4 CRIMINAL ACTIVITY
Should the Contractor or any of its officers, directors or employees be found guilty of criminal
conduct related to the performance of this Contract, or of criminal conduct related to anti-trust
activities, illegal Transport or Disposal of hazardous or toxic materials, or bribery of public
officials,the City reserves the right to unilaterally terminate this Contract or impose other such
sanctions (which may include financial sanctions,temporary suspensions or any other condition
deemed appropriate short of termination) as it shall deem proper. Such action shall be taken after
Contractor has been given notice and opportunity to present evidence in mitigation.The term
"found guilty" shall be deemed to include any judicial determination that Contractor or any of
Contractor's officers, directors or employees is guilty and any admission of guilt by Contractor or
any of Contractor's officers, directors or employees including, but not limited to,the plea of
"guilty", "nolo contendere", "no contest", and "guilty to a lesser charge" entered as part of any
plea bargain.
13.5 POSSESSION OF RECORDS UPON TERMINATION
In the event of termination for an event of default, the Contractor shall furnish the Contract
Administrator with immediate access to all of its business records, including without limitation,
proprietary Contractor computer systems, related to its Customers, Collection routes, and billing
of accounts for Collection services in the City of Diamond Bar.
13.6 CITY'S REMEDIES CUMULATIVE;SPECIFIC PERFORMANCE
The City's rights to terminate this Agreement under Article 13.3, and to take possession of the
Contractor's records under Article 13.5 are not exclusive, and the City's termination of this
Agreement and/or the imposition of Liquidated Damages shall not constitute an election of
remedies. Instead, these rights shall be in addition to any and all other legal and equitable rights
and remedies, including but not limited to termination, which the City may have.
13.7 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 ineasurement in precise monetary terms; (iii)
that the services that are the subject of this Agreement might be available at substantially lower
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costs than alternative services and the monetary loss resulting from denial of services or denial of
quality or reliable services is impossible to calculate in precise monetary terms; and (iv)the
termination of this Agreement for such specific breaches, and other remedies are, at best, a
means of future correction and not remedies which make the public whole for past breaches.
B. Service and Diversion Performance Standards; Liquidated Damages for Failure to Meet
Standards.The parties further acknowledge that consistent, reliable Solid Waste 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 into this Agreement.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 13,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 City
Initial Here Initial Here
The Contractor agrees to pay(as Liquidated Damages and not as a penalty)the following
amounts:
LIQUIDATED DAMAGES
1. Collection Reliability Amount
A. For each failure to commence service in compliance with Section 3 to a $150.00 per occurrence.
new Customer account within seven (7) days after order,which exceeds
five (5)such failures annually.
B. For each failure,which exceeds ten (10) such failures annually, to Collect $100.00 per occurrence.
Solid Waste from any established Customer account on the scheduled
Collection day and not make up the Collection within the time allotted per
Section 4.1.2.
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LIQUIDATED DAMAGES
2. Collection Quality
A. For each occurrence of noise in excess of what is permitted under Applicable $250.00 per occurrence.
Law or discourteous behavior by Contractor's employees to Customers
which exceed ten (10) annually.
B. For each occurrence of Collecting Solid Waste during unauthorized hours $250.00 per occurrence.
which exceeds five (5) such occurrences annually.
C. For each failure to clean up Solid Waste spilled during Collection or $150.00 per occurrence.
Transportation within ninety (90) minutes that exceeds ten (10) such failures
annually.
D. For each occurrence of failure to verify that Customer has obtained an $100.00 per occurrence.
encroachment permit from the City prior to Contractor placing a Container
in the public right-of-way as per Section 3.3.6, 3.4, and 3.5 which exceeds
ten (10)such occurrences annually.
3. Collection Responsiveness
A. For each failure to initially respond to a Customer complaint within one (1) $150 per occurrence.
business day per Section 6.2.3, and for each additional day on which the
complaint is not addressed, which exceed five (5) annually.
C. For each failure to remove graffiti from Containers, or to replace with $50 per occurrence.
Containers bearing no graffiti, within three (3) business days of request from
City or Customer.
D. For each failure to repair or replace a damaged or missing Container within $50 per occurrence.
three (3) business days of request from City or Customer in accordance with
Section 4.3.1(M).
E. For each violation under Section 6.2.4 (one month of excessive complaints or $250 per occurrence.
one quarter of excessive delays in answering customer service calls).
F. For each occurrence of inaccurate information being provided to Customers $100 per occurrence.
by Contractor' s customer service department which exceeds five (5) such
occurrences annually.
G. For each failure to issue a Warning Notice due to Container Contamination $100 per Occurrence.
or Excluded Waste per Section 3.3.10 or 4.1.13 which exceeds ten (10) such
occurrences annually.
4. Diversion&SB 1383 Compliance Amount
A. Failure to deliver Collected Recyclables or Organics to the appropriate $250 per load.
Processing Facility per Section 5.2.1.
B. Failure to report loads rejected or not delivered to the Processing Facility $250 per load.
due to excessive contamination.
C. Failure to perform Route Reviews or Waste Audits $250 per occurrence.
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LIQUIDATED DAMAGES
D. For each calendar year, beginning September 1, 2025, and ending on August $25 for each ton below
31, 2035, in which Contractor fails to provide documentation to the City tonnage level necessary
within thirty (30) days of year-end, supporting that it Diverted at least 75%, to meet State-mandated
or the State-mandated Construction and Demolition Diversion percentage, Construction and
whichever is greater, of all Construction and Demolition Debris loads it Demolition Diversion
Collects under this Agreement. goal, whichever is
greater.
5.Timeliness of Submissions to City Amount
A. Any report shall be considered late until such time as a complete report is
received by City in accordance with Section 8.3. For each calendar day a
report is late,the daily liquidated damage amount shall be.
i) Monthly Reports: $50 per day.
ii) Annual Reports: $150 per day.
6.Accuracy of Billing Amount
A. Each Customer invoice that is not prepared in accordance with the City's $25 per occurrence
approved rate schedule, in excess of ten (10) annually:
7. Customer Education and Outreach Amount
A. Failure to complete the Initial Mailing per Section 6.3.1(A), and thereafter $1,000 per Rate Year
the Annual Brochure/Mailing per 6.3.1(D), by June 30 of any Rate Year.
8. Cooperation with Service Provider Transition
A. For each day the rout list and/or Customer information requested by City in $250.00 per day.
accordance with Section 14.9 is received after City-established due dates.
B. For each day delivery of keys, access codes, remote controls, or other means $250.00 per day.
of access to Solid Waste Containers is delayed beyond the time described in
Section 14.9.
The City may determine the occurrence of events giving rise to liquidated damages through the
observation by its own employees or representatives, investigation of Customer complaints or
self-reporting by the Contractor.
Prior to assessing liquidated damages, City shall give Contractor notice of its intention to do so.
The notice will include a brief description of the incident(s)/non-performance. Contractor may
review (and make copies at its own expense) all information in the possession of City relating to
incident(s)/non-performance. Contractor may, within ten (10) days after receiving the notice,
request a meeting with City. Contractor may present evidence in writing and through testimony
of its employees and others relevant to the incident(s)/non-performance. City 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 shall be final.
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C. Amount. City may assess liquidated damages for each calendar day or event, as
appropriate,that Contractor is determined to be liable in accordance with this Agreement.
D. Timing of Payment. Contractor shall pay any liquidated damages assessed by City in
accordance with this Agreement within ten (10) days after they are assessed. If they are not paid
within the ten (10) day period, City may proceed against the performance bond required by the
Agreement or find Contractor in default and terminate this Agreement pursuant to Section 13.1,
or both.
13.8 SUSPENSION OF PERFORMANCE
13.8.1 FORCE MAJEURE
The Parties shall be excused from performing their respective obligations hereunder and from any
obligation to pay Liquidated Damages to the extent and for the period of time they are prevented
from so performing by reason of floods, earthquakes, pandemics, other acts of nature,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 Solid Waste Services) have been similarly disrupted as a direct result of the
catastrophic event. Notwithstanding the foregoing, however, if Contractor is excused from
performing its obligations hereunder for any of the causes listed in this section, City may contract
with another provider to perform all or part of this Agreement until such time Contractor is able
to perform. If Contractor is unable to renew its performance of this Agreement for a period of
thirty(30) days or more, where the City is not significantly impacted by the catastrophic event,
City shall nevertheless have the right, in its sole discretion, to terminate flus Agreement by giving
ten (10) days' notice.
13.8.2 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
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this Agreement and may choose to use enforcement provisions under this Agreement,
including Sections 13.1, 13.2 and 13.3.
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 13.8.2 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, at its sole discretion,to terminate this Agreement by
giving ten (10) days' notice, and may contract with another party for Solid Waste Services.
13.9 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.
13.9.1 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.
13.9.2 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.
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13.9.3 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.
13.9.4 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.
13.9.5 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.
13.10 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.
ARTICLE 14: OTHER AGREEMENTS OF THE PARTIES
14.1 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 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, Companies,
Subcontractors and agents. Neither Contractor nor its officers, employees, Companies,
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.
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14.2 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.
14.3 GOVERNING LAW
This Agreement shall be governed by, and construed and enforced in accordance with,the laws of
the State of California.
14.4 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.With respect to venue,the
Parties agree that this Agreement is made in and will be performed in Los Angeles County.
14.5 ASSIGNMENT
Except as may be provided for in Article 12, neither party shall assign its rights, nor delegate,
subcontract or otherwise transfer its obligations under this Agreement to any other Person
without the prior written consent of the other party.Any such assignment made without the
consent of the other party 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 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
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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.
If Contractor requests City's consideration of and consent to an assignment, City may deny or
approve such request in its complete discretion. No request by Contractor for consent to an
assignment need be considered by City unless and until Contractor has met the following
requirements:
A. Contractor shall pay to City in advance of consideration of any assignment a flat fee of
$250,000 for expenses for City staff costs, consultant and attorney's fees and
investigation costs necessary to investigate the suitability of any proposed assignee, and
to review and finalize any documentation required as a condition for approving any such
assignment;
B. Contractor shall pay the City a transfer fee equal to 1%of the gross revenues times the
number of years (pro-rated for partial years) remaining under this Agreement (based on
actual rate revenues for the prior 12-months), plus the City's costs of processing and
evaluating the assignment request;
C. Contractor shall furnish City with audited financial statements of 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; and,
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 sale of operations conducted by Contractor under this Agreement; (ii)that
in the last five (5)years,the proposed assignee has not suffered any significant citations
or other censure from any federal, state or local agency having jurisdiction over its Solid
Waste management operations due to any significant failure to comply with state,federal
or local Environmental Laws and that the assignee has provided City with a complete list
of 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
Material; 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.
14.6 AFFILIATED COMPANIES
Contractor's accounting records shall be maintained on a basis showing the results of Contractor's
operations under this Agreement separately from operations in other locations, as if Contractor
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were an independent entity providing service only to City.The costs and revenues associated with
providing service to City shall not be combined, consolidated or in any other way incorporated
with those of other operations conducted by Contractor in other locations, or with those of an
Affiliate. If Contractor enters into any financial transactions with a Related Party Entity for the
provision of labor, equipment, supplies, services, capital, etc., related to the furnishing of service
under this Agreement, that relationship shall be disclosed to City, and in the financial reports
submitted to City. In such event, City's rights to inspect records, and obtain financial data shall
extend to such Related Party Entity or entities.
14J CONTRACTING OR SUBCONTRACTING
Contractor shall not engage any contractors or subcontractors for the Collection of Solid Waste.
14.8 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.
14.9 TRANSITION TO NEXT CONTRACTOR
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 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.
In recognition of the difficulty inherent in Customer's difficulty or inability to store two sets of
Containers, Contractor shall remove its Containers in coordination with the distribution of
Containers by the incoming service provider. Contractor shall cooperate with the City and
incoming service provider in agreeing to the timing of Container removal; if parties cannot agree
on a phase-out schedule and Contractor does not remove Containers in a timely manner that
requires Customers to store two Containers, City, incoming service provider, or another entity
may remove Contractor's Containers and seek cost reimbursement from Contractor through its
performance bond, letter of credit or other means.The failure to cooperate with City following
termination shall be conclusively presumed to be grounds for specific performance of this
covenant and/or other equitable relief necessary to enforce this covenant.
Contractor shall, to the maximum extent feasible, 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 (quantity, material
type, 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 calendar day(excluding Saturday, Sunday, and Designated Holidays) prior to the first day of
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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.
14.10 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.
14.11 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.
14.12 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.
14.13 NOTICE
All notices, demands, requests, proposals, approvals, consents, and other communications which
this Agreement requires, authorizes, or contemplates 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 the City:
City Manager
City of Diamond Bar
21810 Copley Drive
Diamond Bar, CA 92765
If to the Contractor:
Michael S. Hammer
President
WM Management Collection & Recycling Inc.
13940 Live Oak Ave
Baldwin Park, CA 91706
Copy to:
WM Southern California Market Area Headquarters
9081 Tujunga Ave.
Sun Valley, CA 91352
Attn: Legal Counsel
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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.
14.14 REPRESENTATIVE 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 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.
14.15 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 Services which are the subject of this
Agreement, including without limitation Collection and Processing of Recyclable and Organic
Materials, Disposal, 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 13.2 or otherwise.
14.16 COMPLIANCE WITH MUNICIPAL CODE
Contractor shall comply with those provisions of the Diamond Bar City Code which are applicable,
and with any and all amendments to such applicable provisions during the term of this
Agreement.
14.17 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
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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.
14.18 PROPRIETARY INFORMATION, PUBLIC RECORDS
The City acknowledges that a number of the records and reports of Contractor are proprietary
and confidential. Contractor is obligated to permit City inspection of its records on demand and to
provide copies to City where requested. City will endeavor to maintain the confidentiality of all
proprietary information provided by Contractor. Notwithstanding the foregoing, any documents
provided by Contractor to City that are public records may be disclosed pursuant to the California
Public Records Act.
ARTICLE 15: MISCELLANEOUS AGREEMENTS
15.1 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 acknowledge 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.
15.2 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.
15.3 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.
15.4 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.
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15.5 AGREEMENT
This Agreement may not be modified or amended in any respect except by a writing sighed by the
Parties.
15.6 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.
15.7 EXHIBITS
Each of Exhibits identified as Exhibit "1"through "8" is attached hereto and incorporated herein
and made a part hereof by this reference.
15.8 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.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, City and Contractor have executed this Agreement as of the day and year first
above written.
WASTE MANAGEMENT COLLECTION
CITY OF DIAMOND BAR AND RECYCLING, INC.
Signed by: DocuSigned by:
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Dan Fox Mike Hammer
City Manager President, So. Cal.Area
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BY: ����,,. Steve Kanow
Omar Sandoval Vice President, So. Cal. Area
City Attorney
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Kristina Santana
City Clerk
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