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HomeMy WebLinkAbout022117 - Agenda - Regular MeetingCity of Diamond Bar City Council Agenda Tuesday, February 21, 2017 Closed Session - 5:00 p.m. - Room CC -8 Study Session - 5:15 p.m. - Room CC -8 Regular Meeting - 6:30 p.m. The Government Center South Coast Air Quality Management District/ Main Auditorium 21865 Copley Drive, Diamond Bar, CA 91765 JIMMY LIN RUTH M. LOW Mayor Mayor Pro Tem CAROL HERRERA NANCY A. LYONS STEVE TYE Council Member Council Member Council Member City Manager James DeStefano • City Attorney David DeBerry • City Clerk Tommye Cribbins Copies of staff reports or other written documentation relating to agenda items are on file in the Office of the City Clerk, and are available for public inspection. If requested, the agenda will be made available in an alternative format to a person with disability as required by Section 202 of the Americans with Disabilities Act of 1990. If you have questions regarding an agenda item, please contact the City Clerk at (909) 839-7010 during regular business hours. In an effort to comply with the requirements of Title II of the Americans with Disabilities Act of 1990, the City of Diamond Bar requires that any person in need of any type of special equipment, assistance or accommodation(s) in order to communicate at a City public meeting, must inform the City Clerk a minimum of 72 hours prior to the scheduled meeting. Have online access? City Council Agendas are now available on the City of Diamond Bar's web site at www.CityofDiamondBar.com Please refrain from smoking, eating or drinking in the Council Chambers. The City of Diamond Bar uses recycled paper and encourages you to do the same. DIAMOND BAR CITY COUNCIL MEETING RULES Welcome to the meeting of the Diamond Bar City Council. Meetings are open to the public and are broadcast live on Time-Warner Cable Channel 3 and Verizon FiOS television Channel 47. You are invited to attend and participate. PUBLIC INPUT Members of the public may address the Council on any item of business on the agenda during the time the item is taken up by the Council. In addition, members of the public may, during the Public Comment period address the Council on any Consent Calendar item or any matter not on the agenda and within the Council’s subject matter jurisdiction. Persons wishing to speak should submit a speaker slip to the City Clerk. Any material to be submitted to the City Council at the meeting should be submitted through the City Clerk. Speakers are limited to five minutes per agenda item, unless the Mayor determines otherwise. The Mayor may adjust this time limit depending on the number of people wishing to speak, the complexity of the matter, the length of the agenda, the hour and any other relevant consideration. Speakers may address the Council only once on an agenda item, except during public hearings, when the applicant/appellant may be afforded a rebuttal. Public comments must be directed to the City Council. Behavior that disrupts the orderly conduct of the meeting may result in the speaker being removed from the Council chambers. INFORMATION RELATING TO AGENDAS AND ACTIONS OF THE COUNCIL Agendas for regular City Council meetings are available 72 hours prior to the meeting and are posted in the City’s regular posting locations, on DBTV Channel 3, Time-Warner Cable Channel 3, FiOS television Channel 47 and on the City’s website at www.ci.diamond-bar.ca.us. A full agenda packet is available for review during the meeting, in the foyer just outside the Council chambers. The City Council may take action on any item listed on the agenda. ACCOMMODATIONS FOR THE DISABLED A cordless microphone is available for those persons with mobility impairments who cannot access the podium in order to make a public comment. Sign language interpretation is available by providing the City Clerk three business days’ notice in advance of a meeting. Please telephone (909) 839-7010 between 7:30 a.m. and 5:30 p.m. Monday through Thursday and 7:30 a.m. to 5:30 p.m. on Fridays. HELPFUL PHONE NUMBERS Copies of agendas, rules of the Council, Cassette/Video tapes of meetings: (909) 839-7010 Computer access to agendas: www.ci.diamond-bar.ca.us General information: (909) 839-7000 THIS MEETING IS BEING BROADCAST LIVE FOR VIEWING ON TIME - WARNER CABLE CHANNEL 3 AND FRONTIER ROS TELEVISION CHANNEL 47, AS WELL AS BY STREAMING VIDEO OVER THE INTERNET AND BY REMAINING IN THE ROOM, YOU ARE GIVING YOUR PERMISSION TO BE TELEVISED. THIS MEETING WILL BE RE -BROADCAST EVERY SATURDAY AND SUNDAY AT 9:00 A.M. AND ALTERNATE TUESDAYS AT 8:00 P.M. AND ARE ALSO AVAILABLE FOR LIVE AND ARCHIVED VIEWING ON THE CITY'S WEB SITE AT WWW. D[AMONDBARCA.GOV. CITY OF DIAMOND BAR CITY COUNCIL AGENDA February 21, 2017 CLOSED SESSION: 5:00 p.m. - Room CC -8 Public Comments on Closed Session ► Conference with Real Property Negotiators pursuant to Government Code Section 54956.8 • Property: APN 8718-005 Parcels 007 and 008 (vacant property). Agency Negotiator: James DeStefano, City Manager, David DeBerry, City Attorney Negotiating Parties: City and YMCA Under Negotiations: Price and Terms of Payment STUDY SESSION: 5:15 p.m. - Room CC -8 1. Fee Study Update — Development & Administrative Miscellaneous Services - Discussion and Action. 2. Sister City - Discussion and Action. 3. Barking Dog Nuisance Process - Discussion and Action. CALL TO ORDER: 6:30 P.M. Written materials distributed to the City Council within 72 hours of the City Council meeting are available for public inspection immediately upon distribution in the City Clerk's Office at 21810 Copley Dr., Diamond Bar, California, during normal business hours. FEBRUARY 21, 2017 PAGE 2 1. 2 3. 4 5. [»4Biel =[0l;V_144*e]L1z[y=6 INVOCATION: ROLL CALL: APPROVAL OF AGENDA: Mayor Luke Pamplin Evangelical Free Church Council Members Herrera, Lyons, Tye, Mayor Pro Tem Low, Mayor Lin Mayor SPECIAL PRESENTATIONS, CERTIFICATES, PROCLAMATIONS: 1.1 Presentation to Diamond Bar Pop Warner Cheer Team for placing 6th in the Nation at the the 2016 National Cheer & Dance Championship and becoming the 2017 Jamz National Champions. NEW BUSINESS: 1.2 Presentation of Certificate Plaque to Diamond Bar Montessori Academy, 23555 Palomino Drive as New Business of the Month for February, 2017. CITY MANAGER REPORTS AND RECOMMENDATIONS: PUBLIC COMMENTS: "Public Comments" is the time reserved on each regular meeting agenda to provide an opportunity for members of the public to directly address the Council on Consent Calendar items or matters of interest to the public that are not already scheduled for consideration on this agenda. Although the City Council values your comments, pursuant to the Brown Act, the Council generally cannot take any action on items not listed on the posted agenda. Please complete a Speaker's Card and give it to the City Clerk (completion of this form is voluntary). There is a five-minute maximum time limit when addressing the City Council. RESPONSE TO PUBLIC COMMENTS: Under the Brown Act, members of the City Council may briefly respond to public comments but no extended discussion and no action on such matters may take place. SCHEDULE OF FUTURE EVENTS: 5.1 Parks and Recreation Commission Meeting - February 23, 2017- 7:00 p.m Windmill Community Room, 21810 Copley Drive. FEBRUARY 21, 2017 PAGE 3 5.2 Household Hazardous Waste and E -Waste Event - Saturday, February 25, 2017 9:00 a.m.- 3:00 p.m., Gateway Corporate Center. 5.3 Community Coffee with Senator Josh Newman - February 25, 2017 9:00 a.m.-11:00a.m., Diamond Bar Center, 1600 Grand Avenue 5.4 4t" Annual Bridal Show - February 26, 2017 - 11:00 a.m. - 3:00 p.m., Diamond Bar Center, 1600 Grand Avenue. 5.5 City Council Meeting - March 7, 2017 - 6:30 p.m., AQMD/Government Center Auditorium, 21865 Copley Drive. 6. CONSENT CALENDAR: 6.1 Waive reading in full for all ordinances and resolutions and adopt the Consent Calendar. 6.2 Approval of City Council Minutes: 6.2.a Study Session of February 7, 2017. 6.2.b Regular Meeting of February 7, 2017. Recommended Action: Approve. Requested by: City Clerk 6.3 Minutes of the Parks and Recreation Commission Meeting of November 17, 2016 6.3.a Minutes of November 17, 2016 Recommended Action: Receive and file. Requested by: City Clerk 6.4 Ratification of Check Register Dated February 2, 2017 through February 15, 2017 totaling $ 735,966.05 Recommended Action: Ratify. Requested by: Finance Department FEBRUARY 21, 2017 PAGE 4 6.5 ADOPT RESOLUTION 2017 -XX APPROVING PLANS AND SPECIFICATIONS AND ESTABLISHING A PROJECT PAYMENT ACCOUNT; AWARD CONSTRUCTION CONTRACT FOR THE TRAFFIC SIGNAL INFRASTRUCTURE UPGRADES PHASE II PROJECT TO ELECNOR BELCO ELECTRIC, INC. IN THE AMOUNT OF $449,772 AND AUTHORIZE A CONTINGENCY AMOUNT OF $42,000 FOR CONTRACT CHANGE ORDERS TO BE APPROVED BY THE CITY MANAGER, FOR A TOTAL AUTHORIZATION AMOUNT OF $491,772. Recommended Action: Adopt, award and authorize. Requested by: Public Works Department 7. PUBLIC HEARINGS: 7.1 Resolution No. 2017 -XX: A Resolution of the City Council of the City of Diamond Bar Finding and Determining That the Public Interest and Necessity Require the Acquisition By Eminent Domain of Interests in Certain Real Property For Public Use and Authorizing and Directing Condemnation of Parcel Nos. 8718-005-007 and 008. Recommended Action: It is recommended that the City Council adopt Resolution No. 2017 -XX (hereafter, "Resolution of Necessity"). Requested by: City Manager 8. COUNCIL CONSIDERATION: 8.1 (a) Adopt Resolution No. 2017 -XX: Amending the Fiscal Year 2016-17 Municipal Budget. (b) Adopt Resolution No. 2017 -XX: Amending Resolution No. 2016-40 the City of Diamond Bar's Compensation Plan Effective March 4, 2017 Recommended Action: Adopt. Requested by: Finance Department 8.2 APPROVE AMENDED AND RESTATED AGREEMENT BETWEEN CITY OF DIAMOND BAR AND USA WASTE OF CALIFORNIA, INC. (WASTE MANAGEMENT) FOR RESIDENTIAL CART CUSTOMER SOLID WASTE MANAGEMENT SERVICES Recommended Action: Approve agreement. Requested by: City Manager 8.3 APPROVE AMENDED AND RESTATED AGREEMENT BETWEEN CITY OF DIAMOND BAR AND VALLEY VISTA SERVICES FOR BIN ROLL- OFF BOX CUSTOMER SOLID WASTE MANAGEMENT SERVICES Recommended Action: Approve agreement. FEBRUARY 21, 2017 PAGE 5 Requested by: City Manager 9. COUNCIL SUB -COMMITTEE REPORTS AND MEETING ATTENDANCE REPORTS/COUNCIL MEMBER COMMENTS: 10. ADJOURNMENT Agenda #: 1 Meeting Date: February 21, 2017 CITY COUNCIL STUDY SESSION REPORT TO: Honorable Mayor and Members of the City Council VIA: James DeStefano, City Manager / FROM: Ryan McLean, Assistant City Manag6, TITLE: FEE STUDY UPDATE — DEVELOPMENT & ADMINISTRATIVE MISCELLANEOUS SERVICES - DISCUSSION AND ACTION. BACKGROUND: The City of Diamond Bar provides customer service -focused and cost-effective municipal services to the public. These services can be classified as community supported services or personal choice services. Community supported services have an implicit rationale for subsidization based on overall community welfare, such as social and safety services like parks and public safety, and are generally funded with taxes. Personal choice services are those provided directly to individuals for personal benefit that can be otherwise withheld for non-payment, such as building permits and facility rentals. The general assumption is that the cost of providing personal choice services is that their cost should be primarily borne by the individual receiving the benefit rather than be subsidized by the taxpayer. Cities customarily perform fee study updates at regular intervals to determine if fees are in line with operating costs and to make policy decisions to determine the appropriate level of subsidy, if any. The City's most recent analysis was performed in 2009, which resulted in the City Council adopting a three year phased fee increase plus an annual Consumer Price Index (CPI) adjustment each fiscal year thereafter. The City Council's 2009 action did not result in full cost recovery, and the majority of personal choice services remain subsidized today. In 2016, the City Manager authorized Revenue Cost Specialists (RCS) to perform a comprehensive user fee study for a total not -to -exceed cost of $26,000. RCS is an expert in the field of cost analysis, completing comprehensive fee studies that provide a documented and systematic approach to managing fees and maintaining long-term financial sustainability for cities across the state. The RCS report was commissioned with the following goals in mind: 1. Conduct a cost and revenue analysis to determine the fully -burdened cost of Packet Pg. 8 personal choice services, including all direct and indirect costs, and identify subsidies. 2. Identify the beneficiary of City services to determine if the recipient is paying in relationship to the benefits derived or if the service has community benefits and is deserving of subsidy. 3. Develop a legally defensible baseline for calculating personal services fees under the "costs reasonably borne" test under Article XIIB of the California Constitution. The test provides that the City is entitled to collect fees for personal choice services that include all applicable direct and indirect costs, overhead, and debt service costs as established in the study. While the City Council may choose to subsidize any or all personal choice services, failing to collect all costs reasonably borne in providing the service will lead to inequity between taxpayers and the recipient of the service (taxpayer subsidization). 4. Recommend fee and policy adjustments to ensure the City's long-term financial health and ability to maintain service levels. To develop the report and meet these goals, RCS conducted extensive interviews across departments over a period of months, establishing time and volume data for each service while compiling associated overhead costs (personnel/consultants, facility costs, maintenance, equipment and supplies, other administrative overhead, etc.). This complete approach provides a more accurate reflection of the true cost of each service than would a standardized blended hourly personnel rate. DISCUSSION: The results of the study show that full costs of delivering fee -financed personal choice services exceed current and expected fee revenues on an annual basis in all service centers (Development Services, Parks & Recreation, & Administrative/Miscellaneous Services), meaning that tax dollars are diverted to subsidize the difference between fee revenues collected and full business costs incurred. Acknowledging the extensive amount of services provided and complexity of the policy matters related to the fee study, staff will present recommendations for Parks & Recreation to the City Council at a future meeting and will focus now on the results for Development and Administrative/Miscellaneous Services. Development Services are classified as those services provided by the Community Development and Public Works Departments, specifically under the Building & Safety, Engineering, and Planning Divisions. Specific services include development, plot plan, and environmental reviews, plan checks and inspections, and various permits (building, grading, CUP/TUP, encroachment, etc.), among many others. These personal choice services mainly benefit a developer or specific property owner and their costs would not otherwise be borne by the City. In FY 2015-16, the City's Development Services fees were subsidized by 38.3%, for a total taxpayer subsidy of $917,534. Administrative/Miscellaneous Services include a variety of services not classified under the City's other service centers. These include various permits (film, self -haul, parking, etc.), false alarm billing, and NSF check fees, among others. Like Development Packet Pg. 9 Services outlined above, these personal choice services benefit or are otherwise the result of individual action and would not otherwise be borne by the City. In FY 2015-16, the City's Administrative/Miscellaneous Services fees were subsidized by 14.2%, for a total taxpayer subsidy of $25,493. It should be noted that any fees found in the study to be exceeding the costs reasonably borne will be reduced to the correct level. ANALYSIS: The City Council has a 28 -year history of prudent fiscal management, resulting in balanced budgets and significant reserves, even in the midst of the 2008 national economic recession. To maintain this strong foundation as the City matures, the City Council should enact policy that protects long-term financial sustainability and the City's limited revenue sources. As a primarily built -out bedroom community, Diamond Bar's large-scale commercial growth potential is inherently limited, and the City does not currently have the luxury of a mall, auto dealerships, or major tourist attractions that generate significant sales and transient occupancy tax revenues. Furthermore, Diamond Bar's 5.9% share of the County property tax pool is among the lowest in the County, offering little cushion to absorb subsidies over time. These facts highlight the need to maintain strategic fiscal management and reduce tax subsidies so those monies can be used to pay for services with community -wide benefits. As costs increase over time, the City's tax subsidies for personal choice services will also increase, leaving the Council with a choice between continuing taxpayer subsidies and reducing service levels or adjusting fees to capture the costs reasonably borne by providing the service to an individual or developer. To better account for the City's ongoing business costs, it is appropriate to make adjustments to fees for those services. Therefore, staff recommends that the City Council move to eliminate tax subsidies for personal choice services in the Development and Administrative/Miscellaneous Services categories, with some minor exceptions as noted in the attached matrices (Exhibits A, B, & C). Approval of this recommendation would result in a conservatively estimated subsidy reduction of $652,675. To provide additional context to the discussion, staff has included the following examples. Example 1: Business License Fees The vast majority of California cities require licensing for all businesses. This regulatory permit provides a check to ensure all businesses within the city limits are in compliance with local zoning requirements and city ordinances. Many cities base business license fees on gross receipts, generating significant annual revenues to the City. To maintain the City's commitment to business -friendly practices, Diamond Bar's business license initiation and renewal fees are set at $11 annually. These rates are unchanged with staff's recommendation. Example 2: Water Heater/Dishwasher Permit A water heater/dishwasher installation permit is a common building and safety plumbing Packet Pg. 10 inspection/permitting service. The permit fee is made up of the following components, as follows: Example 3: Reroof (2,200 square feet) Reroofing permits and inspections are common services requested by homeowners. The total permit fee is made up of the following components, as follows: Reroof (2,200 square feet) Water Heater/Dishwasher Permit Current Component Current Proposed Change Plumbing Inspection Fee $61.62 $53.68 -$7.94 Permit Fee $36.12 $43.34 $7.22 Retention Fee $2.00 $4.85 $2.85 Total $99.74 $101.87 $2.13 Example 3: Reroof (2,200 square feet) Reroofing permits and inspections are common services requested by homeowners. The total permit fee is made up of the following components, as follows: Reroof (2,200 square feet) Component Current Proposed Change Construction Inspection Fee $192.22 $230.68 $38.47 Permit Fee $36.12 $43.34 $7.22 Retention Fee $2.00 $13.70 $12.70 SMIP (State Fee) $2.00 $2.00 $0.00 BASF (State Fee) $1.00 $1.00 $0.00 Total $233.34 $290.72 $57.38 Example 4: Electrical Panel Upgrade (200) This example shows the proposed change in cost for an electrical permit and inspection. Example 5: Solar Plan Check/Inspection (7.56kW roof system) More and more homeowners are choosing to install rooftop solar generating systems on their properties to reduce energy costs and produce clean energy. Solar Plan Check/Inspection 7.56kW roof system) Electrical Panel Upgrade (200) Category Component Current Proposed Change Electrical Inspection Fee $72.28 $87.90 $15.62 Permit Fee $36.12 $43.34 $7.22 Retention Fee $2.00 $6.56 $4.56 Total $110.40 $137.80 $27.40 Example 5: Solar Plan Check/Inspection (7.56kW roof system) More and more homeowners are choosing to install rooftop solar generating systems on their properties to reduce energy costs and produce clean energy. Solar Plan Check/Inspection 7.56kW roof system) Category Current Proposed Change Single Family Residence $500.00 (+ $15 per kW) $305.00 -$195.00 Commercial Structure $1,000.00 (+ $7 per kW) $1,050.00 (+$5 per kW) $50.00 Packet Pg. 11 Example 6: Streamlined Plot Plan Review This is a service reviews design and code/zoning compliance for a project with an addition of 300-500 square feet. This service requires significant staff processing time (nearly four hours on average) and is currently highly subsidized. To reduce costs to homeowners in the future, this service has been separated from a standard plot plan review that carries a higher fee (they are currently bundled with standard/larger plot plans). Streamlined Plot Plan Review Current Proposed Change $245.62 $590.00 $344.38 Example 7: Plot Plan Review This service reviews design and code/zoning compliance for more significant projects such as a new second story or an addition not more than 50% of the existing square feet. This service requires significant staff processing time (more than 10 hours on average) and is currently highly subsidized. Plot Plan Review Current Proposed Change $245.62 $1,670 $344.38 Example 8: NSF Check Processing (Administrative/Miscellaneous Services example) This service is for processing an insufficient funds check. NSF Check Processing Current Proposed Change $15.00 per check $46.00 per check $31.00 CONCLUSION: Staff requests that the City Council review the results and recommendations and provide direction to staff. Upon receipt of the Council's direction, staff will prepare a Master Fee Resolution for Development and Administrative/Miscellaneous Fee for consideration and adoption at an upcoming meeting. As mentioned above, staff will present the results and recommendations for Parks & Recreation at a later date. Attachments: 1. 1.a Cost of Services Study - Attachment A Planning Engineering 2. 1.b Cost of Services Study - Attachment B Building 3. 1.c Cost of Services Study - Attachment C Admin Services Packet Pg. 12 APPENDIX A SUMMARY OF CURRENT AND PROPOSED FEES FOR PLANNING ENGINEERING 1.a Packet Pg. 13 CITY OF DIAMOND BAR FEE COMPARISON REPORT FY 2016-2017 1.a REF #: S-001 TITLE: CONDITIONAL USE PERMIT - MINOR CURRENT FEE RECOMMENDED FEE $1,444.81 Deposit $1,595 per application plus $2,000 deposit with charges at the fully allocated hourly rates for all project personnel plus any outside costs. REF #: S-002 TITLE: CONDITIONAL USE PERMIT - MAJOR CURRENT FEE RECOMMENDED FEE $2,889.62 Deposit $1,995 per application plus $4,000 deposit with charges at the fully allocated hourly rates for all project personnel plus any outside costs. REF #: S-003 TITLE: CONDITIONAL USE PERMIT AMENDMENT CURRENT FEE RECOMMENDED FEE None $2,835 per application REF #: S-004 TITLE: ADMINISTRATIVE DEVELOPMENT REVIEW CURRENT FEE RECOMMENDED FEE $1,444.81 Deposit $1,755 per application plus $2,000 deposit with charges at the fully allocated hourly rates for all project personnel plus any outside costs. REF #: S-005 TITLE: DEVELOPMENT REVIEW CURRENT FEE RECOMMENDED FEE $2,889.62 Deposit $2,855 per application plus $5,000 deposit with charges at the fully allocated hourly rates for all project personnel plus any outside costs. REF #: S-006 TITLE: PLOT PLAN REVIEW CURRENT FEE RECOMMENDED FEE $245.62 per project $1,670 per application 1 January 31, 2017 Packet Pg. 14 1.a January 31, 2017 2 Packet Pg. 15 CITY OF DIAMOND BAR FEE COMPARISON REPORT FY 2016-2017 REF #: S-007 TITLE: STREAMLINED PLOT PLAN REVIEW CURRENT FEE RECOMMENDED FEE A $245.62 per application $590 per application 'a O .r REF #: S-008 TITLE: ZONING CLEARANCE CURRENT FEE RECOMMENDED FEE $43.34 per application $75 per application r v REF #: S-009 TITLE: GENERAL PLAN AMENDMENT L a� m c CURRENT FEE RECOMMENDED FEE C $5,849.92 Deposit $10,000 deposit with charges at the fully allocated hourly rates W for all personnel involved plus any outside costs. REF #: S-010 TITLE: SPECIFIC PLAN cOo a Q CURRENT FEE RECOMMENDED FEE _ $5,779.25 Deposit $10,000 deposit with charges at the fully allocated hourly rates N E for all personnel involved plus any outside costs. v to REF #: S-011 TITLE: SPECIFIC PLAN AMENDMENT r r Q CURRENT FEE RECOMMENDED FEE N None $5,000 deposit with charges at the fully allocated hourly rates for N all personnel involved plus any outside costs. m v REF #: S-012 TITLE: ZONING CODE AMENDMENT y 4- 0 CURRENT FEE RECOMMENDED FEE r N O $5,779.24 Deposit $10,000 deposit with charges at the fully allocated hourly rates V for all personnel involved plus any outside costs. January 31, 2017 2 Packet Pg. 15 CITY OF DIAMOND BAR FEE COMPARISON REPORT FY 2016-2017 1.a REF #: S-013 TITLE: ZONING MAP AMENDMENT CURRENT FEE RECOMMENDED FEE $5,779.24 Deposit $10,000 deposit with charges at the fully allocated hourly rates for all personnel involved plus any outside costs. REF #: S-014 TITLE: DEVELOPMENT AGREEMENT CURRENT FEE RECOMMENDED FEE $4,334.43 Deposit $10,000 deposit with charges at the fully allocated hourly rates for all personnel involved plus any outside costs. REF #: S-015 TITLE: ANNEXATION CURRENT FEE RECOMMENDED FEE $5,779.24 Deposit $10,000 deposit with charges at the fully allocated hourly rates for all personnel involved plus any outside costs. REF #: S-016 TITLE: DENSITY BONUS CURRENT FEE RECOMMENDED FEE None $5,000 deposit with charges at the fully allocated hourly rates for all personnel involved plus any outside costs. REF #: S-017 TITLE: VARIANCE CURRENT FEE RECOMMENDED FEE $2,889.62 Deposit $5,000 deposit with charges at the fully allocated hourly rates for all personnel involved plus any outside costs. REF #: S-018 TITLE: MINOR VARIANCE CURRENT FEE RECOMMENDED FEE $614.04 per application $1,420 per application 3 January 31, 2017 Packet Pg. 16 1.a CITY OF DIAMOND BAR FEE COMPARISON REPORT FY 2016-2017 REF #: S-019 TITLE: ENVIRONMENTAL CATEGORICAL EXEMPTION CURRENT FEE RECOMMENDED FEE $36.12 per application plus State and County fees $75 per application plus State and County fees d N U. REF #: S-020 TITLE: ENVIRONMENTAL NEGATIVE DECLARATION ti r r CURRENT FEE RECOMMENDED FEE Actual Costs with deposit determined by staff Deposit determined by staff with charges at the fully allocated L hourly rates for all personnel involved plus any outside costs. c REF #: S-021 TITLE: ENVIRONMENTAL IMPACT REPORT w a� c .E c CURRENT FEE RECOMMENDED FEE p, Actual Costs with deposit determined by staff Deposit determined by staff with charges at the fully allocated Q hourly rates for all personnel involved plus any outside costs. C N E REF #: S-022 TITLE: MITIGATION MONITORING U r r Q CURRENT FEE RECOMMENDED FEE Actual Costs with deposit determined by staff Deposit determined by staff with charges at the fully allocated N hourly rates for all personnel involved plus any outside costs. un d U REF #: S-023 TITLE: TENTATIVE MAP REVIEW m N 4- 0 CURRENT FEE RECOMMENDED FEE r 0 Tenative Parcel Map - $4,334.43 Deposit Tentative Parcel Map - $5,000 deposit with charges at the fully Tentative Tract Map - $7,224.05 Deposit allocated hourly rates for all personnel involved plus any outside r Parcel Map Waiver - $1,413.62 Deposit costs. Revision after Map is Approved - $2,889.62 Deposit Tentative Tract Map - $10,000 deposit with charges at the fully m allocated hourly rates for all personnel involved plus any outside E costs. v ca .r Q REF #: S-024 TITLE: CC&R REVIEW CURRENT FEE RECOMMENDED FEE $2,167.21 Deposit $5,000 deposit with charges at the fully allocated hourly rates for all personnel involved plus any outside costs. January 31, 2017 4 Packet Pg. 17 CITY OF DIAMOND BAR FEE COMPARISON REPORT FY 2016-2017 1.a REF #: S-025 TITLE: JOINT USE PARKING PERMIT AGREEMENT CURRENT FEE RECOMMENDED FEE No Public Hearing - $614.04 deposit Deposit determined by staff with charges at the fully allocated With Public Hearing - $1,444.81 deposit hourly rates for all personnel involved plus any outside costs. REF #: S-026 TITLE: LANDSCAPE PLAN CHECK CURRENT FEE RECOMMENDED FEE Contract cost plus 18% $340 per application plus any outside costs REF #: S-027 TITLE: LARGE FAMILY DAY CARE PERMIT CURRENT FEE RECOMMENDED FEE No Public Hearing - $2,039.58 per application This fee is already covered as a Conditional Use Permit (T-002), With Public Hearing - $4,342.32 per application and therefore should be removed as a separate fee. REF #: S-028 TITLE: COMPREHENSIVE SIGN PROGRAM CURRENT FEE RECOMMENDED FEE $1,011.37 Deposit $1,620 per application plus $2,000 deposit with charges at the fully allocated hourly rates for all project personnel plus any outside costs. REF #: S-029 TITLE: SIGN REVIEW CURRENT FEE RECOMMENDED FEE $72.25 per application $125 per application REF #: S-030 TITLE: TEMPORARY SIGN REVIEW CURRENT FEE RECOMMENDED FEE $36.12 per application plus a $100 refundable deposit when sign $70 per application is removed 5 January 31, 2017 Packet Pg. 18 CITY OF DIAMOND BAR FEE COMPARISON REPORT FY 2016-2017 1.a REF #: S-031 TITLE: MILLS ACT PROCESSING CURRENT FEE RECOMMENDED FEE None $5,000 deposit with charges at the fully allocated hourly rates for all personnel involved plus any outside costs. REF #: S-032 TITLE: ADULT ORIENTED BUSINESS/ENTERTAINER CURRENT FEE RECOMMENDED FEE $2,570.49 Deposit $2,160 per application REF #: S-033 TITLE: PUBLIC CONVENIENCE & NEC. (ABC) REV CURRENT FEE RECOMMENDED FEE $245.62 per application $385 per application REF #: S-034 TITLE: TREE PERMIT CURRENT FEE RECOMMENDED FEE No Public Hearing - $614.04 per application No Public Hearing - $1,185 per application With Public Hearing - $1,011.37 Deposit With Public Hearing - $2,500 deposit with charges at the fully allocated hourly rates for all personnel involved plus any outside costs. REF #: S-035 TITLE: ANIMAL PERMIT CURRENT FEE RECOMMENDED FEE No Public Hearing - $245.62 per application Deposit determined by staff with charges at the fully allocated With Public Hearing - $1,011.37 Deposit hourly rates for all personnel involved plus any outside costs. REF #: S-036 TITLE: TEMPORARY USE PERMIT CURRENT FEE RECOMMENDED FEE No Public Hearing - $245.62 per application $250 per application With Public Hearing - $1,011.37 Deposit 0 January 31, 2017 Packet Pg. 19 CITY OF DIAMOND BAR FEE COMPARISON REPORT FY 2016-2017 REF #: S-037 TITLE: PLANNING INTERPRETATION CURRENT FEE RECOMMENDED FEE $712.82 Deposit $975 per application 1.a REF #: S-038 TITLE: PRELIMINARY PROJECT REVIEW CURRENT FEE RECOMMENDED FEE $1,444.81 Deposit $1,835 per application 50% of this fee will be credited towards future Planning fees for this project REF #: S-039 TITLE: EXTENSION OF TIME CURRENT FEE RECOMMENDED FEE No Public Hearing - $122.81 per application No Public Hearing - $150 per application With Public Hearing - $1,011.37 per application With Public Hearing - $2,835 per application REF #: S-040 TITLE: PLANNING APPEAL CURRENT FEE RECOMMENDED FEE $722.40 per appeal plus additional costs determined by $3,575 per appeal Community Development Director if needed REF #: S-041 TITLE: MISCELLANEOUS/SPECIAL STUDY REVIEW CURRENT FEE RECOMMENDED FEE Actual cost of providing document plus City Overhead Deposit determined by staff with charges at the fully allocated hourly rates for all personnel involved plus any outside costs. REF #: S-042 TITLE: NEW BUSINESS LICENSE PROCESSING CURRENT FEE RECOMMENDED FEE $10 per application plus $1 State fee $38 per application plus $1 State fee 7 January 31, 2017 Packet Pg. 20 CITY OF DIAMOND BAR FEE COMPARISON REPORT FY 2016-2017 REF #: S-043 TITLE: RENEWAL BUSINESS LICENSE PROCESSING CURRENT FEE RECOMMENDED FEE $10 per renewal plus $1 State fee $17 per renewal plus $1 State fee REF #: S-044 TITLE: FINAL MAP REVIEW CURRENT FEE 1-5 lots - $1,444.81 6-10 lots - $1,878.25 11-25 lots - $2,528.42 26-50 lots - $4,045.47 51-100 lots - $6,284.92 101-150 lots - $9,391.26 151+ lots $9,391.26 plus $50.57 per lot over 150 Certificate of Compliance - $568.80 1.a RECOMMENDED FEE Minimum $2,500 deposit with charges at the fully allocated hourly rates for all personnel involved plus any outside costs. REF #: S-045 TITLE: LOT LINE ADJUSTMENT CURRENT FEE RECOMMENDED FEE $2,889.62 Deposit Minimum $2,500 deposit with charges at the fully allocated hourly rates for all personnel involved plus any outside costs. REF #: S-046 TITLE: CERTIFICATE OF CORRECTION/MAP AMEND CURRENT FEE RECOMMENDED FEE $2,531.99 Deposit Minimum $2,500 deposit with charges at the fully allocated hourly rates for all personnel involved plus any outside costs. REF #: S-047 TITLE: DEDICATION/EASEMENTNACATION REVIEW CURRENT FEE RECOMMENDED FEE 1-10,000 square feet - $1,806.01 per application Minimum $2,500 deposit with charges at the fully allocated 10,000+ square feet - $4,334,43 per application hourly rates for all personnel involved plus any outside costs. 0 January 31, 2017 Packet Pg. 21 CITY OF DIAMOND BAR FEE COMPARISON REPORT FY 2016-2017 REF #: S-048 TITLE: GRADING PLAN REVIEW CURRENT FEE RECOMMENDED FEE 50-100 CY - $316.27 101-1,000 CY - $279.66 plus $72.74 per 100 CY in excess of 101 1,001-10,000 CY - $1,123.48 plus $77.88 per 1,000 CY in excess of 1,001 10,001-100,000 CY - $1,824.36 plus $46.23 per 1,000 CY in excess of 10,001 100K -500K CY - $4,773.62 plus $127.29 per 10K CY in excess of 100K 500,001+ CY - $6,138.27 plus $127.29 per 10K CY in excess of 500K 1.a 50-100 CY - $1,065 101-1,000 CY - $1,065 plus $22 per 100 CY in excess of 101 1,001-10,000 CY - $1,263 plus $60 per 1,000 CY in excess of 1,001 10,001+ CY - Deposit determined by staff with charges at the fully allocated hourly rates for all personnel involved plus any outside costs REF #: S-049 TITLE: GRADING INSPECTION CURRENT FEE 50-100 CY - $245.62 101-1,000 CY - $268.01 plus $78.60 per 100 CY in excess of 101 1,001-10,000 CY - $976.11 plus $65.88 per 1,000 CY in excess of 1,001 10,001-100,000 CY - $1,568.20 plus $42.04 per 1,000 CY in excess of 10,001 100,000+ CY - $2,567.26 plus $104.089 per 10,000 CY in excess of 100,001 RECOMMENDED FEE 50-100 CY - $700 101-1,000 CY - $700 plus $7.50 per 100 CY in excess of 101 1,001-10,000 CY - $768 plus $87 per 1,000 CY in excess of 1,001 10,001+ CY - Deposit determined by staff with charges at the fully allocated hourly rates for all personnel involved plus any outside costs REF #: S-050 TITLE: IMPROVEMENT PLAN CHECUNSPECTION CURRENT FEE Street Plan Check - $0.17 per linear foot, minimum of $736.85 Street Inspection - $0.07 per Linear Foot, minimum of $772.97 Sewer Plan Check - $2.46 per linear foot, minimum of $368.43 Sewer Inspection - $3.76 per Linear Foot, minimum of $527.36 Storm Drain Plan Check - $2.46 per linear foot, minimum of $325.08 Storm Drain Inspection - $3.76 per Linear Foot, minimum of $469.56 As-Builts - $2,889.62 minimum deposit Change of Plans - $2,889.62 minimum deposit RECOMMENDED FEE As-Builts - $3,000 deposit with charges at the fully allocated hourly rates for all personnel involved plus any outside costs. Other - Deposit determined by staff with charges at the fully allocated hourly rates for all personnel involved plus any outside costs. REF #: S-051 TITLE: DRAIN/EROSION CONTROL PLAN REV/INSP CURRENT FEE RECOMMENDED FEE $245.62 per application $245 per application 0 January 31, 2017 Packet Pg. 22 1.a January 31, 2017 10 Packet Pg. 23 CITY OF DIAMOND BAR FEE COMPARISON REPORT FY 2016-2017 REF #: S-052 TITLE: LOW IMPACT DEVELOP PLAN REVIEW CURRENTFEE RECOMMENDED FEE SUSMP - $2,889.62 Deposit Deposit determined by staff with charges at the fully allocated 3 hourly rates for all personnel involved plus any outside costs. m U - REF #: S-053 TITLE: STORMWATER PROTECT PLAN REV/INSPECT r r CURRENTFEE RECOMMENDED FEE None Deposit determined by staff with charges at the fully allocated m hourly rates for all personnel involved plus any outside costs. c REF #: S-054 TITLE: STORMWATER BUSINESS INSPECTION w a� c .E c ca CURRENTFEE RECOMMENDED FEE d None $300 per inspection Q c O REF #: S-055 TITLE: STORM DRAIN TRANSFER TO COUNTY ca Q CURRENTFEE RECOMMENDED FEE $1,011.37 per application $660 per application U) N v REF #: S-056 TITLE: STOCKPILE/BORROW SITE PLAN REVIEW U) O CURRENTFEE RECOMMENDED FEE r O U $281.74 per plan $155 per plan r a+ C d REF #: S-057 TITLE: STOCKPILE/BORROW SITE INSPECTION E t L) CURRENTFEE RECOMMENDED FEE Q $217.34 per permit $155 per permit January 31, 2017 10 Packet Pg. 23 1.a CITY OF DIAMOND BAR FEE COMPARISON REPORT FY 2016-2017 REF #: S-058 TITLE: ENGINEERING REPORT REVIEW CURRENT FEE RECOMMENDED FEE A $2,626.25 Deposit Minimum $2,500 deposit with charges at the fully allocated -a hourly rates for all personnel involved plus any outside costs. d REF #: S-059 TITLE: GEOTECHNICAL OBSERVATION/REPORT REV ti CURRENT FEE RECOMMENDED FEE r r Observation - $2,667.02 Deposit Minimum $2,500 deposit with charges at the fully allocated Report Review - $2,928.39 Deposit hourly rates for all personnel involved plus any outside costs. REF #: S-060 TITLE: CHANGE OF ADDRESS REQUEST CURRENT FEE RECOMMENDED FEE $369.66 per application $400 per application REF #: S-061 TITLE: CURB/GUTTER ENCROACHMENT PERMIT CURRENT FEE RECOMMENDED FEE Plan Check - $0.66 per linear foot, minimum of $122.81 $435 per linear foot plus $2 per linear foot over 100 linear feet Inspection - $0.66 per Linear Foot, minimum of $281.74 REF #: S-062 TITLE: SIDEWALK ENCROACHMENT PERMIT CURRENT FEE RECOMMENDED FEE Plan Check - $0.66 per linear foot, minimum of $122.81 $435 per permit plus $2 per linear foot over 100 linear feet Inspection - $0.72 per Linear Foot, minimum of $281.74 REF #: S-063 TITLE: DRIVEWAY APPROACH ENCROACH PERMIT CURRENT FEE RECOMMENDED FEE Plan Check - $122.81 per permit Replacement of Existing - $435 per permit Inspection - $404.55 per permit New/Relocation/Widen - $615 per permit 11 January 31, 2017 Packet Pg. 24 1.a CITY OF DIAMOND BAR FEE COMPARISON REPORT FY 2016-2017 REF #: S-064 TITLE: CURB CORE ENCROACHMENT PERMIT CURRENTFEE RECOMMENDED FEE A $110 per permit $110 per permit 3 w a> m REF #: S-065 TITLE: PARKWAY DRAIN ENCROACHMENT PERMIT ILL r CURRENTFEE RECOMMENDED FEE 77- $368.43 $368.43 per permit $370 per permit rn REF #: S-066 TITLE: UTILITY STREET CUT ENCROACH PERMIT CURRENTFEE RECOMMENDED FEE 1-150 LF - $281.74 $655 per permit plus $3 per linear foot over 150 linear feet 151-500 LF - $404.55 501-1,000 LF - $527.36 REF #: S-067 TITLE: NON -STREET CUT UTIL ENCROACH PERMIT CURRENTFEE RECOMMENDED FEE None $220 per permit REF #: S-068 TITLE: UTILITY RESIDENTIAL STREET CLOSURE CURRENTFEE RECOMMENDED FEE None $265 per permit REF #: S-069 TITLE: SEWER LATERAL PERMIT CURRENTFEE RECOMMENDED FEE $250.55 per permit plus County fee of $154 $220 per permit plus County fee January 31, 2017 12 Packet Pg. 25 CITY OF DIAMOND BAR FEE COMPARISON REPORT FY 2016-2017 1.a REF #: S-070 TITLE: MONITORING WELL PERMIT CURRENT FEE RECOMMENDED FEE Quarterly - $210.54 $195 per permit Semi -Annual - $281.74 Annual - $404.55 Permit is valid for 90 days. REF #: S-071 TITLE: DUMPSTER/STORAGE ENCROACH PERMIT CURRENT FEE RECOMMENDED FEE Per Day - $65.02 $35 per permit Per Week - $81.52 Permit is good for 7 days. REF #: S-072 TITLE: LANE CLOSURE PERMIT CURRENT FEE RECOMMENDED FEE $252.84 per week $265 per permit REF #: S-073 TITLE: OVERWIDE/LONG LOAD PERMIT CURRENT FEE RECOMMENDED FEE $16 per permit $16 per permit County - No Charge This fee is set by the State REF #: S-074 TITLE: TRAFFIC CONTROL PLAN/INSPECTION CURRENT FEE RECOMMENDED FEE Plan Check - $3,173.30 per sheet deposit Deposit determined by staff with charges at the fully allocated Inspection - $2,631.71 deposit hourly rates for all personnel involved plus any outside costs. REF #: S-075 TITLE: PERMANENT ENCROACHMENT AGREEMENT CURRENT FEE RECOMMENDED FEE None New - $295 per application plus any actual legal/outside costs Existing - $160 per application plus any actual legal/outside costs 13 January 31, 2017 Packet Pg. 26 CITY OF DIAMOND BAR FEE COMPARISON REPORT FY 2016-2017 REF #: S-076 TITLE: ENCROACHMENT PERMIT TIME EXTENSION CURRENTFEE Unexpired Plan Checks/Permit - $158.93 RECOMMENDED FEE $25 per application REF #: S-077 TITLE: HOUSE NUMBER PAINTING PERMIT CURRENT FEE RECOMMENDED FEE $1,000 Refundable Deposit $65 per permit plus $1,000 refundable deposit REF #: S-078 TITLE: OTHER ENGINEER INSPECTION/PLAN REV 1.a CURRENT FEE RECOMMENDED FEE Plan Review - $2,889.62 Deposit Minimum $2,500 deposit with charges at the fully allocated Inspection - $738.04 Deposit hourly rates for all personnel involved plus any outside costs. REF #: S-079 TITLE: ENGINEER RE-INSPECT/EXTRA PLAN REV CURRENT FEE RECOMMENDED FEE Plan Review - $2,296.49 Deposit Deposit determined by staff with charges at the fully allocated Inspection - $598.13 Deposit hourly rates for all personnel involved plus any outside costs. REF #: S-080 TITLE: DEVELOPER BASED DEPOSIT REVIEW CURRENT FEE RECOMMENDED FEE See Detail on Deposit -Based Service Sheets See Detail on Deposit -Based Service Sheets REF #: S-081 TITLE: BUILDING PLAN CHECK/INSPECTION CURRENT FEE RECOMMENDED FEE New Construction - Various fees based on valuation To recover 100% of these costs the City should increase the Trade Permits - Various fees current Building Plan Check and Permit fees by 20%. See Appendix D for detail See Appendix D for detail 14 January 31, 2017 Packet Pg. 27 CITY OF DIAMOND BAR FEE COMPARISON REPORT FY 2016-2017 1.a REF #: S-082 TITLE: SOLAR PLAN CHECK/INSPECTION CURRENT FEE RECOMMENDED FEE Residential - $500 plus $15 per kW above 15kW Single Family Residential - $305 Commercial - $1,000 plus Multi Family Residential/Commercial/Industrial - $1,050 plus $5 $7 per kW up to 250kW per kW above 250 kW $5 per kW above 250 kW REF #: S-083 TITLE: CERTIFICATE OF OCCUPANCY CURRENT FEE RECOMMENDED FEE $174.50 per certificate $170 per certificate REF #: S-084 TITLE: TEMPORARY CERTIFICATE OF OCCUPANCY CURRENT FEE RECOMMENDED FEE $98.89 per application $385 per application plus any outside costs REF #: S-085 TITLE: PRE -ALTERATION INSPECTION CURRENT FEE RECOMMENDED FEE $98.89 per inspection $100 per inspection REF #: S-086 TITLE: BUILDING DEMOLITION INSPECTION CURRENT FEE RECOMMENDED FEE $174.50 per permit Complete Demolition - $115 per permit Partial Demolition - $390 per permit REF #: S-087 TITLE: ALTERNATE MATERIALS/METHODS REVIEW CURRENT FEE RECOMMENDED FEE None $155 per application or actual costs at the discretion of the Building Official 15 January 31, 2017 Packet Pg. 28 1.a CITY OF DIAMOND BAR FEE COMPARISON REPORT FY 2016-2017 REF #: S-088 TITLE: SPECIAL INSPECTOR REVIEW CURRENT FEE RECOMMENDED FEE $52.36 per job site per specialty $35 per job site per specialty REF #: S-089 TITLE: BUILDING PERMIT EXTENSION CURRENT FEE RECOMMENDED FEE $98.89 per application $0-$100,000 valuation - $75 per application $100,001+ valuation - $255 per application REF #: S-090 TITLE: BUILDING APPEAL CURRENT FEE RECOMMENDED FEE None $1,555 per appeal REF #: S-091 TITLE: BUILDING FEE REFUND CURRENT FEE RECOMMENDED FEE None Charge 20% of the original fee amount up to $350 maximum. REF #: S-092 TITLE: DUPLICATE BUILDING INSPECTION CARD CURRENT FEE RECOMMENDED FEE None $25 per card REF #: S-093 TITLE: AFTER HOURS CONSTRUCTION REVIEW CURRENT FEE RECOMMENDED FEE None $260 per application January 31, 2017 16 Packet Pg. 29 1.a CITY OF DIAMOND BAR FEE COMPARISON REPORT FY 2016-2017 REF #: S-094 TITLE: INSPECTION OUTSIDE NORMAL HOURS CURRENT FEE RECOMMENDED FEE A First 2 hours - $165.38 per inspection $150 per hour, 2 hour minimum 'a After 2 hours - $165.38 per hour d N REF #: S-096 TITLE: ADDITIONAL PLAN REVIEW/INSPECTION LL ti CURRENT FEE RECOMMENDED FEE r v $98.89 per hour Charges at the fully allocated hourly rates for all personnel involved plus any outside costs. L N N REF #: S-097 TITLE: BUILDING RECORDS ARCHIVING C c w CURRENT FEE RECOMMENDED FEE $2 per permit or plan sheet 5% of all building plan check and permit fees co CL Q REF #: S-098 TITLE: PERMIT SYSTEM REPLACEMENT CURRENT FEE RECOMMENDED FEE None 4% of Building Plan and Permit Revenues 17 January 31, 2017 Packet Pg. 30 APPENDIX B DETAIL OF BUILDING & SAFETY FEES 1.b Packet Pg. 31 r co m m u - a co 4- 0 0 0 v c a� E u 0 a CITY OF DIAMOND BAR COMMUNITY AND DEVELOPMENT SERVICES DEPARTMENT BUILDING & SAFETY DIVISION ACTION Permit Valuation Based on ICBO/ICC Valuation Guidelines & City Ancillary Table Special Inspector Per Job Site, Specialty Building Permit Fees (Total Valuation) $0-$700.00 $701.00-$1,000 Each Additional $1,000 or Fraction Thereof Up To $25,000 Each Additional $1,000 or Fraction Thereof Up To $50,000 Each Additional $1,000 or Fraction Thereof Up To $100,000 Each Additional $1,000 or Fraction Thereof More Than $100,000 Combo Permits: Electrical Permit Plumbing Permit Mechanical Permit Building Plan Check Fees Permit and Plan Check of unpermitted work Extension of Expired/Unexpired Permit $0-$100,000 valuation $100,001+ valuation Strong Motion Instrumentation Program (State Fee, Valuation Based) Residential Commercial & 3 -Story + Residential Energy Enforcement (State Mandated) Building Standards Admin Special Relvolving Fund (BSAF) (State Fee, Valuation Based) $1-25,000 $25,000-50,000 $50,000-75,000 $75,000-100,000 Every $25,000 or fraction therof above $100,000 additional Site Inspection (inspections not otherwise covered by a fee) Inspection, Group R or M Occupancies Occupancy Groups Other Than R or M (Floor Area) Less Than 5,000 S.F. 5,001-10,000 S.F. 10,001-100,000 S.F. Over 100,000 S.F. Inspection, Repair/Rehab of Building/Structure Declared Substandard Inspection, Demolition of Building/Structure Pre -Alt Inspection - Wood Re -Roof Overlay, Pool/Spa Locations Inspection/Reinspection of Group A, Division 4 Structures Application/Investigation For Relocation, Building Permit Required By Chapter 68 (Floor Area) Less Than 2,500 S.F. 2,501+ S.F. CURRENT PROPOSED FEES FEES $52.36 $45.66 $ 68.45 $17.68 $13.57 $10.17 $9.99 See Electrical Permit Schedule See Plumbing Permit Schedule See Mechanical Permit Schedule 85% of Permit Fees $50 minimum Double Fees 98.89 $0.50 Minimum or .013% of valuation $0.50 Minimum or .028% of valuation 10% of Permit & Plan Check Fee $1 $2 $3 $4 $1 $174.50 $174.50 $209.41 $279.22 $558.44 $698.06 Regular Bldg Permit Fee $174.50 $98.89 $69.60 $209.41 $418.83 1.b $35.0( $54.7! $82.1, $21.2: $16.2( r $12.2( N $11.9! ami LL 10% of the Building Permit Fe i 10% of the Building Permit Fe 10% of the Building Permit Fe IM 85% of Permit Fee a�-a $50 minimus '3 Double FeE m $75.0( $255.0( $0.60 Minimur or .013% of valuatio $0.60 Minimur or .028% of valuatio 10% of Permit & Plan Check Fe $251.2! $335.0( $670.1: $837.6- Regular Bldg Permit Fe $209.4( $100.0( $83.5; $251.2! $502.6( Building Fee Detail.xlsx Packet Pg. 32 CITY OF DIAMOND BAR COMMUNITY AND DEVELOPMENT SERVICES DEPARTMENT BUILDING & SAFETY DIVISION ACTION CURRENT FEES 1.b PROPOSED FEES Inspection Outside Normal Business Hours $49.12 $58.9, 0-2 Hours Minimum Fee $165.38 $300.0( Each Hour Thereafter $165.38 $150.0( Reinspection Fee (Each) $45.03 $53.611 Inspections For Which No Fee is Indicated $49.12 $58.9, (Per Hour, Minimum Charge of % Hour) $90.06 $107.3' Additional Plan Review, Per Hour $98.89 $107.3' Certificate of Occupancy $174.50 $170.0( Certificate of Occupancy, Temporary $98.89 $385 + Outside Cos Extension of Certificate of Occupancy, Temporary $98.89 $75.0( Refrigeration Compressor r N Administrative &Miscellaneous Fees $26.01 ami Permit Issuance $36.12 LL $43.3, Supplemental Permit Issuance $27.01 $32.4: ti Standard Retention Fee $2.00 5% of Permit & Plan Check Fee Mechanical Permit Fees $26.01 :a Minimum Inspection Fee: Mechanical $61.89 $74.2- Stand Alone Mechanical Plan Check $122.80 per hour 50% of Mech Permit Fee $55 Mii m Unit Fees: A/C, Residential (Each) Up to 100,000 BTUs $26.01 $31.2: 100,001-500,000 BTUs $49.12 $58.9, 500,001+ BTUs $126.13 $151.3( Furnace (F.A.U., Floor) Up to 100,000 BTUs $26.01 $31.2: 100,001-500,000 BTUs $49.12 $58.9, 500,001+ BTUs $126.13 $151.3( Heater (Wall) Up to 100,000 BTUs $26.01 $31.2: 100,001-500,000 BTUs $49.12 $58.9, 500,001+ BTUs $126.13 $151.3( Refrigeration Compressor Up to 100,000 BTUs $26.01 $31.2: 100,001-500,000 BTUs $49.12 $58.9, 500,001+ BTUs $126.13 $151.3( Boiler Up to 100,000 BTUs $26.01 $31.2: 100,001-500,000 BTUs $49.12 $58.9, 500,001+ BTUs $126.13 $151.3( Chiller Up to 100,000 BTUs $26.01 $31.2: 100,001-500,000 BTUs $49.12 $58.9, 500,001+ BTUs $126.13 $151.3( Heat Pump (Package Unit) Up to 100,000 BTUs $26.01 $31.2: 100,001-500,000 BTUs $49.12 $58.9, 500,001+ BTUs $126.13 $151.3( Building Fee Detail.xlsx Packet Pg. 33 CITY OF DIAMOND BAR COMMUNITY AND DEVELOPMENT SERVICES DEPARTMENT BUILDING & SAFETY DIVISION ACTION CURRENT FEES 1.b PROPOSED FEES Heater (Unit, Radiant, Etc.) Up to 100,000 BTUs $26.01 $31.2: 100,001-500,000 BTUs $49.12 $58.9, 500,001+ BTUs $126.13 $151.3( Air Handler (Each) 2000 CFMs $12.28 $14.7, 2001-3,999 CFMs $36.26 $43.5: 4000-10,000 CFMs $36.26 $43.5: 10,001+ CFMs $62.85 $75.4; Duct Work (Only, New) 1-10 Registers $41.90 r $50.2! N 11-30 Registers $125.70 $150.8 ami 31-50 Registers $190.80 LL $228.9( .. 51+ Registers $194.62 $233.5, ti Alterations 1-10 Registers $41.90 $50.21 11-30 Registers $125.70 $150.8, 31-50 Registers $190.80 $228.9( 51+ Registers $194.62 $233.5, m Evaporative Cooler m 1-12,000 BTUs $21.09 $25.3: a=i 12,001-24,000 BTUs $21.09 $25.3: t 24,001-36,000 BTUs $21.09 $25.3: r 36,001-48,000 BTUs $21.09 $25.3: Q 48,001+ BTUs $21.09 $25.3: Inlet & Outlet Served by AC System - Each Register $4.19 $5.0: Moisture Exhaust Duct (Clothes Dryer, Each) $32.65 $39.11 N Ventilation Fan Connected to a Single Duct (Each) $15.31 $18.3- m Vent System (Each) $32.65 $39.11 '2 Exhaust Hood/Fan/Duct (Residential, Each) $62.85 $75.4; cn Exhaust Hood, Type 1 - Commercial Grease Hood (Each) $62.85 $75.4: c Exhaust Hood, Type 2 - Commercial Steam Hood (Each) $62.85 $75.4: y Spray Booth Served By Mechanical Exhaust, Including Fans & Ducts G U attached Thereto $62.85 $75.4: Refrigerator Condenser Remote Up to 100,000 BTUs $26.01 $31.2: y 100,001-500,000 BTUs $49.12 $58.9, t 500,001+ BTUs $126.13 $151.3( u Walk-in Box/Refrigerator Coil Q Up to 100,000 BTUs $26.01 $31.2: 100,001-500,000 BTUs $49.12 $58.9, 500,001+ BTUs $126.13 $151.3( Install/Relocate Forced Air or Gravity -Type Furnace or Burner (Including Attached Ducts & Vents) Up to 100,000 BTUs $26.01 $31.2: 100,001-500,000 BTUs $49.12 $58.9, 500,001+ BTUs $126.13 $151.3( Building Fee Detail.xlsx Packet Pg. 34 CITY OF DIAMOND BAR COMMUNITY AND DEVELOPMENT SERVICES DEPARTMENT BUILDING & SAFETY DIVISION ACTION CURRENT FEES 1.b PROPOSED FEES Install/Relocate Suspended Heater, Recessed Wall Heater, or Floor $4.08 $4.9( Mounted Unit Heater (Each) $15.90 $19.0( Up to 100,000 BTUs $26.01 $31.2: 100,001-500,000 BTUs $49.12 $58.9, 500,001+ BTUs $126.13 $151.3( Repair/Alter/Add Heating Appliance, Refrigeration Unit, Cooling Unit, Absorption Unit, or Each Heating, Cooling, Absorption, or Evaporative $93.53 $112.2, Cooling System, Including Installation of Controls (Each) Up to 100,000 BTUs $26.01 $31.2: 100,001-500,000 BTUs $49.12 $58.9, 500,001+ BTUs $126.13 r $151.3( N Fire Damper (Each) $10.26 $12.3: Garage Ventilation System (Each) $32.65 L% $39.11' Product Conveying System (Each) $32.65 $39.1( i Appliance or Piece of Equipment Not Classed in Other Appliance $15.90 $19.0( Categories, or For Which No Other Fee Is Listed $32.65 $39.1( Fire Suppression System $10.26 $12.3: a�-a Reinspection Fee (Each) $45.03 $53.6( Inspections For Which No Fee is Indicated m (Per Hour, Minimum Charge of % Hour) $90.06 $107.3' m Plumbing & Gas Permit Fees Minimum Inspection Fee: Plumbing & Gas $61.62 $53.6( Stand Alone Plumbing Plan Check $122.80 per hour 40% of Plumb Permt Fee $55 Mii Unit Fees: Gas Piping System First 5 $79.52 $95.4: After First 5 (Each) $4.08 $4.9( Gas Meter (Each) $15.90 $19.0( Gas Pressure Regulator (Each) $15.90 $19.0( Building Sewer Connection (Each) $45.67 $54.8( Future House Sewer Section $29.47 $35.3( Private Sewage Disposal System (Septic Tank & Seepage Pit/Connection to House, Each) $93.53 $112.2, Disconnection, Abandonment, Alteration, or Repair of Any House Sewer or Private Sewage Disposal System or Part Thereof (Each) $32.10 $38.5: Backflow Preventer First 5 $15.90 $19.0( After First 5 (Each) $6.57 $7.8( Water Heater and/or Vent (Each) $15.90 $19.0( Water Softener (Each) $15.90 $19.0( Dishwasher, Permanent (Each) $15.90 $19.0( Water Pipe Repair/Replacement $15.90 $19.0( Drainage or Vent Piping Repair/Alterations (Each) $15.90 $19.0( Drinking Fountain (Each) $15.90 $19.0( Solar Water System Fixtures (Solar Panels, Tanks, Water Treatment Equipment, Each) $52.97 $63.5( Swimming Pool Drainage Trap & Receptor (Water Supply for Pool Not Included, Each) $15.90 $19.0( Medical Gas System (Each) $15.90 $19.08 Building Fee Detail.xlsx Packet Pg. 35 CITY OF DIAMOND BAR COMMUNITY AND DEVELOPMENT SERVICES DEPARTMENT BUILDING & SAFETY DIVISION ACTION Plumbing Fixture/Trap or Set of Fixtures on One Trap, Including Water, Drainage Piping, Hose Bibs, and Backflow Protection (each) Building Drain (w/o Accompanying Plumbing, Each) Cesspool, Overflow Seepage Pit, Percolation Test Pit, Swimming Pool Drywell, or Drainfield Extension or Replacement (Each) Private Sewage Disposal System (each) Industrial Waste Grease Trap, Pretreatment Interceptor, Including Trap & Vent(Each) Water Treating Equipment and/or Water Piping Installed/Altered/Repaired (Each) Lawn Sprinkler System On anyone Meter, Including Backflow Protection Devices Therefore (Each) Backflow Devices Not Included in Other Fee Services e.g., Building/Trailer Sewer (Each) Reinspection Fee (Each) Inspections For Which No Fee is Indicated (Per Hour, Minimum Charge of %2 Hour) Electrical Permit Fees Minimum Inspection Fee: Electrical Stand Alone Electrical Plan Check System Fees: Service, Subpanels, Switchboards or Section, Motor -Controlled Centers, and Panel Boards Up to 200 Amps 201-1000 Amps 1001+ Amps New Single & Two -Family Residential Buildings (Per Sq. Ft.) Multifamily Residential Buildings (Per Sq. Ft.) Temporary Service Power Pole or Pedestal, Including All Pole or Pedestal Mounted Receptacle Outlets and Appurtenances Temporary Distribution System & Temporary Lighting & Receptacle Outlets (Each) Pre -Inspection (Per -Hour) Private/Residential In -Ground Swimming Pools, Spas, Therapeutic Whirlpools, Hot Tubs, New/Repairs (Each) "Includes Complete System of Necessary Branch Wiring, Bonding, Grounding, Underwater Lighting, Water Pumping, and Other Similar Electrical Equipment Directly Related to the Operation of a Swimming Pool Carnivals, Circuses, or other Traveling Shows or Exhibitions Utilizing Transportable Rides, Booths, Displays, and Attractions With Lighting Temporary Distribution System and Temporary Lighting and Receptacle Outlets For Construction Sites, Decorative Lights, Christmas Tree Sales Lots, Fireworks Stands, Etc. (Each) Building Fee Detail.xlsx CURRENT FEES 1.b PROPOSED FEES $15.90 $19.0(, $15.90 $19.0(, $45.67 $54.8( $236.38 $283.6( $15.90 $19.0(, $15.90 $19.0(, $73.25 $87.9( $156.62 r N $15.90 $19.0(, $0.09 $0.1: LL $15.90 $19.0(, ti $45.03 $53.6(, v $90.06 $107.3! $59.36 $53.61' $122.80 per hour 70% of Elec. Permt Fee $55 Mii $37.42 $44.9( $73.25 $87.9( $156.62 $187.9, $0.10 $0.1; $0.09 $0.1: $41.90 $50.2(, $20.81 $24.9- $122.81 $107.3! $78.16 $93.7! $42.62 $51.1, $15.75 $18.9( Packet Pg. 36 CITY OF DIAMOND BAR COMMUNITY AND DEVELOPMENT SERVICES DEPARTMENT BUILDING & SAFETY DIVISION ACTION CURRENT FEES 1.b PROPOSED FEES Unit Fees: Receptacle, Switch, Lighting, or Other Outlets at Which Current is Used or Controlled, Except Services, Feeders, & Meters First 20 (Or Portion Thereof) $1.88 $2.2( Each Additional $1.30 $1.5( Lighting Fixtures, Sockets, or Other Lamp -Holding Devices First 20 (Or Portion Thereof) $1.88 $2.2( Each Additional $1.30 $1.5( Pole or Platform Mounted Lighting Fixtures (Each) $2.17 $2.6( Theatrical -type Lighting Fixtures or Assemblies (Each) $2.17 r $2.6( N Residential Appliances $10.40 $12.41 LL Fixed Residential Appliances or Receptacle Outlets For Same, Including ti Wall -Mounted Electric Ovens, Counter Mounted Cooking Tops, Electric Ranges, Self-contained Room Console, or Through Wall Air Conditioners, Space Heaters, Food Waste Grinders, Dishwashers (Each) 2 **For Other Types of Air Conditioners, and Motor -Driven Appliances Having Larger Electrical Ratings, See Power Apparatus m Nonresidential Appliances $10.40 $12.411 m Residential Appliances and Self-contained Factory -Wired Non- a=i Residential Appliances, Including Medical and Dental Services, Food, t Beverage, and Ice Cream Cabinets, Illuminated Show Cases, Drinking r Fountains, Vending Machines, Laundry Machines, etc. (Each) Q Residential Appliances and Self-contained Factory -Wired Non -Residential Appliances Not Exceeding One Horsepower (HP), Kilowatt (kW), or Kilovolt - ampere (kVA) in rating, including medical and dental devices, food, N beverage, and ice cream cabinets, etc. $10.40 $12.411 y **For Other Types of Air Conditioners, and Motor -Driven Appliances Having Larger Electrical Ratings, See Power Apparatus Motors, Generators, Transformers, Rectifiers, Synchronous Converters, c Capacitors, Industrial Heating, Air Conditioners, and Heat Pumps, Cooking y & Baking Equipment and Other Apparatus Rating in Horsepower (HP), G U Kilowatts (kW), or Kilovolt -amperes (kVA) Over 3-10 $18.93 $22.7; Over 11-50 $44.36 $53.2: y Over 51-100 $83.22 $99.8( t Over 101 $137.11 $164.5: u Trolley and Plug -In Type Busways (each 100 ft. or fraction thereof) $25.14 $30.1 Q **An Additional Fee Will Be Required For Lighting Fixtures, Motors, and Other Appliances That Are Connected To Trolley and Plug -In Type Busways. No Fee is Required For Portable Tools Signs, Outline Lighting, or Marquees (Each) $37.42 $44.9( Signs, Outline Lighting, or Marquees Supplied From One Branch Circuit (Each) $12.28 $14.7, Additional Branch Circuits Within The Same Sign, Outline Lighting System, Or Marquee (Each) $12.28 $14.7, Miscellaneous Apparatus, Conduits, and Conductors (Each) $62.70 $75.2, Building Fee Detail.xlsx Packet Pg. 37 CITY OF DIAMOND BAR COMMUNITY AND DEVELOPMENT SERVICES DEPARTMENT BUILDING & SAFETY DIVISION ACTION CURRENT FEES 1.b PROPOSED FEES Electrical Apparatus, Conduits, and Conductors For Which a Permit is Required, But For Which No Fee is Herein Set Forth (Each) $62.70 $75.2, "Not Applicable When a Fee is Paid For One or More Services, Outlets, Fixtures, Appliances, Power Apparatus, Busways, Signs, or Other Equipment Photovoltaic Systems (Each) $57.75 $69.3( Reinspection Fee (Each) $45.03 $53.6! Inspections For Which No Fee is Indicated (Per Hour, Minimum Charge of %2 Hour) $90.06 $107.3' r N m m u_ r ti r r Building Fee Detail.xlsx Packet Pg. 38 APPENDIX C SUMMARY OF CURRENT AND PROPOSED FEES FOR ADMINISTRATIVE SERVICES 1.c Packet Pg. 39 CITY OF DIAMOND BAR FEE COMPARISON REPORT FY 2016-2017 REF #: S-036 TITLE: TEMPORARY USE PERMIT CURRENT FEE RECOMMENDED FEE No Public Hearing - $245.62 per application $250 per application With Public Hearing - $1,011.37 Deposit 1.c REF #: S-095 TITLE: LIMITED COLLECTION REFUSE PERMIT CURRENT FEE RECOMMENDED FEE Issued Jan -Mar - $207.77 $235 per permit Issued Mar -Jun - $155.82 Issued Jul -Sep - $103.87 Issued Oct -Dec - $51.94 REF #: S-113 TITLE: FILM PERMIT CURRENT FEE RECOMMENDED FEE $592.27 per application Student - $100 per application Other - $435 per application plus $500 per day for right-of-way rental REF #: S-114 TITLE: ANIMAL ADMINISTRATIVE APPEAL CURRENT FEE RECOMMENDED FEE None $1,065 per appeal REF #: S-115 CURRENTFEE Issued Jan -Mar - $207.77 Issued Mar -Jun - $155.82 Issued Jul -Sep - $103.87 Issued Oct -Dec - $51.94 TITLE: SELF HAUL REFUSE PERMIT RECOMMENDED FEE Issued Jan -Mar - $765 Issued Mar -Jun - $574 Issued Jul -Sep - $383 Issued Oct -Dec - $191 REF #: S-117 TITLE: NSF CHECK PROCESSSING CURRENT FEE RECOMMENDED FEE $15 per NSF Check $46 per NSF Check 1 January 31, 2017 Packet Pg. 40 1.c CITY OF DIAMOND BAR FEE COMPARISON REPORT FY 2016-2017 REF #: S-118 TITLE: RESIDENTIAL PARKING PERMIT CURRENT FEE RECOMMENDED FEE None $10 per permit REF #: S-119 TITLE: FALSE ALARM BILLING CURRENT FEE RECOMMENDED FEE None $10 per bill REF #: S-120 TITLE: DOCUMENT REPRODUCTION CURRENT FEE RECOMMENDED FEE $0.10 per page after the first five pages FPPC Copy - $0.10 per page after the first five pages Other - $0.25 per page after the first five pages Microfiche - $5 for the first page and $1.25 per page thereafter Plans/Map/Blueprint Copy - $5 per page REF #: S-121 TITLE: ELECTRONIC FILE COPY CURRENT FEE RECOMMENDED FEE CD/DVD - $10 per disk $5 per device/disk REF #: S-122 TITLE: DOCUMENT CERTIFICATION CURRENT FEE RECOMMENDED FEE $5 per document $5 per document REF #: S-123 TITLE: DOCUMENT COMPILATION CURRENT FEE RECOMMENDED FEE $122.81 per hour Charge the fully allocated hourly rates for all staff involved plus any outside costs. REF #: S-124 TITLE: NOTARY PUBLIC SERVICES CURRENT FEE RECOMMENDED FEE None $15 per signature This fee is set by the State and it was recently increased. 2 Packet Pg. 41 CITY OF DIAMOND BAR FEE COMPARISON REPORT FY 2016-2017 1.c REF #: S-125 TITLE: ABATEMENT LIEN PROCESSING CURRENT FEE RECOMMENDED FEE Actual Costs Actual costs with charges at the fully allocated hourly rates for all personnel involved plus any outside costs. REF #: S-126 TITLE: CANDIDATE PROCESSING CURRENT FEE RECOMMENDED FEE None $25 per candidate This is the maximum allowed under State law (Elections Code section 10228) REF #: S-127 TITLE: LOCAL INITIATIVE PROCESSING CURRENT FEE RECOMMENDED FEE None $200 per application Fee is to be refunded to the filer if, within one year of the date of filing the notice of intent, the elections official certifies the sufficieny of the petition. This is the maximum allowed under State law (Elections Code section 9202(b)). 3 January 31, 2017 Packet Pg. 42 Agenda #: 2 Meeting Date: February 21, 2017 CITY COUNCIL STUDY SESSION REPORT TO: Honorable Mayor and Members of the City Council VIA: James DeStefano, City Manager / FROM: Ryan McLean, Assistant City Manag6, TITLE: SISTER CITY - DISCUSSION AND ACTION. BACKGROUND: In 1993, the City Council Sister City Subcommittee (hereafter "Subcommittee") was established to explore the possibility of establishing a sister city relationship. Sister cities, as described by the non-profit Sister Cities International, are local volunteer organizations that "with the support of local elected officials, form long-term relationships with people and organizations in a city abroad". In April of 1994, the Subcommittee recommended that the City Council establish sister city relationships with Bucharest, Romania and Haicheng, China. Subsequent City Council and public debate led to the abandonment of these recommendations and the disbandment of the Subcommittee. In September 1994, a group of private citizens established the Diamond Bar Sister City Association, a local 501(c)(3) non-profit organization "dedicated to promoting educational and cultural exchange between Diamond Bar and its sister cities". In January 1996, the Diamond Bar Sister City Association approached the City Council with a request establish a sister city relationship with Sanshia, Taiwan. The City Council then reestablished the Subcommittee to review and respond to the request. On April 2, 1996, the City Council adopted a joint resolution between the City and the Diamond Bar Sister City Association to establish the relationship with Sanshia, citing cultural, educational, and economic development opportunities for both cities and the relative similarities in size, population, and municipal services. Upon establishment of the relationship, the City Council, along with select staff and members of the public, visited Sanshia in February 1997. A series of educational exchanges and student "pen pal" programs also were implemented in 1997. There is was no demonstrable economic development benefit resulting from the relationship. Packet Pg. 43 In 2001, the City Council adopted a second joint resolution with the Diamond Bar Sister City Association requesting a "friendly city" relationship with Chuxiong City, China as precursor to a more formal sister city relationship. A City Council delegation visited Chuxiong following the adoption of the resolution, but no formal sister city relationship was established thereafter. Finally, in May 2007, Hanam, Gyeonggi-Do Province, South Korea approached the City to establish a sister city relationship. After consideration in a study session, the City Council chose not to pursue the offer. SANSHIA/NEW TAIPEI CITY At the time of the establishment of the sister city relationship in 1996, Sanshia was a suburb of Taipei, with a population of 65,000. In 2010, the Taiwanese government converted 29 cities into districts and grouped them together as New Taipei City, eliminating Sanshia as a standalone municipality. According to the New Taipei City website, the new city has a population of 3.9 million, with a major international port, extensive public transportation, significant manufacturing and industrial sector comprising of more than 20,000 factories, and a tourism industry attracting more than 30 million annually. A full-service major metropolis, New Taipei City has much in common with a city like Los Angeles, which has a population of 3.88 million. RECOMMENDATION The City has had no formal activity with Sanshia since the late 1990s or Chuxiong since the 2001 delegation. The Diamond Bar Sister City Association also appears to be inactive at this time. While the cultural and educational impacts are debatable, staff is unable to identify any economic development benefits derived from the sister city and friendly city relationships. Given the complex policy matters, financial and strategic planning efforts, and capital improvements that are ongoing and to come in the next year, staff recommends that the Council not reengage the sister city and friendly city relationships. If the Council does wish to reengage the sister city and friendly city relationships, it is recommended that the process be handled solely by the City via direct communication with sister governments and that the City Council reestablish the Subcommittee to discuss and develop specific goals and plans for the sister city and friendly city relationships. Packet Pg. 44 Agenda #: 3 Meeting Date: February 21, 2017 CITY COUNCIL STUDY SESSION REPORT TO: Honorable Mayor and Members of the City Council VIA: James DeStefano, City Manager FROM: Anthony Santos, Assistant to the City ivia; iQyur TITLE: BARKING DOG NUISANCE PROCESS - DISCUSSION AND ACTION. BACKGROUND As a follow up to the City's informational item from September 2016, this report will summarize the City's existing barking dog nuisance process and provide the City Council with a recommendation. The Inland Valley Humane Society (IVHS) has provided contract animal care and control services for the City since incorporation, and is the direct contact for resident service requests and the initiation of nuisance abatement proceedings, including those involving barking dogs or other noisy animals. Section 6.00.100 of the Diamond Bar Municipal Code establishes an animal -related public nuisance as: a) Any animal which molests passersby or passing vehicles, attacks other animals, trespasses on school grounds, is repeatedly at large, damages and or trespasses on private or public property, barks, whines or howls in an excessive, continuous or untimely fashion, shall be considered a public nuisance. b) Every person who maintains, permits or allows a public nuisance to exist upon his property or premises, and every person occupying or leasing the property or premises of another and who maintains, permits or allows a public nuisance as described in subsection (a) of this section to exist thereon, after reasonable notice in writing from the city's agent has been served upon such person to cease such nuisance, is guilty of a misdemeanor. The existence of such nuisance for each and every day after the service of such notice shall be deemed a separate and distinct offense. Packet Pg. 45 (Ord. No. 14(1989), § 2(10.40.065), 6-27-89) Because the City's Code does not establish specific timeframes or thresholds that clearly define what constitutes a nuisance, determinations are made by the professionals at IVHS following an investigative process. When a barking dog nuisance is believed to exist, IVHS requires the reporting party to submit a written declaration making the allegation accompanied by a log identifying the specific date, time, and duration of the alleged nuisance. IVHS investigators then notify the animal owner of the alleged nuisance and visit the site on multiple occasions at different times in an attempt to witness and document the allegation. The investigators also review audio/video, interview adjacent neighbors and the animal owner, and review any other evidence that is available. The Inland Valley Humane Society weighs the totality of the evidence at hand and makes a determination at the conclusion of the investigation. The determination may range from criminal prosecution and removal of the animal from its owner to a finding of no nuisance. The determination may be appealed to the City Manager or designee within seven days. The City has only received one request for an appeal since 2005, and that appeal was to contest the findings of IVHS that a barking dog nuisance did not exist in the City. At the direction of the City Council, staff has prepared this memorandum to review the effectiveness of the City's current animal code, research the practices of neighboring agencies, and develop fair and transparent code amendment options and alternatives for consideration. ANALYSIS Staff surveyed the animal nuisance codes of IVHS member agencies and other city and county governments and found a wide range of policies. The resulting analysis will be summarized below as well as the Comparison Matrix included as Attachment 1. • Number of Written Declarations — Requirements range from a single declaration (i.e. Chino and San Dimas) to a minimum of three declarations (i.e. Montclair and La Verne). Most IVHS cities require at least two declarations be filed before a barking dog nuisance investigation can take place. • Declaration Period — A declaration period is the established timeframe covered by the declaration document. This is done to ensure that nuisance allegations are current as opposed to retroactive. As an example, Chino Hills requires a declaration to have been filed within 60 days of the alleged nuisance, so if a declaration is filed six months after the alleged infraction no investigation will take place. However, the declaration must also contain facts that when compared against the barking dog nuisance threshold, enables IVHS to proceed with an investigation based on the merits of the declaration. While most cities either have a 60 day declaration period or do not specify the length of time, IVHS recommends a 30 day period. • Proximity to Barking Dog — Residents that file a declaration are required to have standing, or be affected by the alleged barking dog. While many cities do not have a distance requirement in their code, at least three cities require that a reporting party Packet Pg. 46 must be within 200 yards of the location of the barking dog. The distance requirement ensures that affected residents can initiate an investigation, and prevents frivolous complaints that may result from private property owner disputes. • Barking Length/Threshold — This criteria is perhaps the most difficult and important factor in gauging the legitimacy of a barking dog complaint. With the exception of Chino Hills, which has set a threshold of 10 minutes of continuous barking in a 30 minute period, the remainder of IVHS agencies do not specify the length of time required for a barking dog allegation. In agencies without established thresholds, IVHS uses its professional judgement and a general baseline of 30 minutes of continuous barking or intermittent barking over an extended period of time. Because dogs bark for a variety of reasons, IVHS' trained personnel are more able to accurately and independently verify if a dog is a nuisance or is barking as a result of provocation, distress, or other non -nuisance factors. In similar fashion, the County of Orange (which handles animal control complaints for 17 cities) classifies a barking dog nuisance as incessant barking for 30 minutes or more in any twenty -four-hour period, or intermittent barking for 60 minutes or more during any twenty -four-hour period. Additionally, a dog shall not be deemed a "barking dog" if, at any time the dog is barking, a person is trespassing or threatening to trespass upon private property in or upon which the dog is situated, or when the dog is being teased or provoked. RECOMMENDATION The Inland Valley Humane Society has provided professional service to Diamond Bar's residents since incorporation. At the time of the City's previous information item in September 2016, the most recent barking dog appeal has been concluded and the City Manager determined that a barking dog nuisance does not exist. Given the barking dog nuisance process provided both the reporting party and barking dog owner the opportunity to contest the allegations with verifiable facts and testimony that resulted in no change to the IVHS ruling, and the extreme lack of appeals over a decade -plus sample size, it is recommended that no changes to the City's Municipal Code be considered at this time. Staff will continue to monitor barking dog allegations with the assistance of the professional staff at IVHS. Should conditions in the City change, staff can revise the information provided in this memorandum and provide specific options for Council to consider at that time. Packet Pg. 47 CITY COUNCIL 6.1 Agenda #: 6.1 Meeting Date: February 21, 2017 AGENDA REPORT TO: Honorable Mayor and Members of the City Council FROM: Tommye Cribbins, City Clerk TITLE: WAIVE READING IN FULL FOR ALL ORDINANCES AND RESOLUTIONS AND ADOPT THE CONSENT CALENDAR. RECOMMENDATION: Approve. PREPARED BY: T6 rnVe Co ins, Cify Clerk 2/21/2017 Packet Pg. 48 Agenda #: 6.2 Meeting Date: February 21, 2017 CITY COUNCIL TO: Honorable Mayor and Members of the City Council FROM: James DeStefano, City Manager TITLE: APPROVAL OF CITY COUNCIL MINUTES: RECOMMENDATION: Approve. Attachments: 1. 6.2.a Study Session of February 7, 2017. 2. 6.2.b Regular Meeting of February 7, 2017. 6.2 AGENDA REPORT Packet Pg. 49 6.2.a CITY OF DIAMOND BAR CITY COUNCIL STUDY SESSION FEBRUARY 7, 2017 STUDY SESSION: M/Lin called the Study Session to order at 5:30 p.m. in Room CC -8 of the South Coast Air Quality Management District/Government Center, 21865 Copley Drive, Diamond Bar, CA 91765. ROLL CALL: Council Members Herrera, Lyons, Tye, Mayor Pro Tem Low and Mayor Lin Staff Present: James DeStefano, City Manager; David DeBerry, City Attorney; Ryan McLean, Assistant City Manager; David Liu, Public Works Director; Ken Desforges, IS Director; Dianna Honeywell, Finance Director; Anthony Santos, Assistant to the City Manager; Grace Lee, Senior Planner; Marsha Roa; Public Information Manager; Alfredo Estevez, Desktop Support; and Tommye Cribbins, City Clerk. ► COMMUNICATION AND MARKETING DESIGN STANDARDS MEMORANDUM — Discussion and Action PIM/Roa continued her discussion regarding development of the City's communicational marketing design standards and more specifically, the establishment of a new City logo that may be used for its brand identity, a unique and unifying image for all communications. Three logo concepts were presented at the January study session for consideration. Staff has incorporated the changes requested by Council and have revised the three logos accordingly for Council's review this evening. The logos contain two elements that are continually associated with the City, the windmill and the hills. These elements are also within the City's sphere and can be seen as part of the recently installed streetscape designs along Grand Avenue and Diamond Bar Boulevard. Tonight, if a design is approved, staff will move forward with development of the guidelines and templates that incorporate the new logo. If not, staff will again review the designs with the graphic designer to modify and incorporate any changes or, to come up with entirely new concepts that are more to Council's liking. She presented boards with proposed updated logos for Council's consideration and explained how each attempted to comply with Council's requests and suggestions. As a reminder, unlike the City Seal that cannot and should not be altered, the logo can be updated every few years to ensure that it remains current and consistent with the City's brand identity. C/Herrera said she appreciated staff's work in preparing the presentation of Council's suggestions and recommendations down to a couple of selections. Foothill Transit went through this same exercise and presented some 10 versions of drawings which was mind-boggling. This presentation simplifies the process greatly. C/Herrera stated that she preferred #1. Packet Pg. 50 6.2.a FEBRUARY 7, 2017 PAGE 2 CC STUDY SESSION C/Lyons said she liked #1 and #2 and would be happy with either. One had too much green but it seemed to her either would be better than having a City Seal on their shirts. MPT/Low said she liked #3 because it was different, but it might be a little too different. One has to really look at it to see the hills, but once viewed, one sees the hills. She said she would prefer #1. C/Tye said he liked #2. M/Lin felt that #1 best represented the City's physical condition. With #2 one has to use their imagination and the background in #3 is to him, too profound. By majority, Council Members voted to approve Design #1. ► STATEWIDE ELECTION LEGISLATIVE UPDATE —SB 415 & SB450 — Discussion and Action. ATCM/Santos provided a Power Point presentation and responded to Councils' previous concerns. As Council is aware, with respect to S13415, the City must approve a plan by January 1, 2018 to change its election cycle to an even numbered year from the odd election cycle. Tonight's presentation piggybacks off of the City Attorney's memo that was sent to Council Members about a week and a half ago to update them on the options under consideration. The voting percentages are greater for statewide primary and general elections versus City elections and as such, the City must move its elections. C/Lyons asked questions about voter -fatigue with respect to the number of items in the ballot for consideration. ATCM/Santos stated that in order to gather statistics to respond, staff looked at the last five City elections, summed up the presidential, congressional and senate elections, state elections, county elections, judicial, local, school, special district, state measures/propositions and county measures. In essence, the original thought was that there are a larger number of items that residents vote on in November and based on the information staff compiled, that statement is true. November elections have a larger number of items because of propositions which is offset on the primary election which tends to have a lot more judicial items. In City elections there are usually three to five items on average and overall, there are more items. June elections (ballots) are generally larger because it is a primary election and there are more candidates residents have to vote on. In the November election, the choice is between the top two (primary vote getters) which means that the conventional wisdom is correct that there are more numbers of items that residents have to vote on in November. However, the County has also stated that the June election ballot tends to be larger with respect to the total number of pages Packet Pg. 51 6.2.a FEBRUARY 7, 2017 PAGE 3 CC STUDY SESSION only because of the sheer number of people one has to sift through to make their selections. Based on general election totals, general election averages, primary election total and averages (June) and the City totals and City averages, there were more in the aggregate in November (153 items); in June (102 items), and City including the school district measures (22 items). For the general election, state measures are the highest number of items in the aggregate that residents have to vote on. Second to that are judicial appointments. For June primary elections, judicial is the highest, state the next highest and third, state measures. As a general rule, the ballot is laid out federal/national, state, county and local. Diamond Bar has benefited from the November odd election cycles because Council Members are first and foremost on the ballot. Regardless of whether the Council decides to move to June and then go to November, ultimately, the City Council will likely be toward the end of that ballot, regardless of which cycle is chosen. Options: 1) No Change in 2017 and begin a change in 2019 and the 2021 election cycle — institute a 4 '/2 year term to have the election held in June of even years; or, institute a five-year term to hold the election in November of even years. 2) Modify the cycle beginning in 2017 and 2019 — take action immediately by considering an ordinance in the next month, approve the ordinance and transmit a copy to the County with the Board of Supervisors certifying the ordinance, notify residents of the change beginning with the upcoming 2017 election prior to the noticing of the 2017 election. The 2017 election would be either a four and one-half year term or a five-year term to be held in June or November beginning in 2022. For the November 2019 election, it would trigger a four and one-half or five-year term that would start in June or November 2024. 3) The option for extended terms would be to either extend the existing term for the 2019 or 2021 elections by six months. Institute an election immediately to extend the existing terms to June or November of the next even year. ATCM/Santos said that in discussions with the County Registrar/Recorder, only one agency has opted to move to June which is the Pasadena Community College District. Council discussed whether the Walnut Valley Unified School District would be moving to June and based on discussions there was a presentation from Council but there was no action taken on a potential change. At this point, staff knows of only one district that is moving to June. Most of the agencies have been moving in the direction to November. In summary, it is known that local is at the end of the ballot, federal/state is at the beginning. There are a larger number of items in the November election versus the June election. In the aggregate, the June ballot is larger by page numbers only because there are a larger number of candidates from which voters make their Packet Pg. 52 6.2.a FEBRUARY 7, 2017 PAGE 4 CC STUDY SESSION selections. Secondly, the cost of the election is unknown. Currently, the cost is $150,000. This amount could change up or down or remain the same as it depends on how many entities consolidate on June versus November and what the pro -rata share would be for Diamond Bar. Lastly, with Option #1, the process is four to six months because the Ordinance would have to be certified by the County and the City would have to notice all registered voters in Diamond Bar of the change in the election cycle (about 30,000 individuals). If the City were to institute a change based on the November 2017 election, the process would need to be completed before the 2017 election was noticed. Staff's recommendation is for the Council to engage in discussion and relay its desire to staff for staff to prepare an Ordinance for consideration based on that direction to meet the January 2018 requirement that the City have a plan in place and make sure that whatever election cycle is selected is complete by November 8, 2022. Council discussion ensued. MPT/Low felt there was a lot going on this year and that to make a change at this time would be too much for staff. CM/DeStefano said that Council's direction is not a burden upon staff. Staff makes adjustments and utilizes resources provided the Council and implements its decisions. C/Herrera asked if it was correct that if Council went to a November election that Council Members would have a five-year term which sounded good to her. C/Tye said that question is whether the Council wants to move the election to June or November. M/Lin said to him it was a no-brainer that to draw the voters a November election would be preferable. C/Tye felt that it was taken for granted that because Diamond Bar has been off the election it has had the information from the Registrar to itself and the decision was always a City Council election or school district election and with a November election, those entities will be "buried" at the end of the ballot and the question is whether the City wants to be buried in June or November. C/Lyons agreed. C/Herrera said that in a June primary there are numerous candidates trying to get the top two votes and it is a very crowded and congested ballot which to her, lends itself to voter fatigue. M/Lin said he studies the issues prior to voting so that voting is a formality and in his opinion, voter fatigue is not an issue. Packet Pg. 53 6.2.a FEBRUARY 7, 2017 PAGE 5 CC STUDY SESSION C/Lyons said her concern about voter fatigue was how many decisions a voter had to make and a voter has to make significantly more decisions in November than in June from a historical standpoint. The other reason she likes June is because everybody is running in June which allows for a better cross-section of voters versus a November election. C/Herrera asked if C/Lyons was in favor of moving forward now toward the June election and a four and one-half Council term. C/Lyons said she likes that better than a five-year term because she felt the residents might think a five-year term was excessive. C/Tye said he believed that a June primary is saturation. However, a point well - taken is that in November it is reduced to two. He would prefer to leave it alone but it is now state law and there will be those who disagree no matter what the Council decides. C/Herrera asked C/Tye if he preferred a four and one-half or five-year term. T" r r C/Tye said he was okay with either. C/Herrera said that staff needs a direction to put together an ordinance. M/Lin said that if the objective is to attract more voters, November would be preferable because the numbers speak for themselves. It is a question of four and one-half or five-year terms. The spirit of the bill is to draw more people to the voting booth which would lean toward a November election. C/Tye said he did not disagree. C/Lyons said she did not disagree. Following Council discussion and input, CM/DeStefano recommended that a motion be put forth to approve Option #3 with the November even -year election which will require staff to move forward with the appropriate Ordinance for a future vote during a regular City Council meeting. C/Herrera moved, C/Tye seconded, to approve Option #3 with the November even - year election moving the November 2017 election to November 2018 and the November 2019 to November 2020 and direct staff to prepare an Ordinance accordingly. Motion carried 4-1 with C/Lyons voting No. CM/DeStefano reiterated that the Council approved Option 3. When staff brings the Ordinance back to the City Council for further consideration, Council Members have time to make changes, direct staff to do something different, or to support the details staff brings forward at that time. Packet Pg. 54 FEBRUARY 7, 2017 PAGE 6 CC STUDY SESSION Public Comments: None. ADJOURNMENT: With no further business to come before the City Council, M/Lin recessed the Study Session at 6:08 p.m. to the Regular Meeting. Tommye Cribbins, City Clerk The foregoing minutes are hereby approved this day of 12017 Jimmy Lin, Mayor 6.2.a Packet Pg. 55 6.2.b MINUTES OF THE CITY COUNCIL REGULAR MEETING OF THE CITY OF DIAMOND BAR FEBRUARY 7, 2017 STUDY SESSION: 5:30 p.m., Room CC -8 ► Communication and Marketing Design Standards Memorandum — Discussion and Action. ► Statewide Election Legislative Update —SB 415 & SB450 — Discussion and Action. Public Comments: None Offered. Study Session Adjourned to Regular Meeting at 6:08 p.m. CALL TO ORDER: Mayor Lin called the Regular City Council meeting to order at 6:30 p.m. in the South Coast Air Quality Management District/Government Center Auditorium, 21865 Copley Drive, Diamond Bar, CA. CM/DeStefano stated that during tonight's Study Session, the Council again considered and ultimately approved a City logo design. The Council chose one of three options and directed staff to develop protocol for use of the logo. The second item was a continued discussion of the election terms of the City Council. Since incorporation, the City has held its elections in November of odd -numbered years. As a result of State Law that came into being, SB 415, cities like Diamond Bar that had election cycles in odd numbered years must look at changing their election cycle to an even -numbered year election cycle (June or November). After considering the available options, the Council this evening directed staff to move forward with the details that would change the City's November 2017 election to November of 2018 and change the November 2019 election to November of 2020, thereby creating a new cycle of even - numbered year elections in November, to meet the requirements of the new State law. Council has directed staff to work through the details of an ordinance that would make those changes and bring it back to the City Council in the next few weeks (30 days or so), for final consideration prior to it being forwarded to the County Clerk for implementation. M/Lin reiterated that as much as the City is happy with the current election system, this change is mandated by State law. PLEDGE OF ALLEGIANCE: Council Member Lyons led the Pledge of Allegiance. INVOCATION: Cantor Paul Buch, Temple Beth Israel, gave the invocation. ROLL CALL: Council Members Herrera, Lyons, Tye, Mayor Pro Tem Low and Mayor Lin. Packet Pg. 56 6.2.b FEBRUARY 7, 2017 PAGE 2 CITY COUNCIL Staff Present: James DeStefano, City Manager; David DeBerry, City Attorney; Ryan McLean, Assistant City Manager; David Liu, Public Works Director; Ken Desforges, IS Director; Dianna Honeywell, Finance Director; Anthony Santos, Assistant to the City Manager; Grace Lee, Senior Planner; Marsha Roa; Public Information Manager; Alfredo Estevez, Desktop Support; and Tommye Cribbins, City Clerk. APPROVAL OF AGENDA: As Presented. 1. SPECIAL PRESENTATIONS, CERTIFICATES, PROCLAMATIONS: 1.1 M/Lin and Council Members presented a City Tile to former State Senator Bob Huff. 1.2 Due to the unavailability of former Assembly Member Ling Ling Chang Mayor Lin and Council Members were unable to present a City Tile. 2. CITY MANAGER REPORTS AND RECOMMENDATIONS: CM/DeStefano reported that the City Council provided direction to City staff to establish a first-time City logo. PIM/Roa is the force behind this recommendation and has brought to the City's attention that while the City has had a wonderful Seal with a lot of great detail that reflects the City's image and historic roots which is the symbol of the community, there is a need for a City logo. To provide information about the difference between the use of a City Seal and City Logo, PIM/Roa will explain the elements of the logo and what they mean. PIM/Roa explained that staff has been working on developing a branding project for the City to create a unique and unifying look for all city communications and the foundation of this branding project is the creation of a new City Logo. During previous study sessions, several concepts were presented to the City Council. She displayed the logo chosen by Council. This logo features many familiar elements of Diamond Bar including the windmill and the hills. These should look very familiar to residents as these elements are also a part of the City Seal and included as part of the City's streetscape. The difference between a logo and a seal is that a seal is an authoritative representation of the City Council and is and will be used on all formal documents from the City Council. The logo will be used on all city communication tools, featured on the City's website, used on stationery and signage throughout the community. Staff is very excited to embark on this new communications and marketing design standards brand identity project and looks forward to providing more details as the project moves forward. Packet Pg. 57 FEBRUARY 7, 2017 PAGE 3 CITY COUNCIL 3. PUBLIC COMMENTS: Celina Laverde, 24490 Deepsprings Drive, said she was speaking for many Latinos who would like to see authentic Mexican food restaurants in Diamond Bar such as Acapulco and El Torito as well as an array of larger businesses move on Diamond Bar Boulevard so that the City feels more like a bigger city. She is very happy that Ross will be moving into Diamond Bar. She also stated that she would like to see more parks that offer more amenities for smaller kids like the parks in Chino Hills. Allen Wilson announced that he was chosen to be Assemblyman Phillip Chen’s Community Ambassador. His role will be to work with the community and be Assemblyman Chen’s eyes at public events and to let people know that the Assemblyman is available to answer any questions on state issues. Assemblyman Chen appreciates Council Members Low, Lyons and Tye for visiting his office in Sacramento to talk about issues that affect Diamond B ar. Anyone who has questions regarding state issues may contact Assemblyman Chen in Sacramento Room 4177 or phone 916 -319-2055 or visit his district office in Brea at 3 Point Drive, Suite 313, 714 -529-5502. Assemblyman Chen is on Facebook and can be followed on Twitter @phillipchenca. Pui Ching Ho, Diamond Bar Library spoke about upcoming Library events. On Wednesday, February 8 at 4:00 p.m. children will learn how to use math in the engineering design process and their imagination to create a machine that launches objects. Supplies will be provided and the event is sponsored by the Diamond Bar Friends of the Library. The Guzheng Ensemble will perform on Saturday, February 11 at 3:00 p.m. This program is also sponsored by the Diamond Bar Friends of the Library. Black History Month will be celebrated on Saturday, February 18 at 3:00 p.m. Please check the library website at http://colapublib.org/libs/diamondbar/index.php for additional programs and events. Debbie Avila-Mott representing the Diamond Bar Breakfast Lions Club invited the community to a Multi-Cultural Drum Concert on Sunday, February 12 from 2:00 to 5:00 p.m. at the Diamond Bar High School Theater. Tickets are $15 for adults, $8 for children and no charge for children 3 and under. Angie Shaw representing State Senator Josh Newman’s Office, introduced herself to the community and said the district office is located across the street from Assemblyman Chen’s office in Brea. Anyone who has issues with state agencies or state-related issues are invited to visit the office or call 714-671- 9474. The Senator will be hosting a Community Coffee Meet and Greet at the Diamond Bar Center on February 25 from 9:00 to 11:00 a.m. 6.2.b Packet Pg. 58 At t a c h m e n t 6 . 2 . b : R e g u l a r M e e t i n g o f F e b r u a r y 7 , 2 0 1 7 . ( 1 1 8 1 : C i t y C o u n c i l M i n u t e s f o r A p p r o v a l ) 6.2.b FEBRUARY 7, 2017 PAGE 4 CITY COUNCIL 4. RESPONSE TO PUBLIC COMMENTS: CM/DeStefano responded to speakers who referenced the newest State Senator and Assembly Member. With staff's support, members of the City Council had an opportunity to visit with both of these newly elected officials and their key staff members in Sacramento earlier in January. This week staff to staff meetings were finalized with the legislative team housed in Brea for both Assemblyman Chen and State Senator Newman. In addition, the City has reached out to newly elected Supervisor Janice Hahn who has invited the Diamond Bar City Council and other city councils in her district to a meeting next week. In addition, she has invited for a separate meeting the city managers from communities within her new district to meet with her as well. The City is reaching out to its new representatives to welcome them and educate them on issues relevant to the City of Diamond Bar, most notably, the SR57/60 Confluence Project and efforts to gain additional federal funds to complete the funding needed to build out all phases of the project. Regarding restaurants and parks in the community, Diamond Bar has a broad palate of restaurant opportunities in the City with a printed brochure that talks about more than 100 choices in the City. Indeed, since that brochure was created, additional restaurants have joined the community and there are a couple of new restaurants that will be locating in the City within the next year. With respect to parks, Diamond Bar has an equally robust parks program. There are hundreds of acres of open space, miles of pedestrian trail, active bikeways and an abundance of parks of all sizes with a variety of amenities from basketball to tennis to a stream running through it and so on. Anyone who is interested in learning more about the City's restaurants and parks can visit the City's website to gain further information. 5. SCHEDULE OF FUTURE EVENTS: 5.1 Traffic and Transportation Commission Meeting — February 9, 2017 — 7:00 p.m. —Windmill Community Room, 21810 Copley Drive. 5.2 Planning Commission Meeting — February 14, 2017 — 7:00 p.m., Windmill Community Room, 21810 Copley Drive. 5.3 Presidents' Holiday — City Offices will be closed Monday, February 20, 2017 in observance of Presidents' Holiday. City Offices reopen Tuesday, February 21, 2017 at 7:30 a.m. 5.4 City Council Meeting — February 21, 2017 — 6:30 p.m., AQMD/Government Center Auditorium, 21865 Copley Drive. 5.5 Household Hazardous Waste and E -Waste Roundup — February 25 — 9:00 a.m. to 3:00 p.m., off of Bridge Gate Drive, Gateway Corporate Center. Packet Pg. 59 6.2.b FEBRUARY 7, 2017 PAGE 5 CITY COUNCIL 6. CONSENT CALENDAR: C/Herrera moved, MPT/Low seconded, to approve the Consent Calendar as presented with the exception of Items 6.11 and 6.12 pulled by C/Lyons. Motion carried by the following Roll Call vote: AYES: COUNCIL MEMBERS: Herrera, Lyons, Tye, MPT/Low, M/Lin NOES: COUNCIL MEMBERS: None ABSENT: COUNCIL MEMBERS: None 6.1 WAIVE READING IN FULL OF ALL ORDINANCES AND RESOLUTIONS AND ADOPT THE CONSENT CALENDAR. 6.2 APPROVED CITY COUNCIL MINUTES: 6.2.1 Study Session Minutes of January 17, 2017 — as submitted. 6.2.2 Regular Meeting of January 17, 2017 — as submitted. 6.3 RECEIVED AND FILED TRAFFIC AND TRANSPORTATION COMMISSION MINUTES OF NOVEMBER 10, 2016. 6.4 RECEIVED AND FILED PLANNING COMMISSION MINUTES OF NOVEMBER 8, 2016. 6.5 RATIFIED CHECK REGISTER DATED JANUARY 12, 2017 THROUGH FEBRUARY 1, 2017 TOTALING $2,162,999.23. 6.6 APPROVED TREASURER'S STATEMENT FOR DECEMBER 2016. 6.7 RECEIVED AND FILED GENERAL PLAN STATUS REPORT FOR 2016 6.8 APPROVED AMENDMENT NO. 2 TO THE PROFESSIONAL SERVICES AGREEMENT WITH GO -LIVE TECHNOLOGY, INC. IN THE AMOUNT OF $47,500 FOR A TOTAL NOT -TO -EXCEED AMOUNT OF $87,500 FOR THE PERIOD OF JULY 1, 2016 THROUGH JUNE 30, 2017 AND AUTHORIZED THE CITY MANAGER TO EXECUTE THE CONTRACT AMENDMENT WITH GO -LIVE TECHNOLOGY, INC. 6.9 APPROVED NOTICE OF COMPLETION FOR THE TRAFFIC SIGNAL INFRASTRUCTURE UPGRADE — PHASE I PROJECT. 6.10 APPROVED NOTICE OF COMPLETION FOR THE CONSTRUCTION OF WASHINGTON STREET CUL-DE-SAC AT LINCOLN AVENUE PROJECT — PROJECT #26617. Packet Pg. 60 6.2.b FEBRUARY 7, 2017 PAGE 6 CITY COUNCIL 6.13 APPROVED AMENDMENT NO. 6 TO THE MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF DIAMOND BAR AND THE LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY FOR STATE ROUTE 60/LEMON AVENUE PARTIAL INTERCHANGE (ON & OFF RAMPS) CONSTRUCTION. 6.14 ADOPTED RESOLUTION NO. 2017-02; CONFIRMING EXISTENCE OF A LOCAL EMERGENCY AND CONCURRENTLY APPROVED DESIGNATION OF APPLICANT'S AGENT RESOLUTION FOR NON - STATE AGENCIES. ITEMS WITHDRAWN FROM CONSENT CALENDAR: 6.11 AUTHORIZE THE CITY MANAGER TO ENTER INTO A MEMORANDUM OF UNDERSTANDING (MOU) WITH THE CITY OF INDUSTRY ESTABLISHING A REIMBURSEMENT AGREEMENT FOR CONSULTANT COSTS RELATED TO THE PREPARATION OF THE FEDERAL FASTLANE GRANT APPLICATION. C/Lyons commented that this item authorizes the City Manager to enter into an MOU with the City of Industry so that the City can get reimbursed for consulting fees the City of Diamond Bar was required to spend in order to get a federal Fastlane grant application completed. She thanked staff for doing this and getting the contribution from the City of Industry which is money that will go back into the City's General Fund. 6.12 REJECT ALL BIDS FOR THE LONGVIEW SOUTH PARK IMPROVEMENTS PROJECT, PROJECT NO. 25116, CDBG NO. 601721- 15. C/Lyons said that the estimate for this project was up to $297,000 for the park; however, the bids were unacceptable for the amount of money and when the City goes back out to bid, will the asking amount be reduced or will the amount be increased? PWD/Liu responded to C/Lyons that as presented in staff's report, when the bids were opened, staff received 10 proposals and upon reviewing those proposals, it became apparent that the two low bidders failed to submit an addendum that would reflect the latest wage trades that are required in order for the City to make the proper payments should the project be awarded to one of those contractors. Because they did not include the addendum it deemed their bids to be "non-responsive." The other eight bidders included the addendum as part of their proposals and upon further examination of the bid schedules it became clear to staff that the proposed bids/fees were higher than the engineer's estimate. Staff wants to use this opportunity to get the message out that when this project Packet Pg. 61 6.2.b FEBRUARY 7, 2017 PAGE 7 CITY COUNCIL is re -advertised that the bidders should sharpen their pencils to ensure a level playing field. Staff will not reduce the scope of work or change anything when it comes to improvements. C/Lyons moved, MPT/Low seconded, to approve Item 6.11 and 6.12 as proposed. Motion carried by the following Roll call vote: AYES: NOES: ABSENT: 7. PUBLIC HEARING: w7 COUNCIL MEMBERS COUNCIL MEMBERS COUNCIL MEMBERS None. COUNCIL CONSIDERATION: None. Herrera, Lyons, M/Lin None None Tye, MPT/Low, COUNCIL SUBCOMMITTEE REPORTS AND MEETING ATTENDANCE REPORTS/COUNCIL MEMBER COMMENTS: C/Lyons reported that last week she participated in an Investiture Ceremony for eight (8) five year old Diamond Bar girls who became Daisy Girl Scouts. Frequently the Council gets to see other groups but does not have much exposure to Girl Scouts and it is great to know that Diamond Bar girls are taking advantage of scouting. She recently represented the Council at the Grand Reopening of the Diamond Bar Montessori School which is at the north end of town and has been beautifully renovated inside and out. She thanked staff and the Sheriff's Department for their quick reaction to the heavy rains on January 22nd and 23rd. There was way too much rain at Sycamore Canyon Park and a lot of mud and muck everywhere. They carefully closed the park to keep everyone safe. She commented on the memos regarding the General Plan Status Report and Goals and Accomplishments. After she read these memos she was quite overwhelmed with all that had been accomplished this year including the final phase of Willow Heights Homes, initial construction for South Pointe West Homes, beginning of the redevelopment of the Kmart Center, opening of Smart & Final Extra, improving Stardust and Peterson Parks, Grand Opening of Diamond Canyon Park, major improvement for traffic flow at Diamond Bar Boulevard and Brea Canyon, removing turf out of medians and replacing it with drought tolerant plants, Phase I of the SR57/60 Confluence is underway and the new "Let's Talk Public Safety" program. These items are probably only 10 percent of what was called out in the report. On behalf of the residents she again thanked staff for all of their hard work. C/Herrera attended the Diamond Bar Chinese Association's New Year Celebration last Saturday at Diamond Bar High School which was attended by a great number of people including M/Lin and MPT/Low along with dignitaries throughout the region. It was a great celebration and the food was wonderful. She had a great time. This is the Year of the Rooster. She reiterated her thank - Packet Pg. 62 6.2.b FEBRUARY 7, 2017 PAGE 8 CITY COUNCIL you to Senator Bob Huff for all of his years of service to the community and to the greater southern California region. Often, his emphasis was on transportation and he did a great job in helping different cities including Diamond Bar with transportation issues. We look forward to his next venture. C/Tye said it is nice to have Bob Huff come back to Diamond Bar and reflect on all that he has done. We thank him for being here tonight and for all that he has done for Diamond Bar and the Assembly and Senate he represented. He was nine years on the Diamond Bar City Council, four years in the Assembly and eight years in the State Senate which adds up to 21 years of his life spent in public service. It was a great commitment and sacrifice to service on his part and the community appreciates him for making this small corner of the world a better place. When C/Tye reflects on what the City has been through during the past five, 10, 15 years, he thinks sadly about how differently things could have been that as of tomorrow it has been 10 years since the City lost Bob Zirbes. C/Tye thinks of him often and what a wonderful community Diamond Bar is because of Bob Zirbes and he often thinks of Paint the Town and how much fun it was to go through that weekend with him and what a wonderful individual he was and how much he is missed every day. He felt it would be appropriate to again adjourn in his memory this evening. MPT/Low thanked Senator Bob Huff for his many, many years of service. One of the best things about Bob is that he is always very available and happy to see people and be part of the community. For that and for his spunk and energy, he is very much appreciated. Thanks to Bob and his wife for their service to this community. She congratulated Ambassadors Shaw and Wilson and said she knew Mr. Wilson would love the new job and why are your offices not in Diamond Bar? Something that makes Diamond Bar special is the community service groups and community volunteers and as C/Herrera mentioned, the Diamond Bar Chinese Association had their New Year Celebration which was a great event of sharing their culture and food. Another volunteer service group is the AAUW which last week held a speech debate and the young people expressed their opinions and worked very hard. This evening Ms. Avila -Mott spoke about the Lions, another volunteer group. Another upcoming event is the Woman's Group Casino Night this coming Saturday. Another event people can be involved in is the General Plan Update which is a three-year effort. People can be involved and share their vision for the City by attending GPAC meetings, writing in on the website, or by snail -mail. She wished everyone a Happy Valentine's Day. M/Lin said that a disadvantage of speaking last is that everyone has spoken about your subjects. He echoed everyone's comments. There has certainly been a lot of rain this year and the good part of that is that the drought problem is somewhat relieved. However, a major negative outcome of such heavy rains is that pavement can be damaged and the City may have to tap into its contingency for mitigation. He has an acquaintance who recently had business dealings with the City of Diamond Bar and while he does not live in the City, he commented that Diamond Bar staff is one of the most professional group of people he has Packet Pg. 63 FEBRUARY 7, 2017 PAGE 9 CITY COUNCIL dealt with. ADJOURNMENT: With no further business to conduct, M/Lin adjourned the Regular City Council Meeting at 7:20 p.m. in honor of form Council Member Bob Zirbes. Tommye Cribbins, City Clerk The foregoing minutes are hereby approved this day of '2017. Jimmy Lin, Mayor 6.2.b Packet Pg. 64 CITY COUNCIL 6.3 Agenda #: 6.3 Meeting Date: February 21, 2017 AGENDA REPORT TO: Honorable Mayor and Members of the City Council FROM: James DeStefano, City Manager TITLE: MINUTES OF THE PARKS AND RECREATION COMMISSION MEETING OF NOVEMBER 17, 2016 RECOMMENDATION: Receive and file. Attachments: 1. 6.3.a Minutes of November 17, 2016 Packet Pg. 65 6.3.a CITY OF DIAMOND BAR MINUTES OF THE PARKS & RECREATION COMMISSION DIAMOND BAR CITY HALL - THE WINDMILL ROOM 21810 COPLEY DRIVE, DIAMOND BAR, CA 91765 NOVEMBER 17, 2016 CALL TO ORDER: Chair/Grundy called the Parks and Recreation Commission meeting to order at 7:02 p.m. in the City Hall Windmill Room, 21810 Copley Drive, Diamond Bar, CA 91765. PLEDGE OF ALLEGIANCE: Commissioner Herndon led the Pledge of Allegiance. ROLL CALL: Present: Commissioners Lew Herndon, Kim Hsieh, Benny Liang, Vice Chair Manisha Sulakhe and Chair Dave Grundy Staff Present: Ryan McLean, Assistant City Manager; Anthony Jordan, Parks and Maintenance Superintendent; Christy Murphey, Recreation Superintendent; Cloris Vargas, Recreation Specialist, and Robin Crawford, Community Services Coordinator. MATTERS FROM THE AUDIENCE: None CALENDAR OF EVENT'S: As presented by ACM/McLean. 1, CONSENT CALENDAR: 1.1 Approval of Minutes for the September 22, 2016 Regular Meeting C/Hsieh pointed out that the corrections requested during the October 27 meeting had not been done and asked that three items be corrected in accordance with last month's request. ACM/McLean said the changes would be reflected in the corrected version. C/Herndon moved, C/Hsieh seconded, to approve the minutes of the September 22, 2016 Regular Meeting as corrected. Without objection, the motion was so ordered. 1.2 Approval of Minutes for October 27, 2016 Regular Meeting VC/Sulakhe moved, C/Hsieh seconded, to approve the minutes of the October 27, 2016 Regular Meeting as presented. Without objection, the motion was so ordered with C/Herndon and C/Liang abstaining. Packet Pg. 66 6.3.a NOVEMBER 17, 2016 PAGE 2 P&R COMMISSION 2. INFORMATIONAL ITEMS: 2.1 Recreation Program Update -- RS/Murphey C/Herndon said he attended the field allocation meeting last night and he agrees with RS/Murphey's statement that generally, people accepted what was given them. The problem is that the city does not have enough (fields to allocate) to give to them. He thinks that everyone understands the situation and is willing to accept the city has a shortage of fields. They all work together -well but he wanted to reiterate that the city does not have enough fields to accommodate the youth sports programs. C/Hsieh asked if there were attorneys that came to provide "complimentary legal service" and RS/Murphey responded yes. Estate Planning Attorney Sara Polinsky has been working with seniors for many, many years and comes once a month for about five, 20 minute appointments to discuss Wills, etc. She also volunteers at several other cities. C/Hsieh asked if doctors come to the local health fairs and RS/Murphey said she did not believe the city has specific doctors that participate but there are other senior related health and wellness vendors. RS/Vargas said that vendors from Rose Hills, Medicare, In -Home Care Services, and vendors who assisted with ear care, hearing aids, etc. attend. She reached out to local offices including St. Jude and Kaiser and they were too busy to participate. She reached out to 24 Hour Fitness, Healthy Aging and Crunch but did not get any response. C/Hsieh asked how many individuals usually attend and RS/Vargas said she believed more attend the health fair than come out for flu shots. In the past there have been 200-300 attendees but because flu shots are being given out in advance by their doctors the number dropped to 110 this year. C/Hsieh asked how much residents pay to reserve the parks and RS/Murphey responded that it is $25 for a Diamond Bar resident to rent a picnic area and $50 for nonresidents. C/Hsieh asked if it was for a certain number of hours and RS/Murphey responded that it is one picnic reservation per park per day. Sycamore and Pantera each have two shelters that accommodate two rentals. C/Hsieh said she was very impressed about how well the Diamond Bar Center did in October. VC/Sulakhe asked about the November 17 Senior Excursion to Morongo Casino and RS/Murphey said that due to lack of enrollment the event was canceled. C/Hsieh said to let her know the next time the event was scheduled because she might be able to help with enrollment. 2.1.1 PowerPoint Presentation —Veterans Day— RS/Vargas Packet Pg. 67 6.3.a NOVEMBER 17, 2096 PAGE 3 P&R COMMISSION Chair/Grundy said the video is great. Wonderful job by JR and everyone who contributed to it. ClHsieh asked what more could be done to honor the veterans. She was heartbroken when she heard the city was thinking about doing away with the banner program. She recently visited the City of Anaheim and saw banners while driving through the streets. They jumped out at her and it looked so nice which made her feel like Diamond Bar was lacking in its display of appreciation. She believes the City's program could be better. She wondered if it was a lack of funding that prevented the City from upgrading the banners. ACM/McLean said he did not know what Bob Rose may have informed the Commission of in the past. As of this point he knows of no changes that are planned to stop doing the banner program. As far as cost, the banners are very expensive and to replace all of the banners would be a significant expense in the tens of thousands of dollars and probably closer to a six -figure number. For example, the City bought banners and placed them at strategic locations to advertise the Restaurant Week project which cost nearly $15,000 which is a much smaller number than what would be required to replace every banner that is currently in place. ClHsieh said understanding that, Restaurant Week is once a year and if it continues will the City use the same banners? When Alex Morgan was honored there were banners all over the City. And is there a way it could happen in the future? RSNargas said she does not do the banners. She does senior programs and helps with the banner program. The picture banners are seen in big cities. Anaheim is a huge city compared to Diamond Bar. San Dimas does not have pictures and it is a bigger city. Chino Hills has them but they are another big city. Diamond Bar incorporated banners in the Boulevard of Honors. The seniors who came to the Diamond Bar Center when the program was announced really liked that idea, that it was called the Boulevard of Honor and that it was at one location and not scattered throughout the City and overpower this small City. C/Hsieh asked how many banners are on the Boulevard and RS/Vargas reiterated that she does not do the banner program so she could not give C/Hsieh a number. ACM/McLean said that staff will look at the program, get a count of the number of banners and do some preliminary research on costs and bring the matter back to the Commission with a recommendation from staff. ACM/McLean said he was not aware of any complaints about any of the banners that are up on the Boulevard. Witnessing the events he attends every year, those that receive their banners who have retired are very thankful and very appreciative. They value the banners and see that it is an honor. Staff will provide the results of their Packet Pg. 68 6.3.a NOVEMBER 17, 26'16 PAGE 4 P&R COMMISSION research at a future meeting. VC/Sulakhe said that Anaheim is a huge city and she believes the Diamond Bar banners need an upgrade but there is no comparison between the two cities. 2.2 Maintenance Report — PMS/Jordan Chair/Grundy said he had not heard of any significant vandalism or theft of copper and assumed those incidents were not taking place. PMS/Jordan said he recently reported about the incident at Pantera Park where kids were caught shooting lights out with pellet guns but nothing significant. There was an incident this week at Peterson Park where someone got into the construction site for the new playground and graffitied the new playground equipment and some of the construction equipment. Although it was not terribly significant, it was graffiti nonetheless. The Sheriff's Department was contacted about this incident. Things are stabilizing. There are still small incidents that happen from time to time. C/Hsieh asked if the problems shown in the photos she provided last month she had taken on her walks had been attended to and PMS/Jordan said he did not recall. He offered to discuss the items with her after the meeting. She said it was the area where the car is in Sycamore Canyon Park. C/Liang asked if there was a light fixture in the dog park and PMS/Jordan said there is none. The closest lights are adjacent to the basketball courts which are lighted and there are walkway lights in proximity to the basketball courts. Along the trail into the dog park and in the dog park proper there are no lights. 2.2.1 PowerPoint Presentation -Peterson Park— PMS/Jordan. C/Herndon said that last night at the meeting there was mention of a dark spot just beyond the skate park and the kids are gathering there and smoking pot. Also, his property backs up against City property and he is starting to see squirrels on his property for the first time in 25 years which may mean that the population in that part of Sycamore Canyon Park may be growing. PMS/Jordan said he was recently contacted by the LA County Department of Health and as mentioned, Sycamore Canyon Park tested positive in the 80's so it is on their radar and they let him know that the population was getting a little high. It is not at a critical level and if the inspectors see things as an upward trend they tali him as a courtesy. If they put it in writing they have to take formal action which they have never done because the City has always been able to reduce the population. So as a matter of Packet Pg. 69 NOVEMBER 17, 2016 2.3 2.4 PAGE 5 6.3.a P&R COMMISSION course, PMS/Jordan contacted the contractors to let them know they need to step up measures to control the populations which they have done in the last couple of weeks. CIP Projects — ACM/McLean 2.3.1 Stardust Park ADA Improvements — This project is substantially completed. The playground is pretty much in, the concrete work, landscaping, and drainage improvements have been done. The furnishings need to be placed including tables, benches, trash cans, etc. The project is on target to be completed by the end of this month/early December. 2.3.2 Peterson Park Playground Equipment — The equipment is pretty much in place and the pour -in-place safety flooring that is placed under the playground equipment has been done. 2.3.3 Pantera Park/Steep Canyon Trail --- This project is underway. The Public Works Department and Engineering team has awarded the construction contract and will notice the contractor to proceed. This is a 120 day project which should be completed in the spring of 2017. 2.3.4 Longview Park North Swing Set — The bid package is underway and should be ready for bids at this time. 2.3.5 Longview South Improvements — The bid package is being finalized for this project which is similar to Stardust Park and will include new equipment, new pour -in-place under the equipment, improvements to ADA access and landscaping. 2.3.6 Diamond Canyon Park — Staff is in the process of finalizing the last bits of construction walkthroughs which will be completed in time for the December 3rd dedication. List of pending Commission requests — ACM/McLean Regarding additional stairs at the dog park, this project, as previously noted, is underway (bid package) and will be completed in the spring. Given the project will include the stairs and that this project is underway, staff recommends that this item be removed from the pending list. With respect to the request for trail descriptions to be placed at the base of each trail, the signage is in the process of being put together and should be installed late this year. Regarding the feasibility of installing solar panels at City facilities, staff has noted that solar projects will be considered at future development. This is an ongoing matter wherein the cost benefit will be weighed for each Packet Pg. 70 6.3.a NOVEMBER 17, 2016 PAGE 6 P&R COMMISSION project to determine whether solar makes sense. There is a solar array on the roof of City Hall which is the one solar project in place in the City and it is also the most recent construction of a facility. As such, staff recommends that this ongoing item be removed from the list. Considering the possibility of advertising under the Diamond Canyon Park entry sign, there are no plans to amend the design of the recently unveiled signage at Diamond Canyon Park. Staff is looking at electronic signage — reviewing and improving the existing signage outside the former library facility to expand on the current technology. In addition, Public Information is currently reviewing other options that may be available for such signage. While the City is looking to enhance advertising and digital signage around town, it would not be at the Diamond Canyon Park entry sign. Therefore, staff recommends that this item be removed from the list as well. Regarding the inquiry about erecting a stage at the green space on Summitridge Drive which was discussed at the last Commission meeting, staff has looked at the site and staff's recommendation is to not do any development on that site. There are some very inherent limitations to that site as discussed, primarily the parking and access, location of the site (directly across from homes), and it is a very small parcel (approximately 3/ of an acre). Because it is so close to so many other public park spaces in that general area staff feels that at this time it would be better served to use the parks development resources elsewhere and to complete some of the other CIP projects on the priority list. Staff's recommendation would be to not develop anything on that site. Chair/Grundy is okay with removing Item 2 from the list. C/Herndon said he is fine with removing items that have been associated with his name. He commented that with updated technology, electronic signage might be a way to honor some veterans with pictures, etc. ACM/McLean said he thought C/Herndon's idea was excellent and that if there are technical updates, there would be the ability to do something like that. VC/Sulakhe said she agreed with removing the last item but she would like to continue exploring the item about installing lights in the back area (of the Diamond Bar Center). ACM/McLean pointed out that this item would remain on the list. C/Liang asked about having staff explore exercise equipment for seniors in the park because it seems like the population is aging and perhaps could survey the senior.clubs to find out whether they would make use of such equipment. ACM/McLean said staff can consider such equipment when doing upgrades at other parks. When Commissioners walk through Diamond Canyon Park on December 3 they will note that some of that Packet Pg. 71 6.3.a NOVEMBER 17, 2616 PNCE 7 P&R COMMISSION equipment is installed. The new park has a circuit that includes exercise equipment which is primarily resistance type equipment. PMS/Jordan added that there are also some exercise equipment elements on the Mesa Trail at Sycamore Canyon. ACM/McLean said he would add C/Hsieh's request about the military banner program to the list. C/Hsieh said that as soon as the trail signage is installed the item can be stricken from the list. VC/Sulakhe said that she sees that many public facilities such as airports, parks, banquet halls and small wedding sites have installed automated external defibulators which are things that are on walls of libraries along with a posting of SOP (Standard Operator Procedures) and there is an alarm that will blink and alert everyone in the facility when it is in use. She would like staff to explore this possibility. ACM/McLean said staff will explore this request. There are portable AED's at the City's public facilities including the Diamond Bar Center, City Hall, Heritage Park and Pantera Park and staff is looking at a second one for the Diamond Bar Center. VC/Sulakhe said she understands the City has those but is the staff trained to use them. ACM/McLean said that staff was trained in the usage as it goes through regular training for CPR and AED's, an eight- hour training that is done at City Hall. 3. OLD BUSINESS: None 1: 11613 1 � 1495 .. 4.1 Regular Commission Meeting scheduled for December 2016 — due to anticipated lack of agenda items it is recommended that the December meeting be adjourned to January 26, 2017. C/Herndon moved, C/Liang seconded, to adjourn the December meeting to January 26, 2017. Without objection, the motion was so ordered. 5. ANNOUNCEMENTS: C/Liang thanked staff for their dedicated work and especially to RS/Vargas, RC/Crawford and RS/Murphy for their assistance at the Diamond Bar Center. Last Monday nearly 500 guests were very pleased to join together at the Diamond Bar Center. He really appreciated the Veteran's video. He wished everyone a Happy Thanksgiving. C/Herndon said he has served on the Commission for about 11 years and he gets somewhat frustrated hearing the same problems about not having enough sports fields in the City. He knows everyone gets tired of hearing him talk about that issue. He has attended a lot of allocation meetings and his frustration is not extended to staff because he believes staff does a great job of allocating fields Packet Pg. 72 NOVEMBER 17, 2016 PAGE 8 P&R COMMISSION the City has but he is still frustrated there are not enough fields. If any of his frustration has come across as being against the staff, that is certainly not the case and if it did, he apologizes for it. He wished everyone a nice Thanksgiving. C/Hsieh thanked staff for making things happen for residents and their enjoyment of the City. She walks everywhere and enjoys it. She will miss everyone the rest of the year. Happy Thanksgiving, Merry Christmas, and Happy New Year. VC/Sulakhe echoed her colleagues, the great team that it is. She thinks with the resources available to Diamond Bar the staff is doing an awesome job — keep up the good work. It is not a straight road, it is a daily roller coaster with a lot of people to deal with and a lot of situations and circumstances. She wished everyone a very Happy Thanksgiving with their families. Take time to laugh and live. Chair/Grundy echoed his colleagues' sentiments about the great job that staff has done throughout the year. He believes it has been a very successful year and staff should take time to reflect on all of their accomplishments. He appreciated all of the informative reports to the Commission throughout the year. He is looking forward to the Diamond Canyon Park opening because it will be wonderful to see another park open in the City. He remembers when there was a public meeting about the potential project and after walking the field he scraped mud off of his tennis shoes. It is great to have witnessed it from conception to completion. Happy Holidays to everyone — colleagues and staff. ADJOURNMENT: C/Herndon moved, C/Hsieh seconded to adjourn the meeting. With no one objecting and no further business before the Parks and Recreation Commission, Chair/Grundy adjourned the meeting at 8:21 p.m. to January 26, 2017. The foregoing minutes are hereby approved this 11 day of NOVEMBER , 2016. Respectfully C RETARY 6.3.a Packet Pg. 73 6.4 Agenda #: 6.4 Meeting Date: February 21, 2017 CITY COUNCIL �r�r yAGENDA REPORT TO: Honorable Mayor and Members of the City Council FROM: James DeStefano, City Manager TITLE: RATIFICATION OF CHECK REGISTER DATED FEBRUARY 2, 2017 THROUGH FEBRUARY 15, 2017 TOTALING $ 735,966.05 RECOMMENDATION: Ratify. FINANCIAL IMPACT: Expenditure of $ 735,966.05 in City funds. BACKGROUND: The City has established the policy of issuing accounts payable checks on a weekly basis with City Council ratification at the next scheduled City Council Meeting. DISCUSSION: The attached check register containing checks dated February 2, 2017 through February 15, 2017 for $ 735,966.05 is being presented for ratification. All payments have been made in compliance with the City's purchasing policies and procedures. Payments have been reviewed and approved by the appropriate departmental staff and the attached Affidavit affirms that the check register has been audited and deemed accurate by the Finance Director. ;j:7:117_1V411W11a Luisa en, cco nti g ec nic In 2/21/2017 Packet Pg. 74 anna oneywell, Finan irector 2/16/2017 Attachments: 1. 6.4.a Check Register 2-21-17 2. 6.4.b Signed warrant 2-21-17 6.4 Packet Pg. 75 SUNGARD PENTAMATION INC PAGE NUMBER: DATE: 02/16/2017 CITY OF DIAMOND BAR ACCTPA21 TIME: 07:44:43 CHECK REGISTER - DISBURSEMENT FUND SELECTION CRITERIA: transact.ck_date between '20170202 00:00:00.000' and '20170215 00:00:00.000' ACCOUNTING PERIOD: 8/17 1 FUND - 001 - GENERAL FUND CASH ACCT CHECK NO ISSUE DT VENDOR NAME FUND/DIVISION -----DESCRIPTION------ SALES TAX AMOUNT 10100 119497 02/02/17 ACCESSCO ACCESS CONTROL SECURITY 0015333 SECURITY SVCS -DBC 0.00 629.53 10100 119497 02/02/17 ACCESSCO ACCESS CONTROL SECURITY 0015333 SECURITY SVCS -DBC 0.00 1,444.95 TOTAL CHECK 0.00 2,074.48 10100 119498 02/02/17 AFLAC AFLAC 001 JAN 2017-SUPP INS PRE 0.00 2,192.03 10100 119499 02/02/17 AMERICAB AMERICAN CAB LLC 1135553 FY2016-17 DIAMOND RIDE 0.00 210.20 10100 119499 02/02/17 AMERICAB AMERICAN CAB LLC 1135553 FY2016-17 DIAMOND RIDE 0.00 22,829.55 TOTAL CHECK 0.00 23,039.75 10100 119500 02/02/17 BARLASNA NAILA ASAD BARLAS 0015210 PLNG COMM -1/10/17 0.00 65.00 10100 119501 02/02/17 BARRETTT THOMAS BARRETT 0015350 CONTRACT CLASS -WINTER 0.00 60.00 10100 119502 02/02/17 EVERGREE ROBYN A BECKWITH 0014093 MAINTENANCE OF PLANTS 0.00 325.00 10100 119502 02/02/17 EVERGREE ROBYN A BECKWITH 0014093 MAINTENANCE OF PLANTS 0.00 107.00 TOTAL CHECK 0.00 432.00 10100 119503 02/02/17 BESTLTG BEST LIGHTING PRODUCTS 0015333 MAINT SVCS -DBC 0.00 89.86 10100 119503 02/02/17 BESTLTG BEST LIGHTING PRODUCTS 0015556 MAINT SVCS -PARKS 0.00 2,411.66 TOTAL CHECK 0.00 2,501.52 10100 119504 02/02/17 BREAUXKA KATHY BREAUX 0015350 CONTRACT CLASS -WINTER 0.00 180.60 10100 119505 02/02/17 CANOMANU MANUEL CANO 001 RECREATION REFUND 0.00 400.00 10100 119506 02/02/17 CHARTER CHARTER OAK GYMNASTICS, 0015350 CONTRACT CLASS -WINTER 0.00 176.40 10100 119507 02/02/17 CHENJON JONATHAN CHEN 001 FACILITY REFUND-REAGA 0.00 50.00 10100 119508 02/02/17 CVT CHINO VALLEY TOUR 1125350 SR EXCURSION -CASINO 0.00 800.00 10100 119509 02/02/17 CLARKRIC RICHARD CLARK 001 FACILITY REFUND -DBC 0.00 850.00 10100 119510 02/02/17 CONTERNE ERNESTO CONTRERAS 001 RECREATION REFUND 0.00 324.00 10100 119511 02/02/17 CORONADO ERIKA CORONADO 001 FACILITY REFUND-REAGA 0.00 50.00 10100 119511 02/02/17 CORONADO ERIKA CORONADO 001 FACILITY REFUND-REAGA 0.00 81.00 10100 119511 02/02/17 CORONADO ERIKA CORONADO 001 FACILITY REFUND-REAGA 0.00 25.00 TOTAL CHECK 0.00 156.00 10100 119512 02/02/17 DAPEERRO DAPEER ROSENBLIT & LITVA 0014020 LEGAL SVCS -DEC 2016 0.00 2,816.42 0100 119513 02/02/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 ADMIN FEES -PR 15-2589 0.00 31.05 0100 119513 02/02/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 ADMIN FEES -PR 16-2446 0.00 -183.51 0100 119513 02/02/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 ADMIN FEES -PR 11-377 0.00 -48.60 0100 119513 02/02/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 ADMIN FEES -PR 15-2589 0.00 -37.26 " 0100 119513 02/02/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 ADMIN FEES -PR 15-2589 0.00 -31.05 C 0100 119513 02/02/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 ADMIN FEES -PR 15-2589 0.00 37.26 -a 0100 119513 02/02/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 ADMIN FEES -PR 11-377 0.00 48.60 0100 119513 02/02/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 PROF.SVCS-PR 11-377 0.00 270.00 V 0100 119513 02/02/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 PROF.SVCS-PR 16-2446 0.00 1,019.50 Attach ment6.4.a: Check Register 2-21-17 (1187 : Ratification of Check Register) 1 SUNGARD PENTAMATION INC PAGE NUMBER: DATE: 02/16/2017 CITY OF DIAMOND BAR ACCTPA21 TIME: 07:44:43 CHECK REGISTER - DISBURSEMENT FUND SELECTION CRITERIA: transact.ck_date between '20170202 00:00:00.000' and '20170215 00:00:00.000' ACCOUNTING PERIOD: 8/17 2 FUND - 001 - GENERAL FUND CASH ACCT CHECK NO ISSUE DT VENDOR NAME FUND/DIVISION -----DESCRIPTION------ SALES TAX AMOUNT 10100 119513 02/02/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 PROF.SVCS-PR 15-2589 0.00 172.50 10100 119513 02/02/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 ADMIN FEES -PR 16-2446 0.00 183.51 10100 119513 02/02/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 PROF.SVCS-PR 15-2589 0.00 207.00 TOTAL CHECK 0.00 1,669.00 10100 119514 02/02/17 DDSYSTEM DD SYSTEMS INC 250 PK IMPRVMNT-PETERSON 0.00 7,349.71 10100 119514 02/02/17 DDSYSTEM DD SYSTEMS INC 250 PK IMPRVMNT-STARDUST 0.00 14,433.82 TOTAL CHECK 0.00 21,783.53 10100 119515 02/02/17 DELTADEN DELTA DENTAL 001 FEB 17 -DENTAL PREMIUM 0.00 4,503.55 10100 119516 02/02/17 DELTACAR DELTA DENTAL INSURANCE C 001 FEB 17 -HMO DENTAL PRE 0.00 279.17 10100 119517 02/02/17 DENNISCA CAROL A DENNIS 0015210 PROF.SVCS-PLNG COMM 0.00 100.00 10100 119518 02/02/17 DBHANDCA DIAMOND BAR HAND CAR WAS 5204093 CAR WASH -POOL VEH 0.00 264.82 10100 119518 02/02/17 DBHANDCA DIAMOND BAR HAND CAR WAS 5204093 CAR WASH -POOL VEH 0.00 161.89 10100 119518 02/02/17 DBHANDCA DIAMOND BAR HAND CAR WAS 5205556 CAR WASH-P/WORKS 0.00 80.97 TOTAL CHECK 0.00 507.68 10100 119519 02/02/17 DREAMSHA DREAM SHAPERS 001 FACILITY REFUND -DBC 0.00 113.00 10100 119520 02/02/17 ESPAGRIS GRISELDA ESPARZA 001 RECREATION REFUND 0.00 84.00 10100 119521 02/02/17 ESPIFRAN FRANCO ESPINOSA 001 RECREATION REFUND 0.00 364.00 10100 119522 02/02/17 EXPRESSM EXPRESS MAIL CORPORATE A 001 E/MAIL-PL 2016-159 0.00 20.66 10100 119522 02/02/17 EXPRESSM EXPRESS MAIL CORPORATE A 001 E/MAIL-PL 2016-159 0.00 20.66 TOTAL CHECK 0.00 41.32 10100 119523 02/02/17 FARAGOFR FRANK A FARAGO 0015210 PLNG COMM -1/10/17 0.00 65.00 10100 119524 02/02/17 FEDEX FEDEX 001 EXPRESS MAIL-PL15-528 0.00 73.57 10100 119524 02/02/17 FEDEX FEDEX 001 EXPRESS MAIL-PL15-144 0.00 29.48 10100 119524 02/02/17 FEDEX FEDEX 001 ADMIN FEES -PL 15-528 0.00 -13.24 10100 119524 02/02/17 FEDEX FEDEX 001 ADMIN FEES-PL15-144 0.00 -5.31 10100 119524 02/02/17 FEDEX FEDEX 001 ADMIN FEES-PL15-144 0.00 5.31 10100 119524 02/02/17 FEDEX FEDEX 0014030 EXPRESS MAIL -GENERAL 0.00 11.32 10100 119524 02/02/17 FEDEX FEDEX 001 ADMIN FEES -PL 15-528 0.00 13.24 10100 119524 02/02/17 FEDEX FEDEX 0014030 EXPRESS MAIL -GENERAL 0.00 186.25 TOTAL CHECK 0.00 300.62 10100 119525 02/02/17 GATEWAYC GATEWAY CORPORATE CENTER 0014093 CAPITAL CONTRIBUTION 0.00 184.00 0100 119525 02/02/17 GATEWAYC GATEWAY CORPORATE CENTER 0014093 ASSOCIATION DUES 0.00 1,601.00 TAL CHECK 0.00 1,785.00 0100 119526 02/02/17 GONZAPRI APRIL GONZALEZ 001 FACILITY REFUND-PTRSN 0.00 20.00 " 0100 119526 02/02/17 GONZAPRI APRIL GONZALEZ 001 FACILITY REFUND-PTRSN 0.00 50.00 CD DIAL CHECK 0.00 70.00 (4 0100 119527 02/02/17 GRICHERL LINDA GRICHER 001 RECREATION REFUND 0.00 37.00 V Attach ment6.4.a: Check Register 2-21-17 (1187 : Ratification of Check Register) 2 SUNGARD PENTAMATION INC PAGE NUMBER: DATE: 02/16/2017 CITY OF DIAMOND BAR ACCTPA21 TIME: 07:44:43 CHECK REGISTER - DISBURSEMENT FUND SELECTION CRITERIA: transact.ck_date between '20170202 00:00:00.000' and '20170215 00:00:00.000' ACCOUNTING PERIOD: 8/17 3 FUND - 001 - GENERAL FUND CASH ACCT CHECK NO ISSUE DT VENDOR NAME FUND/DIVISION -----DESCRIPTION------ SALES TAX AMOUNT 10100 119528 02/02/17 HSUANN ANN HSU 001 FACILITY REFUND-HRTGE 0.00 200.00 10100 119529 02/02/17 HUGHESDA DAVID HUGHES 001 FACILITY REFUND -DBC 0.00 100.00 10100 119530 02/02/17 JAFERYSU SUFIA JAFERY 001 FACILITY REFUND -DBC 0.00 100.00 10100 119531 02/02/17 MAHLKEJE JENNIFER LYNN MAHLKE 0015210 PLNG COMM -1/10/17 0.00 65.00 10100 119532 02/02/17 MANAGEDH MANAGED HEALTH NETWORK 001 FEB 17 -EAP PREMIUMS 0.00 134.40 10100 119533 02/02/17 MCMULLEN CHERIE MCMULLEN 001 RECREATION REFUND 0.00 198.00 10100 119534 02/02/17 MIRELESA ALAN MIRELES 001 FACILITY REFUND-S/CYN 0.00 25.00 10100 119535 02/02/17 MMASC MMASC 0014030 MEMBERSHIP DUES-SNTS 0.00 85.00 10100 119536 02/02/17 MOBILERE MOBILE RELAY ASSOCIATES 0014440 REPEATER SVC FEB 2017 0.00 78.75 10100 119537 02/02/17 MOKKENNE KENNETH MOK 0015210 PLNG COMM -1/10/17 0.00 65.00 10100 119538 02/02/17 PARSONSJ JAMES PARSONS 001 RECREATION REFUND 0.00 74.00 10100 119539 02/02/17 PATTONCA CAMERON PATTON 0015350 YOUTH BKTBLL OFFICIAL 0.00 630.00 10100 119540 02/02/17 PEREASYL SYLVIA PEREA 001 FACILITY REFUND -DBC 0.00 100.00 10100 119540 02/02/17 PEREASYL SYLVIA PEREA 001 FACILITY REFUND -DBC 0.00 81.00 TOTAL CHECK 0.00 181.00 10100 119541 02/02/17 PEREZLOR LORETTA PEREZ 001 RECREATION REFUND 0.00 37.00 10100 119542 02/02/17 RKACONSU RKA CONSULTING GROUP 0015220 BLDG & SFTY SVCS -DEC 0.00 39,623.57 10100 119543 02/02/17 SGVEP SAN GABRIEL VALLEY ECONO 0014096 COST SHARE ICSC EXHIB 0.00 1,950.00 10100 119544 02/02/17 SANGCOMA MARIA SANGCO 001 FACILITY REFUND -DBC 0.00 100.00 10100 119545 02/02/17 SIMMONSR RICK LEE SIMMONS 0015556 MAINT SVCS -PARKS 0.00 1,900.00 10100 119546 02/02/17 STANDARD STANDARD INSURANCE COMPA 001 FEB 17-STD/LTD 0.00 2,115.01 10100 119546 02/02/17 STANDARD STANDARD INSURANCE COMPA 001 FEB 17-SUPP LIFE INS 0.00 618.00 10100 119546 02/02/17 STANDARD STANDARD INSURANCE COMPA 001 FEB 17 -LIFE INS PREM 0.00 956.18 TOTAL CHECK 0.00 3,689.19 0100 119547 02/02/17 SCGAS THE GAS COMPANY 0015556 GAS SVCS -HERITAGE 0.00 360.45 0100 119547 02/02/17 SCGAS THE GAS COMPANY 0015333 GAS SVCS -DBC 0.00 2,155.57 IAL CHECK 0.00 2,516.02 " 0100 119548 02/02/17 TOJIMMY JIMMY TO 001 RECREATION REFUND 0.00 400.00 CD 0100 119549 02/02/17 TUCKERRA RAYMOND MICHAEL TUCKER 0015350 CONTRACT CLASS -WINTER 0.00 240.00 C4 v 0100 119550 02/02/17 USBANK US BANK 0014050 CITY CREDIT CARD -JAN 0.00 21,440.19 00 Attach ment6.4.a: Check Register 2-21-17 (1187 : Ratification of Check Register) 3 SUNGARD PENTAMATION INC DATE: 02/16/2017 CITY OF DIAMOND BAR TIME: 07:44:43 CHECK REGISTER - DISBURSEMENT FUND SELECTION CRITERIA: transact.ck_date between '20170202 00:00:00.000' and '20170215 00:00:00.000' ACCOUNTING PERIOD: 8/17 PAGE NUMBER: ACCTPA21 4 FUND - 001 - GENERAL FUND CASH ACCT CHECK NO ISSUE DT VENDOR NAME FUND/DIVISION -----DESCRIPTION------ SALES TAX AMOUNT 10100 119551 02/02/17 USHEALTH US HEALTHWORKS MEDICAL G 0014060 PRE-EMPLOYMENT PHYSCL 0.00 221.00 10100 119552 02/02/17 VSP VISION SERVICE PLAN 001 FEB 17 -VISION PREMIUM 0.00 1,670.57 10100 119553 02/02/17 WVWATER WALNUT VALLEY WATER DIST 1385538 WATER SVCS -DIST 38 0.00 3,138.60 10100 119553 02/02/17 WVWATER WALNUT VALLEY WATER DIST 0014093 WATER SVCS -CITY HALL 0.00 361.36 10100 119553 02/02/17 WVWATER WALNUT VALLEY WATER DIST 0015333 WATER SVCS -DBC 0.00 291.58 10100 119553 02/02/17 WVWATER WALNUT VALLEY WATER DIST 1415541 WATER SVCS -DIST 41 0.00 1,397.54 10100 119553 02/02/17 WVWATER WALNUT VALLEY WATER DIST 1395539 WATER SVCS -DIST 39 0.00 1,653.16 10100 119553 02/02/17 WVWATER WALNUT VALLEY WATER DIST 1385538 WATER SVCS -DIST 38 0.00 109.48 10100 119553 02/02/17 WVWATER WALNUT VALLEY WATER DIST 0015556 WATER SVCS -PARKS 0.00 7,032.56 TOTAL CHECK 0.00 13,984.28 10100 119554 02/02/17 WAXIESAN WAXIE SANITARY SUPPLY 0014093 SUPPLIES -CITY HALL 0.00 1,602.32 10100 119555 02/02/17 WENARKIA AGUNG WENARKI 001 FACILITY REFUND -DBC 0.00 600.00 10100 119556 02/02/17 WESTCOAS WEST COAST ARBORISTS INC 0015558 TREE MAINT SVCS -JAN 0.00 15,911.75 10100 119557 02/02/17 WCMEDIA WEST COAST MEDIA 0014095 AD -DBC BRIDAL SHOW 0.00 500.00 10100 119558 02/02/17 WILLDANG WILLDAN GEOTECHNICAL 001 PROF.SVCS-PR 15-2722 0.00 1,200.00 10100 119558 02/02/17 WILLDANG WILLDAN GEOTECHNICAL 001 PROF.SVCS-PR 16-2461 0.00 800.00 10100 119558 02/02/17 WILLDANG WILLDAN GEOTECHNICAL 001 ADMIN FEES -PR 16-2461 0.00 144.00 10100 119558 02/02/17 WILLDANG WILLDAN GEOTECHNICAL 001 ADMIN FEES-PR15-2722 0.00 216.00 10100 119558 02/02/17 WILLDANG WILLDAN GEOTECHNICAL 001 ADMIN FEES -PR 16-2461 0.00 -144.00 10100 119558 02/02/17 WILLDANG WILLDAN GEOTECHNICAL 001 ADMIN FEES-PR15-2722 0.00 -216.00 TOTAL CHECK 0.00 2,000.00 10100 119559 02/02/17 WOLFERAY RAYMOND WALTER WOLFE 0015210 PLNG COMM -1/10/17 0.00 65.00 10100 119560 02/02/17 YEUNGELA ELAINE YEUNG 001 RECREATION REFUND 0.00 99.00 10100 119562 02/09/17 AIPARTYR Al PARTY RENTALS 0015350 EQ RENTAL-BARKTOBER 0.00 6,336.10 10100 119563 02/09/17 ADANIJAG JAGU ADANI 001 FACILITY REFUND-PNTRA 0.00 81.00 10100 119563 02/09/17 ADANIJAG JAGU ADANI 001 FACILITY REFUND-PNTRA 0.00 90.00 10100 119563 02/09/17 ADANIJAG JAGU ADANI 001 FACILITY REFUND-PNTRA 0.00 100.00 TOTAL CHECK 0.00 271.00 10100 119564 02/09/17 AJILONST AJILON STAFFING SERVICES 0015510 TEMP SVCS -WK 1/22/17 0.00 600.00 0100 119565 02/09/17 YBARRAAL ALBERT YBARRA 0014095 REIMB-MEMBERSHIP DUES 0.00 80.00 0100 119566 02/09/17 ALBERTSO ALBERTSONS LLC 0015350 SUPPLIES -ROSE PARADE 0.00 8.97 0100 119566 02/09/17 ALBERTSO ALBERTSONS LLC 0015350 SUPPLIES -YOUTH SPORTS 0.00 33.92 " 0100 119566 02/09/17 ALBERTSO ALBERTSONS LLC 0015350 SUPPLIES-DB4YOUTH 0.00 69.04 C 0100 119566 02/09/17 ALBERTSO ALBERTSONS LLC 0015350 SUPPLIES -SR PROG 0.00 79.00 -a TAL CHECK 0.00 190.93 C4 V 0100 119567 02/09/17 ALLCITYM ALL CITY MANAGEMENT SERV 0014411 CROSSING GUARD SVCS 0.00 7,109.91 Attach ment6.4.a: Check Register 2-21-17 (1187 : Ratification of Check Register) 4 SUNGARD PENTAMATION INC DATE: 02/16/2017 CITY OF DIAMOND BAR TIME: 07:44:43 CHECK REGISTER - DISBURSEMENT FUND SELECTION CRITERIA: transact.ck_date between '20170202 00:00:00.000' and '20170215 00:00:00.000' ACCOUNTING PERIOD: 8/17 PAGE NUMBER: ACCTPA21 5 O iy FUND - 001 - GENERAL FUND CASH ACCT CHECK NO ISSUE DT VENDOR NAME FUND/DIVISION -----DESCRIPTION------ SALES TAX AMOUNT 10100 119568 02/09/17 AMERICOM AMERICOMP GROUP 0014070 LASER PRINTER MAINT 0.00 434.91 10100 119568 02/09/17 AMERICOM AMERICOMP GROUP 0014070 TONER FOR PRINTERS 0.00 1,376.57 10100 119568 02/09/17 AMERICOM AMERICOMP GROUP 0014070 TONER FOR PRINTERS 0.00 1,394.33 TOTAL CHECK 0.00 3,205.81 10100 119569 02/09/17 CENTERIC ARTESIA ICE SKATING TRAI 0015350 CONTRACT CLASS -WINTER 0.00 123.00 10100 119570 02/09/17 EVERGREE ROBYN A BECKWITH 0015556 PLANT SVCS -HERITAGE 0.00 135.00 10100 119570 02/09/17 EVERGREE ROBYN A BECKWITH 0015333 PLANT SVCS -DBC 0.00 265.40 TOTAL CHECK 0.00 400.40 10100 119571 02/09/17 BMCSOFTW BMC SOFTWARE INC 0014070 COMP MAINT SVCS-I.T. 0.00 2,323.86 10100 119572 02/09/17 VALLEYCR BRIGHTVIEW LANDSCAPE SER 1385538 INSTALL SVCS-LMN/GSPR 0.00 442.94 10100 119572 02/09/17 VALLEYCR BRIGHTVIEW LANDSCAPE SER 0015333 LANDSCAPE MAINT-JAN 0.00 5,645.47 10100 119572 02/09/17 VALLEYCR BRIGHTVIEW LANDSCAPE SER 0015556 LANDSCAPE MAINT-JAN 0.00 28,415.11 10100 119572 02/09/17 VALLEYCR BRIGHTVIEW LANDSCAPE SER 1385538 INSTALL SVCS-LMN/GSPR 0.00 10,056.67 TOTAL CHECK 0.00 44,560.19 10100 119573 02/09/17 CDW-G CDW GOVERNMENT 0014070 SUPPLIES-I.T. 0.00 1,316.27 10100 119574 02/09/17 CHOUDHAR ASRA CHOUDHARY 001 FACILITY REFUND -DBC 0.00 500.00 10100 119574 02/09/17 CHOUDHAR ASRA CHOUDHARY 001 FACILITY REFUND -DBC 0.00 41.00 TOTAL CHECK 0.00 541.00 10100 119575 02/09/17 CLEARCHA CLEAR CHANNEL OUTDOOR IN 0014095 PRINT SVCS -BUS SHELTE 0.00 500.00 10100 119575 02/09/17 CLEARCHA CLEAR CHANNEL OUTDOOR IN 0014095 AD -DBC BRIDAL SHOW 0.00 763.00 TOTAL CHECK 0.00 1,263.00 10100 119576 02/09/17 COLLEYFO COLLEY FORD 5205230 VEH MAINT-CODE ENFOR 0.00 62.38 10100 119577 02/09/17 COTTONKA KARON COTTON 0015350 CONTRACT CLASS -WINTER 0.00 32.40 10100 119578 02/09/17 DAVIDELI ELIZABETH DAVIS 001 RECREATION REFUND 0.00 32.00 10100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 PROF.SVCS-PL 12-164 0.00 32.28 10100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 ADMIN FEE -PL 16-168 0.00 -517.38 10100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 ADMIN FEE -PL 15-528 0.00 -169.20 10100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 ADMIN FEE -PL 14-699 0.00 -121.05 10100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 ADMIN FEE -PL 15-34 0.00 -115.20 10100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 ADMIN FEE -PL 13-221 0.00 -105.75 10100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 ADMIN FEE -PL 15-528 0.00 -80.55 0100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 ADMIN FEE -PL 15-370 0.00 -45.03 0100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 ADMIN FEE -PR 15-2870 0.00 -36.45 -0 0100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 ADMIN FEE -PL 15-101 0.00 -30.63 0100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 ADMIN FEE -PR 13-1779 0.00 -14.55 n " 0100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 ADMIN FEE -PL 12-164 0.00 -5.81 C 0100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 ADMIN FEE -PL 15-395 0.00 -1.83 -a 0100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 ADMIN FEE -PL 16-42 0.00 -1.83 0100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 ADMIN FEE -PL 15-144 0.00 -1.83 0100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 ADMIN FEE -PL 16-42 0.00 1.83 00O Attach ment6.4.a: Check Register 2-21-17 (1187 : Ratification of Check Register) 5 O iy SUNGARD PENTAMATION INC PAGE NUMBER: 6 DATE: 02/16/2017 CITY OF DIAMOND BAR ACCTPA21 TIME: 07:44:43 CHECK REGISTER - DISBURSEMENT FUND SELECTION CRITERIA: transact.ck_date between '20170202 00:00:00.000' and '20170215 00:00:00.000' ACCOUNTING PERIOD: 8/17 Attach ment6.4.a: Check Register 2-21-17 (1187 : Ratification of Check Register) FUND - 001 - GENERAL FUND CASH ACCT CHECK NO ISSUE DT VENDOR NAME FUND/DIVISION -----DESCRIPTION------ SALES TAX AMOUNT 10100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 ADMIN FEE -PL 15-144 0.00 1.83 10100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 ADMIN FEE -PL 15-395 0.00 1.83 10100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 ADMIN FEE -PL 12-164 0.00 5.81 10100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 PROF.SVCS-PL 15-395 0.00 10.14 10100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 PROF.SVCS-PL 15-144 0.00 10.14 10100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 PROF.SVCS-PL 16-42 0.00 10.14 10100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 ADMIN FEE -PR 13-1779 0.00 14.55 10100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 ADMIN FEE -PR 15-2870 0.00 36.45 10100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 ADMIN FEE -PL 15-370 0.00 45.03 10100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 0015551 PROF.SVCS-PLAN CHECK 0.00 937.50 10100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 ADMIN FEE -PL 15-528 0.00 80.55 10100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 PROF.SVCS-PR 13-1779 0.00 80.84 10100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 ADMIN FEE -PL 13-221 0.00 105.75 10100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 ADMIN FEE -PL 15-101 0.00 30.63 10100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 PROF.SVCS-PL 15-528 0.00 940.00 10100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 0015551 LANDSCAPE INSPECTIONS 0.00 2,755.00 10100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 0015551 PROF."SVCS-PLAN CHECK 0.00 1,270.16 10100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 0015551 PROF.SVCS-INSPECTIONS 0.00 210.00 10100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 0015551 PROF.SVCS-INSPECTIONS 0.00 2,680.00 10100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 0015551 PROF.SVCS-PLAN CHECK 0.00 877.50 10100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 0015551 PROF.SVCS-PLAN CHECK 0.00 141.16 10100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 PROF.SVCS-PL 15-528 0.00 447.50 10100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 PROF.SVCS-PL 16-168 0.00 2,874.34 10100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 ADMIN FEE -PL 16-168 0.00 517.38 10100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 PROF.SVCS-PL 13-221 0.00 587.50 10100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 PROF.SVCS-PL 15-34 0.00 640.00 10100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 PROF.SVCS-PL 14-699 0.00 672.50 10100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 ADMIN FEE -PL 15-34 0.00 115.20 10100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 ADMIN FEE -PL 14-699 0.00 121.05 10100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 ADMIN FEE -PL 15-528 0.00 169.20 10100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 PROF.SVCS-PL 15-101 0.00 170.14 10100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 PROF.SVCS-PR 15-2870 0.00 202.50 10100 119579 02/09/17 DAVIDEVA DAVID EVANS AND ASSOCIAT 001 PROF.SVCS-PL 15-370 0.00 250.14 TOTAL CHECK 0.00 15,799.48 10100 119580 02/09/17 DAYNITEC DAY & NITE COPY CENTER 0015510 PRINT SVCS-M/CANYON 0.00 191.77 10100 119580 02/09/17 DAYNITEC DAY & NITE COPY CENTER 0014095 PRINT SVCS-P/INFO 0.00 95.16 10100 119580 02/09/17 DAYNITEC DAY & NITE COPY CENTER 001 PRINT SVCS -PR 10-1163 0.00 14.72 10100 119580 02/09/17 DAYNITEC DAY & NITE COPY CENTER 001 PRINT SVCS -PR 16-1210 0.00 27.25 10100 119580 02/09/17 DAYNITEC DAY & NITE COPY CENTER 001 PRINT SVCS -PR 15-2870 0.00 24.53 TOTAL CHECK 0.00 353.43 10100 119581 02/09/17 DOGGIEWA DOGGIE WALK BAGS INC 1155515 SUPPLIES -DOGGIE BAGS 0.00 1,248.45 0100 119582 02/09/17 ELECNORB ELECNOR BELCO ELECTRIC I 2505510 T/SGNL INFRASTRUCTURE 0.00 47,332.88 -0 0100 119582 02/09/17 ELECNORB ELECNOR BELCO ELECTRIC I 250 RETENTIONS PAYABLE 0.00 -7,960.20 0100 119582 02/09/17 ELECNORB ELECNOR BELCO ELECTRIC I 250 RETENTIONS PAYABLE 0.00 -5,928.98 n " 0100 119582 02/09/17 ELECNORB ELECNOR BELCO ELECTRIC I 250 RETENTIONS PAYABLE 0.00 -5,467.12 C 0100 119582 02/09/17 ELECNORB ELECNOR BELCO ELECTRIC I 250 RETENTIONS PAYABLE 0.00 -2,366.64 -a TAL CHECK 0.00 25,609.94 C4 0100 119583 02/09/17 EMERALD EMERALD LANDSCAPE SERVIC 0014093 MAINT SVCS -JAN 0.00 910.00 000 Attach ment6.4.a: Check Register 2-21-17 (1187 : Ratification of Check Register) SUNGARD PENTAMATION INC DATE: 02/16/2017 CITY OF DIAMOND BAR TIME: 07:44:43 CHECK REGISTER - DISBURSEMENT FUND SELECTION CRITERIA: transact.ck_date between '20170202 00:00:00.000' and '20170215 00:00:00.000' ACCOUNTING PERIOD: 8/17 PAGE NUMBER: ACCTPA21 7 FUND - 001 - GENERAL FUND CASH ACCT CHECK NO ISSUE DT VENDOR NAME FUND/DIVISION -----DESCRIPTION------ SALES TAX AMOUNT 10100 119584 02/09/17 EXCELLAN EXCEL LANDSCAPE INC 0015556 MONTHLY MAINT-PARK 0.00 325.00 10100 119584 02/09/17 EXCELLAN EXCEL LANDSCAPE INC 1415541 MONTHLY MAINT-DIST 41 0.00 4,143.87 10100 119584 02/09/17 EXCELLAN EXCEL LANDSCAPE INC 1385538 MONTHLY MAINT-DIST 38 0.00 10,848.00 10100 119584 02/09/17 EXCELLAN EXCEL LANDSCAPE INC 1395539 MONTHLY MAINT-DIST 39 0.00 11,610.95 10100 119584 02/09/17 EXCELLAN EXCEL LANDSCAPE INC 1395539 ADDL MAINT-DIST 39 0.00 155.75 10100 119584 02/09/17 EXCELLAN EXCEL LANDSCAPE INC 1395539 ADDL MAINT-DIST 39 0.00 188.44 TOTAL CHECK 0.00 27,272.01 10100 119585 02/09/17 FEHRPEER FEHR & PEERS 0015551 ON CALL SVCS -ENG 0.00 1,159.11 10100 119585 02/09/17 FEHRPEER FEHR & PEERS 0015551 ON CALL SVCS -ENG 0.00 3,548.49 TOTAL CHECK 0.00 4,707.60 10100 119586 02/09/17 FRONTIER FRONTIER COMMUNICATIONS 0014070 PH.SVCS-SRST CH 1 0.00 153.92 10100 119587 02/09/17 GRANICUS GRANICUS INC 0014070 MONTHLY MAINT SVCS 0.00 1,000.00 10100 119588 02/09/17 GUANJUST JUSTIN GUAN 001 RECREATION REFUND 0.00 94.00 10100 119589 02/09/17 GJSINC GUARANTEED JANITORIAL SE 0015556 JANITORIAL SVCS-PKS 0.00 1,296.00 10100 119589 02/09/17 GJSINC GUARANTEED JANITORIAL SE 0015333 JANITORIAL SVCS -DBC 0.00 3,689.00 10100 119589 02/09/17 GJSINC GUARANTEED JANITORIAL SE 0014093 JANITORIAL SVCS-C/HLL 0.00 6,556.00 TOTAL CHECK 0.00 11,541.00 10100 119590 02/09/17 HDLCOREN HDL COREN & CONE 0014050 CONTRACT SVCS-P/TAX 0.00 3,060.00 10100 119591 02/09/17 HOFFMANS HOFFMAN SOUTHWEST CORP 0015333 MAINT SVCS -DBC 0.00 922.39 10100 119591 02/09/17 HOFFMANS HOFFMAN SOUTHWEST CORP 0015554 MAINT SVCS-S/SPRINGS 0.00 505.00 TOTAL CHECK 0.00 1,427.39 10100 119592 02/09/17 JJKELLER J J KELLER AND ASSOCIATE 0014060 PUBLICATIONS-H/R 0.00 287.75 10100 119593 02/09/17 JIFFYLUB WISCONSIN QUICK LUBE INC 5204090 VEH MAINT-POOL VEH 0.00 38.40 10100 119593 02/09/17 JIFFYLUB WISCONSIN QUICK LUBE INC 5204090 VEH MAINT-POOL VEH 0.00 35.85 TOTAL CHECK 0.00 74.25 10100 119594 02/09/17 JOEGONSA JOE A. GONSALVES & SON I 0014030 LEGISLATIVE SVCS -FEB 0.00 3,000.00 10100 119595 02/09/17 KCPOWERC KC POWER CLEAN INC 0015554 ROAD MAINT SVCS-WSHNG 0.00 595.00 10100 119596 02/09/17 KIMLEYHO KIMLEY HORN AND ASSOCIAT 2505510 ADAPTIVE T/CNTRL SYS 0.00 6,906.22 10100 119597 02/09/17 LEAGUE LEAGUE OF CALIFORNIA CIT 0014060 AD -CITY MANAGER 0.00 1,150.00 0100 119598 02/09/17 LEEYENCH YENCHU LEE 001 RECREATION REFUND 0.00 84.00 0100 119599 02/09/17 LESTERLI LESTER LITHOGRAPH INC 0014095 PRINT SVCS -DB CONN 0.00 3,701.30 x C 0100 119600 02/09/17 LEWISENG LEWIS ENGRAVING INC. 0014030 ENGRAVING SVCS-C/TILE 0.00 39.15 (4 0100 119601 02/09/17 LACPUBWK LOS ANGELES COUNTY PUBLI 0015510 INDUSTRIAL WASTE SVCS 0.00 603.65 00 N Attach ment6.4.a: Check Register 2-21-17 (1187 : Ratification of Check Register) 7 SUNGARD PENTAMATION INC DATE: 02/16/2017 CITY OF DIAMOND BAR TIME: 07:44:43 CHECK REGISTER - DISBURSEMENT FUND SELECTION CRITERIA: transact.ck_date between '20170202 00:00:00.000' and '20170215 00:00:00.000' ACCOUNTING PERIOD: 8/17 PAGE NUMBER: ACCTPA21 AMOUNT 4,387.83 912.50 1,320.00 50.00 50.00 100.00 63.37 66.06 129.43 1,898.13 481.31 109.00 6,500.00 200.00 220.15 494.67 80.84 107.15 902.81 194.97 243.22 1,037.92 1,476.11 1,550.00 185.42 284.28 469.70 206.27 219.77 249.79 129.87 137.43 345.45 8,589.60 104.62 70.95 26.77 8 FUND - 001 - GENERAL FUND CASH ACCT CHECK NO ISSUE DT VENDOR NAME FUND/DIVISION -----DESCRIPTION------ SALES TAX 10100 119602 02/09/17 MIRACLER MIRACLE RECREATION EQUIP 0015556 PLAYGROUND EQ-M/HILL 0.00 10100 119603 02/09/17 NICHOLSC NICHOLS CONSULTING ENGIN 0015510 ENG SVCS-PAVEMNT MNGM 0.00 10100 119604 02/09/17 KIDZLOVE NORTH AMERICAN YOUTH ACT 0015350 CONTRACT CLASS -FALL 0.00 10100 119605 02/09/17 OKOYEEZI EZINWAS OKOYE 001 FACILITY REFUND-S/CYN 0.00 10100 119605 02/09/17 OKOYEEZI EZINWAS OKOYE 001 FACILITY REFUND-S/CYN 0.00 TOTAL CHECK 0.00 10100 119606 02/09/17 ORKININC ORKIN PEST CONTROL INC 1385538 PEST CONTROL SVCS -JAN 0.00 10100 119606 02/09/17 ORKININC ORKIN PEST CONTROL INC 0015556 PEST CONTROL SVCS -JAN 0.00 TOTAL CHECK 0.00 10100 119607 02/09/17 PAETECCO PAETEC COMMUNICATIONS IN 0014070 LONG DIST PH. SVCS 0.00 10100 119608 02/09/17 PASCODOO PASCO DOORS 0015333 MAINT SVCS -DBC 0.00 10100 119609 02/09/17 REBICKRY RYAN REBICK 001 RECREATION REFUND 0.00 10100 119610 02/09/17 REVENUEC REVENUE & COST SPECIALIS 0014050 FEE STUDY SVCS -15/16 0.00 10100 119611 02/09/17 RUIZROSE ROSIE RUIZ 001 FACILITY REFUND-HRTGE 0.00 10100 119612 02/09/17 SCFUELS SC FUELS 5205554 FUEL -RD MAINT 0.00 10100 119612 02/09/17 SCFUELS SC FUELS 5205556 FUEL -PARKS 0.00 10100 119612 02/09/17 SCFUELS SC FUELS 5204093 FUEL -POOL VEH 0.00 10100 119612 02/09/17 SCFUELS SC FUELS 5205230 FUEL -CODE ENFOR 0.00 TOTAL CHECK 0.00 10100 119613 02/09/17 SIEMENS SIEMENS INDUSTRY INC 0015554 TRAFFIC SIGNAL MAINT 0.00 10100 119613 02/09/17 SIEMENS SIEMENS INDUSTRY INC 0015554 TRAFFIC SIGNAL MAINT 0.00 10100 119613 02/09/17 SIEMENS SIEMENS INDUSTRY INC 0015554 TRAFFIC SIGNAL MAINT 0.00 TOTAL CHECK 0.00 10100 119614 02/09/17 SIMPSONA SIMPSON ADVERTISING INC 0014095 GRAPHIC DESIGN SVCS 0.00 10100 119615 02/09/17 SMARTFIN SMART & FINAL 0015350 SUPPLIES -TINY TOTS 0.00 10100 119615 02/09/17 SMARTFIN SMART & FINAL 0015350 SUPPLIES -SR PROG 0.00 TOTAL CHECK 0.00 10100 119616 02/09/17 SOSSURVI SOS SURVIVAL PRODUCTS IN 0014440 SUPPLIES-EMER PREP 0.00 0100 119617 02/09/17 SCE SOUTHERN CALIFORNIA EDIS 0015510 ELECT SVCS-T/CONTROL 0.00 0100 119617 02/09/17 SCE SOUTHERN CALIFORNIA EDIS 0015510 ELECT SVCS-T/CONTROL 0.00 0100 119617 02/09/17 SCE SOUTHERN CALIFORNIA EDIS 0015510 ELECT SVCS-T/CONTROL 0.00 0100 119617 02/09/17 SCE SOUTHERN CALIFORNIA EDIS 0015510 ELECT SVCS-T/CONTROL 0.00 " 0100 119617 02/09/17 SCE SOUTHERN CALIFORNIA EDIS 0015510 ELECT SVCS-T/CONTROL 0.00 C 0100 119617 02/09/17 SCE SOUTHERN CALIFORNIA EDIS 0014093 ELECT SVCS-T/CONTROL 0.00 -a 0100 119617 02/09/17 SCE SOUTHERN CALIFORNIA EDIS 0015510 ELECT SVCS-T/CONTROL 0.00 0100 119617 02/09/17 SCE SOUTHERN CALIFORNIA EDIS 0015556 ELECT SVCS-T/CONTROL 0.00 0100 119617 02/09/17 SCE SOUTHERN CALIFORNIA EDIS 1385538 ELECT SVCS-T/CONTROL 0.00 00W Attachment6.4.a: Check Register 2-21-17 (1187 : Ratification of Check Register) PAGE NUMBER: ACCTPA21 AMOUNT 4,387.83 912.50 1,320.00 50.00 50.00 100.00 63.37 66.06 129.43 1,898.13 481.31 109.00 6,500.00 200.00 220.15 494.67 80.84 107.15 902.81 194.97 243.22 1,037.92 1,476.11 1,550.00 185.42 284.28 469.70 206.27 219.77 249.79 129.87 137.43 345.45 8,589.60 104.62 70.95 26.77 8 SUNGARD PENTAMATION INC PAGE NUMBER: DATE: 02/16/2017 CITY OF DIAMOND BAR ACCTPA21 TIME: 07:44:43 CHECK REGISTER - DISBURSEMENT FUND SELECTION CRITERIA: transact.ck_date between '20170202 00:00:00.000' and '20170215 00:00:00.000' ACCOUNTING PERIOD: 8/17 9 FUND - 001 - GENERAL FUND CASH ACCT CHECK NO ISSUE DT VENDOR NAME FUND/DIVISION -----DESCRIPTION------ SALES TAX AMOUNT TOTAL CHECK 0.00 9,874.25 10100 119618 02/09/17 SPARKLET SPARKLETTS 0014030 WATER SUPPLIES-C/HALL 0.00 203.00 10100 119618 02/09/17 SPARKLET SPARKLETTS 0014030 EQ RENTAL-C/HALL 0.00 2.99 TOTAL CHECK 0.00 205.99 10100 119619 02/09/17 ADELPHIA SPECTRUM BUSINESS 0014070 PH.SVCS-DBC 0.00 98.43 10100 119619 02/09/17 ADELPHIA SPECTRUM BUSINESS 0014070 PH.SVCS-B/CYN 0.00 222.18 TOTAL CHECK 0.00 320.61 10100 119620 02/09/17 SRINSRIR SRIRAM SRINIVASAN 001 RECREATION REFUND 0.00 47.00 10100 119620 V 02/09/17 SRINSRIR SRIRAM SRINIVASAN 001 RECREATION REFUND 0.00 -47.00 TOTAL CHECK 0.00 0.00 10100 119621 02/09/17 SWRCB SWRCB ACCOUNTING OFFICE 0015510 ANNL PERMIT FEE-WDR 0.00 22,447.00 10100 119622 02/09/17 TENNISAN TENNIS ANYONE INC 0015350 CONTRACT CLASS -WINTER 0.00 1,662.50 10100 119623 02/09/17 THECOMDY THE COMDYN GROUP INC 0014070 CONSULTING SVCS -1/20 0.00 1,367.46 10100 119624 02/09/17 THESAUCE THE SAUCE CREATIVE SERVI 0014095 AD-MAR/APR ISSUE 0.00 271.88 10100 119625 02/09/17 THREEVAL THREE VALLEYS MUNICIPAL 0014440 TRNG-A SANTOS 0.00 20.00 10100 119626 02/09/17 JACKSONS TRADITIONAL AUTO SUPPLY 5205556 VEH MAINT-PARKS 0.00 52.45 10100 119627 02/09/17 VANTAGEP VANTAGEPOINT TRNSFR AGNT 001 2/10/17 -LOAN DEDUCTIO 0.00 2,917.97 10100 119627 02/09/17 VANTAGEP VANTAGEPOINT TRNSFR AGNT 001 2/10/17-P/R DEDUCTION 0.00 32,491.83 TOTAL CHECK 0.00 35,409.80 10100 119628 02/09/17 VERIZONW VERIZON WIRELESS 0014070 WIRELESS SVC-PW,CS,CD 0.00 1,467.50 10100 119629 02/09/17 WAXIESAN WAXIE SANITARY SUPPLY 0014093 SUPPLIES -CITY HALL 0.00 284.51 10100 119629 02/09/17 WAXIESAN WAXIE SANITARY SUPPLY 0015333 SUPPLIES -DBC 0.00 284.51 TOTAL CHECK 0.00 569.02 10100 119630 02/09/17 ZEENIINC ZEENI INC 0015350 YOUTH BASKETBALL JRSY 0.00 5,729.04 10100 FY16/17 02/02/17 CALPERS CA PUBLIC EMPL RETIREMEN 001 FY 16/17-1959 SURVIVR 0.00 2,580.00 10100 03 -PP 17 02/09/17 PAYROLL PAYROLL TRANSFER 001 P/R TRANSFER-03/PP 17 0.00 169,197.58 10100 03 -PP 17 02/09/17 PAYROLL PAYROLL TRANSFER 112 P/R TRANSFER-03/PP 17 0.00 5,645.20 10100 03 -PP 17 02/09/17 PAYROLL PAYROLL TRANSFER 113 P/R TRANSFER-03/PP 17 0.00 4,497.68 0100 03 -PP 17 02/09/17 PAYROLL PAYROLL TRANSFER 115 P/R TRANSFER-03/PP 17 0.00 15,599.57 0100 03 -PP 17 02/09/17 PAYROLL PAYROLL TRANSFER 138 P/R TRANSFER-03/PP 17 0.00 1,239.43 0100 03 -PP 17 02/09/17 PAYROLL PAYROLL TRANSFER 139 P/R TRANSFER-03/PP 17 0.00 619.70 0100 03 -PP 17 02/09/17 PAYROLL PAYROLL TRANSFER 141 P/R TRANSFER-03/PP 17 0.00 619.70 ,,DIAL CHECK 0.00 197,418.86 CD 0100 FY16/17- 02/02/17 CALPERS CA PUBLIC EMPL RETIREMEN 001 FY 16/17-1959 SURVIVR 0.00 206.40 C4 0100 PP 01-02 02/02/17 PERSHEAL PERS HEALTH 001 FEB 17 -HEALTH INS PREM 0.00 43,546.16 00 Attach ment6.4.a: Check Register 2-21-17 (1187 : Ratification of Check Register) 9 SUNGARD PENTAMATION INC PAGE NUMBER: 10 DATE: 02/16/2017 CITY OF DIAMOND BAR ACCTPA21 TIME: 07:44:43 CHECK REGISTER - DISBURSEMENT FUND SELECTION CRITERIA: transact.ck_date between '20170202 00:00:00.000' and '20170215 00:00:00.000' ACCOUNTING PERIOD: 8/17 FUND - 001 - GENERAL FUND CASH ACCT CHECK NO ISSUE DT VENDOR NAME FUND/DIVISION -----DESCRIPTION------ SALES TAX AMOUNT 10100 PP 01-02 02/02/17 PERSHEAL PERS HEALTH 0014060 FEB 17 -HEALTH INS PREM 0.00 145.55 TOTAL CHECK 0.00 43,691.71 10100 PP 03/17 02/09/17 PERSRETI PERS RETIREMENT FUND 001 RETIRE CONTRIB-PEPRA 0.00 574.81 10100 PP 03/17 02/09/17 PERSRETI PERS RETIREMENT FUND 001 RETIRE CONTRIB-EE 0.00 27,406.45 10100 PP 03/17 02/09/17 PERSRETI PERS RETIREMENT FUND 001 SURVIVOR BENEFIT 0.00 47.43 TOTAL CHECK 0.00 28,028.69 10100 PP 03-17 02/09/17 TASC TASC 001 2/10/17-P/R DEDUCTIONS 0.00 1,150.00 TOTAL CASH ACCOUNT 0.00 729,490.15 TOTAL FUND 0.00 729,490.15 Attachment6.4.a: Check Register 2-21-17 (1187 : Ratification of Check Register) 0 W CD C4 00 SUNGARD PENTAMATION INC DATE: 02/16/2017 CITY OF DIAMOND BAR TIME: 07:44:43 CHECK REGISTER - DISBURSEMENT FUND SELECTION CRITERIA: transact.ck_date between '20170202 00:00:00.000' and '20170215 00:00:00.000' ACCOUNTING PERIOD: 8/17 FUND - 020 - OPEB RESERVE FUND CASH ACCT CHECK NO ISSUE DT VENDOR NAME 10100 PP 01-02 02/02/17 PERSHEAL PERS HEALTH TOTAL CASH ACCOUNT TOTAL FUND FUND/DIVISION -----DESCRIPTION------ SALES TAX 0204060 FEB 17 -RETIREE HEALTH 0.00 0.00 0.00 Attachment6.4.a: Check Register 2-21-17 (1187 : Ratification of Check Register) PAGE NUMBER: 11 ACCTPA21 AMOUNT 768.00 768.00 768.00 0 W CD C4 00 SUNGARD PENTAMATION INC DATE: 02/16/2017 CITY OF DIAMOND BAR TIME: 07:44:43 CHECK REGISTER - DISBURSEMENT FUND SELECTION CRITERIA: transact.ck_date between '20170202 00:00:00.000' and '20170215 00:00:00.000' ACCOUNTING PERIOD: 8/17 PAGE NUMBER: 12 ACCTPA21 SALES TAX FUND - 160 - USED MOTOR OIL BLK GRT 1,530.00 0.00 CASH ACCT CHECK NO ISSUE DT VENDOR NAME FUND/DIVISION -----DESCRIPTION--- 10100 119561 02/02/17 GEOPLAST GEO PLASTICS 1605516 USED OIL CONTAINERS 10100 119631 02/09/17 ADAPTCON ADAPT CONSULTING INC 1605516 SUPPLIES -RECYCLING 10100 119631 02/09/17 ADAPTCON ADAPT CONSULTING INC 1605516 RECYCLING BAGS TOTAL CHECK TOTAL CASH ACCOUNT TOTAL FUND TOTAL REPORT PAGE NUMBER: 12 ACCTPA21 SALES TAX AMOUNT 0.00 3,477.50 0.00 1,530.00 0.00 700.40 0.00 2,230.40 0.00 5,707.90 0.00 5,707.90 0.00 735,966.05 Attachment6.4.a: Check Register 2-21-17 (1187 : Ratification of Check Register) CITY OF DIAMOND BAR CHECK REGISTER AFFIDAVIT The attached listings of demands, invoices, and claims in the form of a check register including checks dated February 2, 2017 through February 15, 2017 has been audited and is certified as accurate. Payments have been allowed from the following funds in these amounts: Description General Fund OPEB Reserve Fund Prop A - Transit Fund Prop C - Transit Tax Fund Intergrated Waste Management Fund LLAD 38 Fund LLAD 39 Fund LLAD 41 Fund Used Motor Oil Blk Grant Capital Imp Projects Fund Vehicle Maint/Repl Fund Signed: d-L-LLIJ� ul(la, Dianna Honeywell Finance Director Amount $576,445.87 $768.00 $6,445.20 $27,537.43 $16, 848.02 $25,925.26 $14,228.00 $6,161.11 $5,707.90 $54,299.69 $1,599.57 $735,966-05 6.4.b Packet Pg. 88 Agenda #: 6.5 Meeting Date: February 21, 2017 CITY COUNCIL TO: Honorable Mayor and Members of the City Council FROM: James DeStefano, City Manager 6.5 AGENDA REPORT TITLE: ADOPT RESOLUTION 2017 -XX APPROVING PLANS AND SPECIFICATIONS AND ESTABLISHING A PROJECT PAYMENT ACCOUNT; AWARD CONSTRUCTION CONTRACT FOR THE TRAFFIC SIGNAL INFRASTRUCTURE UPGRADES PHASE II PROJECT TO ELECNOR BELCO ELECTRIC, INC. IN THE AMOUNT OF $449,772 AND AUTHORIZE A CONTINGENCY AMOUNT OF $42,000 FOR CONTRACT CHANGE ORDERS TO BE APPROVED BY THE CITY MANAGER, FOR A TOTAL AUTHORIZATION AMOUNT OF $491,772. RECOMMENDATION: Adopt, award and authorize. FINANCIAL IMPACT: As part of the FY 2016-2017 Capital Improvement Program, $372,295 of Prop C Funds and $119,705 of AB2766 Funds were budgeted for the Traffic Signal Infrastructure Upgrades Phase II Construction Project for a total budget of $492,000. BACKGROUND/ DISCUSSION: In June 2014, the Traffic Signal Operation & Maintenance Master Plan was completed by KOA Corporation and staff to provide an evaluation and a comprehensive inventory of the City's traffic signal system. The four (4) primary tasks associated with the Traffic Signal Operation & Maintenance Master Plan included assessing the current conditions and maintenance operations of the overall City's traffic signal system, identifying areas for improvements, discussing planned improvements for the City's traffic signal system, and recommending courses of action to address the deficiencies. A three (3) phase Traffic Signal Infrastructure Upgrades Plan was recommended. Following is the 3 -year plan. Proposed Improvements Phase 11 Phase III Phase I Scheduled for Design to begin in March Completed in Dec. 2016 Construction in March 2017 Packet Pg. 89 6.5 The Traffic Signal Infrastructure Upgrades Phase I Project was completed in December 2016 and notice of completion was filed at the February 7, 2017 City Council meeting. Following are the detailed comprehensive upgrades for the Traffic Signal Infrastructure Upgrades Phase II Project. I. Rewiring: 1. Golden Springs Drive and Golden Prados Drive 2. Golden Springs Drive and Carpio Drive II. Interconnect Replacement: Replace approximately 4.3 miles of copper cable with new fiber optic cable along Diamond Bar Boulevard between Grand Avenue and Highland Valley Road; Golden Springs Drive between Diamond Bar Boulevard and High Knob Road. III. Traffic Signal Components Upgrades: (Alternative Bid) The out signs (no right turn) will be upgraded to LED black -out signs at Grand Avenue and Shotgun Lane. No other signal components upgrades are scheduled in this Phase II Project: Packet Pg. 90 2017 Rewire five intersections. Rewire two intersections to Rewire two intersections to be be determined. determined Replace 5.5 miles of copper Replace approx. 4.3 miles of Replace 4.3 miles of copper cables with new fiber optic cables copper cables with new fiber cables with new fiber optic along Diamond Bar Boulevard optic cables along Diamond cables along Lemon Avenue between Grand Avenue and Oak Bar Boulevard between Grand between Golden Springs Drive Crest Drive; Brea Canyon Road Avenue and Highland Valley and Lycoming Street; Brea between Diamond Bar Boulevard Road; Golden Springs Drive Canyon between Washington and Silver Bullet Drive; and, between Diamond Bar Blvd. Street and Pathfinder Road; and, Pathfinder Road between and High Knob Rd. Pathfinder Road between Brea Diamond Bar Boulevard and Canyon Road and Peaceful Hills Fernhollow Drive. Road. Traffic signal component Traffic signal component Traffic signal component replacements such as signal replacements such as signal replacements such as signal relays, conflict monitors, traffic relays, conflict monitors, relays, conflict monitors, traffic signal cabinets, pedestrian traffic signal cabinets, signal cabinets, pedestrian countdown signal indications, and pedestrian countdown signal countdown signal indications, video detection cameras. indications, and video and video detection cameras. detection cameras. Replace 15 traffic signal Replace 30 traffic signal Replace 21 traffic signal controllers and firmware. controllers and firmware. controllers and firmware. The Traffic Signal Infrastructure Upgrades Phase I Project was completed in December 2016 and notice of completion was filed at the February 7, 2017 City Council meeting. Following are the detailed comprehensive upgrades for the Traffic Signal Infrastructure Upgrades Phase II Project. I. Rewiring: 1. Golden Springs Drive and Golden Prados Drive 2. Golden Springs Drive and Carpio Drive II. Interconnect Replacement: Replace approximately 4.3 miles of copper cable with new fiber optic cable along Diamond Bar Boulevard between Grand Avenue and Highland Valley Road; Golden Springs Drive between Diamond Bar Boulevard and High Knob Road. III. Traffic Signal Components Upgrades: (Alternative Bid) The out signs (no right turn) will be upgraded to LED black -out signs at Grand Avenue and Shotgun Lane. No other signal components upgrades are scheduled in this Phase II Project: Packet Pg. 90 IV. New 2070 Controllers with D4 Software Upgrades: 1. Brea Canyon Road and WB SR 60 2. Diamond Bar Boulevard and Clear Creek Canyon Drive 3. Diamond Bar Boulevard and Cold Springs Lane 4. Diamond Bar Boulevard and Crestview Drive 5. Diamond Bar Boulevard and Fountain Springs Road 6. Diamond Bar Boulevard and Gold Rush Drive 7. Diamond Bar Boulevard and Highland Valley Road 8. Diamond Bar Boulevard and Kiowa Crest Drive 9. Diamond Bar Boulevard and Maple Hill Road 10. Diamond Bar Boulevard and Montefino Avenue 11. Diamond Bar Boulevard and Mountain Laurel Way 12. Diamond Bar Boulevard and Quail Summit Drive 13. Diamond Bar Boulevard and Shadow Canyon Drive 14. Diamond Bar Boulevard and Silver Hawk Drive 15. Diamond Bar Boulevard and Sugarpine Place 16. Diamond Bar Boulevard and NB SR 57 17. Golden Springs Drive and Adel Avenue 18. Golden Springs Drive and Calbourne Drive 19. Golden Springs Drive and Carpio Drive 20. Golden Springs Drive and Sylvan Glen Road 21. Golden Springs Drive and Copley Drive 22. Golden Springs Drive and Gateway Center Drive 23. Golden Springs Drive and Golden Prados Drive 24. Golden Springs Drive and Lavender Drive 25. Golden Springs Drive and Lemon Avenue 26. Golden Springs Drive and Prospectors Road 27. Golden Springs Drive and Racquet Club Drive 28. Golden Springs Drive and Rapidview Drive 29. Golden Springs Drive and SR 60 EB Ramps 30. Lemon Avenue and Lycoming Street See Exhibit "A" showing Proposed Traffic Signal Upgrade Locations. With the completion of the plans and specifications, the project was advertised for bids on December 15, 2016. On January 9, 2017, eight (8) bids were received. Elecnor Belco Electric, Inc. submitted the lowest base bid in the amount of $449,772. The bids received were as follows: Company Bid Amount 1. Elecnor Belco Electric, Inc. $449,772.00 2. Crosstown Electrical & Data, Inc. $450,602.75 3. DBX, Inc $463,617.00 4. CA Professional Engineering, Inc. $474,550.80 5. Asplundh Construction, Inc. $485,561.25 6. Comet Electric $494,322.00 6.5 Packet Pg. 91 7. Aegis ITS 8. Servitek Solutions, Inc. $544,149.41 $741,019.09 The engineer's estimate is $452,000 with a schedule of ninety (90) working days. Staff has verified the contractor state license for Elecnor Belco Electric, Inc. to be valid. Elecnor Belco Electric, Inc. also has performed other similar satisfactory projects for Diamond Bar and the City of Newport Beach, City of Los Angeles and Alameda Corridor -East Construction Authority. Additionally, they have completed the construction for the City's Traffic Signal Infrastructure Upgrades Phase I Project. The project is expected to be completed within ninety (90) working days. The project schedule is tentatively set as follows: Award of Contract Start of Construction Completion of Construction Uzi4:7-104 Q IM February 21, 2017 March 2017 June 2017 ristian Ma1pica, ssociate Ef g i n e e r 2/21/2017 N W11:171 =1 oil WA _" DO It V94" W imberly Young, SOVior Civil Engi r 2/10/2017 raz anna oneywell, Finan irector 2/15/2017 Attachments: 1. 6.5.a RESOLUTION NO 2017 -XX 1?t2,1WW If;, idi i WTFU IMITector 2/1412017 2. 6.5.b AGREEMENT 3. 6.5.c PROPOSED TRAFFIC SIGNAL UPGRADES LOCATIONS - MAP 6.5 Packet Pg. 92 RESOLUTION NO. 2017 -XX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DIAMOND BAR APPROVING THE DESIGN AND PLANS FOR THE TRAFFIC SIGNAL INFRASTRUCTURE UPGRADES PHASE II PROJECT PURSUANT TO GOVERNMENT CODE SECTION 830.6 AND ESTABLISHING A PROJECT PAYMENT ACCOUNT. The City Council of the City of Diamond Bar does resolve as follows: SECTION 1: The City Council finds and declares as follows: A. The City retained Iteris, Inc. ("Consultant") as the engineer to design and prepare the plans for the Traffic Signal Infrastructure Upgrades Phase II Project; B. The Consultant informed the City Engineer that these plans are complete and that construction of the Project may begin; C. The City Engineer reviewed the completed design and plans for the Project and agrees with the Consultant that the plans are complete and the Project may be constructed; D. The City Council wishes to obtain the immunities set forth in Government Code § 830.6 with regard to the plans and construction of the Project. SECTION 2: Design Immunity; Authorization. A. The design and plans for the Project are determined to be consistent with the City's standards and are approved. B. The design approval set forth in this Resolution occurred before actual work on the Project construction commenced. C. The approval granted by this Resolution conforms with the City's General Plan. D. The City Engineer, or designee, is authorized to act on the City's behalf in approving any alterations or modifications of the design and plans approved by this Resolution. E. The approval and authorization granted by this Resolution is intended to avail the City of the immunities set forth in Government Code § 830.6. SECTION 3: Project Payment Account. For purposes of the Contract Documents administering the Project, the City Council directs the City Manager, or 6.5.a Packet Pg. 93 designee, to establish a fund containing sufficient monies from the current fiscal year budget to pay for the Project ("Project Payment Account"). The Project Payment Account is the sole source of funds available for the Contract Sum, as defined in the Contract Document administering the Project. SECTION 4: The City Clerk is directed to certify the adoption of this Resolution. SECTION 5: This Resolution will become effective immediately upon adoption. PASSED, APPROVED, AND ADOPTED this 21St day of February, 2017 Jimmy Lin, Mayor I, Tommye A. Cribbins, City Clerk of the City of Diamond Bar, California, do hereby certify that the foregoing Resolution No. 2017 -XX was duly and regularly passed and adopted by the City Council of the City of Diamond Bar, California, at its regular meeting held on the 21St day of February, 2017, by the following vote, to wit: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: r_r31r_1i►11�4 101110IyII L 101 L 1:321Y+03 Tommye A. Cribbins, City Clerk 6.5.a Packet Pg. 94 6.5.b AGREEMENT The following agreement ("AGREEMENT") is made and entered into, in duplicate, as of the date executed by the Mayor and attested to by the City Clerk, by and between Elecnor Belco Electric Incorporated hereinafter referred to as the "CONTRACTOR" and the City of Diamond Bar, California, hereinafter referred to as "CITY." WHEREAS, pursuant to Notice Inviting Sealed Bids, bids were received, publicly opened, and declared on the date specified in the notice; and WHEREAS, CITY accepted the bid of CONTRACTOR Elecnor Belco Electric Incorporated and; WHEREAS, CITY has authorized the Mayor to execute a written contract with CONTRACTOR for furnishing labor, equipment and material for the Traffic Signal Infrastructure Upgrades - Phase II in the City of Diamond Bar. NOW, THEREFORE, in consideration of the mutual covenants herein contained, it is agreed: 1. GENERAL SCOPE OF WORK: CONTRACTOR shall furnish all necessary labor, tools, materials, appliances, and equipment for and do the work for the Traffic Signal Infrastructure Upgrades - Phase II in the City of Diamond Bar. The work to be performed in accordance with the plans and specifications, dated December 2016 (The Plans and Specifications) on file in the office of the City Clerk and in accordance with bid prices hereinafter mentioned and in accordance with the instructions of the City Engineer. 2. INCORPORATED DOCUMENTS TO BE CONSIDERED COMPLEMENTARY: The Plans and Specifications are incorporated herein by reference and made a part hereof with like force and effect as if set forth in full herein. The Plans and Specifications, CONTRACTOR'S Bid dated January 9, 2017 together with this AGREEMENT, shall constitute the contract between the parties. This AGREEMENT is intended to require a complete and finished piece of work and anything necessary to complete the work properly and in accordance with the law and lawful governmental regulations shall be performed by the CONTRACTOR whether set out specifically in the contract or not. Should it be ascertained that any inconsistency exists between the aforesaid documents and this AGREEMENT, the provisions of this AGREEMENT shall control. 3. COMPENSATION: CONTRACTOR agrees to receive and accept the prices set forth in its Bid Proposal as full compensation for furnishing all materials, performing all work, and fulfilling all obligations hereunder. Said compensation in the amount of four hundred forty nine thousands seven hundred seventy two dollars and zero cents ($449,772.00) shall cover all expenses, losses, damages, and consequences arising out of the nature of the work during its progress or prior to its acceptance including those for well and faithfully completing the work and the whole thereof in the manner and time specified in the aforesaid contract documents; and also including those arising from actions of the elements, unforeseen difficulties or obstructions encountered in the prosecution of the work, suspension or discontinuance of the work, and all other unknowns or risks of any description connected with the work. Packet Pg. 95 6.5.b 4. TERM OF CONTRACT: CONTRACTOR agrees to complete the work within ninety (90) working days from the date of the notice to proceed. CONTRACTOR agrees further to the assessment of liquidated damages in the amount of five -hundred ($500.00) dollars for each calendar day the work remains incomplete beyond the expiration of the completion date. CITY may deduct the amount thereof from any monies due or that may become due the CONTRACTOR under this AGREEMENT. Progress payments made after the scheduled date of completion shall not constitute a waiver of liquidated damages. 5. INSURANCE: CONTRACTOR shall not commence work under this contract until he has obtained all insurance required hereunder in a company or companies acceptable to CITY nor shall the CONTRACTOR allow any subcontractor to commence work on his subcontract until all insurance required of the subcontractor has been obtained. The CONTRACTOR shall take out and maintain at all times during the life of this contract the following policies of insurance: a. Workers' Compensation Insurance: Before beginning work, the CONTRACTOR shall furnish to the CITY a certificate of insurance as proof that he has taken out full workers' compensation insurance for all persons whom he may employ directly or through subcontractors in carrying out the work specified herein, in accordance with the laws of the State of California. Such insurance shall be maintained in full force and effect during the period covered by this contract. In accordance with the provisions of Section 3700 of the California Labor Code, every CONTRACTOR shall secure the payment of compensation to his employees. The CONTRACTOR, prior to commencing work, shall sign and file with the CITY a certification as follows: "I am aware of the provisions of Section 3700 of the Labor Code which requires every employer to be insured against liability for workers' compensation or to undertake self insurance in accordance with the provisions of that Code, and I will comply with such provisions before commencing the performance of work of this contract." b. For all operations of the CONTRACTOR or any sub -contractor in performing the work provided for herein, insurance with the following minimum limits and coverage: 1) General Liability - $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this AGREEMENT or the general aggregate limit shall be twice the required occurrence limit. 2) Automobile - $1,000,000 per accident for bodily injury and property damage. 2 Packet Pg. 96 6.5.b 3) Employer's Liability - $1,000,000 per accident for bodily injury or disease. C. Each such policy of insurance provided for in paragraph b. shall: 1) Be issued by an insurance company approved in writing by CITY, which is authorized to do business in the State of California. 2) Name as additional insured the City of Diamond Bar, its officers, agents and employees, and any other parties specified in the bid documents to be so included; 3) Specify it acts as primary insurance and that no insurance held or owned by the designated additional insured shall be called upon to cover a loss under the policy; 4) Contain a clause substantially in the following words: "It is hereby understood and agreed that this policy may not be canceled nor the amount of the coverage thereof reduced until thirty (30) days after receipt by CITY of a written notice of such cancellation or reduction of coverage." 5) Otherwise be in form satisfactory to the CITY. d. The policy of insurance provided for in subparagraph a. shall contain an endorsement which: 1) Waives all right of subrogation against all persons and entities specified in subparagraph 4.c.(2) hereof to be listed as additional insured in the policy of insurance provided for in paragraph b. by reason of any claim arising out of or connected with the operations of CONTRACTOR or any subcontractor in performing the work provided for herein; 2) Provides it shall not be canceled or altered without thirty (30) days' written notice thereof given to CITY. e. The CONTRACTOR shall, prior to performing any work under this AGREEMENT, deliver to the City Manager or his designee the original policies of insurance required in paragraphs a. and b. hereof, or deliver to the City Manager or his designee a certificate of the insurance company, showing the issuance of such insurance, and the additional insured and other provisions required herein. Self Insured Retention/Deductibles. All policies required by this AGREEMENT shall allow CITY, as additional insured, to satisfy the self-insured retention ("SIR") and/or deductible of the policy in lieu of the Owner (as the named insured) should CONTRACTOR fail to pay the SIR or deductible requirements. The amount of the SIR or deductible shall be subject to the approval of the City Attorney and Packet Pg. 97 6.5.b the Finance Director. CONTRACTOR understands and agrees that satisfaction of this requirement is an express condition precedent to the effectiveness of this AGREEMENT. Failure by CONTRACTOR as primary insured to pay its SIR or deductible constitutes a material breach of this AGREEMENT. Should CITY pay the SIR or deductible on CONTRACTOR's behalf upon the CONTRACTOR's failure or refusal to do so in order to secure defense and indemnification as an additional insured under the policy, CITY may include such amounts as damages in any action against CONTRACTOR for breach of this AGREEMENT in addition to any other damages incurred by CITY due to the breach. 6. PREVAILING WAGE: Since this is a Federally assisted construction project, Davis -Bacon will be enforced. If Federal and State wage rates are applicable, then the higher of the two will prevail. The Federal Labor Standards Provisions (Form HUD -4010) and the Federal Wage Determination can be obtained online, and compliance will be enforced. Notice is hereby given that in accordance with the provisions of California Labor Code, Division 2, Part 7, Chapter 1, Articles 1 and 2, the CONTRACTOR is required to pay not less than the general prevailing rate of per diem wages for work of a similar character in the locality in which the public works is performed, and not less than the general prevailing rate of per diem wages for holiday and overtime work. In that regard, the Director of the Department of Industrial Relations of the State of California is required to and has determined such general prevailing rates of per diem wages. Copies of such prevailing rates of per diem wages are on file in the Office of the City Clerk of the City of Diamond Bar, 21810 Copley Drive, Diamond Bar, California, and are available to any interested party on request. CITY also shall cause a copy of such determinations to be posted at the job site. CONTRACTOR shall forfeit, as penalty to CITY, not more than two hundred dollars ($200.00) for each laborer, workman or mechanic employed for each calendar day or portion thereof, if such laborer, workman or mechanic is paid less than the general prevailing rate of wages hereinbefore stipulated for any work done under this AGREEMENT, by him or by any subcontractor under him. CONTRACTOR and any of its subcontractors must be registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5, which precludes the award of a contract for a public work on any public works project awarded after April 1, 2015. This Agreement is subject to compliance monitoring and enforcement by the Department of Industrial Relations. 7. APPRENTICESHIP EMPLOYMENT: In accordance with the provisions of Section 1777.5 of the Labor Code, and in accordance with the regulations of the California Apprenticeship Council, properly indentured apprentices may be employed in the performance of the work. CONTRACTOR is required to make contribution to funds established for the administrative of apprenticeship programs if he employs registered apprentices or journeymen in any apprenticeship trade on such contracts and if other CONTRACTOR'S on the public works site are making such contributions. CONTRACTOR and subcontractor under him shall comply with the requirements of Sections 1777.5 and 1777.6 in the employment of apprentices. 4 Packet Pg. 98 6.5.b Information relative to apprenticeship standards, wage schedules and other requirements may be obtained from the Director of Industrial Relations, ex -officio the Administrator of Apprenticeship, San Francisco, California, or from the Division of Apprenticeship Standards and its branch offices. 8. LEGAL HOURS OF WORK: Eight (8) hours of labor shall constitute a legal day's work for all workmen employed in the execution of this contract, and the CONTRACTOR and any sub -contractor under him shall comply with and be governed by the laws of the State of California having to do with working hours set forth in Division 2, Part 7, Chapter 1, Article 3 of the Labor Code of the State of California as amended. CONTRACTOR shall forfeit, as a penalty to City, twenty-five dollars ($25.00) for each laborer, workman or mechanic employed in the execution of the contract, by him or any sub- CONTRACTOR under him, upon any of the work hereinbefore mentioned, for each calendar day during which the laborer, workman or mechanic is required or permitted to labor more than eight (8) hours in violation of the Labor Code. 9. TRAVEL AND SUBSISTENCE PAY: CONTRACTOR agrees to pay travel and subsistence pay to each workman needed to execute the work required by this contract as such travel and subsistence payments are defined in the applicable collective bargaining agreements filed in accordance with Labor Code Section 1773.8. 10. CONTRACTOR'S LIABILITY: The CITY and its officers, agents and employees ("Indemnitees") shall not be answerable or accountable in any manner for any loss or damage that may happen to the work or any part thereof, or for any of the materials or other things used or employed in performing the work; or for injury or damage to any person or persons, either workers or employees of CONTRACTOR, of its subcontractors or the public, or for damage to adjoining or other property from any cause whatsoever arising out of or in connection with the performance of the work. CONTRACTOR shall be responsible for any damage or injury to any person or property resulting from defects or obstructions or from any cause whatsoever. CONTRACTOR will indemnify Indemnities against and will hold and save Indemnitees harmless from any and all actions, claims, damages to persons or property, penalties, obligations or liabilities that may be asserted or claimed by any person, firm, entity, corporation, political subdivision, or other organization arising out of or in connection with the work, operation, or activities of CONTRACTOR, its agents, employees, subcontractors or invitees provided for herein, whether or not there is concurrent passive negligence on the part of CITY. In connection therewith: a. CONTRACTOR will defend any action or actions filed in connection with any such claims, damages, penalties, obligations or liabilities and will pay all costs and expenses, including attorneys' fees, expert fees and costs incurred in connection therewith. b. CONTRACTOR will promptly pay any judgment rendered against CONTRACTOR or Indemnitees covering such claims, damages, penalties, obligations and liabilities arising out of or in connection with such work, operations or activities of CONTRACTOR hereunder, and CONTRACTOR agrees to save and hold the Indemnitees harmless therefrom. 5 Packet Pg. 99 6.5.b C. In the event Indemnitees are made a party to any action or proceeding filed or prosecuted against CONTRACTOR for damages or other claims arising out of or in connection with the work, operation or activities hereunder, CONTRACTOR agrees to pay to Indemnitees and any all costs and expenses incurred by Indemnitees in such action or proceeding together with reasonable attorneys' fees. Contractor's obligations under this section apply regardless of whether or not such claim, charge, damage, demand, action, proceeding, loss, stop notice, cost, expense, judgment, civil fine or penalty, or liability was caused in part or contributed to by an Indemnitee. However, without affecting the rights of CITY under any provision of this AGREEMENT, Contractor shall not be required to indemnify and hold harmless CITY for liability attributable to the active negligence of CITY, provided such active negligence is determined by agreement between the parties or by the findings of a court of competent jurisdiction. In instances where CITY is shown to have been actively negligent and where CITY active negligence accounts for only a percentage of the liability involved, the obligation of Contractor will be for that entire portion or percentage of liability not attributable to the active negligence of CITY. So much of the money due to CONTRACTOR under and by virtue of the contract as shall be considered necessary by CITY may be retained by CITY until disposition has been made of such actions or claims for damages as aforesaid. It is expressly understood and agreed that the foregoing provisions are intended to be as broad and inclusive as is permitted by the law of the State of California. This indemnity provision shall survive the termination of the AGREEMENT and is in addition to any other rights or remedies which Indemnitees may have under the law. This indemnity is effective without reference to the existence or applicability of any insurance coverage which may have been required under this AGREEMENT or any additional insured endorsements which may extend to Indemnitees. CONTRACTOR, on behalf of itself and all parties claiming under or through it, hereby waives all rights of subrogation and contribution against the Indemnitees, while acting within the scope of their duties, from all claims, losses and liabilities arising out of or incident to activities or operations performed by or on behalf of the CONTRACTOR regardless of any prior, concurrent, or subsequent passive negligence by the Indemnitees. 11. NON-DISCRIMINATION: Pursuant to Labor Code Section 1735, no discrimination shall be made in the employment of persons in the work contemplated by this AGREEMENT because of the race, color or religion of such person. A violation of this section exposes the CONTRACTOR to the penalties provided for in Labor Code Section 1735. 12. PAYMENT FUND: A City Council resolution established a Project Payment Account, encumbered money in the current budget, and assigned that money to the Project Payment Account, which is the sole source of funds available for payment of the contract sum set forth in Section 3 of this AGREEMENT. CONTRACTOR understands and agrees that CONTRACTOR will be paid only from this special fund and if for any reason this fund is not sufficient to pay CONTRACTOR, CONTRACTOR 6 Packet Pg. 100 6.5.b will not be entitled to payment. The availability of money in this fund, and CITY's ability to draw from this fund, are conditions precedent to CITY's obligation to make payments to CONTRACTOR. 13. TERMINATION: This AGREEMENT may be terminated by the CITY, without cause, upon the giving of a written "Notice of Termination" to CONTRACTOR at least thirty (30) days prior to the date of termination specified in the notice. In the event of such termination, CONTRACTOR shall only be paid for services rendered and expenses necessarily incurred prior to the effective date of termination and those reasonably necessary to effectuate the termination. CONTRACTOR shall not be entitled to any claim for lost profits. State of California "CONTRACTOR'S" License No. #738518 CONTRACTOR'S Business Phone (909) 993-5470 CONTRACTOR'S emergency phone which can be reached at any time: IN WITNESS WHEREOF, the parties hereto have executed this AGREEMENT with all the formalities required by law on the respective dates set forth opposite their signatures. By: Title: Date: By: Title: Date: CITY OF DIAMOND BAR, CALIFORNIA By: JIMMY LIN, MAYOR Date ATTEST: By: TOMMYE CRIBBINS, CITY CLERK Date APPROVED AS TO FORM: DAVID DEBERRY, CITY ATTORNEY Date 7 Packet Pg. 101 I 6.5.c I Proposed Traffic Signal Upgrades Locations - Map Signal Components Packet Pg. 102 Agenda #: 7.1 Meeting Date: February 21, 2017 CITY COUNCIL TO: Honorable Mayor and Members of the City Council FROM: James DeStefano, City Manager 7.1 AGENDA REPORT TITLE: RESOLUTION NO. 2017 -XX: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DIAMOND BAR FINDING AND DETERMINING THAT THE PUBLIC INTEREST AND NECESSITY REQUIRE THE ACQUISITION BY EMINENT DOMAIN OF INTERESTS IN CERTAIN REAL PROPERTY FOR PUBLIC USE AND AUTHORIZING AND DIRECTING CONDEMNATION OF PARCEL NOS. 8718-005-007 AND 008. RECOMMENDATION: It is recommended that the City Council adopt Resolution No. 2017 -XX (hereafter, "Resolution of Necessity"). FINANCIAL IMPACT: The appraised value of the Property is $555,000. The City has sufficient funds in its General Fund reserves. BACKGROUND: The Young Mens Christian Association of Pomona Valley, a California Corporation ("YMCA") owns approximately 2.83 acres of property (hereafter, the "Property") which lies north of the YMCA across a parking lot at the end of Sunset Crossing Road. The City is seeking to acquire the Property to develop an as yet defined neighborhood park on approximately one acre and at least for the foreseeable future, to maintain the remaining 1.83 acres as open space. The City is authorized to acquire property by eminent domain pursuant to Government Code § 37350.5. Pursuant to California eminent domain law, Code of Civil Procedure §§ 1230.010 et seq. (hereafter, "Eminent Domain Law"), the City may acquire the Property by eminent domain if it first undertakes a number of procedural and substantive steps and makes specified findings, which are provided in more detail in the Resolution of Necessity. The first step is to retain an appraiser to appraise the Property at its highest and best use and to offer the appraised amount to the Property's owner. The City retained an appraiser to appraise the Property and provided the YMCA with the opportunity to accompany the appraiser during his inspection of the Property. The appraised amount of $550,000 was offered to the YMCA. As required by the Eminent Domain Law and Government Code § 7267.2, the City provided the YMCA with an Packet Pg. 103 7.1 informational pamphlet detailing the eminent domain process, a summary of the appraisal, informed the YMCA that it will pay the YMCA up to $5,000 to have its own appraisal performed and has made reasonable efforts to negotiate for the purchase of the Property prior to bringing the Resolution of Necessity forward. As of the drafting of this staff report the YMCA has not formally responded to the City's offer or apprised the City that it has completed its own appraisal, despite a number of attempts by the City to engage the YMCA in negotiations. Due to this non -response, City staff is recommending that the City Council adopt the attached Resolution of Necessity to authorize the City to file a superior court action in eminent domain to acquire the Property. Even if the Resolution of Necessity is adopted, the City will continue its efforts to negotiate with the YMCA for a voluntary purchase of the Property. The Resolution of Necessity requires a 4/5 vote pursuant to Code of Civil Procedure § 1245.240. DISCUSSION: A. Property Description and Proposed Use. The Property has been owned by the YMCA since at least 1995, but to City staff's knowledge, never been developed by the YMCA for any purpose. It currently is marginally maintained as open space, primarily covered with dirt, weeds and grass. A chain link fence surrounds the Property and storage bins are located on site. At one point in time it was used by the adjoining Pony League and/or Little League as practice baseball fields, but has not had any significant recreational uses for what City staff estimates to be the last 10 years. There is an existing parking lot at the end of Sunset Crossing Road lying south of and adjacent to the Property. The Property had a general plan and zoning designation for recreational uses. A legal description and map depicting the property are attached to the Resolution of Necessity (Attachment "'I"). Photos of the property can be found in Attachment "3". The City's initial plans for the Property are to construct a neighborhood park on approximately one acre of the Property to serve the surrounding neighborhood. Other than security lighting, no lighting for night time use of the Property is being considered. Based on the City's experience with its neighborhood parks, it is not anticipated that the development of a neighborhood park will generate any significant new traffic trips, noise or other impacts to the surrounding uses. The neighborhood park would be compatible with the recreational uses which lie adjacent to the Property—Pony League fields to the north and the YMCA to the south. West of the Property are active train tracks and industrial uses. East of the Property are two residential homes that would be separated from the proposed location of the neighborhood park by approximately 65 feet, which includes a 20 -foot driveway entrance to the Pony League fields. The specific amenities for the neighborhood park will be determined after receiving input from the surrounding neighborhood and other constituencies such as the Parks and Recreation Commission and City Council. The City's near term plan for the balance of the Property is to maintain it as open space with some enhanced maintenance, such as trash pickup and keeping vegetation from becoming overgrown. The proposed future use of the balance of the Property will be some form of open space/park use, the specifics of which will be determined later based on funding becoming available, joint use opportunities with surrounding recreational uses and needs assessment. Packet Pg. 104 7.1 B. Requirements for the Exercise of Eminent Domain Law. In order for the City Council to acquire property by eminent domain California law requires the City Council to make specific findings, including: (1) that the public interest and necessity require the proposed use of the property; (2) the proposed use is planned or located in a manner which is most compatible with the greatest public good and the least private injury; (3) whether the property being acquired is necessary for the proposed use; (4) whether the offer for the property required by Government Code § 7267.2 has been given to the owner of record; and (5) whether the City has fulfilled its statutory responsibilities to the exercise of its eminent domain power, including compliance with the California Environmental Quality Act ("CEQA"). As to (1), the City's Parks Master Plan sets a goal of having three acres of parkland per 1,000 residents. Currently that ratio is 2.38 acres of park property per 1,000 residents. Acquisition of the Property will reduce the shortfall and be a step in the City fulfilling the goals set forth in the Parks Master Plan. It will also promote Goal 1 of the City's General Plan which by preserving open space areas and in particular implement General Plan strategies 1.1.6 and 1.1.7 which encourage the provision of recreational opportunities in open space areas and the provision of public parks. The neighborhood in which the Property is to be acquired is not presently served by a neighborhood park. The nearest neighborhood park, Peterson Park, is approximately 1.8 miles away. As to (2), the location is ideal for recreational uses. As noted above, the Property is already zoned for recreational use, has been used in the past for such uses, and is in part already surrounded by recreational uses. The neighborhood in which it is located is not currently served by a neighborhood park and its location at the end of Sunset Crossing Road adjacent to other recreational uses and the train tracks is ideal for the proposed near-term use and likely compatible with any future recreational uses. The current owner of the Property has not used the Property for its intended recreational purpose. Acquisition of the Property and development of a neighborhood park will have little to no impacts on the YMCA's current operations or on surrounding uses as is further set forth below under the California Environmental Quality Act discussion. As to (3), as noted above, acquisition of the Property furthers the City's efforts to provide recreational opportunities and the goals set forth in its General Plan both in the short-term with the development of a neighborhood park and the anticipated long-term use of the balance of the Property for some yet to be defined form of recreational use/open space. As to (4), as noted the City retained a qualified appraiser to appraise the Property, which appraiser appraised the Property as its highest and best use, which is for recreation. That appraised amount has been offered to the YMCA and a summary of appraisal has been provided in accordance with Government Code § 7267.2. As to (5), the City is required to notify the YMCA of the date and time of the hearing on this matter, provide a copy of the proposed Resolution and inform the YMCA of its ability to address the City Council on the five items that are listed. The City did provide such notification in the letter attached hereto as Attachment 2. Per California law, the Packet Pg. 105 7.1 hearing is not the time to debate the amount of the appraisal, but is limited to comments on these five required findings. C. Applicability of the California Environmental Quality Act (CEQA) CEQA provides that prior to approving a project the City Council should consider an environmental impact report, negative declaration or other document authorized by CEQA. Acquisition of property by eminent domain is generally considered a project under CEQA. CEQA provides that the precise time for CEQA compliance involves a balancing of competing factors, early enough so that environmental considerations can influence a project's program and design, yet late enough to provide meaningful information for environmental analysis. CEQA permits the City to designate a preferred site for CEQA review and to enter into land acquisition agreements conditioning further CEQA review of the City's proposed use of the site on further CEQA compliance. This has been interpreted by the courts to apply to acquisition of property by eminent domain as well. The attached Resolution conditions the City's development of the Property on further CEQA compliance once the specific amenities of the neighborhood park and design thereof are known. The specific recreational/open space use of the balance of the Property is not known at this time and guessing as to the impacts thereof would be of little to no informational value. At some future date when the specifics of the City's use of the balance of the Property are known, the City will be required to determine the appropriate CEQA document that needs to be prepared. As proposed, the acquisition of the Property is categorically exempt from CEQA pursuant to CEQA guidelines § 15332, which applies to infill development of less than five acres meeting specified criteria as follows: (1) The proposed use of the Property must be consistent with the general plan, applicable general plan policies, applicable zoning, and City regulations; (2) the Property must be within the City limits, on five acres or less and substantially surrounded by urban uses; (3) the Property has no value for endangered, rare or threatened species; (4) approval of the acquisition would not result in any significant effects relating to traffic, noise, air or water quality; and (5) the Property can be adequately served by required utilities and public services. As to (1), the proposed use of the Property for recreational uses is consistent with the current zoning and general plan designations and regulations which limit the Property to recreational uses. Acquisition would further Goal 1 of the City's General Plan by preserving open space areas and in particular implement General Plan strategies 1.1.6 and 1.1.7 which encourage the provision of recreational opportunities in open space areas and the provision of public parks. Any development of the Property will comply with applicable regulations. As to (2), the Property is in the City, less than five acres and is substantially surrounded by urban uses as noted above. As to (3), as noted above the Property was previously utilized as baseball practice fields and currently is only marginally maintained. It consists of dirt, grass and weeds. It is surrounded by a chain link fence. The Property is substantially surrounded by active Packet Pg. 106 urban uses and does not contain any habitat for endangered, rare or threatened species. As to (4), approval of the Resolution of Necessity will not result in any significant impacts related to noise, traffic, air or water quality since prior to any change in use from the current open space, the City will further analyze the proposed neighborhood park under CEQA. Notwithstanding this, it has been the City's experience that its small neighborhood parks do not generate significant levels of traffic, since the chief purpose of a neighborhood park is to serve the adjoining neighborhood. Neighborhood parks do not generate significant noise impacts, especially in the case here, where the proposed site of the neighborhood park is adjacent to other recreational uses and train tracks and is not being proposed with any lighting for night time use. Neighborhood parks by nature do not create significant air or water quality impacts and there are no circumstances which would lead to a conclusion that this park will be an exception. As to (5), there are currently public utilities serving the Property and as noted above, as owner of the Property, the City will be providing the necessary public services, such as maintenance and security. The acquisition of the Property is also categorically exempt from CEQA pursuant to CEQA guidelines § 15061, which provides that CEQA only applies if a project has the potential for causing a significant effect on the environment. As noted above, it has been the City's experience that neighborhood parks such as what is proposed, do not create any significant impacts. The site is flat and previously used for recreational activity. Grading and construction activities are anticipated to be minimal. As noted, no traffic impacts are anticipated due to the nature of a neighborhood park and the City's experience with numerous similar parks. Noise impacts should be insignificant not only due to the fact neighborhood parks tend not to generate significant noise, but also due to the uniqueness of the Property's location adjacent to similar recreational uses and active train tracks. Once the particular amenities for the neighborhood park are known, the City can re -visit this exemption to determine if it still applies and if not, determine what additional analysis may be required. The acquisition of the Property is also categorically exempt under CEQA guidelines § 15325 as an acquisition to preserve open space or lands for park purposes. As noted, one acre of the property is proposed to be used for a neighborhood park. The remaining portion of the Property, approximately 1.83 acres, will be preserved as open space for the immediate future with the plan to develop it at some future date for additional park purposes. In adopting the Resolution of Necessity, the City Council will be authorizing the law firm of Woodruff, Spradlin & Smart to file an action in eminent domain in Los Angeles County to acquire the Property and to apply to the court for prejudgment possession. Under the Eminent Domain Law the City may take possession of the Property prior to judgment once it deposits with the court the amount of the appraisal. LEGAL REVIEW: This report and Resolution was prepared by and approved by the City Attorney. 7.1 Packet Pg. 107 PREPARED BY: almw1 &&6tw avid A. De&6, CiTy Attorney dF 2/2112017 REVIEWED BY: REVIEWED BY: FTyaw,cLean, A sistant City Manager 2/8/2017 Dianna FMeywelI Finan Director 2/8/2017 Attachments: 1. 7.1.a YMCA - Resolution of Necessity 2. 7.1.b Letter of Hearing Packet 7.1 Packet Pg. 108 RESOLUTION NO. 2017 -XX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DIAMOND BAR FINDING AND DETERMINING THAT THE PUBLIC INTEREST AND NECESSITY REQUIRE THE ACQUISITION BY EMINENT DOMAIN OF INTERESTS IN CERTAIN REAL PROPERTY FOR PUBLIC USE AND AUTHORIZING AND DIRECTING CONDEMNATION OF PARCEL NOS. 8718-005-007 AND 008. WHEREAS, the City of Diamond Bar (the "City") is seeking to acquire 2.83 acres of property adjacent to and just north of the terminus of Sunset Crossing Road by eminent domain; and WHEREAS, the property is proposed to be acquired in fee and is legally described in Exhibit "A" and depicted in Exhibit "B" (hereafter, the "Property"), which are incorporated herein by reference; and WHEREAS, approximately one acre of the Property is proposed to be developed as a public neighborhood park with as yet unspecified amenities, while the balance of the Property will be retained in its current condition of open space with the potential for development in the future for as yet undefined recreational/open space uses all serving the public interest; and WHEREAS, the acquisition of Property will require acquiring interests from a private party; and WHEREAS, the City is authorized to exercise the power of eminent domain to acquire the Property by Government Code § 37350.5; and WHEREAS, in accordance with section 1245.235 of the California Code of Civil Procedure on January 24, 2017 there was mailed a Notice of Hearing on the Intent of the City to adopt a Resolution of Necessity for acquisition by eminent domain of the interests the Property. The Notice of Hearing was mailed to the listed address of all persons whose names appear on the last equalized county assessment roll as having an interest in the Property; and WHEREAS, the staff report, the environmental determinations therein and all other evidence presented to the City Council, are incorporated herein by this reference and made a part hereof as though fully set forth herein; and WHEREAS, pursuant to section 1245.235 of the California Code of Civil Procedure, the City scheduled a hearing on February 21, 2017 at 6:30 p.m. at 21865 Copley Drive, Diamond Bar, CA on whether to adopt a Resolution of Necessity and referred to in section 1240.030 of the California Code of Civil Procedure and gave each person whose property interest is to be acquired by eminent domain an opportunity to appear and be heard on the following matters: 7.1.a Packet Pg. 109 A. Whether the public interest and necessity require the Property; B. Whether the proposed use of the Property is planned or located in a manner which is most compatible with the greatest public good and the least private injury; C. Whether the Property proposed to be acquired is necessary for the Proposed use; D. Whether the offer required by Government Code §7267.2 had been given to the owners of record; and E. Whether the City had properly exercised all of its statutory responsibilities and duties antecedent to the exercise of eminent domain against the Property, including review under CEQA; and WHEREAS, the City Council, as a result of such hearing, has determined that the public health, safety and welfare require that the City acquires those property interests described and depicted, respectively, in Exhibits "A" and "B" for the proposed uses thereof; and WHEREAS, the City may adopt a Resolution of Necessity pursuant to section 1240.040 of the California Code of Civil Procedure. NOW, THEREFORE, by a vote of two thirds or more of its members (four of five), the City Council of the City of Diamond Bar does hereby find, determine and declare upon evidence presented, resolve and order as follows: Section 1. Incorporation of Findings and Recitals. The above findings and recitals are true and correct and are incorporated herein in full by this reference. Section 2. Compliance with California Code of Civil Procedure. There has been compliance by the City with the requirements of section 1245.235 of the California Code of Civil Procedure regarding notice and hearing. Section 3. Public Use. The public use for which the interests in the Property are to be acquired is for development of a neighborhood park and future as yet unspecified recreational/open space uses, as more fully described above and in the staff report accompanying this Resolution. Section 4. Necessity. The Property is necessary for the development of the neighborhood park and to assist the City in implementing general plan goals by providing adequate recreational opportunities for its residents, as well as the provision of open space. Section 5. Description of Property Interests. The Property to be acquired is more particularly described and depicted, respectively in Exhibits "A" and "B", attached hereto and incorporated herein by reference. 7.1.a Packet Pg. 110 Section 6. Findings. The City Council hereby finds, determines and declares each of the following: (a) The public interest and necessity require acquisition of the Property for the proposed uses; (b) The proposed uses are and/or will be planned or located in the manner that will be most compatible with the greatest public good and least private injury; (c) The Property, as described and depicted in Exhibit "A" and "B", is necessary for the proposed use of the Property; (d) The offer required by section 7267.2 of the California Government Code has been made to the owner or owners of record; and (e) All conditions and statutory requirements necessary to exercise the power of eminent domain ("the right to take") to acquire the property described herein have been complied with by the City. Section 7. Authority to Exercise Eminent Domain. The law firm of Woodruff Spradlin & Smart ("Counsel") is authorized and empowered to commence and maintain a proceeding in the County of Los Angeles to acquire for the fee interest in the Property, including the improvements thereon, if any, by eminent domain for the proposed Project. Section 8. Use Not Unreasonably Interfering With Existing Public Use(s). If, and to the extent, any of the interest in real property to be acquired is subject to easements and rights-of-way appropriated to existing public uses that are not owned by a public body, the herein described use or uses will not unreasonably interfere with or impair the continuance of the public use as it now exists or may reasonably be expected to exist in the future. As such, Counsel is authorized to acquire the real property subject to existing public use(s) pursuant to section 1240.510 of the California Code of Civil Procedure. To the extent any of the Property is subject to easements and rights-of-way appropriated to existing public uses that are owned by a public body, the herein described use or uses will not unreasonably interfere with or impair the continuance of the public use as it now exists or may reasonably be expected to exist in the future. As such, Counsel is authorized to acquire the Property subject to such existing public use(s) pursuant to section 1240.510 of the California Code of Civil Procedure. Section 9. Use More Necessary Than Existing Public Use(s). If, and to the extent, any of the Property, or any portion thereof, is already appropriated to a public use, the use proposed for the Property is a more necessary public use than the use to which the Property, or any portion thereof, is so appropriated. As such, Counsel is authorized to acquire the Property pursuant to the powers conferred by section 1240.610 of the California Code of Civil Procedure. 7.1.a Packet Pg. 111 Section 10. Prejudgment Possession. Counsel is authorized and empowered to make application to the Court for an Order for Possession Before Judgment pursuant to section 1255.410 of the California Code of Civil Procedure and to make such security deposits as may be required by statute or by order of the court. Section 11. Further Activities. Counsel is further authorized and empowered to take any steps required in connection with any steps previously ordered. Counsel is further authorized to correct any errors or to make or agree to non -material changes in the legal description of the Property that are deemed necessary for the conduct of the condemnation action, or other proceedings or transactions required to acquire the Property. Section 12. CEQA Findings. In considering this Resolution, the staff report, and all other documents, oral testimony and other evidence presented at the hearing on this Resolution, the City Council finds that adoption of this Resolution and acquisition of the Property is categorically exempt from the California Environmental Quality Act ("CEQA") for the following reasons: (1) the acquisition and proposed development of a neighborhood park qualifies as infill development of less than five acres pursuant to CEQA guidelines § 15332; (2) the acquisition and proposed development qualifies as an activity where it can be seen with certainty that there is no possibility that it will have a significant effect on the environment pursuant to CEQA guidelines § 15061; and (3) the acquisition is to preserve open space or lands for park purposes pursuant to CEQA guidelines § 15325. Section 13. Effective Date. This Resolution shall take effect upon adoption. APPROVED and ADOPTED on this day of February, 2017. Jimmy Lin, Mayor Attest: Tommye Cribbins, City Clerk 7.1.a Packet Pg. 112 I, TOMMYE A. CRIBBINS, City Clerk of the City of Diamond Bar, do hereby certify that the foregoing Resolution was passed, adopted and approved at a regular meeting of the City Council of the City of Diamond Bar held on the day of February, 2017, by the following vote: AYES: COUNCIL MEMBERS: NOES: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBERS: ABSTAIN: COUNCIL MEMBERS: Tommye A. Cribbins, City Clerk City of Diamond Bar 7.1.a Packet Pg. 113 (Al!ssGOON to uollnloseN VOWA : 99 Al!ss939N to uollnloseN - VOVVA :e• �-Llu0wLjoelly r ti EXHIBIT A LEGAL DESCRIPTION ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: PARCEL 2 OF PARCEL MAP NO. 127785 IN THE CITY OF DIAMOND BAR, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 156 PAGES 98,99 AND 100 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPT THEREFROM ALL OIL, GAS AND OTHER HYDROCARBONS AND MINERALS NOW OR AT ANY TIME HEREAFTER SITUATED THEREIN AND THEREUNDER, TOGETHER WITH THE EXCLUSIVE RIGHT TO DRILL FOR, PRODUCE, EXTRACT, TAKE AND MINE THEREFROM SUCH OIL, GAS AND OTHER HYDROCARBONS AND MINERALS, AND TO STORE THE SAME UPON THE SURFACE OF SAID LAND, OR BELOW THE SURFACE OF SAID LAND, TOGETHER WITH THE RIGHT TO STORE UPON THE SURFACE OF SAID LAND, OIL, GAS AND OTHER HYDROCARBONS AND MINERALS WHICH MAY BE PRODUCED FROM OTHER LANDS, WITH THE RIGHT OF ENTRY THEREON FOR SAID PURPOSES, AND WITH THE RIGHT TO CONSTRUCT, USE, MAINTAIN, ERECT, REPAIR, REPLACE AND REMOVE THEREON AND THEREFROM ALL PIPE LINES, TELEPHONE AND TELEGRAPH LINES, TANKS, MACHINERY, BUILDINGS AND OTHER STRUCTURES, WHICH MAY BE NECESSARY AND REQUISITE TO CARRY ON OPERATIONS ON SAID LANDS, WITH THE FURTHER RIGHT TO ERECT, MAINTAIN, OPERATE AND REMOVE A PLANT, WITH ALL NECESSARY APPURTENANCES FOR THE EXTRACTION OF GASOLINE FROM GAS, INCLUDING ALL RIGHTS NECESSARY OR CONVENIENT THERETO, AS EXCEPTED AND RESERVED IN THE DEED FROM TRANSAMERICA DEVELOPMENT COMPANY, A CALIFORNIA CORPORATION, RECORDED MARCH 29, 1968, AS INSTRUMENT NO. 2456 IN BOOK D3955, PAGE 185 OFFICIAL RECORDS AND RE-RECORDED JUNE 19 1969 AS INSTRUMENT NO 1776 IN BOOK D4407 PAGE 591 OFFICIAL RECORDS. ALL EASEMENTS AND RIGHTS-OF-WAY, AND OTHER RIGHTS TO THE USE AND OCCUPANCY OF THE SURFACE OF THE ABOVE DESCRIBED LAND WERE QUITCLAIMED IN DEED RECORDED NOVEMBER 18, 1982 AS INSTRUMENT NO. 82-1160640, OFFICIAL RECORDS. APN: 8718-005-007 & 008 .. __ .. ... _............. .. ... . -- P. A. TRA 15725 REVISED 940228040030301-06 SEARCH NO OFFICE OF THE AS 7.1.a 8718 5 £280-12,18 10024 900201 20121205 COUNTY OF LOS ANGELES SHEET 10026 920804 COPYRIGHT C) 20)02 / BK 0 MAPPING AND GIS SERVICES SCALE 1" 200' a 06 1 ti rn Z� DETAIL STA 5 PER RS 67-51-56 NO SCALE Packet Pg. 115 (4ssaOaN 10 uol;nloseN yDNUI : 894) 4010ed 6ulaeaH 10 J9149-1 :q-VL4uauay0eUV Jimmy Lin Mayor Ruth M. Low Mayor Pro Tem Carol Herrera Council Member Nancy A. Lyons Council Member Steve Tye Council Member January 24, 2017 21810 Copley Drive ® Diamond Bar, CA 91765-4178 (909) 839-7000 • Fax (909) 861-3117 www.DiamondBarCA.gov Young Mens Christian Association of Pomona Valley, Inc. c/o Diamond Bar -Walnut Y.M.C.A. 400 S. Brea Canyon Rd. Diamond Bar, CA 91765 Young Mens Christian Association of Pomona Valley, Inc. 350 N. Garey Avenue Pomona, CA 91767 Young Mens Christian Association of Young Men's Christian Association of Pomona Valley, Inc. Pomona Valley INC 22600 Sunset Crossing c/o Matthew Henry Diamond Bar, CA 91765 1460 E. Holt Avenue, Suite 196 Pomona, CA 91767-5802 Re: Notice of Hearing on the Intent of the City Council to Adopt a Resolution of Necessity for Acquisition by Eminent Domain of the Property located on the north side of Sunset Crossing Road, west of Big Falls Drive in the City of Diamond Bar, Assessor Parcel Nos. 8718-005-007 and 008 Dear Sir or Madam: The City Council of the City of Diamond Bar (the "City") intends to consider the adoption of a Resolution of Necessity to allow for the acquisition of the fee simple interest in the real property located on the north side of Sunset Crossing Road, west of Big Falls Drive in the City of Diamond Bar, Assessor Parcel Nos. 8718-005-007 and 008 (the "Property") for a proposed park project (the "Project"). California Code of Civil Procedure section 1240.030 provides that the power of eminent domain may be exercised to acquire property for a proposed project if the following conditions are established: a) The public interest and necessity require the project; b) The project is planned or located in the manner that will be most compatible with the greatest public good and least private injury; and C) The property sought for acquisition is necessary for the project. (AMssaoaN;o uoilnloseM VOWA : 9966) 10)13sd BULMOH to a8118-1 :q-VL1U8WLJ3B11V ti a January 24, 2017 Y Young Mens Christian Association of Pomona Valley, Inc. U Page 2 a. In addition, pursuant to California Code of Civil Procedure section 1245.230, the City must establish that the offer required by section 7267.2 of the Government Code has been made to the owner(s) of record, or the offer has not been made because the owner(s) cannot be located with reasonable diligence. This letter shall serve as notice that the City Council will be asked to decide if the above conditions are met concerning the acquisition of the Property. The Property is legally described and depicted, respectively, in Exhibits "A" and "B" which are attached to the draft Resolution of Necessity which is enclosed. The City Council meeting will be held at 6:30 p.m., or shortly thereafter, on February 21, 2017 at Diamond Bar City Hall, 21810 Copley Drive, 2nd Floor, Diamond Bar, California. If the City Council determines these conditions have been satisfied, the City Council will consider adopting a Resolution of Necessity authorizing condemnation of the Property. The Resolution of Necessity, if adopted, will authorize the City to acquire the Property by eminent domain. If you elect not to appear at the hearing regarding the adoption of the Resolution of Necessity, your nonappearance will not be a waiver of your right to claim greater compensation in a court of law. The amount of compensation to be paid for the acquisition of the Property is not a matter or issue that will be heard by the City Council at this hearing. If you elect not to appear and not be heard, your failure to appear will be a waiver of your right to later challenge the right of the City to take the Property by eminent domain. If you choose to appear at the hearing, you must file a written request to appear within fifteen (15) days from the mailing of this notice. You are entitled to appear and object to the adoption of the Resolution of Necessity. Objections are limited to the conditions set forth above. All requests to appear must be received by the City Clerk of the City within fifteen (15) days after this notice was mailed. All requests must be sent to: City Clerk City of Diamond Bar 21810 Copley Drive, 2nd Floor Diamond Bar California 91765 California Code of Civil Procedure section 1245.235, subdivision (b)(3) provides that "failure to file a written request to appear and be heard within fifteen (15) days after the Notice was mailed will result in a waiver of vour right to appear and be heard" on the above matters and issues that are the subject of the hearing. (AlissOOM }o uoilnjoseN yowk : 894 L) 4013ed 6uiaeaH 10 J9149-1 :q• VL4uOwLj3eUv 00 � r r r a January 24, 2017 Young Mens Christian Association of Pomona Valley, Inc. Page 3 a The City Council must adopt a Resolution of Necessity before an eminent domain proceeding can commence. Should the Resolution of Necessity be adopted, the City will commence eminent domain proceedings in the Los Angeles County Superior Court. In that proceeding, the Court will determine the amount of compensation in which you are entitled if a negotiated agreement cannot be reached. If you have any questions or would like additional information, please contact Assistant City Manager Ryan McLean at 909-839-7016. Sincerely, J3�tz— ej-d— Tommye Cribbins City Clerk City of Diamond Bar Attachments: Site Photos Draft Resolution of Necessity (Al!ssOOM }o uoi;nloseN yowk : 894 L) 4013ed 6uiaeOH 10 J9149-1 :q• VL4uOwLJ3eJ4v T Subject Photographs Subject Photographs CBRE 0 2016 CONE, Inc. a } 9 � Easterly view of subject. East view of Sunset Crossing. Subl to left. West view of Sunset Crossinq. Subi to right. (Southerly view of subiect. West view of gravel drive. Subi to left. MWesterIv view of subiect. (AMsSOOON 10 uoilnloseN VOWA : 9966) 10)13ed BULMOH 10 a8118-1 :q-VL1U8WL43elld r ti RESOLUTION NO. 2017 -XXX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DIAMOND BAR FINDING AND DETERMINING THAT THE PUBLIC INTEREST AND NECESSITY REQUIRE THE ACQUISITION BY EMINENT DOMAIN OF INTERESTS IN CERTAIN REAL PROPERTY FOR PUBLIC USE AND AUTHORIZING AND DIRECTING CONDEMNATION OF PARCEL NOS. 8718-005-007 AND 008. WHEREAS, the City of Diamond Bar (the "City") is seeking to acquire 2.83 acres of property adjacent to and just north of the terminus of Sunset Crossing Road by eminent domain; and WHEREAS, the property is proposed to be acquired in fee and is legally described in Exhibit "A" and depicted in Exhibit "B" (hereafter, the "Property") which are incorporated herein by reference; and WHEREAS, approximately one acre of the Property is proposed to be developed as a public neighborhood park with as yet unspecified amenities, while the balance of the Property will be retained in its current condition of open space with the potential for development in the future for as yet undefined recreational/open space uses all serving the public interest; and WHEREAS, the acquisition of Property will require acquiring interests from a private party; and WHEREAS, the City is authorized to exercise the power of eminent domain to acquire the Property by Government Code § 37350.5; and WHEREAS, in accordance with section 1245.235 of the California Code of Civil Procedure on January 24, 2017 there was mailed a Notice of Hearing on the Intent of the City to adopt a Resolution of Necessity for acquisition by eminent domain of the interests the Property. The Notice of Hearing was mailed to the listed address of all persons whose names appear on the last equalized county assessment roll as having an interest in the Property; and WHEREAS, the staff report, the environmental determinations therein and all other evidence presented to the City Council, are incorporated herein by this reference and made a part hereof as though fully set forth herein; and WHEREAS, pursuant to section 1245.235 of the California Code of Civil Procedure, the City scheduled a hearing on February 21, 2017 at 6:30 p.m. at 21865 Copley Drive, Diamond Bar, CA on whether to adopt a Resolution of Necessity and referred to in section 1240.030 of the California Code of Civil Procedure and gave each person whose property interest is to be acquired by eminent domain an opportunity to appear and be heard on the following matters: 1215761.1 VMsSOOON;o uoilnioseN VOWA : 9966) 10)13ed BULMOH 10 a8118-1 :q-VL1U8WL43elld A N r ti Cb d A. Whether the public interest and necessity require the Property; r+ B. Whether the proposed use of the Property is planned or located in a a manner which is most compatible with the greatest public good and the least private injury; C. Whether the Property proposed to be acquired is necessary for the Proposed use; D. Whether the offer required by Government Code §7267.2 had been given to the owners of record; and E. Whether the City had properly exercised all of its statutory responsibilities and duties antecedent to the exercise of eminent domain against the Property, including review under CEQA; and WHEREAS, the City Council, as a result of such hearing, has determined that the public health, safety and welfare require that the City acquires those property interests described and depicted, respectively, in Exhibits "A" and "B" for the proposed uses thereof; and WHEREAS, the City may adopt a Resolution of Necessity pursuant to section 1240.040 of the California Code of Civil Procedure. NOW, THEREFORE, by a vote of two thirds or more of its members (four of five), the City Council of the City of Diamond Bar does hereby find, determine and declare upon evidence presented, resolve and order as follows: Section 1. Incorporation of Findings and Recitals. The above findings and recitals are true and correct and are incorporated herein in full by this reference. Section 2. Compliance with California Code of Civil Procedure. There has been compliance by the City with the requirements of section 1245.235 of the California Code of Civil Procedure regarding notice and hearing. Section 3. Public Use. The public use for which the interests in the Property are to be acquired is for development of a neighborhood park and future as yet unspecified recreational/open space uses, as more fully described above and in the staff report accompanying this Resolution. Section 4. Necessity. The Property is necessary for the development of the neighborhood park and to assist the City in implementing general plan goals by providing adequate recreational opportunities for its residents, as well as the provision of open space. Section 5. Description of Property Interests. The Property to be acquired is more particularly described and depicted, respectively in Exhibits "A" and "B", attached hereto and incorporated herein by reference. 1215761.1 VMsSOOON;o uoilnioseN VOWA : 9966) 1013Bd BULMOH 10 a8118-1 :q-VL1U8WL43elld .Q N r r ti Cb d r+ Section 6. Findings. The City Council hereby finds, determines and declares each of the following: a (a) The public interest and necessity require acquisition of the Property for the proposed uses, (b) The proposed uses are and/or will be planned or located in the manner that will be most compatible with the greatest public good and least private injury; (c) The Property, as described and depicted in Exhibit "A" and "B", is necessary for the proposed use of the Property; (d) The offer required by section 7267.2 of the California Government Code has been made to the owner or owners of record; and (e) All conditions and statutory requirements necessary to exercise the power of eminent domain ("the right to take") to acquire the property described herein have been complied with by the City. Section 7. Authority to Exercise Eminent Domain. The law firm of Woodruff Spradlin & Smart ("Counsel") is authorized and empowered to commence and maintain a proceeding in the County of Los Angeles to acquire for the fee interest in the Property, including the improvements thereon, if any, by eminent domain for the proposed Project. Section 8. Use Not Unreasonably Interfering With Existing Public Use(s). If, and to the extent, any of the interest in real property to be acquired is subject to easements and rights-of-way appropriated to existing public uses that are not owned by a public body, the herein described use or uses will not unreasonably interfere with or impair the continuance of the public use as it now exists or may reasonably be expected to exist in the future. As such, Counsel is authorized to acquire the real property subject to existing public use(s) pursuant to section 1240.510 of the California Code of Civil Procedure. To the extent any of the Property is subject to easements and rights-of-way appropriated to existing public uses that are owned by a public body, the herein described use or uses will not unreasonably interfere with or impair the continuance of the public use as it now exists or may reasonably be expected to exist in the future. As such, Counsel is authorized to acquire the Property subject to such existing public use(s) pursuant to section 1240.510 of the California Code of Civil Procedure. Section 9. Use More Necessary Than Existing Public Use(s). If, and to the extent, any of the Property, or any portion thereof, is already appropriated to a public use, the use proposed for the Property is a more necessary public use than the use to which the Property, or any portion thereof, is so appropriated. As such, Counsel is authorized to acquire the Property pursuant to the powers conferred by section 1240.610 of the California Code of Civil Procedure. 1215761.1 (AlissaOaN;o uoilnjoseN VOWA : 9966) 10)13ed BULMOH 10 a8118-1 :q-VL1uauay3elld � N r r ti Cb d r+ Section 10. Prejudgment Possession. Counsel is authorized and empowered to make application to the Court for an Order for Possession Before a Judgment pursuant to section 1255.410 of the California Code of Civil Procedure and to make such security deposits as may be required by statute or by order of the court. Section 11. Further Activities. Counsel is further authorized and empowered to take any steps required in connection with any steps previously ordered. Counsel is further authorized to correct any errors or to make or agree to non -material changes in the legal description of the Property that are deemed necessary for the conduct of the condemnation action, or other proceedings or transactions required to acquire the Property. Section 12. CEQA Findings. In considering this Resolution, the staff report, and all other documents, oral testimony and other evidence presented at the hearing on this Resolution, the City Council finds that adoption of this Resolution and acquisition of the Property is categorically exempt from the California Environmental Quality Act ("CEQA") for the following reasons: (1) the acquisition and proposed development of a neighborhood park qualifies as infill development of less than five acres pursuant to CEQA guidelines § 15332; (2) the acquisition and proposed development qualifies as an activity where it can be seen with certainty that there is no possibility that it will have a significant effect on the environment pursuant to CEQA guidelines § 15061; and (3) the acquisition is to preserve open space or lands for park purposes pursuant to CEQA guidelines § 15325. Section 13. Effective Date. This Resolution shall take effect upon adoption. APPROVED and ADOPTED on this Attest: Tommye Cribbins, City Clerk 1215761.1 day of February, 2017. Jimmy Linn, Mayor (AlissaOaN;o uoilnloseN VOWA : 8966) la)Psd BuiaeaH 10 a8118-11 :q-VL1uauay3e11d r ti I, TOMMYE A. CRIBBINS, City Clerk of the City of Diamond Bar, do hereby certify that the foregoing Resolution was passed, adopted and approved at a regular meeting of the City Council of the City of Diamond Bar held on the _ day of February, 2017, by the following vote: AYES: COUNCIL MEMBERS: NOES: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBERS: ABSTAIN: COUNCIL MEMBERS: Tommye A. Cribbins, City Clerk City of Diamond Bar 1215761.1 i (Al!sSOOON;o uoi;nioseN VOWA : 8966) Ie)13Bd Bul-WOH Io a8118-1 :q-VL;u8wLj3Bl;d A N r ti cb a- u u EXHIBIT A a LEGAL DESCRIPTION ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: PARCEL 2 OF PARCEL MAP NO. 12778, IN THE CITY OF DIAMOND BAR, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 156, PAGES 98,99 AND 100 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPT THEREFROM ALL OIL, GAS AND OTHER HYDROCARBONS AND MINERALS NOW OR AT ANY TIME HEREAFTER SITUATED THEREIN AND THEREUNDER, TOGETHER WITH THE EXCLUSIVE RIGHT TO DRILL FOR, PRODUCE, EXTRACT, TAKE AND MINE THEREFROM SUCH OIL, GAS AND OTHER HYDROCARBONS AND MINERALS, AND TO STORE THE SAME UPON THE SURFACE OF SAID LAND, OR BELOW THE SURFACE OF SAID LAND, TOGETHER WITH THE RIGHT TO STORE UPON THE SURFACE OF SAID LAND, OIL, GAS AND OTHER HYDROCARBONS AND MINERALS WHICH MAY BE PRODUCED FROM OTHER LANDS, WITH THE RIGHT OF ENTRY THEREON FOR SAID PURPOSES, AND WITH THE RIGHT TO CONSTRUCT, USE, MAINTAIN, ERECT, REPAIR, REPLACE AND REMOVE THEREON AND THEREFROM ALL PIPE LINES, TELEPHONE AND TELEGRAPH LINES, TANKS, MACHINERY, BUILDINGS AND OTHER STRUCTURES, WHICH MAY BE NECESSARY AND REQUISITE TO CARRY ON OPERATIONS ON SAID LANDS, WITH THE FURTHER RIGHT TO ERECT, MAINTAIN, OPERATE AND REMOVE A PLANT, WITH ALL NECESSARY APPURTENANCES FOR THE EXTRACTION OF GASOLINE FROM GAS, INCLUDING ALL RIGHTS NECESSARY OR CONVENIENT THERETO, AS EXCEPTED AND RESERVED IN THE DEED FROM TRANSAMERICA DEVELOPMENT COMPANY, A CALIFORNIA CORPORATION, RECORDED MARCH 29, 1968, AS INSTRUMENT NO. 2456 IN BOOK D3955, PAGE 185 OFFICIAL RECORDS AND RE-RECORDED JUNE 19 1969 AS INSTRUMENT NO, 1776 IN BOOK D4407, PAGE 591, OFFICIAL RECORDS. ALL EASEMENTS AND RIGHTS-OF-WAY, AND OTHER RIGHTS TO THE USE AND OCCUPANCY OF THE SURFACE OF THE ABOVE DESCRIBED LAND WERE QUITCLAIMED IN DEED RECORDED NOVEMBER 18, 1982 AS INSTRUMENT NO, 82-1160640, OFFICIAL RECORDS. APN: 8718-005-007 & 008 1G z U (AMsSOOON;o uoi;nioseN VOWA : 8966) 10)PLd BUPBOH 10 a8118-1 :q-VLlUGWLl3e;;d iU r Q rn z M w O a CO a L co N � K r N a Lcr u M W ,boa �ao0 � ,5 o rn O cc 2�00 OG o ro c�a Qt• rn G �` Yu BSA D_ oti �'� o U rt'sez li 8� "Jr m U) O� m eL'vL fi LN�/ w n T a N UW O 95L W 52 M s/7, NM [Yl + SOI S c, i p v 1 v ` o p y m ✓ { d'} r o m' 6 m ti Q m � r •'r _ oo W �jw Z�w _ w 2 d N U 6 N oA.. il9lHX3 ti N T_ Cb d Y u m (L CITY COUNCIL 8.1 Agenda #: 8.1 Meeting Date: February 21, 2017 AGENDA REPORT TO: Honorable Mayor and Members of the City Council FROM: James DeStefano, City Manager TITLE: (A) ADOPT RESOLUTION NO. 2017 -XX: AMENDING THE FISCAL YEAR 2016-17 MUNICIPAL BUDGET. (B) ADOPT RESOLUTION NO. 2017 -XX: AMENDING RESOLUTION NO. 2016-40 THE CITY OF DIAMOND BAR'S COMPENSATION PLAN EFFECTIVE MARCH 4, 2017 RECOMMENDATION: Adopt. BACKGROUND: The City Council adopted Resolution No. 2016-17 on June 7, 2016 approving the FY16- 17 Municipal Budget. The City Council has approved additional appropriations as they have occurred throughout the year. It is City policy for staff and the City Council to periodically review the annual budget and make adjustment as deemed necessary. DISCUSSION: The City's current adjusted General Fund Budget for FY16-17 shows anticipated resources of $26,192,477. It is recommended that the resource estimate be increased by $1,686,893 to $27,879,370. The current approved General Fund appropriations budget equals $26,194,339. It is recommended that this budget be increased by $1,617,773 to $27,812,112. In addition, the use of fund balance reserves in the amount of $1,167,220 are being appropriated due to additional funds required for General Plan Update, additional funds required for the City Monument project, appropriations for recent storm damage at two locations in the City and for the appropriation of a temporary funding source for Residential and Collector Street Rehab — Area 5. These recommended changes in the General Fund estimated resources and appropriations will result in an estimated $15,759,539 in General Fund reserves at the end of the fiscal year. The estimated balance in reserves is down from $17,261,113 in the 2016-17 adopted budget. Packet Pg. 128 8.1 Current Budget Amendment Adjusted Budget Resources Annual Revenue $24,228,992 $519,673 $24,748,665 Use of Fund Balance Reserve 1,963,485 1,167,220 3,130,705 Total Resources $26,192,477 $1,686,893 $27,879,370 Total Appropriations 26,194,339 1,617,773 27,812,112 Impact to Fund Balance ($1,862) $69,120 $67,258 Unreserved Fund Balance @ Beg of FY $18,822,986 $18,822,986 Less Uses of Unreserved Fund Bal (1,963,485) (1,167,220) (3,130,705) Estimated Unreserved Fund Bal @ End of FY $16,857,639 ($1,098,100) $15,759,539 General Fund Revenues: When the FY16-17 Budget was adopted, careful consideration went into the preparation of the revenue estimates. The economy has continued to improve during the last year with nearly all categories of revenues showing growth. In preparation for the mid -year budget review, staff spent a considerable amount of time examining the City's revenues to ensure valid revenue estimates in this time of economic growth. • Other Taxes – Included in the "Other Taxes" category are Sales Tax, Transient Occupancy Tax, Property Transfer Tax and Franchise Tax. This category of revenue is being increased by $315,000. This increase is due to better than expected results in sales tax revenue ($350,000) due in part to the diversification in the sales tax base and the continued economic development efforts throughout the City offset by lower Franchise Fees (down $35,000) related to the transition from Verizon FIOS to Frontier. • State Subventions — Property Tax In Lieu of Vehicle License Fees is being increased by $129,000 based on actual collections received in January 2017. Motor Vehicle In -Lieu is being increased by $25,600 for a one-time payment received during the current fiscal year. • Fines & Forfeitures – Included in this category are Vehicle Code Fines, Municipal Code Fines, False Alarm Fees and Parking Fines. This category of revenue has been adjusted downward by $60,000 which is a decrease in Vehicle Code Fines ($30,000) and Impound Fees ($5,000) which are both due to lower violation levels, a decrease in False Alarm Fees ($5,000) due to the success of a program aimed at better allocating Sheriff's Department resources, and a decrease in Parking Fines ($20,000) which is due to lower collection activity. • Current Service Charges – This category includes Planning, Building and Engineering fees, as well as, Recreation fees. It is recommended that the revenue projections be decreased by $5,250. This is based on increases in permit volume in the Engineering department ($14,000) related to the South Pointe housing development. This is offset by a decrease in Recreation Fees ($19,250) related to the cancelation of Snow Fest due to bad weather and the cancelation of the Winter Packet Pg. 129 8.1 Adult Basketball League due to low enrollment. • Use of Money and Property — This category is being increased by $33,000. Investment income is being increased due to better than expected yields on investments and realized gains on investments sold. Overall there is an anticipated increase in investment revenue over the original estimates spread across all funds in the amount of $99,300 (see attached schedule in Exhibit A). • Cost Reimbursements — This category is being increased by nearly $67,000 due to higher than anticipated recovery rates on insurance claims filed by the City related to property damage and for fees incurred by the City for legal costs which is being reimbursed by developers. • Interfund Transfers — This category includes a transfer from the Law Enforcement Reserve Fund to the General Fund for increased saturation patrols by the Los Angeles County Sheriff's Department. • The changes in revenue estimates are outlined beginning on page 12 in Exhibit A. General Fund Appropriations: When the budget was adopted in June 2016 the General Fund appropriations equaled $25,790,865, which included the use of Fund Balance reserves ($1,916,210), for Economic Development, Capital Improvement Projects, professional services for a possible ballot measure and the subsidy to two of the three Lighting and Landscape Districts. Prior to these mid -year budget amendments, the City Council had authorized carryovers and additional appropriations in the amount of $403,474 for a total of $26,194,339. The following are the highlights of the proposed changes in the General Fund appropriations: • City Attorney — It is anticipated that additional legal review will be required by the end of the fiscal year so this budget has been increased by $15,000. • City Manager — This budget has been increased by $32,500 due primarily to additional advertising costs related to an increased number of Public Work's projects being posted for bid and for a one time mailing of information regarding SB415. • Finance — The cost to hold the City's investments by the bank was previously free. Since the original budget was passed, the bank has implemented a charge for this service. The savings from not attending a conference and lower training costs were used toward the addition of safekeeping charges by the bank. This budget has been increased by a net of $1,100. • Information Systems — This division's budget has been increased by $39,220 due to the implementation of agenda management software, a budget preparation module and a mobile platform for the City View application, all of which are offset by salary Packet Pg. 130 8.1 savings realized from a partial year of a vacant position within the department. Personnel Changes (Information Systems) - Since the inception of the Information Systems Department in Fiscal Year (FY) 2004/2005, departmental staff count has remained constant but the scope of work has dramatically increased. With the increased departmental workload and staff vacancy, the Information Systems Director re-examined the staffing structure and operations. Current contractor services provide about 1,000 hours of billable vendor support per year. It has been determined that the department would be better served by an additional City employee and would gain twice as many hours (2,080) in productivity and provide greater back-up to all network related and cybersecurity issues. It is proposed that the new position be titled, Network/Systems Technician, and be placed at salary grade 17NE ($48,782.01 — 65,372.56) in a non-exempt position. Staff is also recommending that the Help Desk Technician position be retitled as an Information Systems Analyst to reflect revised services formerly provided by consultants. The Information Systems Analyst position would be placed at salary grade 29E ($65,606 — 87,918.82), which results in no additional cost. There is no additional cost to implement these actions in FY 2016-17 • Civic Center- This budget has been increased by $11,000 for roof maintenance at City Hall and miscellaneous office furniture in Public Works. • Law Enforcement — This budget has been increased by $15,000 for saturation patrols throughout the City. These patrols will be funded by a transfer from the Law Enforcement Reserve Fund. • Community Development Administration — This budget has been increased by a net of $10,300. The savings realized from lower than anticipated professional services for environmental services ($6,000) helped to offset the increase in a consultant contract to cover staff vacancies ($13,500). There was also an increase of $4,000 for Conferences which was miscalculated at the time that the original budget was adopted. $1,200 for operating supplies was transferred from this division to the General Plan Update Fund. • Neighborhood Improvement — This budget has been decreased by $3,900 primarily due to the decrease in graffiti removal costs to match the contract amount ($5,000). These costs are offset by an increase in conference costs ($1,100) due to a miscalculation of the costs at the time that the original budget was adopted. • Parks & Recreation Administration — This budget has been reduced by $147,942. This large decrease is due to current vacancies and the reorganization of the Parks & Facilities Maintenance Division. • Diamond Bar Center — The Diamond Bar Center budget has been increased by a net of $17,000 to cover replacement tables, a small portable stage, promotional items and staff overtime. Savings from lower costs to replace an ice machine Packet Pg. 131 8.1 helped to defray these costs by $5,000. The balance of these costs were covered by the savings realized by the cancelation of Snow Fest this year due to weather conditions. • Recreation — This budget has been decreased by $26,500. This reduction is primarily due to the cancelation of Snow Fest due to weather conditions. The savings was used for youth basketball, new table tennis tables, Barktober costs along with the items mentioned above for the Diamond Bar Center. There is further savings realized from vacancies in the department and the department reorganization implemented earlier this fiscal year. • Engineering — Appropriations have been increased by $95,700 which is due to an increase in consultant services related to increased permit volume, on-call architect services and SR 57/60 costs. There is an offsetting revenue to cover a portion of this increase which amounts to $24,600. • Road Maintenance — This budget has been increased by $115,000 due to the repairs and maintenance required for the sidewalks in the Gateway Center area of the City. • Parks & Facilities Maintenance — This budget has been increased by $228,975. This includes the salary/benefits for the Administrative Coordinator previously budgeted in the Parks & Recreation Department, WVMWD Standby Charges ($26,500), playground maintenance, Heritage Park A/C control system, Maple Hill restroom repairs (all equal to $62,500), chain link fencing at Steep Canyon ($30,000) and an ice machine at Heritage Park ($2,500). • Landscape Maintenance — This budget has been increased by $43,000 for the treatment of diseased trees in Sycamore Canyon Park ($23,000) and additional potential storm related emergencies ($20,000). • Transfer out — It is estimated that an additional $1,172,320 will be transferred out of the General Fund to other funds. This includes a transfer to the CIP Fund in the amount of $805,000 which is merely a placeholder in order to execute the contract for Residential and Collector Street Rehab — Area 5 during the current fiscal year. It is beneficial to start slurry projects closer to the beginning of summer for the best results and fewer school traffic issues. In order to award the contract in April/May 2017, funding sources need to be identified which results in a short-term borrowing from the General Fund reserves during FY 2016-17. It is anticipated that after the start of FY 2017-18 that the General Funds will be swapped out for another funding source, such as the new Measure M funds recently approved by the voters back in November 2016. At that time, the General Fund reserves will be replenished by $805,000. The remainder of the transfer to the CIP fund is for additional funding for City Monument Signs ($244,625) and preliminary mitigation measures for recent storm damage at Sycamore Canyon Park ($76,650) and Steep Canyon ($7,245). There are brief explanations of all of the adjustments to the General Fund appropriations beginning on page 15 of Exhibit A. Packet Pg. 132 8.1 Special Revenue and Internal Service Funds: Law Enforcement Reserve Fund This fund's appropriations have been increased by $15,000 for a transfer to the General Fund in order to fund additional saturation patrols throughout the City. General Plan Revision Fund The appropriations in this fund have been increased by $544,112. $510,412 of that amount is for an appropriation not previously carried over from the previous fiscal year. The remaining $33,700 represents appropriations for various costs related to the General Plan Advisory Committee (GPAC) meetings and the public information efforts to keep residents informed of the progress of the General Plan. An additional transfer from the General Fund reserves in the amount of $33,700 is reflected in the attached schedules. Gas Tax Fund This fund has been reduced by $49,339 due to lower revenue projections. LLAD 38, 39 and 41 The LLAD funds have been adjusted to reflect an adjustment in Special Assessments to agree with what has been submitted to the County of Los Angeles. Self -Insurance Fund The appropriations in this fund have been increased by $5,100 for higher costs for property insurance. Building Facility & Maintenance Fund The appropriations in this fund have been increased by $13,000 for an air conditioning compressor replacement project. Capital Improvement Fund The appropriations in this fund have been increased by $2,098,520 for additional projects listed below: Proiect Appropriation Request Description City Monument Signs (#26516) $244,625 Add] approp — GF reserves Lemon Ave. CON (#23316) $40,000 Change orders Area 5 Slurry (#01417) $1,700,000 Earlier Start To Project Pantera Park Lighting Design $30,000 New project Storm Dmg Steep Cyn (26017) $7,245 Storm Damage @ Steep Cyn Storm Dmg Syc Cyn (25917) $76,650 Storm Damage @ Syc Cyn Total $2,098,520 Packet Pg. 133 8.1 FINANCIAL IMPACT: General Fund The Mid -Year Budget Amendment includes an increase in estimated revenue for the General Fund in the amount of $1,721,893 and an increase in General Fund appropriations in the amount of $1,617,773 which is outlined in Exhibit A. Special Revenue, Internal Service and Capital Improvement Funds Changes to the other funds are outlined in Exhibit A. The following is a brief recap of the changes: Packet Pg. 134 Special Revenue Funds Law Enforcement Fund General Plan Revision Gas Tax LLAD 38 LLAD 41 Interest Revenue - All Funds Revenue Increase/ (Decrease) Appropriations Increase/ (Decrease) Fund Bal Net Increase (Decrease) $ - $ 15,000 $ (15,000) 33,700 544,112 (510,412) (49,339) - (49,339) 4,145 - 4,145 1,157 - 1,157 56,800 - 56,800 Total Special Fund Changes $ 46,463 $ 559,112 $ (512,649) Internal Service Funds Self Insurance Fund Vehicle Maint & Repl Fund Equipment Maint & Repl Fund Building Facility & Maint Fund Total Internal Srvc Funds Changes CIP Fund Street Improvements Misc Capital Improvements Park Improvements Total CIP Fund Changes General Fund Changes Grand Totals 7,100 5,100 2,000 3,000 - 3,000 2,500 - 2,500 5,000 13,000 (8,000) 17,600 18,100 (500) 1,700,000 1,700,000 - 284,625 284,625 113,895 113,895 - 2,098,520 2,098,520 - 1,686,893 1,617,773 69,120 $3,849,476 $4,293,505 ($444,029) Overall the Mid -Year Budget amendment proposes an increase in Estimated Revenue of $3,849,476 for all funds and an overall increase in Appropriations of $4,293,505 for all funds. PREPARED BY: A1anr'a_Honeyw(911,_Finan irector 2/21/2017 REVIEWED BY: Attachments: 1. 8.1.a Resolution No. 2017 -XX Amending the FY 16-17 Budget 8.1 Packet Pg. 135 2. 8.1.b Exhibit A -Budget Worksheets 3. 8.1.c Resolution No. 2017 -XX Amending the City of Diamond Bar's Compensation Plan 8.1 Packet Pg. 136 8.1.a RESOLUTION NO. 2017 -XX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DIAMOND BAR AMENDING THE FY16-17 MUNICIPAL BUDGET. WHEREAS, the City Council has adopted Resolution No. 2016-17, A Resolution of the City Council of the City of Diamond Bar approving and adopting a budget for the City of Diamond Bar for the Fiscal Year commencing July 1, 2016 and ending June 30, 2017 including maintenance and operations, special funds and capital improvements and appropriating funds for accounts departments, divisions, object and purposes therein set forth (herein referred to as the "Budget"); and WHEREAS, the City Council may choose to amend the Budget from time to time throughout the fiscal year; and WHEREAS, an amendment to the FY 2016-17 Budget is attached as Exhibit A; and WHEREAS, the Amendment has been presented to the City Council at a City Council meeting; and WHEREAS, all legal prerequisites to the adoption of this Resolution have occurred. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Diamond Bar as follows: Section 1. The City Council hereby finds and determines that the FY16-17 Annual Budget be amended as set forth in the attached Exhibit A. Section 2. There are hereby appropriated for obligations and expenditures by the City Manager the amounts shown on the attached Exhibit. All obligations and expenditures shall be incurred and made in the manner provided by the provisions of State law and City ordinances and resolutions applicable to purchasing and contracting. The City Clerk shall certify to the adoption of this Resolution. PASSED, ADOPTED AND APPROVED this 21St day of February, 2017. Jimmy Lin, Mayor Z L 0 a. CU a� r r 0 N LO r - r r r a� m a� s a� c a� E Q X X 0 N O z 0 0 a� is aD E s 0 Q Packet Pg. 137 8.1.a I, Tommye Cribbins, City Clerk of the City of Diamond Bar, do hereby certify that the foregoing Resolution was passed, adopted and approved at a regular meeting of the City Council of the City of Diamond Bar held on the 21St day of February, 2017, by the following vote: AYES: COUNCIL MEMBERS: NOES: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBERS: F-Al33 IFI-11ILI121B�oloill0[ylnJ IIID 1:]21:6.11 ATTEST: Tommye Cribbins, City Clerk of the City of Diamond Bar 2 Packet Pg. 138 8.1.b CITY OF DIAMOND BAR FY 2016-17 MID YEAR BUDGET AMENDMENT GENERAL FUND Est Fund Bal Reserves @ 6/30/17 17,261,113 11 (403,474) 16,857,639 (1,061,342) Packet Pa_ 139 Previous Mid Year Adopted Budget Adiustments Current Budget Amendment Ad' Budget Estimated Resources Property Taxes 4,801,230 4,801,230 - 4,801,230 Other Taxes 7,272,000 7,272,000 315,000 7,587,000 State Subventions 5,636,300 5,636,300 154,423 5,790,723 From Other Agencies 450,000 450,000 450,000 Fines & Forfeitures 482,000 482,000 (60,000) 422,000 Current Services & Charges 2,890,055 2,890,055 (5,250) 2,884,805 Use of Money & Property 1,169,150 1,169,150 33,000 1,202,150 Cost Reimbursements 105,000 105,000 67,500 172,500 Transfers -In Other Funds 1,423,257 - 1,423,257 15,000 1,438,257 Fund Balance Reserves 1,916,210 47,275 1,963,485 1,167,220 3,130,705 26,145,202 47,275 26,192,477 1,686,893 27,879,370 Appropriations City Council 176,018 176,018 - 176,018 City Attorney 215,000 215,000 15,000 230,000 City Manager/City Clerk 1,506,448 (19,690) 1,486,758 32,500 1,519,258 Finance 772,577 (26,999) 745,578 1,100 746,678 Human Resources 409,502 409,502 - 409,502 Safety Program 17,450 17,450 - 17,450 Information Technology 1,138,036 37,906 1,175,942 4,220 1,180,162 Civic Center 519,239 25,152 544,391 11,000 555,391 Public Information 762,259 17,659 779,918 - 779,918 Economic Development 334,564 71,309 405,873 - 405,873 Law Enforcement 6,455,991 6,455,991 15,000 6,470,991 Volunteer Patrol 6,000 6,000 - 6,000 Fire 15,000 15,000 15,000 Animal Control 167,500 167,500 167,500 Emergency Preparedness 69,900 69,900 - 69,900 Community Dev/Planning 633,265 633,265 10,300 643,565 Building & Safety 718,822 718,822 - 718,822 Neighborhood Improvement 312,092 312,092 (3,900) 308,192 Parks & Recreation Admin 173,543 173,543 (147,942) 25,601 Diamond Bar Center - Ops 1,144,845 72,983 1,217,828 17,000 1,234,828 Park Operations - 1,758 1,758 (1,758) - Recreation 1,936,553 23,015 1,959,568 (26,500) 1,933,068 Public Works - Admin 859,276 25,736 885,012 - 885,012 Engineering 672,430 273,190 945,620 95,700 1,041,320 Road Maintenance 1,757,959 25,932 1,783,891 115,000 1,898,891 Park & Facilities Maintenance 1,316,055 39,331 1,355,386 228,975 1,584,361 Landscape Maintenance 271,108 271,108 43,000 314,108 Transfer Out - Other Funds 3,429,433 (163,808) 3,265,625 1,172,320 4,437,945 Total Appropriations 25,790,865 403,474 26,194,339 1,581,015 27,775,354 Excess Resources over Approp 354,337 (356,199) (1,862) 105,878 104,016 Fund Bal Reserves @ Beg of Year 18,822,986 18,822,986 18,822,986 Available Resources 19,177,323 (356,199) 18,821,124 105,878 18,927,002 Uses of Fund Balance Reserves: Economic Development 334,564 71,309 405,873 - 405,873 Transfer Out - CIP 1,230,099 557 1,230,656 1,133,520 2,364,176 Transfer Out - LLADS 196,547 196,547 196,547 Professional Services - Ballot Meas 155,000 (24,591) 130,409 130,409 General Plan Update - 33,700 33,700 1,916,210 47,275 1,963,485 1,167,220 3,130,705 Est Fund Bal Reserves @ 6/30/17 17,261,113 11 (403,474) 16,857,639 (1,061,342) Packet Pa_ 139 8.1.b FY 2016-17 MID YEAR BUDGET AMENDMENT GENERAL FUND REVENUES Account # Current Mid Year Budget Amendment Adj Budget Explanation 4,505,700 - p Property Taxes Current Secured 001-30010 4,505,700 Current Unsecured 001-30020 182,000 - 182,000 Supplemental Roll 001-30050 101,530 - 101,530 Prior Year Property Taxes 001-30100 (10,000) - (10,000) Misc Property Tax 001-30020 2,000 - 2,000 Q - d Interest, Penalties & Delinq 001-30250 20,000 - 20,000 W 4,801,230 - 4,801,230 Other Taxes _ Sales Tax 001-31010 4,557,000 350,000 4,907,000 Per HdL estimates -a_ Transient Occupancy Tax 001-31200 950,000 950,000 Franchise Tax 001-31210 1,465,000 (35,000) 1,430,000 Change from Verizon to Frontier r Property Transfer Tax 001-31250 300,000 300,000 cfl 7,272,000 315,000 7,587,000 N State Subventions Homeowners Exemption 001-31340 33,300 33,300 LO Motor Vehicle In -Lieu 001-31700 - 25,571 25,571 One time receipt VLF - Property Tax In Lieu 001-31701 5,603,000 128,852 5,731,852 Based on actual rec'd in Jan 2017 5,636,300 154,423 5,790,723 N d t Intergovernmental - Other Cities N Y Intergovernmental - Other 001-31900 450,000 - 450,000 450,000 - 450,000 a� Fines & Forfeitures Vehicle Code Fines 001-32150 200,000 (30,000) 170,000 Based on collection activity m General Fines 001-32200 17,000 17,000 Q Municipal Code Fines 001-32210 5,000 5,000 +� Parking Fines 001-32230 220,000 (20,000) 200,000 Based on collection activity Impound Fees 001-32250 15,000 (5,000) 10,000 Based on collection activity False Alarm Fees 001-32270 25,000 (5,000) 20,000 Based on collection activity IX 482,000 (60,000) 422,000 -� Building Fees r 06 Building Permit Fees 001-34110 451,516 451,516 No Changes c Plumbing Permit Fees 001-34120 52,327 52,327 E Electrical Permit Fees 001-34130 55,938 55,938 Mechanical Permit Fees 001-34140 36,336 36,336 Permit Issuance Fees 001-34200 63,108 63,108 Q Inspection Fees - Bldg 001-34250 6,789 6,789 Plan Check Fees - Bldg 001-34300 540,230 540,230 Plan Retention Fee 001-34310 18,826 18,826 SMIP Fees 001-34350 5,293 5,293 Bldg Standards Admin 001-34355 1,830 1,830 Waste Reduction Fees 001-34415 - - 1,232,193 - 1,232,193 Planning Fees Current Planning Fees 001-34430 200,000 - 200,000 No Changes Developer Fees 001-34550 25,000 - 25,000 Willow Heights Dev Fee 001-34552 - - - Packet Pg. 140 Willow Heights Pk Impr Fee 001-34554 - - - South Pointe Dev Fee 001-34556 250,000 250,000 Business License Fee 001-34560 18,000 - 18,000 Business License Late Fee 1 001-34561 1 3,000 1 - 3,000 8.1.b FY 2016-17 MID YEAR BUDGET AMENDMENT GENERAL FUND REVENUES Account # Current Mid Year Budget Amendment Adj Budget Explanation Business License Late Fee 001-34562 1,800 - 1,800 497,800 - 497,800 Engineering Fees Plan Check Fees - Eng 001-34610 17,000 13,000 30,000 Increased volume related to Southpointe Permit Fees - Engineering 001-34620 1,500 1,000 2,500 Encroachment Permit 001-34630 60,000 60,000 Inspections - Engineering 001-34640 180,000 180,000 Soils/Misc Eng Fee 001-34650 20,000 20,000 Waste Hauler Fees 001-34662 92,780 92,780 Industrial Waste 001-34665 30,000 - 30,000 401,280 14,000 415,280 Recreation Fees Community Activities 001-34720 78,995 (7,250) 71,745 Cancelation of Snow Fest Senior Activities 001-34730 52,680 52,680 Athletic Programs 001-34740 109,079 (12,000) 97,079 Cancelation of Winter Adult Basketball Fee Programs 001-34760 243,028 243,028 Contract Classes 001-34780 275,000 275,000 Special Event Fees 001-34800 - - 758,782 (19,250) 739,532 Use of Money and Property Investment Earnings 001-36100 240,000 30,000 270,000 See separate inv earnings sheet Gain/Loss on Sale of Invest 001-36120 5,000 5,000 Returned Check Charge 001-36600 150 150 Misc Rents & Concessions 001-36610 176,000 176,000 DB Center Rental 001-36615 670,000 670,000 Facility Security 001-36618 27,500 27,500 Heritage Park Building Rent 001-36620 20,000 20,000 Parks & Fields Rent 001-36625 16,000 16,000 Sale of Assets 001-36630 500 500 Film Permit Revenue 001-36637 3,000 3,000 City Store Sales 001-36640 - - Printed Material Sales 001-36650 4,000 4,000 Donations 001-36660 - - Miscellaneous Revenue 001-36900 5,000 3,000 8,000 1,167,150 33,000 1,200,150 09 LO r - (D t N Y L 0 a m Q .Q x LU .Q r c a� E t v R r r Q Packet Pg. 141 8.1.b FY 2016-17 MIDYEAR BUDGET AMENDMENT GENERAL FUND REVENUES Current Mid Year Account # Budget Amendment Adj Budget Explanation 105,000 50,000 155,000 Reimb higher than anticipated Cost Reimbursements Cost Reimbursement 001-36950 Prop Damage Reimb - PW 001-36800 1,500 10,000 11,500 Higher recovery rates Prop Damage Reimb - Parks 001-36810 500 7,500 8,000 Higher recovery rates 107,000 67,500 174,500 Interfund Transfers Transfer In - Law Enf Fund 001-39012 275,000 15,000 290,000 Saturation Patrols Transfer In - Gas Tax Fund 001-39111 902,202 902,202 Transfer In - Int Waste Mgmt 001-39115 112,220 112,220 Transfer In - Safe Parks Fund 001-39123 40,900 40,900 Transfer In - COPS Fund 001-39126 92,935 92,935 Transfer In - LLAD 39 001-39139 - - 1,423,257 15,000 1,438, 257 Total General Fund Revenue Adjustment 24,228,992 519,673 24,298,665 Q Packet Pg. 142 8.1.b FY 2016-17 MID YEAR BUDGET AMENDMENT GENERAL FUND APPROPRIATIONS Mid Year Amendment Explanation Current Account # Budget Adj Budget City Attorney (4020) General Legal Services 44020 125,000 15,000 140,000 Add'I legal review 125,000 15,000 140,000_ City Manager (4030) Promotional Supplies 41400 3,000 4,000 7,000 Add'I plaques Advertising 42115 10,000 7,500 17,500 Add'I PW projects to bid Postage 42120 27,000 20,000 47,000 One-time mailing for SB415 Education & Training 42340 1 1,000 1 1,000 1 2,000 Add'I Training 41,000 32,500 73,500 Finance (4050) Printing 42110 3,250 600 3,850 Higher costs to print/add tabs to budget Banking Charges 42128 15,000 4,000 19,000 Add'n of safekeeping charges Equipment Maintenance 42200 - 500 500 Annual maint of check perforator Travel-Conferences/Research 42330 5,500 (2,000) 3,500 Not attending GFOA conference Education & Training 42340 5,000 (2,000) 3,000 1 Less Pentamation training required 28,750 1,100 29,850 Information Systems (4070) Salaries 40010 332,470 (32,895) 299,575 Add'n Network Tech/Salary Savings City Paid Benefits 40070 3,618 (289) 3,329 Add'n Network Tech/Salary Savings Retirement Benefits 40080 61,368 (2,753) 58,615 Add'n Network Tech/Salary Savings Worker's Compensation 40083 4,754 (486) 4,268 Add'n Network Tech/Salary Savings ST/LT Disability 40084 1,970 (88) 1,882 Add'n Network Tech/Salary Savings Medicare 40085 4,682 (210) 4,472 Add'n Network Tech/Salary Savings Benefit Allotment 40090 40,176 (3,559) 36,617 Add'n Network Tech/Salary Savings Operating Supplies 41200 20,500 3,500 24,000 Staff Printing Needs - Toner/Door Hangers for CityView Mobile App Telephone 42125 57,400 1,000 58,400 Internet - 4 mo CityView Mobile Ap PS - Data Processing Svcs 44030 71,500 12,000 83,500 Granicus/Accela implementation Computer Equipment - Hardware 46230 27,058 9,200 36,258 Mobile Platform for CityView Computer Equipment - Software 46235 29,987 18,800 48,787 1 Mobile Platform for CityView 655,483 4,220 659,703 Civic Center (4093) Maint of Grounds/Buildings 42210 204,080 10,000 214,080 Roof Maintenance - CH Furniture 46220 1,000 1,000 2,000 Furniture for Public Works 205,080 11,000 216,080 Law Enforcement (4411) Sheriff Special Services 45402 150,300 15,000 165,300 Saturation Patrols (Funded by 012) 150,300 15,000 165,300 LO r- Cn (1) m s Y 0 a� a� m Q X LU .Q r c a� E t r r Q Packet Pg. 143 8.1.b FY 2016-17 MID YEAR BUDGET AMENDMENT GENERAL FUND APPROPRIATIONS Mid Year Amendment Explanation Account # Current Budget Adj Budget Community Development Administration (5210) Operating Supplies 41200 3,500 (1,200) 2,300 Transfer budget to Gen Plan Fund Travel-Conferences/Research 42330 5,000 4,000 9,000 Miscalculation of orignal budget Professional Services 44000 5,000 13,500 18,500 Consultant contract for staff vaccancy/offset by lower minute secretary costs Prof Services - Environmental 44240 12,000 (6,000) 6,000 No funds expended to date/reduce budget Actual costs of CACEO conference/original estimate was lower than actual 25,500 10,300 35,800 Neighborhood Improvement (5230) 1,100 Travel-Conferences/Research 42330 2,000 3,100 35,000 Graffiti Removal 45520 1 40,000 1 (5,000)1 To match the amount of the contra 1 with the vendor 42,000 (3,900) 38,100 Parks & Recreation Administration (5310) Salaries 40010 109,355 (109,355) - Director vacancy/transfer of Admin Coordinator to PW Overtime 40020 2,000 (2,000) - Director vacancy/transfer of Admin Coordinator to PW City Paid Benefits 40070 1,643 (1,643) - Director vacancy/transfer of Admin Coordinator to PW Retirement 40080 20,108 (20,108) - Director vacancy/transfer of Admin Coordinator to PW Worker's Comp 40083 1,250 (1,250) - Director vacancy/transfer of Admin Coordinator to PW STD/LTD 40084 645 (645) - Director vacancy/transfer of Admin Coordinator to PW Medicare 40085 1,638 (1,638) - Director vacancy/transfer of Admin Coordinator to PW Benefit Allotment 40090 18,503 (18,503) - Director vacancy/transfer of Admin Coordinator to PW Technology Allowance 42124 600 (600) - Director vacancy Publications 42335 100 300 400 Building Standards book Travel - Mileage 42335 1,500 (1,500) - Director vacancy Professional Services 44000 12,200 9,000 21,200 Trail Map Update offset by transfer Barktober event 169,542 (147,942) 21,600 LO r - r r a� m t W Y O a a� m Q X LU .Q r co c a� E t .r Q Packet Pg. 144 8.1.b FY 2016-17 MID YEAR BUDGET AMENDMENT GENERAL FUND APPROPRIATIONS Mid Year Amendment Explanation Account # Current Budget Adj Budget Diamond Bar Center (5333) Overtime 40020 5,000 2,000 7,000 Staff vacancies - add'I OT required Operating Supplies 41200 74,800 15,000 89,800 DBC replacement tables Professional Services 44000 7,500 3,000 10,500 DBC 360 Tour Misc Equipment 46250 30,939 (3,000) 27,939 Small portable stage/raised platforr offset by savings from replacement ice machine at DBC 118, 239 17,000 135,239 Recreation (5350) Salaries 40010 469,484 (5,901) 463,583 Vacancies/Dept Reorganization City Paid Benefits 40070 10,562 309 10,871 Vacancies/Dept Reorganization Retirement 40080 96,918 (1,196) 95,722 Vacancies/Dept Reorganization Worker's Comp 40083 20,384 (481) 19,903 Vacancies/Dept Reorganization STD/LTD 40084 3,111 (36) 3,075 Vacancies/Dept Reorganization Medicare 40085 31,557 (206) 31,351 Vacancies/Dept Reorganization Benefit Allotment 40090 115,392 1,782 117,174 Vacancies/Dept Reorganization Overtime 40020-CS308 20,930 (2,400) 18,530 Salary Savings from Snowfest used i youth basketball PT Salaries 40030-CS308 360,500 (3,600) 356,900 Salary Savings from Snowfest used i youth basketball Operating Supplies 41200-CS306 2,100 1,000 3,100 Blu ray player for Movies in the Pari Operating Supplies 41200-CS308 7,500 (6,000) 1,500 Savings used for blu ray player, DBC 360 Tour and special event podium Operating Supplies 41200-CS322 26,885 6,000 32,885 Small Tools & Equipment 41300-CS321 1,350 2,500 3,850 New Table Tennis Tables Rental/Lease of Equipment 42130-CS309 35,450 6,000 41,450 Barktober Costs Rental/Lease of Equipment 42130-CS308 5,500 (5,000) 500 Savings used for DBC replacement tables CS - Parks & Recreation 45300-CS308 27,100 (27,000) 100 Savings used for Trail Map update € DBC replacement tables Miscellaneous Improvements 46250-CS306 - 2,000 2,000 New Stage 487,315 (26,500) 460,815 Engineering (5551) CS - Engineering 45221 359,405 60,000 419,405 Increased Plan Checks, On -Call Architect services, Sycamore Canyo ADA design CS - Traffic 45222 139,741 10,000 149,741 57/60 project costs CS - Plan Check 45223 47,210 23,200 70,410 Increased volume/offsetting revenu CS - Surveying 45226 5,000 2,500 7,500 551,356 95,700 647,056 09 0 CL m m ti co 0 N m U) r aD m s Y 0 a� a� m Q :E x LU .Q r 00 c a� E t r w Q Packet Pg. 145 8.1.b FY 2016-17 MID YEAR BUDGET AMENDMENT GENERAL FUND APPROPRIATIONS Mid Year Amendment Explanation Account # Current Budget Adj Budget Road Maintenance (5554) CS - Sidewalk Maintenance 45504 333,933 115,000 448,933 Gateway Center Sidewalks 333,933 115,000 448,933 Parks Maintenance (5556) Salaries 40010 158,872 75,708 234,580 Move Admin Coord from P&R City Paid Benefits 40070 2,342 1,246 3,588 Move Admin Coord from P&R Retirement Benefits 40080 29,093 13,714 42,807 Move Admin Coord from P&R Worker's Compensation 40083 9,651 577 10,228 Move Admin Coord from P&R ST/LT Disability 40084 934 440 1,374 Move Admin Coord from P&R Medicare 40085 15,308 1,150 16,458 Move Admin Coord from P&R Benefit Allotment 40090 27,811 14,640 42,451 Move Admin Coord from P&R Utilities 42126 219,821 26,500 246,321 WVWD Standby Charges Maint of Grounds/Buildings 42210 298,965 62,500 361,465 Playgrounds, Heritage Park A/C control system, Maple Hill restroorr CS - Parks & Facilities 45300 347,266 30,000 377,266 Steep Canyon Chain Link Fence Miscellaneous Equipment 46250 22,150 2,500 24,650 Ice Machine at Heritage Park 1,132,213 228,975 1,361,188 Landscape Maintenance (5558) CS - Tree Maintenance 45509 192,099 43,000 235,099 Treatment of infested trees in Sycamore Canyon Park ($23,000) ar additional potential storm related emergencies ($20,000) 192,099 43,000 235,099 Transfers Transfer Out - Com Org Fd 49011 15,000 15,000 Transfer Out - Gen Plan Fund 49015 - 33,700 33,700 Transfer Out - IS Repl Fund 49018 100,000 100,000 Transfer Out - CIP Fund 49250 1,509,856 1,133,520 2,643,376 Transfer Out - Debt Svc 49370 860,606 860,606 Transfer Out - Self Ins 49510 436,216 5,100 441,316 Transfer Out - Comp Equip 49530 147,400 147,400 Transfer Out - LLAD #38 49138 113,453 113,453 Transfer Out - LLAD #39 49139 - - Transfer Out - LLAD #41 49141 83,094 83,094 3,265,625 1,172,320 4,437,945 1,582,773 9,106,208 Total Appropriation Change 7,523,435 tim r Q Packet Pg. 146 Packet Pg. 147 FY 2016-17 -q 8.1.b MID YEAR BUDGET AMENDMENT SPECIAL FUNDS CHANGES Explanation Current Mid Year Account # Budget Amendment Adj Budget Law Enforcement Reserve Fund (012) Transfers Out 012-9915-49001 275,000 275,000 15,000 15,000 290,000 290,000 Transfer to GF for saturation patrols General Plan Revision Fund (015) Transfer In - GF 015-39001 - - 33,700 33,700 33,700 33,700 Add'I Funds Req'd a m Supplies 015-5210-41200 - 1,200 1,200 GPAC Meeting Supplies Promotional Supplies 015-5210-41400 - 7,000 7,000 Promo Items for Gen Plan Updat Printing 015-5210-42110 - 7,500 7,500 Banners, signage, design service! -a Advertising 015-5210-42115 - 5,000 5,000 Print/Social media ads Meetings 015-5210-42325 - 1,000 1,000 Community workshops, GPAC Professional Services 015-5210-44000 - 12,000 12,000 Document Translation PS - Planning General Plan 015-5210-44220 498,891 498,891 510,412 544,112 1,009,303 1,043,003 Carryover + add'I amt for contra( for Dyett & Bhatia N LO r - r r Gas Tax (111) (n Gas Tax - 2105 111-31705 353,929 (20,466) 333,463 Updated projections Gas Tax - 2106 111-31710 177,556 28,633 206,189 Updated projections N Gas Tax - 2107 111-31720 491,487 (60,746) 430,741 Updated projections o Gas Tax - 2107.5 111-31730 7,500 - 7,500 Updated projections 0 HUTA 111-31731 133,658 3,240 136,898 1,114,791 Updated projections 1,164,130 (49,339) m LLAD 38 (138) Special Assessments 138-30300 268,000 268,000 4,145 4,145 272,145 272,145 Assessments submitted to L.A. County Auditor Q Z W .Q LLAD 41 (141) Special Assessments 141-30300 121,000 121,000 1,157 1,157 122,157 122,157 Assessments submitted to L.A. County Auditor r 00 R Self Insurance Fund (510) r Q Transfer In - GF 510-39001 - 5,100 5,100 5,100 Higher costs for property ins - 5,100 Insurance Expense 510-4081-47200 16,500 5,100 21,600 31,800 Higher costs for property ins 16,500 15,300 Building Facility & Maintenance Fund Capital Improvements (540) 540-4093-46410 48,200 13,000 61,200 61,200 A/C compressor replacement 48,200 13,000 Packet Pg. 147 8.1.b FY 2015-16 MID YEAR BUDGET AMENDMENT INVESTMENT EARNING CHANGES LO r - r r a� m t Ch Y L O a a� 00 Q Z x LU .Q r O c a� E t r Q Packet Pg. 148 Current Mid Year Account # Budget Amendment Adj Budget Explanation General Fund (001) 001-36100 240,000 30,000 Investment Earnings 270,000 Law Enforcement Reserve (012) Investment Earnings 012-36100 7,500 7,000 14,500 General Plan Revision Fund (015) Investment Earnings 015-36100 8,000 5,000 13,000 Technology Reserve Fund (018) Investment Earnings 3,000 018-36100 2,000 1,000 Measure R Fund (110) Investment Earnings 110-36100 5,500 5,500 11,000 Gas Tax Fund (111) Investment Earnings 111-36100 5,500 2,000 7,500 Prop A Fund (112) Investment Earnings 112-36100 6,000 4,000 10,000 Prop C Fund (113) Investment Earnings 113-36100 5,700 3,300 9,000 Integrated Waste Mgmt Fund (115) Investment Earnings 115-36100 12,000 4,000 16,000 Traffic Mitigation Fund (116) Investment Earnings 116-36100 5,000 10,000 15,000 Sewer Mitigation Fund (117) Investment Earnings 117-36100 - 1,500 1,500 AB2766 Fund (118) Investment Earnings 118-36100 1,200 1,600 2,800 Quimby Fund (122) Investment Earnings 122-36100 2,500 7,500 10,000 Prop A Safe Parks Act (123) Investment Earnings 123-36100 - 500 500 Park Development Fund (124) Investment Earnings 124-36100 2,000 500 2,500 COPS Fund (126) Investment Earnings 126-36100 1,500 1,500 3,000 LO r - r r a� m t Ch Y L O a a� 00 Q Z x LU .Q r O c a� E t r Q Packet Pg. 148 8.1.b FY 2015-16 MID YEAR BUDGET AMENDMENT INVESTMENT EARNING CHANGES Current Mid Year Account # Budget Amendment Adj Budget Explanation CLEEP Fund (128) 200 Investment Earnings 128-36100 200 400 PEG Fees Fund (135) Investment Earnings 135-36100 1,500 1,200 2,700 Self Insurance Fund (510) Investment Earnings 510-36100 6,000 2,000 8,000 Vehicle Maint/Rept Fund (520) Investment Earnings 520-36100 5,000 3,000 8,000 Equipment Maint/Rept Fund (530) Investment Earnings 530-36100 2,500 2,500 5,000 Building Fac & Maint Fund (540) Investment Earnings 540-36100 3,000 5,000 8,000 OPEB Trust (620) Investment Earnings 620-36100 - 500 500 Total Change To Investment Income 99,300 tim Q Packet Pg. 149 8.1.b FY 2016-17 MIDYEAR BUDGET AMENDMENT CAPITAL IMPROVEMENT PROJECT MID -YEAR ADJUSTMENTS Account # Current Budget Mid Year Amendment Adj Budget Explanation Capital Improvement Fund (250) 1,176,281 (52,000) 1,124,281 Transfer In - Traffic Impr 250-39116 Transfer from Project 26416 (Street Clock) to Project 26516 (City Monuments) Transfer Out - CIP 116-9915-49250 1,176,281 (52,000) 1,124,281 CIP- Misc PW Improvements 250-5510-46420 1,789,785 (52,000) 1,737,785 Project #26416 Transfer In -Traffic Impr 250-39116 1,176,281 52,000 1,228,281 Transfer to Project 26516 (City Monuments) from Project 26416 (Street Clock) Transfer Out - CIP 116-9915-49250 1,176,281 52,000 1,228,281 Transfer to Project 26516 (City Monuments) from Project 26416 (Street Clock) Transfer In - General Fund 250-39001 244,625 244,625 Add'I Funding Source Transfer Out - CIP 001-9915-49250 1,509,856 244,625 1,754,481 Add'I Funding Source CIP - Misc PW Improvements 250-5510-46420 1,789,785 296,625 2,086,410 Project #26516 Transfer In -Traffic Impr 250-39116 1,176,281 40,000 1,216,281 Change Orders for Lemon Ave. Construction Transfer Out - CIP 116-9915-49250 1,176,281 40,000 1,216,281 CIP - Misc PW Improvements 250-5510-46413 10,057,767 40,000 10,097,767 Project #23316 Transfer In - Measure R 250-39110 722,821 600,000 1,322,821 Area 5 Construction in order to award contract in April/May Transfer In - Traffic Impr 250-39116 1,176,281 295,000 1,471,281 Unrestricted savings from 01416 Transfer In - General Fund 250-39001 1,509,856 805,000 2,314,856 Placeholder in order to award contract. Funding source will be changed in new fiscal year Transfer Out - CIP 110-9915-49250 722,821 600,000 1,322,821 Transfer Out - CIP 116-9915-49250 1,176,281 295,000 1,471,281 Transfer Out - CIP 001-9915-49250 1,509,856 805,000 2,314,856 CIP - Street Improvement 250-5510-46411 3,018,614 1,700,000 4,718,614 Project #01417 Transfer In - Park Dev Fund 250-39124 167,964 30,000 197,964 Pantera Park Lighting Project Design Transfer Out - CIP 124-9915-49250 167,964 30,000 197,964 CIP - Parks & Rec Improve 250-5310-46415 1,848,538 30,000 1,878,538 Project #XXX17 Transfer In - General Fund 250-39001 1,509,856 76,650 1,586,506 Sycamore Canyon Park Damage - Geotechnical Evaluation, Plans/Specs, Sand bags, slope coverage, temp fencing, wood chip replacement Transfer Out - CIP 001-9915-49250 1,509,856 76,650 1,586,506 CIP - Parks & Rec Improve 250-5310-46415 1,848,538 76,650 1,925,188 Project #25917 Transfer In - General Fund 250-39001 1,509,856 7,245 1,517,101 Steep Canyon/Dare Court Damage - Erosion mitigation Transfer Out - CIP 001-9915-49250 1,509,856 7,245 1,517,101 CIP - Parks & Rec Improve 250-5310-46415 1,848,538 7,245 1,855,783 Project #26017 .r Q Packet Pg. 150 8.1.c RESOLUTION NO. 2017 -XX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DIAMOND BAR AMENDING RESOLUTION 2016-40 THE CITY OF DIAMOND BAR'S COMPENSATION PLAN EFFECTIVE MARCH 4, 2017 WHEREAS, the City Council adopted Resolution No. 2016-40, A Resolution of the City Council of the City of Diamond Bar amending the City of Diamond Bar's Compensation Plan (hereafter, the "Plan") effective December 10, 2016; and WHEREAS, the City Council may choose to amend the Plan from time to time throughout the fiscal year; and WHEREAS, the City Council desires to delete the Help Desk Technician classification; and WHEREAS, the City Council desires to add a new full-time FLSA non-exempt classification titled, Network/Systems Technician, at salary grade 17NE ($48,782.01 — 65,372.56); and WHEREAS, the City Council desires to add a new full-time FLSA exempt classification titled, Information Systems Analyst, at salary grade 29E ($65,606.38 — 87,918.82). NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Diamond Bar that the City's Compensation Plan Resolution 2016-40 be amended to delete the Help Desk Technician classification, to add one full-time FLSA non-exempt Network/Systems Technician classification at salary grade 17NE and to add one full-time FLSA exempt Information Systems Analyst classification at salary grade 29E. PASSED, APPROVED AND ADOPTED this 21St day of February 2017. Jimmy Lin, Mayor 1216961.1 Packet Pg. 151 8.1.c I, Tommye Cribbins, City Clerk of the City of Diamond Bar, do hereby certify that the foregoing Resolution was passed, adopted and approved at a regular meeting of the City Council of the City of Diamond Bar held on the 21St day of February 2017, by the following vote: /_\72 1110us] 10ulaOTA 1:321:&01 NOES: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBERS: ABSTAINED: COUNCIL MEMBERS: ATTEST: Tommye A. Cribbins, City Clerk City of Diamond Bar 1216961.1 Packet Pg. 152 CITY COUNCIL 8.2 Agenda #: 8.2 Meeting Date: February 21, 2017 AGENDA REPORT TO: Honorable Mayor and Members of the City Council FROM: James DeStefano, City Managers { TITLE: APPROVE AMENDED AND RESTATED` AGREEMENT BETWEEN CITY OF DIAMOND BAR AND USA WASTE OF CALIFORNIA, INC. (WASTE MANAGEMENT) FOR RESIDENTIAL CART CUSTOMER SOLID WASTE MANAGEMENT SERVICES RECOMMENDATION: Approve agreement. FINANCIAL IMPACT: The agreements will generate total annual revenues of approximately $900,000 as described in detail in subsequent sections. BACKGROUND: Waste Management (WM) has been the City's exclusive residential solid waste hauler since 2000 under two separately negotiated franchise agreements. Under these agreements, WM has provided good customer service, maintained competitive rates, and offered a wide variety of refuse and recycling programs and options to residents. The eight year term of the current agreement expires August 15, 2018. At the Study Session of March 22, 2016, the City Council directed staff to initiate exclusive negotiations with WM. To assist with the complex process of franchise negotiations and ensure customer -friendly, cost-effective, and environmentally -friendly terms, the City released a Request for Proposals (RFP) for Solid Waste Consulting Services and received three proposals by the April 14, 2016 deadline. Upon receipt and review of the RFP responses, the City Council, at the Regular Meeting of June 7, 2016, awarded a contract to HF&H Consultants, LLC (HF&H). HF&H is an industry leader, assisting more than 400 local agencies with solid waste and recycling franchise negotiations, administration, and programming. As noted above, the agreed-upon franchise terms include a reimbursement from WM for the City's cost for this consulting. DISCUSSION: The goal of the exclusive negotiation process was to update and improve upon a solid foundational Agreement by: Packet Pg. 153 • Providing high quality refuse and recycling services at competitive rates • Expanding special recycling, e -waste, and household hazardous waste services. • Generating revenues/added value to the public that can be used to fund key community -wide initiatives and enhanced Environmental Services programs • Maintaining continuity of service/avoiding service interruption Following a series of productive meetings that commenced in August 2016, the City's team of staff, consultants, and the City Attorney concluded negotiations, coming to initial terms on an amended and restated franchise agreement for residential solid waste services with WM. The amended and restated agreement, which is attached as Exhibit A, begins immediately upon approval of the City Council, with all newly negotiated terms and conditions superseding those of the previous franchise. Key provisions of the amended and restated agreement include: 1. Term of Agreement Extends the current agreement by five years, with a new expiration date of August 31, 2023. The City retains the sole option to extend the agreement by a period of no more than two years. 2. Regular Service Regular collection service will be scheduled not less than once per week, with standard service consisting of 64 -gallon trash, recycling, and green waste carts. However, standard service is based on the "pay as you throw" model in which customers have the option to choose from 35, 64 and 96 -gallon refuse carts and 35 and 64 -gallon recycling and green waste carts based on the volume of refuse. Additional refuse carts are available at an additional cost, but residents may request up to two additional recycling carts and one additional green waste cart at no extra charge. Additional green waste may be set out for collection provided it is bundled in packages not exceeding four feet long and 18 inches in diameter. 3. Rates The agreement freezes residential service rates at current levels and precludes annual adjustment requests during the first year of the agreement, an estimated ratepayer savings of $94,630. WM is eligible for a rate increase request beginning in July 2018. Rate increase requests are based on a standardized formula that accounts for business-related costs, including annual changes in disposal rates, labor, fuel, and other factors. The standardized formula may also help to limit extraordinary rate increases. A comparison of the City's rates to other agencies in the region is included below. City Company Residential Std. Service (64 Gal.) Monthly Rate Diamond Bar WM $27.18 Arcadia WM $20.32 Azusa Athens $22.16 Baldwin Park WM $23.21 8.2 Packet Pg. 154 8.2 Chino Hills Republic $19.84 (110 -gallon std.) Covina Athens $27.68 Glendora Athens $27.54 La Verne WM $21.10 San Dimas WM $27.48 San Marino Athens $37.31 S. Pasadena Athens $40.71 Temple City Athens $29.99 Walnut Valley Vista $21.91 (98 -gallon std.) W. Covina Athens $24.73 It should be noted that each agency's agreement contains unique contractual provisions, payments, and policies that result in different rates. These unique features make it extremely difficult to make an apples -to -apples comparison between agencies. For example, Diamond Bar's agreements provide residents with a wide variety of refuse, recycling, and environmental services programs at little or no cost (see below for details), whereas other agencies may choose to subsidize or not offer such programs. Similarly, Diamond Bar has chosen to collect a franchise fee while others have other local funding sources (malls, auto dealerships, racetracks, etc.) to make up the difference. These policy choices have a significant impact on rates. 4. Fees and Other Funding The City of Diamond Bar prides itself on prudent fiscal management, making best use of the resources that are available. Diamond Bar does not have the luxury of major commercial developments, auto dealerships, or major tourist attractions that generate significant tax revenues to be used to provide essential public services. Diamond Bar's 5.9% share of the County property tax pool is among the lowest in the County, further highlighting the need to identify and secure the revenue sources required to maintain expected service levels into the future. The amended and restated agreement includes two customer -based fees and several non -customer payments. AB 939 and Franchise Fees rates are based on gross revenues generated and are unchanged from current levels. AB 939 and Franchise Fees will generate approximately $510,000 in year one of the agreement. Non -fee payments, including those for street sweeping services and road maintenance impacts, will generate approximately $315,000 annually. A new Environmental Education Fee of $6,500 is due to the City annually. In addition, a one-time contracting reimbursement fee of $75,000 is due upon execution of the contract. In total, payments of approximately $900,000 will be made to the City in the first year of the agreement. Street sweeping and road maintenance payments will be adjusted by CPI each year thereafter. A detailed accounting for these fees and payments is as follows: • AB 939 Fees — 4.7% of monthly bill The AB 939 rate is unchanged and has not been increased from current levels. Customers with standard service pay approximately $1.28 per Packet Pg. 155 month in AB 939 fees. AB 939 fees are used to fund the City's environmental services programs, including public events such as Exo Expo, America Recycles Day, Earth Day, annual Household Hazardous Waste Collection, and the Summer Smart Gardening Workshop series, recycling programs, including collection of household batteries and spent light bulbs (partnership with Ace Hardware), business and school recycle bin program, storm water pollution prevention, and education and outreach, including Envirolink, street sweeping magnets, and the DiscoveryCube Eco Challenge program for local fifth and sixth grade students. • Franchise Fees — 5% of monthly bill The franchise fee rate is unchanged and has not been increased from current levels. Customers with standard service pay approximately $1.36 per month in franchise fees. Franchise fees are used to offset the cost of franchise administration and General Fund expenditures, including the City's law enforcement contract, road maintenance, park maintenance and development, Parks & Recreation programming, special events like the City Birthday and Concerts/Movies in the Park, and other city-wide programs that benefit the community at large. In addition to the AB 939 and Franchise Fees, WM shall make the following non - fee payments to the City: • Street Sweeping Funding - $190,000 in first year of Agreement + CPI adjustment each year thereafter. To remain in compliance with the Clean Water Act and National Pollutant Discharge Elimination System (NPDES) Storm Water Permit, the City is required to provide a street sweeping services program. To recover the rising costs of the street sweeping services program and offset General Fund impacts, WM has agreed to increase this annual payment from $92,780 in FY 16-17 to $190,000 in FY 2017-18. Because rates have been frozen for 2017-18, this additional funding comes at no new cost to ratepayers. • Road Maintenance Funding - $125,525 as of August 16, 2016 + CPI adjustment each year thereafter. This annual WM payment is used to offset road maintenance costs related to regular heavy equipment (trash truck) traffic. Funds will contribute to slurry and crack sealing and general maintenance. There is no new cost to rate payers related to this funding. • Environmental Education Funding - $6,500 annually This annual payment will be used to fund various community education programs, including the Discovery Cube program for fifth and sixth grade students attending Diamond Bar based schools. • Contracting Funds - $75,000 one-time payment 8.2 Packet Pg. 156 8.2 This one-time WM payment will offset solid waste consulting costs related to the negotiations. 5. Minimum Diversion Requirements WM must divert from landfilling a minimum of 45% of all solid waste collected and a minimum 75% of all construction and demolition materials collected. 6. Program Enhancements The City and WM have agreed to a comprehensive and proactive approach to customer service and environmental stewardship. In addition to the provision of weekly residential refuse collection and temporary roll -off services, the agreement includes an extensive list of customer discounts and enhanced services, including: • Senior Discount Residents aged 60 or older are eligible for reduced senior rates as shown in the attached Exhibit B. It should be noted that the City has taken an active role in promoting the program, leading to thousands of local seniors receiving the benefit. According to WM, Diamond Bar is among the regional leaders in senior discount participation, with more than 3,000 senior residents receiving a reduced rate each month. • Disabled Customer Discount Residents determined to be disabled are eligible for a 15% discount off the standard monthly service rates. • Yard Waste Reduction Discount Residents that receive backyard composting instruction (including viewing a video or attending a City -sponsored event) and secure a composting container may be eligible for a waiver of the mandatory yard waste bin, resulting in an ongoing monthly savings. • Backyard Service for the Disabled Residents determined to be disabled are eligible for free backyard service in which WM will remove refuse, recyclable and green waste containers for collection and return them to the backyard after they are serviced. • On-call Bulky Item Pickup/E-waste Collection & Disposal Residents are eligible for four free bulky item pickups (up to three cubic yards of material per pickup) per year. Bulky items include items too large to be contained in a cart such as furniture, appliances, large amounts of green waste, and electronic waste. Residents are also eligible for two end - of -year "clean-up" pickups designed to assist with post -holiday refuse. • At -Your -Door Household Hazardous Waste (HHW) Collection & Disposal Residents are eligible for two scheduled at -your -door HHW pickups annually at no additional charge. HHW includes paint/paint products, cleaning solutions and household chemicals, batteries, etc. The City has received approximately $4,000 in rebates from paint products collected. Packet Pg. 157 8.2 • Annual Public HHW Collection Event To reduce the amount of HHW entering the waste stream, WM will produce digital and print marketing materials to publicize local HHW collection events in Diamond Bar. • Sharps Mail -back Program Residents are eligible for free mail -back disposal of sharps (syringes/needles). Upon request, secure containers are provided with prepaid postage. • Medication Take -back Program To reduce the amount of medications entering the waste stream, WM will actively promote medication collection programs for residents, including those provided by the Los Angeles County Sheriff's Dept. and other third - parties. • FreeCycle.com To further encourage recycling and reduce waste, WM will promote its free materials/gifting/exchange program website known as FeeCycle.com to Diamond Bar residents via direct mailings. • Curbside Used Oil and Filter Collection & Disposal Residents may place used oil and filters out for free collection on the regular collection day. • Free Mulch Giveaway WM will provide free mulch to residents at two public events per year. This has proven to be a popular feature of the City's annual Eco Expo/America Recycles Day and Earth Day events. • Holiday Tree Collection & Disposal Each year, from December 26 to the second Sunday in January, WM will dispose of natural holiday trees (maximum of seven feet in length and free of all decoration) placed out for collection. • Educational and Marketing Materials To better inform the public, WM is required to produce print and digital materials. These materials include a dedicated Diamond Bar/Waste Management website, an informational annual mailer, quarterly billing inserts, and a customer service guide. • City Services WM will provide various free services to the City, including bin and collection services to City special events (valued at approximately $10,000 annually), abandoned item collection, and storage containers. These free services offset costs that would otherwise be absorbed by the General Fund. Packet Pg. 158 7. Accountability To ensure franchisee compliance and accountability to the City and its residents, a series of performance management requirements are included. • Reporting - WM will provide standardized reporting of diversion rates/AB 939 compliance, special services rendered (bulky item/HHW, etc.), customer outreach/complaints, financial statements, etc. City staff will meet regularly with WM representatives to review reports and discuss matters of concern. • Performance Audits - The City may choose to conduct an audit of WM. The scope of the audit is at the City's discretion, and may include general contract compliance, customer service levels, financial review, tonnage/diversion rates, etc. WM shall reimburse the City for the cost of the audit, up to $50,000 for the first audit and up to $35,000 for each audit thereafter. • Customer Service Satisfaction Survey - at the City's request, WM will conduct a survey of customers to determine overall customer satisfaction with services. The content of the survey must be approved by the City. SUMMARY: Staff and WM agree that the goals of the exclusive negotiation period have been met. Because the agreed-upon terms provide residents with robust services at competitive rates while meeting all state environmental and diversion mandates, staff recommends the City Council approve the amended and restated agreement with WM. LEGAL REVIEW: The City Attorney has reviewed and approved the document as presented. aC7:4UF_10411 YF ez '0 A AW AF ya cLean, A sistant City Manager 2/21/2017 AfAFA canna oneywell, Finan irector 2/13/2017 Attachments: 1. 8.2.a Diamond Bar WM Amended and Restated Agreement 8.2 Packet Pg. 159 2. 8.2.b Diamond Bar WM Amended and Restated Agreement - Redline 8.2 Packet Pg. 160 AMENDED AND RESTATED AGREEMENT BETWEEN CITY OF DIAMOND BAR AND USA WASTE OF CALIFORNIA INC. FOR RESIDENTIAL CART CUSTOMER SOLID WASTE MANAGEMENT SERVICES February 16, 2017 8.2.a Packet Pg. 161 AGREEMENT BETWEEN CITY OF DIAMOND BAR AND USA WASTE OF CALIFORNIA, INC. FOR RESIDENTIAL CART CUSTOMER SOLID WASTE MANAGEMENT SERVICES TABLE OF CONTENTS RECITALS Pale I ARTICLE1.................................................................................................................................................3 DEFINITIONS.......................................................................................................................................................................... 3 1.1 AB 939......................................................................................................................................................................3 1.2 AFFILIATE................................................................................................................................................................. 3 1.3 BILLINGS...................................................................................................................................................................4 1.4 BIN............................................................................................................................................................................4 1.5 BIN SERVICE............................................................................................................................................................. 4 1.6 BULKY ITEMS............................................................................................................................................................ 4 1.7 CART.........................................................................................................................................................................5 1.8 CITY.......................................................................................................................................................................... 5 1.9 COLLECT/ COLLECTION ...........................................................................................................................................5 1.10 COMMERCIAL SERVICES...................................................................................................................................... 5 1.11 COMMERCIAL PREMISES...................................................................................................................................... 5 1.12 CONTRACTOR...................................................................................................................................................... 6 1.13 CONTRACTOR COMPENSATION.......................................................................................................................... 6 1.14 CONSTRUCTION AND DEMOLITION DEBRIS....................................................................................................... 6 1.15 CONTAINER......................................................................................................................................................... 6 1.16 CPI.......................................................................................................................................................................6 1.17 CUSTOMER...........................................................................................................................................................6 1.18 DISPOSAL............................................................................................................................................................. 6 1.19 DISPOSAL SITE(S)................................................................................................................................................. 6 1.20 DIVERSION...........................................................................................................................................................7 1.21 ENVIRONMENTAL LAWS..................................................................................................................................... 7 1.22 FACILITY.............................................................................................................................................................. 7 1.23 FOOD WASTE........................................................................................................................................................ 7 1.24 GREEN WASTE..................................................................................................................................................... 8 1.25 GREEN WASTE PROCESSING FACILITY................................................................................................................ 8 1.26 GROSS RECEIPTS.................................................................................................................................................. 8 1.27 HAZARDOUS SUBSTANCE.................................................................................................................................... 8 1.28 HAZARDOUS WASTE........................................................................................................................................... 9 1.29 HOUSEHOLD HAZARDOUS WASTE ("HHW")................................................................................................... 9 1.30 MATERIALS RECOVERY FACILITY („MRF")....................................................................................................... 9 1.31 MULTI -FAMILY DWELLING.................................................................................................................................9 1.32 ORGANIC WASTE.............................................................................................................................................. 10 1.33 ORGANIC WASTE PROCESSING FACILITY......................................................................................................... 10 February 16, 2017 8.2.a City of Diamond Bar - Residential Packet Pg. 162 8.2.a 1.34 PERSON.............................................................................................................................................................. 10 1.35 PREMISES........................................................................................................................................................... 10 1.36 RATE YEAR........................................................................................................................................................ 10 1.37 RECYCLING........................................................................................................................................................10 1.38 RECYCLABLE MATERIALS.................................................................................................................................. 10 1.39 REFUSE............................................................................................................................................................... 11 1.40 RESIDENTIAL SERVICES..................................................................................................................................... 11 1.41 RESIDENTIAL CUSTOMERS................................................................................................................................. 11 1.42 RESIDENTIAL PREMISES..................................................................................................................................... 11 1.43 ROLL -OFF BOX................................................................................................................................................... 12 1.44 SINGLE FAMILY DWELLING............................................................................................................................... 12 1.45 SOLID WASTE.................................................................................................................................................... 12 1.46 SOLID WASTE COLLECTION SERVICES.............................................................................................................. 12 1.47 SOURCE SEPARATED.......................................................................................................................................... 12 1.48 STATE................................................................................................................................................................. 12 1.49 TEMPORARY SERVICE........................................................................................................................................ 13 1.50 TRANSFORMATION............................................................................................................................................ 13 1.51 TRANSFER STATION........................................................................................................................................... 13 1.52 WASTE GENERATOR.......................................................................................................................................... 13 ARTICLE2...............................................................................................................................................14 GRANT AND ACCEPTANCE OF FRANCHISE.............................................................................................................14 2.1 GRANT AND ACCEPTANCE OF FRANCHISE, INDEMNITY OF AWARD................................................................... 14 2.2 SECTION DELETED.................................................................................................................................................. 14 2.3 EFFECTIVE DATE.................................................................................................................................................... 14 2.4 TERM OF AGREEMENT............................................................................................................................................ 14 2.5 CITY'S OPTION TO EXTEND TERM.......................................................................................................................... 15 2.6 REPRESENTATIONS AND WARRANTIES OF CONTRACTOR.................................................................................... 15 2.7 CONDITIONS TO EFFECTIVENESS OF AGREEMENT................................................................................................. 17 2.8 DELEGATION OF AUTHORITY................................................................................................................................ 17 2.9 LIMITATIONS TO SCOPE.......................................................................................................................................... 18 2.10 CITY'S RIGHT TO DIRECT CHANGES.................................................................................................................. 20 2.10.1 General.....................................................................................................................................................20 2.10.2 New Diversion Programs......................................................................................................................... 20 2.11 OWNERSHIP OF SOLID WASTE.......................................................................................................................... 21 2.12 PERMITS AND LICENSES.................................................................................................................................... 21 ARTICLE3...............................................................................................................................................23 FEESPAID TO THE CITY................................................................................................................................................... 23 3.1 CONTRACTING FEE................................................................................................................................................ 23 3.2 OTHER CITY FEES................................................................................................................................................... 23 3.2.1 Franchise Fee................................................................................................................................................. 23 3.2.2 AB 939 Fee.................................................................................................................................................... 23 3.2.3 Street Sweeping Funding.............................................................................................................................. 24 3.2.4 Residential Collection Vehicle Road Maintenance Cost Reimbursement..................................................... 24 3.2.5 Environmental Education Fee....................................................................................................................... 24 3.2.6 Late Payment of Fees..................................................................................................................................... 25 3.3 FUTURE FEES.......................................................................................................................................................... 25 ARTICLE4...............................................................................................................................................26 DIRECTSERVICES..............................................................................................................................................................26 4.1 REFUSE....................................................................................................................................................................26 February 16, 2017 City of Diamond Bar - Residential Packet Pg. 163 8.2.a 4.1.1 General..........................................................................................................................................................26 4.1.2 Residential Cart Refuse Collection................................................................................................................ 26 4.1.3 Refuse Cart Overage..................................................................................................................................... 27 4.1.4 Backyard Service...........................................................................................................................................27 4.1.5 Backyard Service for the Disabled................................................................................................................. 27 4.1.6 Section Deleted.............................................................................................................................................. 28 4.1.7 Determination of Service Type...................................................................................................................... 28 4.1.8 Overflowing Containers................................................................................................................................ 28 4.1.9 Section Deleted.............................................................................................................................................. 29 4.1.10 Temporary Roll -Off and Temporary Bin Services.................................................................................... 29 4.1.11 Section Deleted......................................................................................................................................... 30 4.1.12 Section Deleted......................................................................................................................................... 30 4.1.13 Section Deleted......................................................................................................................................... 30 4.1.14 Section Deleted......................................................................................................................................... 30 4.1.15 On -Call Bulky Item Pickup...................................................................................................................... 30 4.1.16 Bulky Item Diversion............................................................................................................................... 31 4.1.17 Disposal of Electronic and Other Special Wastes..................................................................................... 31 4.1.18 Door -to -Door HHW Collection................................................................................................................ 31 4.1.19 Annual Household Hazardous Waste Event............................................................................................ 32 4.1.20 Curbside Used Oil and Oil Filter Collection............................................................................................ 32 4.1.21 Service Exceptions; Hazardous Waste Notifications................................................................................ 32 4.1.22 Sharp's Mail Back Program..................................................................................................................... 33 4.1.23 Medication Takeback Program .................................................................................................................33 4.1.24 FreeCycle.com...........................................................................................................................................34 4.2 RECYCLING.............................................................................................................................................................34 4.2.1 Recycling Collection...................................................................................................................................... 34 4.2.2 Section Deleted.............................................................................................................................................. 34 4.2.3 Contaminated Loads, Warning Notice.......................................................................................................... 34 4.2.4 Marketing and Sale of Recyclable Materials................................................................................................. 35 4.2.5 Minimum Diversion Requirements..............................................................................................................35 4.2.6 Construction and Demolition Debris Diversion........................................................................................... 36 4.2.7 Optional Food Waste Diversion Program..................................................................................................... 37 4.3 GREEN WASTE PROGRAM...................................................................................................................................... 37 4.3.1 Single Family Green Waste Collection......................................................................................................... 37 4.3.2 Holiday Tree Collection Program................................................................................................................. 38 4.3.3 Section Deleted.............................................................................................................................................. 38 4.3.4 End Uses for Green Waste............................................................................................................................ 38 4.3.5 Mulch Give-a-Way....................................................................................................................................... 38 4.4 CART SELECTION, DISTRIBUTION, EXCHANGES AND REMOVAL.......................................................................... 39 4.4.1 Cart Selection and Distribution.................................................................................................................... 39 4.4.2 Cart Exchanges............................................................................................................................................. 39 4.4.3 Removal of Carts Distributed Under the Previous Contract........................................................................ 39 4.5 CITY SERVICES........................................................................................................................................................ 39 4.5.1 Section Deleted.............................................................................................................................................. 39 4.5.2 City Sponsored Events.................................................................................................................................. 39 4.5.3 Emergency Collection and Disposal Service................................................................................................. 40 4.5.4 Abandoned Item Collection from City Right -of -Way or Other Public Property .......................................... 40 4.5.5 Community Development Review Services.................................................................................................. 40 4.5.6 Large Venue Event Assistance, Event Recycling......................................................................................... 41 4.5.7 Confiscation of Unauthorized Containers..................................................................................................... 41 4.5.8 Provision of Storage Containers................................................................................................................... 41 4.6 OPERATIONS ...........................................................................................................................................................42 4.6.1 Schedules, Missed Pickups............................................................................................................................ 42 February 16, 2017 City of Diamond Bar - Residential Packet Pg. 164 8.2.a 4.6.2 Vehicles......................................................................................................................................................... 42 4.6.3 Containers.....................................................................................................................................................46 4.6.3.1 Carts.........................................................................................................................................................47 4.6.3.2 Cart Maintenance and Replacement Responsibilities.............................................................................. 48 4.6.3.3 Bins.......................................................................................................................................................... 48 4.6.3.4 Roll -off Boxes............................................................................................................................................ 49 4.6.4 Litter Abatement........................................................................................................................................... 49 4.6.5 Personnel.......................................................................................................................................................50 4.6.6 Identification Required.................................................................................................................................. 51 4.6.7 Unauthorized Fees and Gratuities................................................................................................................ 51 4.6.8 Non-Discrimination......................................................................................................................................51 4.6.9 Report of Accumulation of Solid Waste; Unauthorized Dumping............................................................... 52 4.7 TRANSPORTATION OF SOLID WASTE..................................................................................................................... 52 4.8 APPROVED FACILITIES........................................................................................................................................... 52 4.9 STATUS OF DISPOSAL SITE..................................................................................................................................... 53 4.10 DEDICATED ROUTES.......................................................................................................................................... 53 4.11 ROUTE AUDIT.................................................................................................................................................... 53 ARTICLE5...............................................................................................................................................55 OTHERSERVICES...............................................................................................................................................................55 5.1 CUSTOMER BILLING AND CONTRACTOR COMPENSATION................................................................................... 55 5.1.1 Billing........................................................................................................................................................... 55 5.1.2 Contractor's Invoices.................................................................................................................................... 55 5.1.3 Yard Waste Reduction Discount.................................................................................................................. 55 5.1.4 Disabled Customer Discount........................................................................................................................ 56 5.1.5 Senior Discount............................................................................................................................................ 56 5.1.6 Non -Payment; Suspension of Service........................................................................................................... 57 5.1.6.1 Quarterly Cart Billings............................................................................................................................ 57 5.1.6.2 Temporary Bin and Roll -Off Box Service................................................................................................. 57 5.1.6.3 Collection Proceedings............................................................................................................................. 57 5.1.6.4 Continued Provision of Service................................................................................................................ 58 5.2 CUSTOMER SERVICE............................................................................................................................................... 58 5.2.1 Local Office....................................................................................................................................................58 5.2.2 Complaint Documentation............................................................................................................................ 58 5.2.3 Customer Service Standards......................................................................................................................... 59 5.2.4 Resolution of Customer Complaints............................................................................................................. 60 5.2.5 Contract Liaison............................................................................................................................................ 60 5.2.6 Service Liaison.............................................................................................................................................. 61 5.3 EDUCATION AND PUBLIC AWARENESS................................................................................................................. 61 5.3.1 General..........................................................................................................................................................61 5.3.2 Implementation and On-going Education Requirements............................................................................. 61 5.3.3 Contractor Representative............................................................................................................................ 63 5.3.4 Community Events....................................................................................................................................... 63 5.4 WASTE GENERATION/ CHARACTERIZATION STUDIES.......................................................................................... 64 ARTICLE6...............................................................................................................................................65 COMPANY COMPENSATION AND RATES.................................................................................................................65 6.1 GENERAL................................................................................................................................................................65 6.2 INITIAL RATES........................................................................................................................................................ 65 6.3 SCHEDULE OF FUTURE ADJUSTMENTS................................................................................................................... 65 6.4 METHOD OF ADJUSTMENTS................................................................................................................................... 66 6.4.1 General..........................................................................................................................................................66 February 16, 2017 City of Diamond Bar - Residential Packet Pg. 165 8.2.a ARTICLE10.............................................................................................................................................92 CITY'S RIGHT TO CONTRACT WITH THIRD PARTIES TO PERFORM FRANCHISED SERVICES.............92 ARTICLE11.............................................................................................................................................93 DEFAULT, REMEDIES AND LIQUIDATED DAMAGES............................................................................................93 11.1 EVENTS OF DEFAULT......................................................................................................................................... 93 11.2 RIGHT TO TERMINATE UPON DEFAULT AND RIGHT TO SPECIFIC PERFORMANCE ......................................... 96 11.3 LIQUIDATED DAMAGES..................................................................................................................................... 96 11.4 SUSPENSION OF PERFORMANCE...................................................................................................................... 102 11.4.1 Force Majeure.........................................................................................................................................102 February 16, 2017 City of Diamond Bar - Residential Packet Pg. 166 6.4.2 Cost Components for Rate Adjustment Indices............................................................................................ 66 6.4.3 Rate Adjustment Steps................................................................................................................................. 67 6.4.4 Temporary Service Rate Adjustment............................................................................................................ 68 6.5 EXTRAORDINARY ADJUSTMENTS........................................................................................................................... 68 6.6 EFFECT OF RATE CHALLENGE................................................................................................................................ 69 6.7 RESIDENTIAL RECYCLABLES REBATE TO CUSTOMERS........................................................................................... 70 ARTICLE7..............................................................................................................................................................................72 REVIEW OF SERVICES AND PERFORMANCE............................................................................................................72 7.1 PERFORMANCE REVIEW MEETING......................................................................................................................... 72 7.2 PERFORMANCE SATISFACTION SURVEY................................................................................................................ 73 ARTICLE8...............................................................................................................................................74 RECORDS, REPORTS AND INFORMATION REQUIREMENTS............................................................................. 74 8.1 GENERAL................................................................................................................................................................ 74 8.2 RECORDS................................................................................................................................................................ 74 8.2.1 General, Right to Inspect.............................................................................................................................. 74 8.2.2 Financial Records.......................................................................................................................................... 75 8.2.3 Solid Waste Records...................................................................................................................................... 75 8.2.4 CERCLA Defense Records............................................................................................................................ 76 8.2.5 Section Deleted.............................................................................................................................................. 77 8.2.6 Other Programs' Records............................................................................................................................. 77 8.2.7 Audit.............................................................................................................................................................77 8.2.8 Payments and Refunds................................................................................................................................. 77 8.3 REPORTS................................................................................................................................................................. 78 8.3.1 Report Formats and Schedule....................................................................................................................... 78 8.3.2 Monthly Reports........................................................................................................................................... 78 8.3.3 Annual Report.............................................................................................................................................. 79 8.3.4 Financial Report............................................................................................................................................ 80 8.4 REPORTING ADVERSE INFORMATION.................................................................................................................... 80 8.5 FAILURE TO REPORT............................................................................................................................................... 81 ARTICLE9...............................................................................................................................................82 9.1 INDEMNIFICATION................................................................................................................................................. 82 9.2 HAZARDOUS SUBSTANCES INDEMNIFICATION..................................................................................................... 83 9.3 AB 939 INDEMNIFICATION AND GUARANTEE...................................................................................................... 85 9.4 INSURANCE............................................................................................................................................................. 85 9.5 FAITHFUL PERFORMANCE BOND........................................................................................................................... 89 9.6 FAITHFUL PERFORMANCE LETTER OF CREDIT...................................................................................................... 90 9.7 FORFEITURE OF PERFORMANCE BOND.................................................................................................................. 90 9.8 FORFEITURE OF LETTER OF CREDIT....................................................................................................................... 90 9.9 PERFORMANCE SECURITY BEYOND SERVICE TERM.............................................................................................. 91 ARTICLE10.............................................................................................................................................92 CITY'S RIGHT TO CONTRACT WITH THIRD PARTIES TO PERFORM FRANCHISED SERVICES.............92 ARTICLE11.............................................................................................................................................93 DEFAULT, REMEDIES AND LIQUIDATED DAMAGES............................................................................................93 11.1 EVENTS OF DEFAULT......................................................................................................................................... 93 11.2 RIGHT TO TERMINATE UPON DEFAULT AND RIGHT TO SPECIFIC PERFORMANCE ......................................... 96 11.3 LIQUIDATED DAMAGES..................................................................................................................................... 96 11.4 SUSPENSION OF PERFORMANCE...................................................................................................................... 102 11.4.1 Force Majeure.........................................................................................................................................102 February 16, 2017 City of Diamond Bar - Residential Packet Pg. 166 8.2.a 11.4.2 Labor Unrest..........................................................................................................................................102 11.5 DISPUTE RESOLUTION; ADMINISTRATIVE REMEDIES; TERMINATION........................................................... 103 11.5.1 Negotiation and Mediation.................................................................................................................... 103 11.5.2 Confidentiality........................................................................................................................................104 11.5.3 Injunctive Relief.....................................................................................................................................104 11.5.4 Continuing Obligation...........................................................................................................................104 11.5.5 Failure of Mediation...............................................................................................................................104 11.6 ASSURANCE OF PERFORMANCE...................................................................................................................... 104 ARTICLE12...........................................................................................................................................106 OTHER AGREEMENTS OF THE PARTIES..................................................................................................................106 12.1 RELATIONSHIP OF PARTIES............................................................................................................................. 106 12.2 COMPLIANCE WITH LAW................................................................................................................................ 106 12.3 GOVERNING LAW............................................................................................................................................ 106 12.4]URISDICTION...................................................................................................................................................106 12.5 ASSIGNMENT................................................................................................................................................... 107 12.6 CONTRACTING OR SUBCONTRACTING............................................................................................................ 109 12.7 BINDING ON ASSIGNS...................................................................................................................................... 109 12.8 COOPERATION IN PREPARATION FOR TERMINATION OR EXPIRATION OF CONTRACT ................................. 109 12.9 PARTIES IN INTEREST....................................................................................................................................... 110 12.10 WAIVER........................................................................................................................................................... 110 12.11 CONTRACTOR'S INVESTIGATION..................................................................................................................... 110 12.12 SECTION DELETED........................................................................................................................................... 111 12.13 NOTICE............................................................................................................................................................ 111 12.14 REPRESENTATIVES OF THE PARTIES................................................................................................................ III 12.15 CITY FREE TO NEGOTIATE WITH THIRD PARTIES........................................................................................... 112 12.16 COMPLIANCE WITH MUNICIPAL CODE.......................................................................................................... 112 12.17 PRIVACY...........................................................................................................................................................112 12.18 PROPRIETARY INFORMATION, PUBLIC RECORDS............................................................................................ 113 12.19 GUARANTEE OF CONTRACTOR'S PERFORMANCE.......................................................................................... 113 ARTICLE13...........................................................................................................................................114 MISCELLANEOUS PROVISIONS..................................................................................................................................114 13.1 ENTIRE AGREEMENT....................................................................................................................................... 114 13.2 SECTION HEADINGS........................................................................................................................................ 114 13.3 REFERENCES TO LAWS AND OTHER AGREEMENTS........................................................................................ 114 13.4 INTERPRETATION............................................................................................................................................. 114 13.5 AGREEMENT.................................................................................................................................................... 114 13.6 SEVERABILITY.................................................................................................................................................. 115 13.7 EXHIBITS.......................................................................................................................................................... 115 13.8 ATTORNEYS' FEES............................................................................................................................................ 115 Exhibits 1. Public Education Plan 2. Initial Maximum Rates 3. Example Rate Adjustment Formula: 3A: Residential Rates 313: Calculation of an Annual Change in a Published Index 4. Corporate Guarantee 5. Faithful Performance Bond February 16, 2017 City of Diamond Bar - Residential Packet Pg. 167 8.2.a 6 Notary Certification 7. Example Monthly Report Format February 16, 2017 City of Diamond Bar - Residential Packet Pg. 168 8.2.a AGREEMENT This Amended and Restated Agreement for Integrated Solid Waste Management Services (hereinafter the "Agreement") is entered into this day of , 20, by and between the City of Diamond Bar, California, ("City") and USA Waste of California, Inc. ("'Contractor"), for the collection, transportation, recycling, processing, and disposal of residential solid waste and other services related to meeting the goals and requirements of the California Integrated Waste Management Act. RECITALS WHEREAS, the Legislature of the State of California, by enactment of the California Integrated Waste Management Act of 1989 (AB 939) (California Public Resources Code Sections 49100 et seq.), has declared that it is in the public interest to authorize and require local agencies to make adequate provisions for solid waste handling within their jurisdictions; and, WHEREAS, pursuant to California Public Resources Code Section 49300 and 49500-49524, the City of Diamond Bar has determined that the public health, safety, and well-being require that an exclusive franchise for residential solid waste collection services be awarded to a qualified company for the collection, transfer and transportation, recycling, processing, and disposal of solid waste and other services related to meeting the diversion goals required by AB 939, and other requirements of the California Integrated Waste Management Act; and, WHEREAS, City desires to maintain reasonable rates and quality service related to the collection, transfer and transportation, recycling, processing, and disposal of solid waste and other services; and, WHEREAS, Contractor is the current residential solid waste hauler for the City and the term of the Initial Agreement, as defined below is set to expire on August 15, 2018; and, WHEREAS, City and Contractor ("Parties") have negotiated, and desire to enter into this Agreement in order that Contractor continue to serve as the City's exclusive residential cart customer solid waste hauler for the term hereof; and, WHEREAS, City and Contractor are mindful of the provisions of the laws governing the safe collection, transport, recycling, processing and disposal of solid waste, including February 16, 2017 -1- City of Diamond Bar - Residential Packet Pg. 169 8.2.a AS 939, the Resource Conservation and Recovery Act ("RCRA"), and the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"). City and Contractor desire to leave no doubt as to their respective roles and to memorialize that by entering into this Agreement, City is not thereby becoming an "arranger" or a "generator" as those terms are used in CERCLA, and that it is Contractor, not City, that is "arranging for" the collection from premises in the City, transport for disposal, composting or other processing, and recycling of municipal solid waste which may contain hazardous substances; and further to confirm that as a material inducement to City entering into this Agreement, Contractor has agreed to fully indemnify City in connection with any claims, losses, liabilities, lawsuits or actions relating to the inadvertent or intentional collection, transportation and/or disposal of hazardous materials that may occur in connection with Contractor's performance under this Agreement; and, WHEREAS, Contractor has agreed, as part of this Agreement, acting as an independent contractor to provide such personnel, equipment and supplies as are necessary to ensure City complies with the requirements of Public Resources Code Section 49100, et seq. WHEREAS, the Parties entered in that certain agreement for Solid Waste Management Services on August 16, 2010 ("Initial Agreement"), which term expires on August 15, 2018. The Parties intend that in entering into this Agreement that this Agreement shall replace in its entirety the Initial Agreement and all amendments thereto upon the Effective Date as defined herein. NOW, THEREFORE, in consideration of the recitals above stated, which recitals are a material part of this Agreement and the terms, conditions, covenants and agreements contained herein, the Parties do hereby agree as follows: February 16, 2017 -2- City of Diamond Bar - Residential Packet Pg. 170 8.2.a ARTICLE 1 DEFINITIONS The terms used in this Agreement shall have the meaning set forth in this Article 1. In the event a term is not defined in this Article 1, then it shall have the meaning set forth in the Diamond Bar Municipal Code or in Division 30, Part 1, Chapter 2 of the California Public Resources Code (with precedence given to definitions in the Diamond Bar Municipal Code over conflicting definitions contained in the Public Resources Code). Except as provided in Article 1, words beginning with lower case letters are being used with their common ordinary meanings, not as defined terms. Otherwise, the following capitalized words and terms shall have the following meanings: 1.1 AB 939 "AB 939" means the California Integrated Waste Management Act of 1989 (California Public Resources Code Section 40000 et seq.), as it may be amended from time to time. 1.2 Affiliate "Affiliate" means all businesses (including corporations, limited and general partnerships and sole proprietorships) which are directly or indirectly related to Contractor by virtue of direct or indirect ownership interest or common management. These shall be deemed to be "Affiliated with" Contractor and included within the term "Affiliates" as used herein. An Affiliate shall include a business in which Contractor owns a direct or indirect ownership interest, a business which has a direct or indirect ownership interest in Contractor and/or a business which is also owned, controlled or managed by any business or individual which has a direct or indirect ownership interest in Contractor. For purposes of determining whether an indirect ownership interest exists, the constructive ownership provisions of Section 318(a) of the Internal Revenue Code of 1986, as in effect on the date of this Agreement, shall apply; provided, however, that (i) "ten percent (10%)" shall be substituted for "fifty percent (50%)" in Section 318(a)(2)(C) and in Section 318(a)(3)(C) thereof; and (ii) Section 318(a)(5)(C) shall be disregarded. For purposes of determining ownership under this paragraph and constructive or indirect ownership under Section 318(a), ownership interest of less than ten percent (10%) shall be disregarded and percentage interests shall be determined on February 16, 2017 -3- City of Diamond Bar - Residential Packet Pg. 171 8.2.a the basis of the percentage of voting interest or value which the ownership interest represents, whichever is greater. 1.3 Billings "Billings" or "Billing" or "Bill" means the statements of charges provided to Customers for services rendered by Contractor. 1.4 Bin "Bin" means a metal Container with hinged lids and wheels with a capacity of less than ten (10) cubic yards. 1.5 Bin Service "Bin Service" means Solid Waste Collection Services in which a Bin is used for the Collection of Solid Waste. 1.6 Bulky Items "Bulky Items" means Solid Waste that cannot and/or would not typically be accommodated within a Cart including specifically: furniture (including chairs, sofas, mattresses, and rugs); appliances (including refrigerators, ranges, washers, dryers, water heaters, dishwashers, plumbing, small household appliances and other similar items, commonly known as "white goods"); unusually large amounts of yard debris and Green Waste and small pieces of wood limited to one cubic yard of contained material; electronic equipment (including stereos, televisions, computers and monitors, VCRs, microwaves and other similar items commonly known as "brown goods" and "e - waste"); and clothing. Bulky Items do not include car bodies, tires, Construction and Demolition Debris or items requiring more than two persons to remove. Other items not specifically included or excluded above will be Collected provided that they are not more than eight feet in length, four feet in width, or more than 150 pounds. In the event a question ever arises as to whether a specific item or category of items meets the definition of Bulky Items, City shall be responsible to determine whether said definition shall apply, which determination shall be final and binding on the Parties. February 16, 2017 -4- City of Diamond Bar - Residential Packet Pg. 172 8.2.a 1.7 Cart "Cart" means a plastic Container with a hinged lid and wheels serviced by an automated or semi -automated truck with a capacity of no less than 32- and no greater than 101 -gallons. 1.8 City "City" means City of Diamond Bar, California, a municipal corporation, and all the territory lying within the municipal boundaries of City as presently existing or as such boundaries may be modified during the term of this Agreement. 1.9 Collect/Collection "Collect" or "Collection" means to take physical possession, transport, and remove Solid Waste within and from City. 1.10 Commercial Services "Commercial Services" refer to Solid Waste Collection Services performed at or for Commercial Premises. 1.11 Commercial Premises "Commercial Premises" means Premises upon which business activity is conducted, including but not limited to retail sales, services, wholesale operations, manufacturing and industrial operations, but excluding Residential Premises upon which business activities are conducted when such activities are permitted under applicable zoning regulations and are not the primary use of the property. Notwithstanding any provision to the contrary herein, in the Diamond Bar Municipal Code, or otherwise, for purposes of this Agreement, Premises upon which the following uses (as defined in the Diamond Bar Municipal Code) are occurring shall be deemed to be Commercial Premises: Assisted Living Facilities, Convalescent Homes, Dormitories, Extended Stay Motels, Hotels, and Motels. February 16, 2017 -5- City of Diamond Bar - Residential Packet Pg. 173 1.12 Contractor 8.2.a "Contractor" means USA Waste of California, Inc., a corporation organized and operating under the laws of the State of Delaware and its officers, directors, employees, agents, companies and subcontractors. 1.13 Contractor Compensation "Contractor Compensation" means the revenue received by the Contractor from Customers in return for providing services in accordance with this Agreement. 1.14 Construction and Demolition Debris "Construction and Demolition Debris" means Solid Waste generated at a Premises that is directly related to construction, renovation or demolition activities occurring thereon. 1.15 Container "Container" means any and all types of Solid Waste receptacles, including Carts, Bins and Roll -off Boxes. 1.16 CPI "CPI" means the Consumer Price Index for All Urban Consumers (CPI -U), all items index less food and energy - Los Angeles -Riverside -Orange County, CA, CUURA421SAOLIE. 1.17 Customer "Customer" means a Person receiving Solid Waste Collection Services from Contractor pursuant to the terms of this Agreement. 1.18 Disposal "Disposal" means the ultimate disposition of Solid Waste Collected by Contractor at a landfill or otherwise in full regulatory compliance. 1.19 Disposal Site(s) "Disposal Site(s)" means the Solid Waste handling Facility or Facilities utilized for the ultimate Disposal of Solid Waste Collected by Contractor. February 16, 2017 -6- City of Diamond Bar - Residential Packet Pg. 174 8.2.a 1.20 Diversion "Diversion" means any combination of waste prevention (source reduction), recycling, reuse, composting and Transformation activities that reduces waste disposed at landfills, provided such activities are recognized by CalRecycle ("CIWMB") as Diversion in its determination of the City's Diversion rate and compliance with AB 939. Transformation tonnage that will be considered toward the 45% Diversion goal under this Agreement may be limited by the City to 10% of Solid Waste Collected by Contractor each calendar year under this Agreement to the extent total tonnage transformed by Contactor, the City's Bin and Roll -Off Box service provider, and other sources within the City exceeds 10% of City-wide Disposal. 1.21 Environmental Laws "Environmental Laws" means all federal and state statutes, county, local and City ordinances concerning public health, safety and the environment including, by way of example and not limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 USC §9601 et seq.; the Resource Conservation and Recovery Act, 42 USC §6902 et seq.; the Federal Clean Water Act, 33 USC §1251 et seq.; the Toxic Substances Control Act, 15 USC §1601 et seq.; the California Hazardous Waste Control Act, California Health and Safety Code §25100 et seq.; the California Hazardous Substance Account Act, California Health and Safety Code §25300 et seq.; the Porter -Cologne Water Quality Control Act, California Water Code §13000 et seq.; the Safe Drinking Water and Toxic Enforcement Act, California Health and Safety Code §25249.5 et seq.; as currently in force or as hereafter amended, and all rules and regulations promulgated thereunder. 1.22 Facility "Facility" means any plant or site, owned or leased and maintained, operated or used by Contractor for purposes of performing under this Agreement. 1.23 Food Waste "Food Waste" means: • All food (including fruits, vegetables, meat, poultry, seafood, shellfish, bones, rice, beans, pasta, bread, cheese and eggshells); February 16, 2017 -7- City of Diamond Bar - Residential Packet Pg. 175 8.2.a • Food -soiled paper that is mixed in with Food Waste (including waxed cardboard, waxed paper, napkins, paper towels, paper plates, paper milk cartons); • Tea bags; and, • Coffee grounds and filters. Food Waste is a subset of Organic Waste. 1.24 Green Waste "Green Waste" means tree trimmings, small pieces of wood, grass cuttings, dead plants, leaves, branches, flowers, plant stocks, and dead trees (not more than four (4) inches in diameter or 48 inches in length) and similar materials. Green Waste is a subset of Organic Waste. 1.25 Green Waste Processing Facility "Green Waste Processing Facility" means a permitted Facility where Green Waste is sorted, mulched or separated for the purposes of Recycling, reuse or composting. 1.26 Gross Receipts "Gross Receipts" means any and all revenue received from Billings, and compensation in any form, of Contractor or subsidiaries, parent companies or other Affiliates of Contractor, for the Collection and transportation of Solid Waste pursuant to this Agreement, in accordance with Generally Accepted Accounting Principles, including, but not limited to, Customer fees for Collection of Solid Waste, without subtracting Disposal fees, City fees or other fees or any other cost of doing business. Gross Receipts does not include revenue from the sale of Recyclables. 1.27 Hazardous Substance "Hazardous Substance" shall mean any of the following: (a) any substances defined, regulated or listed (directly or by reference) as "Hazardous Substances", "hazardous materials", "Hazardous Waste", "toxic waste", "pollutants" or "toxic substances" or similarly identified as hazardous to human health or the environment, in or pursuant to (i) the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 USC §9601 et seq. (CERCLA); (ii) the Hazardous Materials Transportation Act, February 16, 2017 -8- City of Diamond Bar - Residential Packet Pg. 176 8.2.a 49 USC §1802, et seq.; (iii) the Resource Conservation and Recovery Act, 42 USC §6901 et seq.; (iv) the Clean Water Act, 33 USC §1251 et seq.; (v) California Health and Safety Code §§25115-25117, 25249.8, 25281, 25316, 25501 and 25501.1; (vi) the Clean Air Act, 42 USC §7901 et seq.; and (vii) California Water Code §13050; (b) any amendments, rules or regulations promulgated thereunder to such enumerated statutes or acts currently existing or hereafter enacted; and (c) any other hazardous or toxic substance, material, chemical, waste or pollutant identified as hazardous or toxic or regulated under any other applicable federal, state or local Environmental Laws currently existing or hereinafter enacted, including, without limitation, friable asbestos, polychlorinated biphenyl's ("PCBs"), petroleum, natural gas and synthetic fuel products, and by- products. 1.28 Hazardous Waste "Hazardous Waste" means all substances defined as Hazardous Waste, acutely Hazardous Waste, or extremely Hazardous Waste by the State of California in Health and Safety Code §25110.02, §25115, and §25117 or in the future amendments to or recodifications of such statutes or identified and listed as Hazardous Waste by the US Environmental Protection Agency (EPA), pursuant to the Federal Resource Conservation and Recovery Act (42 USC §6901 et seq.), all future amendments thereto, and all rules and regulations promulgated thereunder. 1.29 Household Hazardous Waste ("HHW") "Household Hazardous Waste" means Hazardous Waste generated at Residential Premises. 1.30 Materials Recovery Facility ("MRF") "Materials Recovery Facility" means a permitted Solid Waste Facility where Solid Wastes or Recyclable Materials are sorted or separated for the purposes of Recycling, processing or composting. 1.31 Multi -Family Dwelling "Multi -Family Dwelling" means any building or lot containing two or more dwelling units. Multi -Family Dwelling units generally receive Refuse Collection service through February 16, 2017 -9- City of Diamond Bar - Residential Packet Pg. 177 8.2.a the use of shared Bins, but may use Carts. Multi -Family Dwelling Units receiving Cart Refuse Collection are included in this Agreement. 1.32 Organic Waste "Organic Waste" means Food Waste and Green Waste, and other compostables, collectively or individually. 1.33 Organic Waste Processing Facility "Organic Waste Processing Facility" means a permitted Facility where Organic Waste is sorted, mulched or separated for the purposes of Recycling, reuse or composting. 1.34 Person "Person" means any individual, firm, association, organization, partnership, limited liability company, corporation, business trust, joint venture, the United States, the State of California, the County of Los Angeles, cities, and special purpose districts. 1.35 Premises "Premises" means any land, or building in City where Solid Waste is generated or accumulated. 1.36 Rate Year "Rate Year" means the period July 1 to June 30, for each year during the Term of this Agreement. For the first year of this Agreement, the Rate Year is August 16 to June 30 1.37 Recycling "Recycling" means the processing of Recyclable Materials for the purpose of returning them to the economy in the form of raw materials for new, reused, or reconstituted products. The Collection, transportation or Disposal of Solid Waste not intended for, or capable of, reuse is not Recycling. Recycling does not include use of Solid Waste for conversion to energy. 1.38 Recyclable Materials "Recyclable Materials" means material that has been separated from the Customer's waste stream for the intended purpose of collection and processing to return it to the February 16, 2017 -10- City of Diamond Bar - Residential Q Ln L LL a� E Q cu a� cu 0 Packet Pg. 178 8.2.a economy in the form of raw materials for new, reused, or reconstituted products by means of available markets and processes. As of the Effective Date, the list of acceptable Recyclable Materials consists of empty aluminum cans; empty glass jars and bottles; bi- metal, and tin cans; empty aerosol containers; empty polyethylene terephthalate plastic ("PET"); high density polyethylene plastic ("HDPE"); plastics types 3 - 7; plastic toys and tools, and other plastic materials (if readily identifiable as being recyclable by plastic type number, but excluding expanded polystyrene and plastic bags); metal foil; dry newspaper; dry mixed paper (e.g., ledger, computer paper, junk mail, magazines, paperback books, cereal boxes, envelopes, paper shopping bags and nonmetallic wrapping paper); dry corrugated cardboard; and telephone books. City and Contractor agree to meet and confer from time to time as needed to modify the list of acceptable Recyclable Material to address developments in processing technologies, emerging uses for types of materials, or changes in available markets. 1.39 Refuse "Refuse" means putrescible and non-putrescible Solid Waste. 1.40 Residential Services "Residential Services" refer to Solid Waste Collection Services performed at and for Residential Premises that are included under this Agreement. 1.41 Residential Customers "Residential Customer" means all Customers on Residential Premises that are included under this Agreement. 1.42 Residential Premises "Residential Premises" means Premises upon which dwelling units exist, including, without limitation, Single Family and Multi -Family Dwellings, apartments, boarding or rooming houses, condominiums, mobile homes, efficiency apartments, second units, and Group Residential Facilities, Group Care Facilities. Notwithstanding any provision to the contrary herein, in the Diamond Bar Municipal Code, or otherwise, for purposes of this Agreement, Premises upon which the following uses are occurring shall not be deemed to be Residential Premises, and rather shall be deemed to be Commercial Premises: Assisted Living Facilities, Convalescent Homes, Dormitories, Extended Stay February 16, 2017 -11- City of Diamond Bar - Residential Packet Pg. 179 8.2.a Motels, Hotels, Motels, and any other businesses not specifically listed at which residency is transient in nature and hence should be classified as Commercial Premises as determined by City on a case by case basis. 1.43 Roll -off Box "Roll -off Box" means Solid Waste Collection Containers of 10 cubic yards or larger. 1.44 Single Family Dwelling "Single Family Dwelling" means a Residential Premises that includes only one dwelling unit. Single Family Dwellings may receive either Cart or Bin Refuse Service. 1.45 Solid Waste "Solid Waste" means all discarded putrescible and non-putrescible solid, semisolid, and liquid wastes, including Refuse, Construction and Demolition Debris, Bulky Items, Recyclable Materials, and Organic Waste, or any combination thereof which are permitted to be disposed of in a Class III landfill, and which are included in the definition of "Non -hazardous Solid Waste" set forth in the California Code of Regulations. 1.46 Solid Waste Collection Services "Solid Waste Collection Services" means the Collection, transfer, transport, Recycling, processing, and Disposal of Solid Waste placed for Collection pursuant to this Agreement. 1.47 Source Separated "Source Separated" means the segregation by the Waste Generator of individual components of Solid Waste, which otherwise would become Refuse (such as glass bottles, metal cans, newspapers, plastic containers, etc.) into separate Container(s) for the purpose of allowing the Recycling of such materials. 1.48 State "State" means the State of California. February 16, 2017 -12- City of Diamond Bar - Residential Packet Pg. 180 8.2.a 1.49 Temporary Service "Temporary Service" means Solid Waste Collection Services provided to a Premises on a temporary, as needed basis to any Premises within the City in conjunction with construction, demolition, cleanup or other projects, and by use of temporarily placed Bins or Roll -off Boxes 1.50 Transformation "Transformation" means incineration, pyrolysis, distillation, gasification, or biological conversion other than composting. 1.51 Transfer Station "Transfer Station" means a Facility that received Solid Waste from collection vehicles and transfers the material to larger vehicles for transport to landfills and other facilities. Transfer Stations may or may not also include MRFs, transferring residual Refuse (Refuse left after the sorting of Recyclable Materials) to landfills and Recyclable Materials (including, for example, Organic Waste and/or Construction and Demolition debris), to processors, brokers or end-users. 1.52 Waste Generator "Waste Generator" means any Person whose act or process produced Solid Waste as defined in the Public Resources Code, or whose act first causes Solid Waste to become subject to regulation. February 16, 2017 -13- City of Diamond Bar - Residential Packet Pg. 181 8.2.a ARTICLE 2 GRANT AND ACCEPTANCE OF FRANCHISE 2.1 Grant and Acceptance of Franchise, Indemnity of Award Subject to the terms and conditions of this Agreement (including but not limited to the exclusions set forth in Section 2.9 hereof) and applicable State laws, and to the rights of State, county and school district facilities to use a Solid Waste enterprise other than Contractor, City hereby grants to Contractor and Contractor hereby accepts from City, for the Term hereof, the exclusive franchise, right and privilege to provide Solid Waste Collection Services at all Residential Premises within the City that receive Residential Cart style Solid Waste Collection service (the "Franchise"). Contractor agrees to and shall timely take all actions that are reasonably necessary to defend the validity and enforceability of this Agreement and shall pay all costs related to such defense. Contractor shall defend, indemnify, protect and hold harmless, the City, its officers, agents and employees from any and all claims, actions or proceedings to attack, set aside, void, annul or seek monetary damages resulting from an approval by the City of this Agreement. The City shall promptly notify Contractor of any such claim, action, or proceeding. The City and Contractor shall meet in good faith in an effort to come to a mutual agreement for a joint defense; provided that the City shall be entitled to select legal counsel of its choice to conduct the defense if an agreement cannot be reached. Contractor's obligations to pay all costs, defend, indemnify, protect and hold harmless under this section shall not be altered in the event City retains separate counsel. 2.2 Section Deleted 2.3 Effective Date The "Effective Date" of this Agreement shall be the date on which the City Council approves this Agreement. 2.4 Term of Agreement The term of this Agreement (the "Term") shall be thirteen (13) years and fifteen (15) days, commencing on August 16, 2010, and expiring August 31, 2023, subject to February 16, 2017 -14- City of Diamond Bar - Residential Packet Pg. 182 8.2.a extension as provided herein. Notwithstanding the foregoing, the unexcused failure or refusal of Collector to perform any material term, covenant, obligation or condition contained in this Agreement shall give rise to the right, in favor of City, for earlier termination of this Agreement for cause in accordance with the procedures elsewhere contained herein. 2.5 City's Option to Extend Term City shall have the sole option to extend the Term for up to twenty-four (24) months following expiration of the Term under Section 2.4. The City may, upon at least ninety - days (90 -days) advance written notice to the Contractor prior to the expiration of the Term, exercise this extension option. If City provides this extension notice, this Agreement will automatically renew up to a maximum of twenty-four (24) months. This extension period shall terminate, upon the earlier of: (i) the expiration of the aforementioned twenty-four (24) months, or (ii) ninety (90) days following the date upon which City gives Contractor written notice of final termination. 2.6 Representations and Warranties of Contractor Contractor hereby covenants, represents, and warrants the following to City for the purpose of inducing City to enter into this Agreement and to consummate the transaction contemplated hereby, all of which shall be true as of the date of this Agreement and as of the Effective Date: a) Contractor is wholly owned by Waste Management, Inc., which is duly organized and validly existing as a corporation under the laws of the State of Delaware. b) Neither the execution of this Agreement nor the delivery by Contractor of services nor the performance by Contractor of its obligations hereunder: (1) conflicts with, violates or results in a breach of any applicable law; (2) conflicts with, violates or results in a breach of any term or condition of any judgment, decree, agreement (including, without limitation, the certificate of incorporation of Contractor) or instrument to which Contractor is a party or by which Contractor or any of its properties or assets are bound, or constitutes a default under any such judgment, decree, agreement or instrument; or (3) will result in the creation or imposition of any encumbrance of any nature whatsoever upon any of the properties or assets of Contractor. February 16, 2017 -15- City of Diamond Bar - Residential Packet Pg. 183 8.2.a c) There is no action, suit or other proceeding as of the date of this Agreement, at law or in equity, or to the best of Contractor's knowledge, any investigation, before or by any court or governmental authority, pending or threatened against Contractor or Waste Management, Inc. which is likely to result in an unfavorable decision, ruling or finding which would materially and adversely affect the validity or enforceability of this Agreement or any such agreement or instrument entered into by Contractor or Waste Management Inc. in connection with the transactions contemplated hereby, or which could materially and adversely affect the ability of Contractor to perform its obligations hereunder or which would have a material adverse effect on the financial condition of Contractor or Waste Management Inc. d) Contractor has no knowledge of any applicable law in effect as of the date of this Agreement that would prohibit the performance by Contractor of this Agreement and the transactions contemplated hereby. e) Contractor has made an independent investigation, satisfactory to it, of the conditions and circumstances surrounding this Agreement and the work to be performed by it, and is satisfied that those conditions and circumstances will not impair its ability to perform the work and provide the Collection services required by this Agreement. f) The information supplied by Contractor in all submittals made in connection with negotiation and execution of this Agreement, including all materials in Exhibits to this Agreement, and all representations and warranties made by Contractor throughout this Agreement are true, accurate, correct and complete in all material respects on and as of the Effective Date of this Agreement. g) Contractor's representative, designated in Section 5.2.5, shall have authority in all daily operational matters related to this Agreement. City may rely upon action taken by such designated representative as action of Contractor unless the actions taken are not within the scope of this Agreement. h) That it is duly organized, validly existing and in good standing under applicable laws. It is qualified to transact business in the State of California and has the power to own its properties and to carry on its business as now owned and operated and as required by this Agreement. February 16, 2017 -16- City of Diamond Bar - Residential Packet Pg. 184 8.2.a i) That it has the authority to enter into and perform its obligations under this Agreement. The Board of Directors or partners of Contractor (or the shareholders, if necessary) have taken all actions required by law, its articles of incorporation, its bylaws or otherwise to authorize the execution of this Agreement. The Persons signing this Agreement on behalf of Contractor have authority to do so. Contractor shall authorize one employee for the City as a single point of contact for issues arising under this Agreement, and Contractor acknowledges and agrees that City may expect and assume that this employee's actions are taken on behalf of and with the full approval of the Contractor. 2.7 Conditions to Effectiveness of Agreement The satisfaction of each and all of the conditions set out below, each of which may be waived in whole or in part by City in writing, is a condition precedent to the effectiveness of this Agreement, and a condition of Contractor's continued right to the benefits conveyed herein: a) Accuracy of Representations. All representations and warranties made by Contractor and set forth in this Agreement shall be accurate, true and correct on and as of the Effective Date. b) Absence of Litigation. There shall be no litigation pending in any court challenging the award of this Agreement to Contractor or the execution of this Agreement or seeking to restrain or enjoin its performance. c) Furnishing of Insurance, Bond, and Letter of Credit. Contractor shall have furnished evidence of the insurance, bonds and letter of credit required by Article 9, and shall comply with all ongoing requirements relating thereto. d) Contractor shall have paid the contracting fee to City, as provided in Section 3.1. 2.8 Delegation of Authority The administration of this Agreement by City shall be under the supervision and direction of City Manager's office and the actions specified in this Agreement, unless otherwise stated, shall be taken by the City Manager, or his or her designee. February 16, 2017 -17- City of Diamond Bar - Residential Packet Pg. 185 8.2.a 2.9 Limitations to Scope Notwithstanding any provision to the contrary contained herein, the exclusive franchise, right and privilege to provide Solid Waste Collection Services at Premises within City granted to Contractor by this Agreement (Residential Premises that receive weekly Refuse Collection using Carts) specifically excludes the following services, which services may be provided by Persons other than Contractor and which may be the subject of other permits, licenses, franchises or agreements issued or entered by City: a) The sale or donation of source -separated Recyclable Material and/or Organic Waste by the Waste Generator to any Person or entity other than Contractor; provided, however, if the Generator is required to pay any monetary or non - monetary consideration, directly or indirectly, for the Collection, transportation, transfer, or processing of Recyclable Material, it shall not be considered a sale or donation and shall not be exempt; b) Solid Waste, including Recyclable and/or Organic Materials, that is removed from any Premises by the Waste Generator by means of "self -hauling (as described in the Diamond Bar Municipal Code), and that is transported personally by such Generator (or by his or her full-time employees) to a processing or Disposal Facility in a manner consistent with all applicable laws and regulations; c) Green Waste removed from a Premises by a gardening, landscaping, or tree trimming Contractor, utilizing its own equipment, as an incidental part of a total service offered by that Contractor rather than as a hauling service; d) The Collection, transfer, transport, Recycling, processing, and disposal of animal remains from slaughterhouse or butcher shops for use as tallow; e) The Collection, transfer, transport, Recycling, processing, and disposal of by- products of sewage treatment, including sludge, sludge ash, grit and screenings; f) The Collection, transfer, transport, Recycling, processing, and disposal of Hazardous Substances, Hazardous Waste, Household Hazardous Waste and radioactive waste regardless of its source; February 16, 2017 -18- City of Diamond Bar - Residential Packet Pg. 186 8.2.a g) Construction and Demolition Debris which is removed by a duly -licensed construction or demolition company or as part of a total service offered by said licensed company or by the City, where the licensed company utilizes its own equipment in compliance with Construction and Demolition Debris requirements of the Diamond Bar Municipal Code; h) Collection services provided exclusively by City's Commercial contractor under the City's exclusive Bin and Roll -Off Box Customer Solid Waste Management Services Agreement, including servicing any Commercial premises, and Residential Premises that receive Bin service. Contractor shall service Single Family Dwellings that receive Cart Refuse service under this Agreement and the City's Commercial contractor shall provide service to Single Family Customers that request regularly scheduled Bin service pursuant to the Bin and Roll -Off Box Customer Solid Waste Management Services Agreement; i) The Collection, transfer, transport, Recycling, processing, and Disposal of Solid Waste by City through City officers or employees in the normal course of their City employment; j) Solid Waste Collection Services for governmental agencies other than City, which may have facilities in City, but over which City has no jurisdiction in connection with the regulation of Solid Waste, such as State, county and school district facilities; k) The Collection, transfer, transport, Recycling, and processing of Organic Waste for use as animal feed; and, 1) Food that is donated or otherwise provided to charitable organizations or food banks for use as food for human consumption. The exclusive franchise, right and privilege to provide Solid Waste Collection Services within City granted to Contractor by this Agreement shall be interpreted to be consistent with all applicable state and federal laws, now in effect and adopted during the term of this Agreement, and the scope of this Agreement shall be limited by all applicable current and developing laws and regulations. In the event that future interpretations of current law, future enactments or developing legal trends limit the ability of City to lawfully grant Contractor the scope of services as specifically set forth herein, Contractor agrees that the scope of this Agreement will be limited to those February 16, 2017 -19- City of Diamond Bar - Residential Packet Pg. 187 8.2.a services and materials which may be lawfully provided, and that City shall not be responsible for any lost profits claimed by Contractor as a result thereof. 2.10 City's Right to Direct Changes 2.10.1 General City may direct Contractor to perform additional services (including new Diversion programs, etc.) or modify the manner in which it performs existing services or Bills for services. Pilot programs and innovative services which may entail new Collection methods, and different kinds of services and/or new requirements for Waste Generators are included among the kinds of changes which City may direct. Contractor acknowledges that State law may increase the Diversion requirement during the term of this agreement and Contractor agrees to propose services to meet such Diversion requirements. If City directs Contractor to perform additional services, Contractor shall be entitled to an adjustment in its Contractor Compensation for providing such additional or modified services, including a profit factor equal to ten percent (10%) of the incremental cost of such additional or modified services, unless the Parties otherwise agree. City may utilize cost components included in the Contractor's Proposal in calculating equitable rate adjustments. Agreed upon rates and service enhancements require approval of the City Council. If City and Contractor cannot agree on compensation for new or additional services, then City may contract with other parties for such services, which shall be considered exempt from the exclusivity provisions of Section 2.1. Contractor shall not receive a rate increase to provide additional services implemented to bring Contractor into compliance with contractually -required minimum diversion rates per Section 4.2.5 or as a remedy for failure to perform under Section 7.1. Additional or modified services shall be included in written amendment and shall require approval of the City Council. 2.10.2 New Diversion Programs Contractor shall present, within thirty (30) business days of a request to do so by City, a proposal to provide additional or expanded Diversion services. The proposal shall contain a complete description of the following: February 16, 2017 -20- City of Diamond Bar - Residential Packet Pg. 188 8.2.a • Collection methodology to be employed (equipment, manpower, etc.). • Equipment to be utilized (vehicle number, types, capacity, age, etc.). • Labor requirements (number of employees by classification). • Type(s) of Containers to be utilized. • Type(s) of material to be Collected. • Provision for program publicity/education/marketing. • Annual projection of the financial results of the program's operations in an operating statement format including documentation of the key assumptions underlying the projections and the support for those assumptions. 2.11 Ownership of Solid Waste City and Contractor understand and agree that it is Contractor, and not City, who will arrange to Collect Solid Waste; that City has not, and, by this Agreement does not, instruct Contractor on its Collection methods, nor supervise the Collection process; nor do the Parties intend to place title to Solid Waste Collected by Contractor in City. Rather, the Parties intend that whatever, if any, title in and to the Solid Waste that is Collected by Contractor which otherwise might exist in or with City in the absence of this Agreement is hereby transferred to Contractor; and further that if Contractor gains title to such Solid Waste it is by operation of law and agreement with its Customers and is not the result of this Agreement. Subject to the provisions of this Agreement, and unless City exercises its rights to direct the location for Disposal and processing of Solid Waste, Contractor shall have the right to retain, Recycle, process, dispose of, and otherwise use Solid Waste Collected pursuant to the terms hereof in any lawful fashion or for any lawful purpose; and, further, shall have the right to retain any benefit resulting from its right to retain, Recycle, process, dispose of, or reuse the Solid Waste which it Collects. Ownership of Solid Waste properly placed for Collection shall transfer to Contractor when Customer places it at point of Collection. 2.12 Permits and Licenses Contractor shall acquire and maintain all necessary permits and licenses for the Collecting, transporting, processing, and storing of Solid Waste and Recyclables, February 16, 2017 -21- City of Diamond Bar - Residential Packet Pg. 189 8.2.a disposing of Solid Waste, and the Recycling of Recyclables as required under this Agreement. Failure to maintain all required permits shall be deemed a material breach of contract for which City may terminate this Agreement as provided in Section 11.2. Contractor must follow requirements of the Diamond Bar Municipal Code, including, but not limited to, obtaining a City of Diamond Bar business license. February 16, 2017 -22- City of Diamond Bar - Residential Packet Pg. 190 8.2.a ARTICLE 3 FEES PAID TO THE CITY In addition to any other consideration set forth herein, as part of its consideration for entering into this Agreement, and for the exclusive franchise, right and privilege to provide Solid Waste Collection Services as specified herein, Contractor shall provide the following: 3.1 Contracting Fee Contractor paid to City a Contracting Fee in a one-time lump sum payment of seventy five thousand dollars ($75,000) within seven days of execution of the Initial Agreement to reimburse the City for costs it incurred in connection with entering the Initial Agreement. A contract extension fee of $75,000 shall be paid to the City within seven (7) days of execution of this Agreement to reimburse the City for costs it incurred in connection with entering into this Agreement. 3.2 Other City Fees 3.2.1 Franchise Fee In consideration of the exclusive right to Collect provided in Section 2.1 of this Agreement, throughout the Term Contractor shall pay to City a Franchise Fee in an amount equal to five percent (5%) of the Gross Receipts received by Contractor for all services provided in City pursuant to the terms of this Agreement. Payments shall be made quarterly. The initial payment shall be due by October 30, 2010, covering the period August 16 to September 30, and each subsequent payment shall be due within 30 days of the end of the calendar quarter (January 30, April 30, July 30, October 30), for the prior calendar quarter. 3.2.2 AB 939 Fee In support of the City's outreach and administration of various Solid Waste programs and public education efforts, Contractor shall pay an amount equal to four and seven - tenths percent (4.7%) of the Gross Receipts received by Contractor for all services provided in City pursuant to the terms of this Agreement. February 16, 2017 -23- City of Diamond Bar - Residential Packet Pg. 191 8.2.a Payments shall be made quarterly. The initial payment shall be due by October 30, 2010, covering the period August 16 to September 30, and each subsequent payment shall be due within 30 days of the end of the calendar quarter (January 30, April 30, July 30, October 30), for the prior calendar quarter. 3.2.3 Street Sweeping Funding Contractor shall pay $85,000 during the first contract year, and an adjusted amount annually thereafter. The amount shall be adjusted by the twelve-month change in CPI through the December prior to the start of each rate year. Payments shall be made quarterly, with $21,250 due each quarter for the first contract year. The initial payment shall be due August 16, 2010, and each subsequent payment due within 30 days of the end of the calendar quarter (October 30, January 30, April 30, and July 30). The annual amount shall increase to $190,000 beginning August 16, 2017, and an adjusted amount annually thereafter as described above. Quarterly payments for the contract year beginning August 16, 2017 shall increase to $47,500 with the first payment due October 30, 2017 and subsequent quarterly payments as described above. 3.2.4 Residential Collection Vehicle Road Maintenance Cost Reimbursement To reimburse the City for road maintenance due to the use of Contractor's Collection vehicles on City streets, Contractor shall pay $115,000 during the first contract year, and an adjusted amount annually thereafter. The amount shall be adjusted by the twelve- month change in CPI through the December prior to the start of each rate year. Payments shall be made quarterly, with $28,750 due each quarter for the first contract year. The initial payment shall be due August 16, 2010, and each subsequent payment due within 30 days of the end of the calendar quarter (October 30, January 30, April 30, and July 30). The annual fee amount as of August 16, 2016 was $125,525. 3.2.5 Environmental Education Fee Pursuant to the terms of this Agreement, Contractor shall pay an annual Environmental Education Fee in the amount of Six Thousand, Five Hundred Dollars ($6,500). The first such payment shall be due and payable to the City on July 1, 2017, and subsequent payments shall be due and payable to the City on or before July 1 of each subsequent February 16, 2017 -24- City of Diamond Bar - Residential Packet Pg. 192 8.2.a year. The amount of the Environmental Education Fee shall be adjusted annually for the average annual change in the CPI between the calendar year ended the December preceding the fee payment due date and the prior calendar year. For example, for the fee payment due July 1, 2018, the percentage adjustment to the $6,500 payment amount from the prior year would be equal to the average annual change in the CPI comparing calendar year 2017 to calendar year 2016. 3.2.6 Late Payment of Fees If any of the fees provided for in this Section 3.2 are not paid on or before the due date, Contractor shall pay to City a penalty in an amount equal to ten percent (10%) of the amount owing for that month, plus interest at a rate of one and one-half (1.5%) per month for each month the payment is late thereafter. 3.3 Future Fees In the event that City implements a new fee not included in Section 3.2, or increases the amount of an existing fee, Contractor shall be entitled to a rate adjustment in an amount sufficient to recover the fee from Customers. City may elect to have Contractor pay in accordance with the requirements of fee payments made in Section 3.2, or on another schedule as City identifies with associated deadlines and late fees. February 16, 2017 -25- City of Diamond Bar - Residential Packet Pg. 193 8.2.a ARTICLE 4 DIRECT SERVICES 4.1 Refuse 4.1.1 General The work to be done by Contractor pursuant to this Agreement shall include, but not be limited to, the furnishing of all labor, supervision, equipment, materials, supplies, and all other items necessary to perform the services required. The enumeration of, and specification of requirements for, particular items of labor or equipment shall not relieve Contractor of the duty to furnish all others, as may be required, whether enumerated elsewhere in this Agreement or not. The work to be done by Contractor pursuant to this Agreement shall be accomplished in a thorough and professional manner so that all Customers are provided reliable, courteous and high-quality Solid Waste Collection Services at all times. The enumeration of, and specification of requirements for, particular aspects of service quality shall not relieve Contractor of the duty of accomplishing all other aspects in the manner provided in this section, whether such other aspects are enumerated elsewhere in this Agreement or not. 4.1.2 Residential Cart Refuse Collection Contractor shall provide all Customers at Residential Dwellings without Bin Service one Refuse Cart ("Refuse Cart(s)"), and shall Collect all Refuse placed therein for Collection not less than once per week. If Residential units share Refuse Carts due to space constraints or otherwise, each unit shall still be assessed the full Residential Cart service rate. Customers that regularly require more than one Refuse Cart may request additional Carts for an additional charge per Cart per month in accordance with the approved rate schedule. February 16, 2017 -26- City of Diamond Bar - Residential Packet Pg. 194 8.2.a 4.1.3 Refuse Cart Overage Residential Cart Customers may periodically generate more Refuse than will fit in the Refuse Cart(s). Residential Customers are therefore entitled to two annual pickups per calendar year and an end -of -year pickup of material that does not fit in the Refuse Cart(s) at no additional cost, as provided in this Section 4.1.3. A pickup shall consist of up to the equivalent of three (3) large bags, boxes or barrels of Refuse and placement of more than that amount at any one time shall constitute two pickups. In addition to the two (2) free pickups, Contractor shall Collect all additional Refuse placed out for Collection in the Residential Customer's own Containers (bags, boxes, barrels, etc.) at no additional charge for two weeks beginning each December 26. This service is limited to Refuse that could otherwise be placed in the Refuse Cart, and not Bulky Items which are Collected in accordance with Section 1.6 and 4.1.15. Contractor shall Collect, and Customers may be charged an extra fee per pickup (in accordance with the approved rate schedule for overage pickups) of, all Refuse put out for Collection that does not fit in the Refuse Cart(s) above and beyond the free pickups described above. Customer shall be instructed to call in both free and additional overages. However, if not called in, Contractor shall Collect and record pickup per Section 4.1.8. 4.1.4 Backyard Service Backyard service means the Contractor removes all Collection Carts, Green Waste bundles and Refuse Cart Overages per Section 4.1.3 from a Cart Customer's designated Collection location other than curbside, such as backyard, side yard, or drive, for Collection, and returns Carts and other containers when Collection is complete. Contractor may charge customers requesting backyard service in accordance with the approved rate schedule, unless the Customer falls under the exception described in Section 4.1.5 below. 4.1.5 Backyard Service for the Disabled Contractor shall provide disabled Customers with backyard service at no additional charge. Contractor will remove Refuse, Recyclable and Green Waste Containers, Green Waste bundles and Refuse Cart Overages per Section 4.1.3 from Customer's storage area, place them out for Collection, and return Containers to Customer's storage area after Collection, ensuring that all doors or gates are closed securely. In order to qualify as disabled under this section, Customers must have been issued a handicap placard February 16, 2017 -27- City of Diamond Bar - Residential Packet Pg. 195 8.2.a from the Department of Motor Vehicles or otherwise obtain approval to receive such service from the City, following a verification site visit by Contractor's route supervisor. Additionally, walk -out service need not be provided if an able-bodied adult resides with the disabled Customer. 4.1.6 Section Deleted 4.1.7 Determination of Service Type Contractor may not transition a Customer from Bin to Cart service or visa versa without prior advance written approval of the City. If Contractor and Customer have a disagreement as to whether a Refuse Cart is appropriate, or if City determines the Collection in a Refuse Cart causes health and safety or other concerns, or if the City determines Bin service is more appropriate, City shall make the final determination as to whether Refuse Collection shall be from a Cart, or from a Bin. In all cases, City retains absolute discretion in the determination of which type of service a Customer shall receive, and therefore which with hauler will provide service. 4.1.8 Overflowing Containers Customers that regularly produce more Solid Waste than their current level of service can accommodate may have their service level increased in accordance with the following procedure: First Incident in Three Month Period - If more material is placed for Collection than fits in a Cart (unless Collection of the overage has been properly arranged under Section 4.1.3), Contractor shall photograph the overflowing Cart, Collect the Solid Waste, and send to the Customer (at both the service and billing addresses) the picture and a letter instructing that further instances of an overflowing Cart may result in a charge, and possibly in an increase in the level of service. Second Incident in Three Month Period - Upon the second event of an overfilled Cart (unless Collection of the overage has been properly arranged under Section 4.1.3) in a three-month period, Contractor shall photograph the overflowing Cart, Collect the Solid Waste, and send to the Customer the picture and a letter instructing that a third incident in that same three month period may result in an increase in the level of service. If Refuse was left beside the Cart for Collection other than as permitted under February 16, 2017 -28- City of Diamond Bar - Residential Packet Pg. 196 8.2.a Section 4.1.3, Contractor may charge the Cart Overage Fee in the approved Rate Schedule. Third Incident in Three Month Period - Upon the third event of an overfilled Cart (unless Collection of the overage has been properly arranged under Section 4.1.3) in a three-month period, Contractor shall photograph the overflowing Cart, Collect the Solid Waste, and send to the Customer the picture and a letter requesting that Customer increase its service level. If the Customer declines, Contractor may petition City to permit Contractor to increase the service level to accommodate the higher demand for service. If Refuse was left beside the Cart for Collection other than as permitted under Section 4.1.3, Contractor may charge the Cart Overage Fee in the approved Rate Schedule. Each incident shall be counted as one of the Customer's free pickups or, if Customer has used the annual free pickups, Contractor shall Bill Customer for the additional pickups per the approved rate schedule. Contractor shall send City via e-mail or U.S. mail a copy of each letter and picture sent to a Customer under this Section 4.1.8. 4.1.9 Section Deleted 4.1.10 Temporary Roll -Off and Temporary Bin Services Contractor shall provide temporary Roll -off Box and temporary Bin Collection service upon request only to existing Residential Customers (Customers to whom Contractor provides weekly Solid Waste Collection service using Carts) for cleanup or construction work performed at their existing residences. The provision of temporary Collection services for the Construction of new residences, and all work on Commercial premises, and Residential Premises that receive Bin service, are excluded from this franchise, and exclusivity is further limited by Section 2.9. In the event Temporary Services are required for a project involving multiple Customers that receive service under both the City's Residential Cart and Commercial Bin and Roll -Off franchisees, this service is not included under this Agreement. In the event there is a dispute as to whether a particular service is included in the franchise, City shall make the final determination. Contractor must deliver a temporary Roll -Off Box or temporary Bin to its existing Residential Customer within forty-eight (48) hours of request (Sundays excluded). February 16, 2017 -29- City of Diamond Bar - Residential Packet Pg. 197 8.2.a Contractor will provide Roll -off Boxes and Bins for Temporary Services. There will be no charges other than the specific charges identified in the approved rate schedule, attached as Exhibit 2. Contractor shall confirm that Customer has obtained an encroachment permit from the City prior to Contractor placing a Container in the public right-of-way. 4.1.11 Section Deleted 4.1.12 Section Deleted 4.1.13 Section Deleted 4.1.14 Section Deleted 4.1.15 On -Call Bulky Item Pickup Contractor shall provide Bulky Item pickup service to all Residential Customers. Each Residential Dwelling Unit shall be entitled to four Bulky Item pickups per calendar year at no additional charge. Residential Customers may put out up to three (3) cubic yards of material at each pickup. Contractor may instruct Customers to provide Contractor with a minimum of one business day's notice for the items, which shall be Collected on the Customer's next regular Collection day following notification by Customer. Contractor shall Collect all Bulky Items as defined in Section 1.6 including items referred to as electronic waste or "e -waste." The following provisions shall apply to this program: • No single item that cannot be handled by two workers will be accepted. • The following items will not be picked up: Hazardous Substances, Hazardous Waste, including waste oil or anti -freeze, with the exception of Bulky Items per Section 1.6 (including without limitation, universal wastes such as fluorescent bulbs, household batteries, and televisions, monitors and other items commonly referred to as "e -waste" that will be Collected by and disposed of by Contractor in accordance with this section as well as Sections 4.1.16 and 4.1.17.) • Contractor shall record by class and weight (in tons) the Solid Waste Collected from Bulky Item pickups. Contractor shall record the kinds and weights (in tons) of this February 16, 2017 -30- City of Diamond Bar - Residential Packet Pg. 198 8.2.a Solid Waste that is diverted from the landfill through Recycling, reuse, Transformation or other means of Diversion. Contractor shall include this information in its monthly reporting per Section 8.3.2(a). Residential Customers that exceed the number of free pickups and Commercial business Customers may receive Bulky Item Collection for a fee, in accordance with the approved rate schedule in Exhibit 2. 4.1.16 Bulky Item Diversion Bulky Items Collected by Contractor in accordance with Section 4.1.15, or otherwise Collected under this Agreement, may not be landfilled or disposed of until the following hierarchy of Diversion efforts has been followed by Contractor: 1) Reuse as is 2) Disassemble for reuse or Recycling 3) Recycle 4) Disposal This hierarchy is intended to preclude the use of front or rear loading packer vehicles for Bulky Items unless the compaction mechanism is not used to compact the Bulky Items. An exception maybe made for items that have been designated for Disposal. Mattresses set out for collection shall in no instance be collected in a packer vehicle. The Contractor shall Recycle or contract with a third -party vendor to Recycle all mattresses collected within the City. 4.1.17 Disposal of Electronic and Other Special Wastes Contractor shall divert waste requiring special handling, such as electronic waste, or "e - waste," Collected in accordance with Sections 4.1.15, 4.1.16 or 4.5.4, or by other means under this Agreement, by taking these goods to a properly permitted Facility, and not by landfilling. 4.1.18 Door -to -Door HHW Collection Contractor shall provide Residential Customers with door-to-door call-in HHW Collection service. Each Residential Dwelling Unit shall be entitled to two door-to-door February 16, 2017 -31- City of Diamond Bar - Residential Packet Pg. 199 8.2.a HHW pickups per calendar year at no additional charge. Items to be Collected include, at a minimum: paint and paint products including but not limited to thinners, glues, caulking, stains, wood preservatives and strippers; universal waste, household cleaners; automotive wastes; swimming pool chemicals; garden chemicals; fluorescent tubes; thermometers; and household batteries. Contractor may direct Residential Customers to use the Bulky Item pickup option for televisions, computers and other HHW that may safely and legally be Collected as Bulky Items as described in Section 4.1.15.. 4.1.19 Annual Household Hazardous Waste Event Waste Management will assist the City in increasing awareness of Household Hazardous Waste events by promoting the Los Angeles County Household Hazardous Waste collections held in Diamond Bar. Promotional activities will include: posting on Waste Management's website, inclusion in the Annual Brochures/ Mailings mailed to each Residential Customer, billing inserts, social media targeted outreach, and press releases to local news outlets. 4.1.20 Curbside Used Oil and Oil Filter Collection Contractor shall Collect used oil placed curbside beside Refuse Collection Cart on regular Collection day at no additional charge. Contractor shall educate Customers to place used oil in clean containers and used oil filters in clean zip -lock bags. 4.1.21 Service Exceptions; Hazardous Waste Notifications A. Failure to Collect. When Solid Waste is not Collected from any Customer, Contractor shall notify Customer in writing, at the time Collection is not made, through the use of a "red tag' or otherwise of the reasons why the Collection was not made, such as the placement of Hazardous Waste in the Container or the Recycling Container including non-Recyclables. B. Hazardous Waste Inspection and Reporting. Contractor reserves the right to inspect Solid Waste put out for Collection and to reject Solid Waste observed to be contaminated with Hazardous Waste and the right not to Collect Hazardous Waste put out with Solid Waste. Contractor shall notify all agencies with jurisdiction, if appropriate, including the California Department of Toxic Substances Control and February 16, 2017 -32- City of Diamond Bar - Residential Packet Pg. 200 8.2.a Local Emergency Response Providers and the National Response Center of reportable quantities of Hazardous Waste, found or observed in Solid Waste anywhere within City. In addition to other required notifications, if Contractor observes any substances which it or its employees reasonably believe or suspect to contain Hazardous Wastes unlawfully disposed of or released on any City property, including storm drains, streets or other public rights of way, Contractor will immediately notify City Manager or City Manager's designee. Contractor shall implement and maintain a training program that will assist its employees in identifying and properly disposing of any Hazardous Waste that may come into their possession. C. Hazardous Waste Diversion Records. Contractor shall maintain records showing the types and quantities, if any, of Hazardous Waste found in Solid Waste and which was inadvertently Collected from Customers within City, but diverted from landfilling. 4.1.22 Sharp's Mail Back Program Within six months of the effective date of this Agreement, Contractor will implement a program for Collection and safe processing of Sharps generated by its Customers, through a mail -based program and/or a drop-off program. Through a mail -based program, Residential Customers requesting Sharps services may apply to Contractor to participate in this program, and Sharps containers will be delivered directly to them at no cost to the Customer or City. Through a drop-off program, Contractor would make arrangements with pharmacies and/or other locations throughout the City for residents to drop-off Sharps at no cost to the Customer or City. 4.1.23 Medication Takeback Program Waste Management will assist the City in increasing awareness of medication takeback programs provided by the Los Angeles County Sheriff's station and any third -party events held in Diamond Bar. Promotional activities will include: posting on Waste Management's website, inclusion in the Annual Brochures/ Mailings mailed to each Residential Customer, billing inserts, social media targeted outreach, and press releases to local news outlets. February 16, 2017 -33- City of Diamond Bar - Residential Packet Pg. 201 8.2.a 4.1.24 FreeCycle.com Within six (6) months of the Effective Date, Contractor will publicize to Residential Customers its free materials exchange/ gifting program, known as FreeCycle.org, and shall promote FreeCycle.org Contractor's website, and the Annual Brochure/ Mailings described in Section 5.3.2. 4.2 Recycling 4.2.1 Recycling Collection Contractor shall provide all Customers with a Cart for Recyclable Materials ("Recycling Cart(s)"), and shall Collect all Recyclable Materials placed therein for Collection not less than once per week. Contractor shall Collect Recyclable Material placed in Recycling Carts for Collection from each Customer on the same day as Customers' Refuse Cart is Collected. Contractor shall have a Recycling program whereby it, at a minimum, Collects all materials that can be recovered at the local processing Facility used by Contractor. Contractor will update public education materials accordingly as new items are added to those recovered by the Facility. Customers may request one additional Cart at no additional charge. Residents with carts beyond two per dwelling unit may be charged in accordance with the approved rate schedule. Contractor shall take whatever actions may be appropriate, lawful and effective to discourage the unauthorized removal of Recyclable Materials from the Solid Waste stream, commonly referred to as scavenging. 4.2.2 Section Deleted 4.2.3 Contaminated Loads, Warning Notice Contractor shall place a red tag or other warning notice approved by the City on all Recyclable Material or Green Waste loads that are contaminated, indicating to the Customer why the load was not Collected and diverted, and providing Contractor's phone number. For Cart Customers with off-site management such as small apartment buildings, Contractor shall also mail a copy of the warning to the Customer's Billing February 16, 2017 -34- City of Diamond Bar - Residential Packet Pg. 202 8.2.a address. Contractor shall notify City on a monthly basis of any warning notices issued pursuant to this section, and shall provide copies of such warnings to City upon request. With prior written City authorization, Contractor may remove Recycling and Green Waste Carts from habitual contaminators that have received a total of three warnings on either or both Carts in any six-month period. Residential Recycling and Green Waste Carts will be returned only after six months, or upon direction of the City, or if there is a change of occupancy. 4.2.4 Marketing and Sale of Recyclable Materials Contractor shall be responsible for marketing and sale of all Recyclable Materials Collected pursuant to this Agreement. Revenue from the sale of materials Collected, and tonnage sold, shall be reported to the City on an annual basis by March 31 of each year for the previous calendar year (by March 312011, Contractor shall report for the period August 16, 2010 to December 31, 2010). If Recyclable Materials are delivered to a Material Recovery Facility (MRF), reported revenue from the sale of materials Collected shall be defined as the revenue received from selling the materials to a Contractor shall rebate to Customers a portion of Recyclable Materials revenue once per year in accordance with Section 6.7. Contractor shall report the amount of such revenues to City on an annual basis per Section 6.7 and upon request. 4.2.5 Minimum Diversion Requirements Contractor shall divert from landfilling a minimum of 45% of all Solid Waste Contractor Collects under this Agreement. Contractor shall divert from landfilling a minimum of 75%, or the State -mandated Construction and Demolition diversion percentage, whichever is greater, of all Construction and Demolition Debris loads Contractor Collects under this Agreement Construction and Demolition Debris tonnage shall be included in the overall 45% diversion calculation. Upon the request of either party, not more often than once every two (2) years, the parties agree to meet and confer regarding adjustments to the minimum diversion rate, based on factors including waste characterization data provided by Company, trends in source reduction and reuse, trends in third party diversion, extent of reverse logistics, the availability of permitted facilities that are capable of processing material to achieve the required levels of diversion, emerging methods of processing and recycling/ reusing February 16, 2017 -35- City of Diamond Bar - Residential Packet Pg. 203 8.2.a new waste materials, the availability of markets, transportation constraints, embargoes, and the impact of scavenging. City shall consider such information provided by Contractor and other industry data and shall, at its sole discretion, determine if any adjustments to the minimum diversion requirements shall be made, and such changes must be approved by the City Council before becoming effective. Compliance with each of these minimums will be measured, initially, for the first period from August 16, 2010 to December 31, 2010, and subsequently on a calendar year basis. Recycling or Diversion of materials not Collected by the Contractor is not to be counted towards meeting this requirement. If Contractor fails to comply with these diversion rate requirements, Contractor must submit a plan for compliance, including without limitation implementation of applicable portions of City's Source Reduction and Recycling Element, within sixty (60) days of the end of the calendar year. Contractor's plan is subject to approval by the City Manager, and to be approved must constitute a good faith plan to implement applicable portions of City's Source Reduction and Recycling Element and be reasonably likely to achieve compliance with the above requirement. Costs for providing the services in the compliance plan to meet this existing obligation will be borne by Contractor and shall not be the subject of a rate adjustment. If, following implementation of the plan for compliance, Contractor does not achieve compliance with the above requirement for the calendar year in which the plan was submitted, liquidated damages shall be assessed under Section 11.3 for failure to meet this requirement. In the event the State increases diversion rate goals, City may require Contractor to implement programs to meet the goal, and parties shall negotiate a rate adjustment. Should parties fail to reach a mutually acceptable agreement, City may hire a third party to provide those services. 4.2.6 Construction and Demolition Debris Diversion Contractor shall process all C&D loads. Contractor will bring all loads of mixed Construction and Demolition Debris from Construction and Demolition sites, and other C&D identified as such by Contractor, or identified as such by customer at the time of the request for service to a C&D processing facility designated per Section 4.8 for separation and recovery of this material. Contractor may deliver separated loads of February 16, 2017 -36- City of Diamond Bar - Residential Packet Pg. 204 8.2.a Construction and Demolition Debris, such as clean dirt, concrete or rebar, to facilities specializing in the reuse of such materials, provided this material is diverted from landfilling. Contractor shall divert from landfilling a minimum of 75% of all Construction and Demolition Debris Collected. 4.2.7 Optional Food Waste Diversion Program City reserves the right to require Contractor to implement a program to divert Food Waste, either co -collected with Green Waste or separately Collected. Contractor shall only be required to implement a Residential Food Waste diversion program if mandated by CalRecycle. The program shall be implemented following the exercise of the City's right and adjustment of rates as described below. The Contractor shall be entitled to a rate adjustment of three percent (3%) for implementation of the Food Waste program. This is in addition to the annual adjustment implemented pursuant to Section 6.4. The three percent (3%) rate adjustment shall only apply to the "Standard Rates" and "Senior Reduced Rates" for Residential Cart service included in Exhibit 2, and shall not apply to Additional Cart Rates and Services or Temporary Services included in Exhibit 2. 4.3 Green Waste Program 4.3.1 Single Family Green Waste Collection Contractor shall provide all Customers with a Cart for Collection of Green Waste ("Green Waste Cart(s)"), unless the Customer has qualified for the yard waste reduction discount described under Section 5.1.3. Contractor shall Collect all Green Waste placed in Green Waste Carts, as well as all Green Waste bundled as set forth below, and put out for Collection by Customers not less than once per week on the same day as Refuse Collection. Contractor shall have a Green Waste Recycling program whereby it, at a minimum, Collects the types of Green Waste defined in Section 1.24. Contractor shall only be obligated to Collect Green Waste set out for Collection in bundles if it is a maximum of four (4) feet long and eighteen (18) inches in diameter. Customers may request one additional Cart at no additional charge. Residents with carts beyond two per dwelling unit may be charged in accordance with the approved rate schedule. February 16, 2017 -37- City of Diamond Bar - Residential Packet Pg. 205 8.2.a 4.3.2 Holiday Tree Collection Program Contractor shall operate an annual holiday tree Collection program from December 26 through the second Sunday in January. During this period all holiday trees placed out for Collection by Residential Customers shall be Collected by Contractor. After this period, trees will be Collected as Bulky Items under Section 1.6. Trees up to seven (7) feet in length will be Collected and diverted without Customers needing to cut them. Contractor may request that Customers with larger trees cut the trees to pieces no longer than seven (7) feet. Contractor will divert all holiday trees from landfilling. Notwithstanding the above, Contractor is required to Collect but is not required to divert artificial holiday trees, or trees containing decorations, ornaments, tinsel, debris, support stands or other foreign matter as part of this diversion program. 4.3.3 Section Deleted 4.3.4 End Uses for Green Waste Contractor shall divert Green Waste materials Collected through weekly Cart and bundle Collection, holiday tree Collection, Roll -off Box Collection and mixed waste processing from Disposal. Contractor must provide end uses for Green Waste that maximize Diversion credit for City according to regulations established by theCalRecycle. Green Waste may be used as alternative daily cover ("ADC') only to the extent that the City will get full Diversion credit for its use. Diversion credit for ADC is not allowed after January 1, 2020 per Assembly Bill 1594. Contractor is responsible for monitoring how the Green Waste will be diverted at selected facilities and for selecting alternative facilities if necessary to ensure full Diversion credit. Failure to do so places the Contractor in default. City has the option, but not obligation, to direct Contractor where to deliver the material. 4.3.5 Mulch Give -a -Way Contractor shall distribute free mulch to Residential Customers. Contractor shall distribute coupons through quarterly Billings entitling Residential Customers to receive two bags per event at two community events per year to be identified by City. February 16, 2017 -38- City of Diamond Bar - Residential Packet Pg. 206 8.2.a 4.4 Cart Selection, Distribution, Exchanges and Removal 4.4.1 Cart Selection and Distribution Contractor shall provide Residential Cart Customers with the option of 35, 64 and 96 - gallon Cart sizes for Refuse Collection, and 35 and 64 -gallon Cart sizes for Recycling and Green Waste. Residential Customers may request different sizes for each waste stream. In the event a Residential Customer does not indicate a preference, the standard, default size for each wastestream shall be 64 -gallons. 4.4.2 Cart Exchanges Customers may each request one free exchange in cart sizes beginning 60 days after the initial cart is delivered and ending six months after the initial cart is delivered. One exchange includes all Cart size changes included in the same Customer request and may include changes being made to one, two or three of the Customer's Carts. If a second request is made, or if a request is made following the initial six-month period, Contractor may charge for each request, regardless of the number of carts exchanged, in accordance with the approved rate schedule. New Customers shall be granted the same no -charge exchange period. 4.4.3 Removal of Carts Distributed Under the Previous Contract Contractor shall Collect and Recycle or Dispose of Carts distributed under the previous franchise agreement at no additional charge to City or Customers. 4.5 City Services 4.5.1 Section Deleted 4.5.2 City Sponsored Events Contractor shall provide Solid Waste and Recycling Collection and Disposal/ processing service for City -sponsored events. This shall include providing Containers (Bins, Roll- off Boxes, clearly labeled Recycling Containers and cardboard waste boxes with liners) to Collect and dispose of, or process, all Solid Waste and Recyclable Materials. The Contractor shall provide these services at City -sponsored events upon City request, at February 16, 2017 -39- City of Diamond Bar - Residential Packet Pg. 207 8.2.a no cost to City or ratepayers. The City's intent will be to alternate events assigned to Contractor with those events it assigns to the City's bin and roll -off customer services franchisee; however, City does not guarantee that events will be evenly distributed based upon either level of effort or number of events. City -sponsored events include, but are not limited to: • Concerts in the Park • City Birthday Celebration • Fourth of July • Fall Fun Festival • Winter Snow Festival • Arbor Day • Easter Egg Hunt 4.5.3 Emergency Collection and Disposal Service Contractor will assist City at the City's request with emergency Collection and Disposal service (in the event of major disaster, such as an earthquake, storm, riot or civil disturbance), or as otherwise determined necessary by the City, by providing Collection equipment and drivers normally assigned to City. Contractor may charge City for actual Disposal costs plus service rates per the approved rate schedule. 4.5.4 Abandoned Item Collection from City Right -of -Way or Other Public Property Contractor will Collect and dispose of, at no additional charge, within one business day of notification from City, all items left in the City's right-of-way, such as sidewalks, alleys, streets, and parkways. Contractor will properly divert from landfilling or Dispose of such items in accordance with Sections 4.1.16 and 4.1.17. City will contact either the residential Cart or the Bin and Roll -Off Box franchisee to provide this service, depending on the location of the abandoned item. 4.5.5 Community Development Review Services Upon City request and at no additional charge, Contractor will review building permit applicants' plans and advise regarding adequacy of Container storage space and access, particularly to accommodate Recycling containers. February 16, 2017 -40- City of Diamond Bar - Residential Packet Pg. 208 8.2.a 4.5.6 Large Venue Event Assistance, Event Recycling Contractor will assist planners of large venue events with reporting and planning needs as may be useful in meeting the requirements of AB 2176, found at California Public Resources Code 42648 et seq. at no additional charge. Contractor shall provide Recycling services upon request to special event planners. 4.5.7 Confiscation of Unauthorized Containers City authorizes Contractor to confiscate illegal Collection Containers located within the City's public rights-of-way. Upon notification from City, or Contractor's locating of an illegally placed Container, Contractor shall begin the following procedure within 24 hours: 1. Contractor shall first place a notice on Container, directing the illegal hauler or its Customer to remove the Container within 24 -hours of notice, citing relevant sections of the City's municipal code, indicating where the Container may be retrieved, impound and storage costs, and warning that, should a second Container belonging to that company be found in the City in violation of the City Municipal Code, that Container may be removed without warning. If the company can be identified and its address ascertained, Contractor shall mail the warning as well. 2. Notify City of the notice and request authorization to impound the Container 3. With City approval, impound the Container if it has not yet been removed by the illegal hauler. 4. For subsequent violations by the same company after the initial notice has been posted, and after Contractor has mailed a warning to the company, Contractor may request approval from City to remove company's Containers immediately, mailing a notice if address is known as to where the Container may be retrieved and impound and storage costs. If address is unknown, Contractor shall place the notice as close as feasible to where the Container was located. 4.5.8 Provision of Storage Containers Contractor will provide the City with eleven 40 -cubic -yard portable storage containers (three currently in use and up to eight more at City's request) to be used for storage at City facilities and schools for the duration of this Agreement, and will maintain them in February 16, 2017 -41- City of Diamond Bar - Residential Packet Pg. 209 8.2.a a condition satisfactory to the City. Contractor may transfer ownership of these storage containers to City, provided Contractor will remove and Dispose of these containers when requested to by City. 4.6 Operations 4.6.1 Schedules, Missed Pickups To preserve peace and quiet, Solid Waste shall only be Collected between 6:30 a.m. and 6:30 p.m. Collection is only permitted Monday through Friday, with Saturday Collection permitted during holiday weeks. Contractor may not make exceptions to these Collection days and times without advance written approval from the City. If the regularly scheduled Collection day falls on New Year's Day, Memorial Day, Fourth of July, Labor Day, Thanksgiving Day, or Christmas Day, Collection days for the remainder of that week shall all be postponed one Collection day. Contractor shall review its operations plan outlining the Collection routes, intervals of Collection and Collection times for all materials Collected under this Agreement with City upon thirty (30) days written notice requesting said review. Contractor shall submit a copy of its schedule and route map within seven (7) business days if requested by City. If the plan is determined to be inadequate by City, Contractor shall revise it incorporating any changes reasonably necessary to make it satisfactory to City within thirty (30) days. Change in schedules and routing shall not be implemented without City approval and not until at least fifteen (15) business days following notification to Customers. The City may restrict the timing and frequency of any route changes based upon the City's Municipal code or any other applicable law or requirements. When notified of a missed pickup (which was not justified under the provisions of this Agreement) prior to 12:00 p.m., Contractor shall Collect the Refuse, Recyclable Materials, and/or Green Waste that was not Collected the same day. If notified after 12:00 p.m., Collection must take place no later than the next business day. If Contractor determined that the missed pickup was justified under this Agreement, Contractor will notify Customer as to the reason within this same time period. 4.6.2 Vehicles A. General. Contractor is responsible for providing all vehicles that may be required for the Collection of Solid Waste that are sufficient in number and capacity to February 16, 2017 -42- City of Diamond Bar - Residential Packet Pg. 210 8.2.a efficiently perform the work required by this Agreement in strict accordance with its terms. Contractor is expressly obligated to provide such Collection Vehicles and routes as are required to meet the service standards set forth herein. Contractor shall have available on Collection days sufficient back-up vehicles for each type of Collection Vehicle used to respond to complaints and emergencies. All equipment of Contractor used to provide the services set forth in this Agreement shall be subject to inspection by City upon request. B. Specifications. At the start of service under this Agreement, 50% of Collection vehicles used to provide service under this Agreement, excluding spares, shall use exclusively liquefied natural gas (LNG) or compressed natural gas (CNG). By December 31, 2011,100 % of Collection vehicles used to provide service under this Agreement, excluding spares, shall use exclusively liquefied natural gas or compressed natural gas. Spares that do not use exclusively LNG or CNG shall not be used for more than thirty (30) days per calendar year per route. No Collection vehicle, including spares, used in the City shall be more than 10 years old at any time during this Agreement Term. Up to four Collection vehicles refurbished to like -new condition will be considered new for purposes of this provision as of the date the refurbishment is completed. Contractor and City Manager, or his designee, shall meet within six (6) months of the Effective Date and periodically thereafter to review vehicle performance and determine the specific improvements (such as painting, sealing truck bodies, or mechanical systems) required as part of the refurbishment to allow the Collection vehicle to be considered like -new. The fuel and vehicle age requirements set forth above apply only to those automated front -loading and side -loading Collection vehicles used routinely to provide services, and do not apply to Collection vehicles used for special purposes or on a non- routine basis, including spare vehicles used for no more than thirty (30) days per year per route, scout vehicles, flat-bed Bulky Item vehicles or vehicles not used for Collection. All vehicles used in the City must be registered with the California Department of Motor Vehicles and, where used for Collection, shall have water -tight bodies designed to prevent leakage, spillage or overflow. At all times during the term of this Agreement, Contractor's Collection vehicles shall comply with South Coast Air Quality Management District Requirements and the California Air Resource Board requirements as they are currently in force and as they may be approved for Refuse removal vehicles, as well as other Federal, State and local laws and regulations that may be enacted during the term of this Agreement. February 16, 2017 -43- City of Diamond Bar - Residential Packet Pg. 211 8.2.a C. Vehicle Identification and Labeling. Each Collection vehicle shall be marked with Contractor's name, toll free phone number, and a vehicle identification number designated by Contractor for each Collection Vehicle which shall be prominently displayed on all such Vehicles, in lettering at least six inches in height. City must approve truck labeling. D. Cleaning and Maintenance 1) Contractor shall maintain all vehicles and equipment used in providing service under this Agreement in a good, safe, neat, clean and operable condition at all times. 2) Collection Vehicles shall be painted, thoroughly washed, and thoroughly steam cleaned on a regular basis so as to present a clean appearance. Contractor shall make all Collection Vehicles available to the County of Los Angeles for inspection regarding health concerns and requirements at any frequency it requests. Contractor agrees to replace or repair to the City's satisfaction, any Collection Vehicle which City determines to be of unsightly appearance, leaking, or in unsatisfactory operating condition. 3) Contractor shall repaint any or all Collection Vehicles within thirty (30) days' notice from City, if City reasonably determines that their appearance warrants painting. City may not require a vehicle to be repainted if it has been repainted within the previous thirty (36) months. 4) Contractor shall inspect each Collection Vehicle daily to ensure that all equipment is operating properly. Collection Vehicles which are not operating properly shall be removed from service until repaired and operating properly. Contractor shall perform all scheduled maintenance functions upon Collection Vehicles in accordance with the manufacturer's specifications and schedule. Contractor shall keep accurate records of all Collection Vehicle maintenance, recorded according to date and shall make such records available to City upon request. 5) Contractor shall repair, or arrange for the repair of, all of its vehicles and equipment for which repairs are needed because of accident, breakdown or any other cause so as to maintain all equipment in a safe and operable condition. Contractor shall maintain accurate records of repair, which shall include the February 16, 2017 -44- City of Diamond Bar - Residential Packet Pg. 212 8.2.a date, nature of repair and the verification by signature of a maintenance supervisor that the repair has been properly performed. 6) Upon request, Contractor shall furnish City a written inventory of all equipment, including Collection Vehicles, used in providing service pursuant to this Agreement. This inventory shall list all equipment by manufacturer, year of production, ID number, date of acquisition, type, capacity, and whether the vehicle is a spare. 7) All vehicles used to provide services under this Agreement shall at all times have in the cab the registration of the truck, evidence of insurance meeting the requirements of this Agreement and an identification card with the name of whom to telephone in case of an accident or emergency. Each truck shall be equipped with a minimum of a 20 -pound fire extinguisher that has been certified by the state fire marshal. This fire extinguisher shall be recharged as needed, but not less than once annually. Vehicles shall be equipped with a shovel and broom to clean up any spillage. 8) All trucks used to provide services under this Agreement in the City shall be required to be completely enclosed with a nonabsorbent cover while transporting refuse, recyclables or compostable materials or other solid waste materials in or through the city. "Completely enclosed with a nonabsorbent cover" means that refuse, trash, recyclable or compostable materials shall not be visible from the public highway, nor shall any of the substances be permitted to leak, spill or become deposited along any public highway. E. Operation. Vehicles shall be operated in compliance with the California Vehicle Code, and all applicable safety and local ordinances. Contractor shall not load vehicles in excess of the manufacturer's recommendations or limitations imposed by state or local weight restrictions on vehicles. Contractor's equipment shall comply with US EPA noise emission regulations, currently codified at 40 CFR Part 205 and other applicable noise control regulations, and such noise control features shall be incorporated throughout the entire fleet of Collection Vehicles. Noise levels of equipment used for Collection shall comply with Diamond Bar Municipal Code Chapter 8.12 and in no event shall the noise level exceed 75 dba when measured at a distance of 25 feet from the vehicle, five feet from the February 16, 2017 -45- City of Diamond Bar - Residential Packet Pg. 213 8.2.a ground. Contractor shall store all equipment in safe and secure locations in accordance with City's applicable zoning regulations. Contractor shall be responsible for any damage, normal wear and tear excepted, resulting from or directly attributable to any of its operations, and which it causes to City's driving surfaces, whether or not paved, public or private; associated curbs, gutters and traffic control devices; and all other public and private improvements. F. City Inspection Per Code. City may cause any vehicle used in performance of this Agreement to be inspected and tested at any commercially reasonable time and in such manner as may be appropriate to determine that the vehicle is being maintained in compliance with the provisions of the State Vehicle Code, including, but not limited to, California Vehicle Code Sections 27000(b), 23114, 23115, 42030, 42032, and all Vehicle Code Sections regarding smog equipment requirements. City may direct the removal of any vehicle from service if that vehicle is found not to be in conformance with applicable codes. No vehicle directed to be removed from service shall be returned to service until it conforms with, and its return to service has been approved by City. G. Vehicle Inspections. Upon City request, Contractor shall submit the Safety Compliance Report/ Terminal Record Update from its Biennial Inspection of Terminal, or BIT. If Contractor receives a terminal rating below satisfactory, Contractor shall notify the City, and Contractor is in violation of this Agreement. Contractor has the time allowed by the Department of California Highway Patrol ("CHP") to cure violations and bring the terminal rating up to satisfactory. If the CHP does not adjust the rating to satisfactory or better within six (6) months, then the Contractor shall be considered in default of the contract and the City may terminate this Agreement. H. Correction of Defects. Following any inspection, the City Manager shall have the right to cause Contractor, at its sole cost and expense, to recondition or replace any vehicle or equipment found to be unsafe, unsanitary or unsightly. The City Manager's decision shall be final. 4.6.3 Containers Contractor will provide Containers to be used under this Agreement. On or before December 31, 2017, Contractor shall ensure that all Containers comply with requirements included in Sections 4.6.3.1 through 4.6.3.4 and provide a report to the City listing replaced or repaired containers including service addresses. February 16, 2017 -46- City of Diamond Bar - Residential Packet Pg. 214 8.2.a 4.6.3.1 Carts A. Cart Design Requirements Carts and Cart lids must meet color, size, uniformity and quality requirements of the City. Existing Carts in good working order and meeting all Agreement requirements will not be required to be replaced at the start of service under this Agreement. However, the City will not permit Carts and Cart lids with inconsistent colors or in poor condition to be used in the City at any time during the term of this Agreement, and may require Contractor to replace such Carts. All Carts provided by Contractor utilized in the performance of this Agreement shall be manufactured by injection or rotational molding and meet the Cart design and performance requirements as specified below. All Carts selected shall be subject to City's approval prior to Contractor placing the order. B. Capacity The references in Section 4.4 to Cart sizes of 96, 64 and 35 -gallons may be approximate. The Cart size, excluding lid capacity, may fall within the following range: • 30 - 35 gallons • 60 - 70 gallons 90 -101 gallons The selected sizes must be consistent throughout the City for a uniform appearance C. Cart Color and Appearance The Refuse, Recycling and Green Waste Carts will be differentiated by color. The colors shall be colorfast and resistant to fading as a result of weathering or ultraviolet degradation. Color must be approved in advance by the City. Cart and Cart lid colors shall be consistent throughout the City. D. Cart Labeling and Hot Stamping Labels used on Carts shall be placed on the inside of the Cart lid, and hot stamps shall be on the top of the lid and/or on the body of the Cart. Each Cart shall be hot stamped with the material type (e.g., trash, Recycling, Green Waste) in English, Mandarin and February 16, 2017 -47- City of Diamond Bar - Residential Packet Pg. 215 8.2.a Korean. Contractor and the City shall meet and confer to determine textual content for labels. Design for both the labels and the hot stamps must be approved by City prior to ordering labels or Carts. City shall approve what information is included on the label and in the hot stamp, as well as approve design and quality. Labels shall be replaced when worn, and when information on the label is in need of updating, but no later than 90 days of request from City. Information on the Carts shall include the telephone number to call for Contractor, Bulky Item pickups and HHW disposal information, and an anti -scavenging warning. 4.6.3.2 Cart Maintenance and Replacement Responsibilities Contractor shall be responsible for Cart repair and maintenance, graffiti removal and replacing lost, stolen or damaged Carts within three (3) business days, at no additional charge to the Customer or to City, unless Contractor can demonstrate to the City Manager beyond a reasonable doubt that the damage or loss was due exclusively to Customer's intentional or negligent behavior. City Manager shall make the final determination. If City permits a repair or replacement charge to be assessed against a Customer, charge shall be no more than the actual cost of repair or the Contractor's purchase price for a new Cart, whichever is lower. All repairs must restore the Cart to its full functionality. Unsightly/worn-out Carts shall be replaced by Contractor upon Customer request at no additional charge. 4.6.3.3 Bins A. Cleaning. Contractor shall maintain Bins in a clean, sound condition free from putrescible residue. All Bins in use shall be constructed of heavy metal, or other suitable, durable material, and shall be watertight and well painted. Wheels, forklift slots, and other apparatuses, which were designed for movement, loading, or unloading of the Bin shall be maintained in good repair. Upon Customer or City request, or if required to maintain the Containers in a clean condition, Contractor shall clean all Bins once per year at no additional charge. Contractor shall perform cleaning or replacement of Bins more frequently if necessary to prevent a nuisance caused by odors or vector harborage, or if requested by Customer or City, for an additional fee in accordance with the approved rate schedule. When a Bin is removed for cleaning, Contractor shall replace the Bin, either temporarily or as a change -out, with another Container. Contractor shall remove graffiti from any February 16, 2017 -48- City of Diamond Bar - Residential Packet Pg. 216 8.2.a Container within three (3) business days of request by City or Customer. Contractor is required to proactively look for graffiti when Collecting Bins, with all graffiti removed from Containers in no later than three (3) business days after any Collection without notification. B. Bin Identification and Color. Each Bin placed in City by Contractor shall be clearly labeled on the front of the Bin with the Bin type (Refuse, Recycling, Cardboard, Green Waste) and the name of Contractor and phone number in letters not less than three (3) inches high on the exterior of the Bin so as to be visible when the Bin is placed for use. Alternatively, the Bin type (Refuse, Recycling, Cardboard, Green Waste) may be identified with an affixed sign. Labels shall also be placed on the inside of the Bin lid. Labels shall include English, Mandarin, Korean and graphic instruction on what materials should and should not be placed in each Bin, and an anti -scavenging warning. Contractor shall have labels approved by City prior to ordering and placement on Bins. Labels shall be replaced when worn, and when information on the label is in need of updating, but no later than 90 days of request from City. Contractor shall repaint Bins upon City's request if the City deems it necessary to maintain a neat appearance. 4.6.3.4 Roll -off Boxes Contractor shall provide Roll -off Boxes clean, free from graffiti, equipped with reflectors, and with the name and phone number of Contractor in letters not less than three (3) inches high on the exterior of the Roll -off Box so as to be visible when the Roll- off Box is placed for use. Contractor shall properly cover all open Roll -off Boxes during transport as required by the State Vehicle Code. 4.6.4 Litter Abatement A. Minimization of Spills. Contractor shall use due care to prevent Solid Waste or fluids from leaking, being spilled and/or scattered during the Collection or transporta- tion process and shall clean up any leaks or spills from its vehicles per the National Pollutant Discharge Elimination System (NPDES) permit in effect at the time. No fluids shall be washed into storm drains at any time. All NPDES dry-cleaning measures shall be complied with. All Collection Vehicles must be equipped with absorbent for such cleanup efforts and shall carry a broom, shovel, absorbent, and containment materials at all times for this purpose. See Section 11.3.B.2.d. February 16, 2017 -49- City of Diamond Bar - Residential Packet Pg. 217 8.2.a Contractor shall not transfer loads from one vehicle to another on any public street, unless it is necessary to do so because of mechanical failure, accidental damage to a vehicle, or a pre -approved method of Solid Waste transfer between vehicles, without prior written approval by City. B. Clean Up. During the Collection or transportation process, Contractor shall clean up all litter spilled during Collection or otherwise caused by Contractor. Contractor shall leave a "red tag' notice for Customer if litter not caused by Contractor is found in Container enclosure or around Containers. Contractor may charge Customers in accordance with the approved rate schedule for the cleaning of Container enclosures or around the Container if it is littered due to overflowing Containers. Contractor may address habitual offenders in accordance with Section 4.1.8. In the event of a spill of materials (vehicle fluids, Green Waste leachate, etc.), Contractor shall provide a cleanup of the spill to the satisfaction of City and other governing agencies. Cleanup methods may include pressure washing (Contractor must capture and reclaim water) or other similar clean-up methods. C. Covering of Loads. Contractor shall properly cover all open debris boxes during transport to the Disposal Site or processing facility. 4.6.5 Personnel A. Qualified Personnel. Contractor shall furnish such qualified drivers, mechanical, supervisory, clerical, management and other personnel as may be necessary to provide the services required by this Agreement in a satisfactory, safe, economical and efficient manner. All drivers shall be trained and qualified in the operation of vehicles they operate and must possess a valid license, of the appropriate class, issued by the California Department of Motor Vehicles. B. Hazardous Waste Employee Training. Contractor shall establish and vigorously enforce an educational program which will train Contractor's employees in the identification of Hazardous Waste. Contractor's employees shall not knowingly place such Hazardous Waste in the Collection Vehicles, nor knowingly dispose of such Hazardous Wastes at the processing Facility or Disposal Site. February 16, 2017 -50- City of Diamond Bar - Residential Packet Pg. 218 8.2.a C. Unauthorized Material Removal. Contractor shall dismiss or discipline employees who remove documents or any other material from Containers, other than specifically for the purposes of Disposal and Diversion as described in this Agreement. D. Training. Contractor shall provide suitable operations, health and safety training for all of its employees who use or operate equipment or who are otherwise directly involved in Collection or other related operations. 4.6.6 Identification Required Contractor shall provide its employees, companies and subcontractors with identification for all individuals who may make personal contact with residents or businesses in City. City may require Contractor to notify Customers yearly of the form of said identification. Contractor shall provide a list of current employees, companies, and subcontractors to City upon request. City reserves the right to perform a security and identification check through the City's Police Department on the Contractor and all their present and future employees employed by Contractor to work in the City, in accordance with accepted procedures established by City, or for probable cause. 4.6.7 Unauthorized Fees and Gratuities Contractor shall not, nor shall it permit any agent, employee, or subcontractors employed by it to request, solicit or demand, either directly or indirectly, any compensation or gratuity for services authorized to be performed under this Agreement except as described in this Agreement, in accordance with Exhibit 2 as updated and approved by City throughout the Term of this Agreement. 4.6.8 Non -Discrimination Contractor shall not discriminate in the provision of service or the employment of persons engaged in performance of this Agreement on account of race, color, religion, sex, sexual orientation, age, physical handicap or medical condition in violation of any applicable federal or State law. February 16, 2017 -51- City of Diamond Bar - Residential Packet Pg. 219 8.2.a 4.6.9 Report of Accumulation of Solid Waste; Unauthorized Dumping Contractor shall direct its drivers to note (1) the addresses of any Premises serviced under this Agreement at which they observe that Solid Waste is accumulating and which is not being placed out for Collection; and (2) the address, or other location description, at which Solid Waste has been dumped in an apparently unauthorized manner. Contractor shall deliver the address or description to City within one (1) working day of such observation. 4.7 Transportation of Solid Waste Contractor shall transport all Refuse Collected to a City -approved Facility (e.g. Transfer Station, Waste -to -Energy Facility, Green Waste Processing Facility, MRF, Disposal Site). Contractor agrees to make all reasonable efforts to separate Recyclable Materials from Refuse for Diversion from landfill Disposal. Contractor shall maintain accurate records of the quantities of Solid Waste transported to all Facilities utilized and will cooperate with City in any audits or investigations of such quantities. Contractor shall cooperate with the operator of any Facility it uses with regard to operations therein, including, for example, complying with directions from the operator to unload Collection vehicles in designated areas, accommodating to maintenance operations and construction of new facilities, cooperating with its Hazardous Waste exclusion program, and so forth. 4.8 Approved Facilities The Contractor shall dispose of Refuse Collected that is not required to be processed at the approved Disposal Site. Contractor must receive written advance approval from City to use each transfer station, transformation facility, processing facility or other Facility used by Contractor in the fulfillment of this Agreement. Contractor is responsible for ensuring that each Facility it uses is properly permitted prior to requesting City approval to use such Facility. Unless and until the City instructs otherwise, the designated Disposal Site and other Facilities are: Puente Hills Material Recovery Facility, El Sobrante Landfill, Allan Company, Azusa Land Reclamation, Inc. Material Recovery Facility and Landfill, Downtown Diversion, Grand Central Transfer Station, and Pomona Transfer Station, and Agromin Corporation. February 16, 2017 -52- City of Diamond Bar - Residential Packet Pg. 220 8.2.a 4.9 Status of Disposal Site Any Disposal Site utilized by Contractor, shall be designed and constructed in accordance with 23 California Code of Regulations Section 2510 et seq. ("Subchapter 15") Any landfill Disposal Site shall have been issued all permits from federal, state, regional, county and city agencies necessary for it to operate as a Class III Sanitary Landfill and is in full regulatory compliance with all such permits. 4.10 Dedicated Routes Solid Waste Collected in the City shall not be commingled in Collection vehicles with Solid Waste from other jurisdictions. All routes approved under this Agreement shall be dedicated exclusively to Solid Waste Collected in the City of Diamond Bar. 4.11 Route Audit Once during the first year, and subsequently upon request by the City or as initiated by Contractor, but in no event more than four (4) times per year, Contractor shall conduct an audit of its Collection routes in the City. In setting these audit dates, City will establish due dates for Contractor providing routing and account information, and later, the report, to City. The route audit, at minimum, shall consist of an independent physical observation by person(s) other than the route driver of each Customer in City. This person(s) is to be approved in advance by City. The route audit information shall include, as a minimum, the following information for each account: • Route Number; • Truck Number; Number and size of Carts/ Bins by waste stream (Refuse, Recycling, Green Waste) Within forty-five (45) days after the completion of the route audit, Contractor shall submit to City a report summarizing the results of the audit. This summary shall include: • Identification of the routes; • Route map; • Truck numbers; • Number of accounts, by route and in total; February 16, 2017 -53- City of Diamond Bar - Residential Packet Pg. 221 8.2.a • Confirmation that all routes are dedicated exclusively to City Customers; • Number and type of exceptions observed; • Total monthly service charge, pre -audit; • Total monthly service charge, post -audit (subsequent to corrections of identified exceptions). The report shall include a description of the procedures followed to complete the route audit. This description shall include the names and titles of those supervising the route audits and the name and titles of those performing the observations. The report shall also include a description of the changes and Contractor's plans to resolve the exceptions. The results of the audit, and supporting back-up data, shall be available for review by City or its representative. February 16, 2017 -54- City of Diamond Bar - Residential Packet Pg. 222 8.2.a ARTICLE 5 OTHER SERVICES 5.1 Customer Billing and Contractor Compensation 5.1.1 Billing Contractor shall Bill Customers quarterly in accordance with the approved rate schedule attached as Exhibit 2. Billing Customers for services provided during prior invoicing periods, up to and including the prior three (3) months, shall only be permitted subsequent to Contractor receiving approval by the City. Cart customers shall be Billed quarterly, with invoice dated no sooner than the first day of the quarter Billed for, and payment shall be due no sooner than 30 days after invoice date. The quarters shall begin on February 1, May 1, August 1 and November 1. Extra Bulky Item pickups or extra overage pickups may be added to quarterly Billing, or may be Billed at time of service. Customers' temporary Bin and Roll -Off Box services may be Billed at the time of, or in advance of, service, or on a monthly or bi-monthly Billing cycle. Contractor Compensation is exclusively derived from revenue received as a result of the Billings for services listed on the approved rate schedule, and Contractor shall charge no additional fees unless approved in advance by the City. Contractor shall be responsible for bad debt. 5.1.2 Contractor's Invoices Bills must be itemized by Container size, frequency of service, discounts per Sections 5.1.3, 5.1.4 and 5.15 described below, and period billed for. City must approve the format of Contractor billing invoices. All bills must carry a due date, not "due upon receipt." Bills will not carry an itemization of fees remitted to the City. 5.1.3 Yard Waste Reduction Discount Customers may apply for a yard waste reduction discount under the following conditions: February 16, 2017 -55- City of Diamond Bar - Residential Packet Pg. 223 8.2.a A. Customer borrows and watches instructional DVD from City regarding backyard composting or attends a City -sponsored composting class; B. Customer obtains composting bin during a City -sponsored composting event, or from a local retailer; and, C. Contractor removes yard waste Cart from Customer after Customer applies to City for reduction in green waste services pursuant to Diamond Bar Municipal Code Chapter 8.16. D. Customers that reside in master -billed communities and mobile home parks that utilize landscapers to remove all Green Waste from the property and have no Green Waste Carts on the Premises. 5.1.4 Disabled Customer Discount Customers determined to be disabled, either by the issuance of a handicap placard from the Department of Motor Vehicles or by meeting City -established guidelines, will receive a 15% discount off the standard monthly rate for one Refuse, Recycling and Green Waste Cart service or, the Single Family monthly Bin rate. The disabled party must be the Customer named on the Billing. The discount shall be itemized or otherwise noted on Customer invoices. Contractor shall administer the review and processing of Customer discount applications. Contractor shall provide to the City an annual report containing the name and service address of all Customers receiving the Disabled Customer Discount. 5.1.5 Senior Discount Customers entitled to the senior rates included in the approved rate schedule are Customers that are listed on the Bill, reside at the Premises where service is received and are 60 years of age or older. The discount shall be itemized or otherwise noted on invoices. Contractor shall administer the review and processing of Customer discount applications. Contractor shall provide to the City an annual report (or more frequently if requested by City) containing the name and service address of all Customers receiving the Senior Customer Discount. February 16, 2017 -56- City of Diamond Bar - Residential Packet Pg. 224 8.2.a 5.1.6 Non -Payment; Suspension of Service 5.1.6.1 Quarterly Cart Billings The following procedures apply to Customer accounts that are Billed quarterly for weekly Cart service: 1. For balances outstanding for 60 days after due date, Contractor shall send a reminder notice to Customer that payment is overdue. Notice should include a warning that balances outstanding after 75 days shall be assessed a late fee, and that, if balance remains outstanding after 90 days, service shall be suspended. 2. For balances outstanding for 75 days after due date, Contractor shall send a notice that that service may be discontinued if overdue balance is not received within 15 days. Contractor shall provide list of these Customers to the City the time these notices have been sent. Contractor may charge a late fee equal to 10% of balance outstanding for at least 75 days after due date. 3. For balances outstanding for 90 days, Contractor may provide Customer with notice that service has been suspended until outstanding balance is paid in full, including late payment fee, provided Contractor has completed steps 1 and 2 above and has provided City with a list of Customers being so notified. 5.1.6.2 Temporary Bin and Roll -Off Box Service 1. Contractor may request advance payment for temporary services. 2. Contractor may require outstanding temporary services balances be paid prior to providing subsequent temporary services. 3. Weekly Cart Collection services shall not be suspended due to outstanding balances for Bin or Roll -Off Box Services. 5.1.6.3 Collection Proceedings Contractor may pursue independent collections against Customers. City will not pursue collections on behalf of Contractor. February 16, 2017 -57- City of Diamond Bar - Residential Packet Pg. 225 8.2.a 5.1.6.4 Continued Provision of Service In the event of a Billing dispute or to avoid an immediate threat to public health or safety, Contractor shall continue to provide service to Customers if requested in writing by City, without regard to the status of said Customer account and at no expense to City. Billing disputes between Contractor and Customer may be resolved by City, and City's decision shall be final and binding. 5.2 Customer Service 5.2.1 Local Office Contractor shall maintain a local office. Said office shall be open ("Office Hours"), at a minimum, from 7:00 A.M. to 5:00 P.M., Monday through Friday, exclusive of holidays. A responsible and qualified representative of Contractor shall be available during Office Hours for personal communication with the public at the local office. Contractor shall have either a representative, a message machine, or an answering service available outside of Office Hours. Calls received outside of Office Hours shall be responded to on the next business day. Contractor shall provide City with a twenty-four (24) hour emergency number to a live person, not voice -mail. 5.2.2 Complaint Documentation Service complaints received by City will be directed to Contractor. Contractor shall keep daily logs of complaints forwarded to it for a minimum of three (3) years. Contractor shall log all complaints received and said log shall include the date and time the complaint was received, the name, address and telephone number of the caller/ complainant, a description of the complaint, the name of the employee recording the complaint and the action taken by Contractor to respond to and remedy the complaint. The log shall also include each instance that Solid Waste and/or Recyclables are not Collected and the form of notification used to inform the participants of the reasons for non -Collection and the end result or means of resolution of the incident. All written Customer complaints and inquiries shall be date-stamped when received. All complaints shall be initially responded to within one (1) business day of receipt. Contractor shall use best efforts to resolve complaints within two (2) business days. February 16, 2017 -58- City of Diamond Bar - Residential Packet Pg. 226 8.2.a Contractor shall log action taken by Contractor to respond to and remedy the complaint. All Customer service records and logs kept by Contractor shall be available to City upon request. City shall, at any time during regular Office Hours, have access to Contractor's Customer service department for purposes that may include monitoring the quality of Customer service or researching Customer complaints. 5.2.3 Customer Service Standards Customer care is among the most important aspects of the services to be required of the Contractor. Contractor shall perform customer service at a level that can be measured by the following two standards: A. The number of complaints in any one month period totaling no more that 1 % of the number of residential customers served. In Diamond Bar, there are an estimated 15,475 residential cart customers, meaning that in any given month, there must not be more than 154 complaints. Any compliant level in excess of this measure will be considered a separate violation of this Agreement. B. Sufficient telephone line capacity during normal office hours to ensure that all calls will be answered in less than an average of thirty (30) seconds. Contractor shall insure that all incoming calls are answered courteously and promptly during the office hours stated above. Calls will be answered in less than an average of thirty (30) seconds, and thereafter will not be placed on hold longer than an average of one (1) minute before talking to a customer service representative of the Contractor. This standard must be measured quarterly, and the Contractor shall not exceed this standard or it will be considered a separate violation of the Agreement. Contractor shall track complaints and call ringing and hold requirements, and include results in its quarterly report to the City. In any 12 -month period, accumulation by the Contractor of four or more separate customer service violations shall be deemed a material breach of this Agreement and shall subject Contractor to all remedies which are available to the City under this Agreement or otherwise. A violation is one month in which the number of complaints exceeds the maximum permitted under Section 5.2.3(A) or one calendar quarter in which fewer than 90% of calls placed by the City and February 16, 2017 -59- City of Diamond Bar - Residential Packet Pg. 227 8.2.a its Customers to Contractor are answered by a live customer service representative before the fourth ring under Section 5.2.3(B). Contractor shall train its employees in Customer courtesy, shall prohibit the use of loud or profane language, and shall instruct Collection crews to perform the work quietly. Contractor shall use its best efforts to assure that all employees present a neat appearance and conduct themselves in a courteous manner. If any employee is found to be discourteous or not to be performing services in the manner required by this Agreement, Contractor shall take all necessary corrective measures including, but not limited to, transfer, discipline or termination. If City has notified Contractor of a complaint related to discourteous or improper behavior, Contractor will consider reassigning the employee to duties not entailing contact with the public while Contractor is pursuing its investigation and corrective action process. Contractor shall record Customer complaints regarding Customer service personnel in accordance with Section 5.2.2. Customer service representatives receiving multiple complaints are to be transferred from Customer service duties or, with City approval, disciplined and appropriately trained. 5.2.4 Resolution of Customer Complaints Disputes between Contractor and Customers regarding the services provided in accordance with this Agreement may be resolved by City. City's decision shall be final and binding. Intervention by City is not a condition precedent to any rights or remedies third parties might otherwise have in any dispute with Contractor. Nothing in this section is intended to affect the remedies of third parties against Contractor. 5.2.5 Contract Liaison Contractor shall designate in writing a "Contract Liaison" who shall be responsible for working with City and/or City's designated representative (s) to resolve Agreement - related issues. City shall have the right to approve the Contractor's choice for a liaison City shall be notified in advance of any change in Contract Liaison. February 16, 2017 -60- City of Diamond Bar - Residential Packet Pg. 228 8.2.a 5.2.6 Service Liaison Contractor shall designate in writing a field supervisor as "Service Liaison' who shall be responsible for working with City and/or City's designated representative (s) to resolve Customer service related complaints. City shall have the right to approve the Contractor's choice for a liaison. City shall be notified in advance of any change in Service Liaison. 5.2.7 Customer Service Documentation Review The City reserves the right to review for accuracy documentation ("Green Pages") provided to Customer Service personnel specific to this Agreement which is used when responding to Customer inquiries. 5.3 Education and Public Awareness 5.3.1 General Contractor acknowledges and agrees that education and public awareness are critical elements of efforts to achieve the requirements of AB 939. Accordingly, Contractor agrees to take direction from City to exploit opportunities to expand public and Customer knowledge concerning needs and methods to reduce, reuse and Recycle Solid Waste and to cooperate fully with City in this regard. Contractor shall maintain its own program of providing information relevant to needs and methods to reduce, reuse and recycle Solid Waste to be distributed, when appropriate, along with its Bills. All public education materials shall be subject to approval in advance by City and shall be printed in English, Mandarin and Korean. 5.3.2 Implementation and On-going Education Requirements In order to promote public education, in addition to any other materials it develops, Contractor shall create the following public education materials and programs at its expense, which will be distributed as indicated below. All of these materials and programs shall be produced and/or available in English, Mandarin and Korean languages, including pictures wherever applicable. All brochures, mailings, and other educational materials are subject to approval by City in advance of distribution. A Public Education Plan shall be submitted to City for review within sixty (60) days of the February 16, 2017 -61- City of Diamond Bar - Residential Packet Pg. 229 8.2.a execution of this Agreement. The plan shall address the items described in this section. The approved plan shall be attached to this Agreement as Exhibit 1. • Initial Mailing -Within forty-five (45) days of the start of Collection service under this Agreement, Contractor will prepare and mail an initial mailing to all Customers explaining the transition from the existing Solid Waste Collection Service program to the new program as defined by this Agreement. The mailing will describe roll- out of new Carts, program changes, new fees or changes in Collection charges, route changes if any, dates of program implementation, Recycling and Diversion programs available, and other pertinent information. • Instructional "How-to" Packets - An information packet shall be provided to each new Customer throughout the Agreement term. This packet shall: describe available services, including available Recycling and Diversion programs; provide instructions for proper use of the Containers (such as how to place Carts or other permitted items for Collection, the types of materials to be placed in each Cart and other similar information); detailed holiday Collection schedules; provide billing and Customer service telephone numbers; identify who to contact with service or Billing questions; and who to contact for Bulky Item pickups. All customers shall be promptly notified of any changes to such information. The packet should also clearly indicate what materials, such as syringes and other Household Hazardous Wastes (HHW), should not be disposed of in the Containers. The packet shall include instructions on how Customers should dispose of HHW. • Container Labels and Hot Stamps -Containers shall carry stickers/labels and hot stamps as described in Sections 4.6.3.1.D and 4.6.3.3.B. • Billing Inserts - City may require Contractor to insert notices in Contractor's Billings up to four (4) times per year. City may instruct Contractor to prepare such notices at Contractor's expense, or may choose to provide such notices for insertion. Additionally, City may periodically request that Contractor include informative language directly on the invoices it sends. Annual Brochures/Mailings - Not less than once per year during each Rate Year, Contractor shall prepare and distribute to each Customer a mailing to update Customers regarding program basics, program changes, holiday schedules and other service related information. Mailings should promote and explain: all Solid February 16, 2017 -62- City of Diamond Bar - Residential Packet Pg. 230 8.2.a Waste programs offered by City and Contractor (such as Recycling, Green Waste, Holiday Tree, Bulky Item Collections, and FreeCycle.com) described in detail; the environmental, regulatory, and other benefits of participating in Recycling; how to properly dispose of Household Hazardous Waste such as syringes, paint, etc.; Collection schedules, including holiday schedules; Customers service numbers; and the procedures to begin and terminate services (if moving from Premises). This brochure shall be at least four (4) pages, and printed in full color. Contractor is responsible for all associated costs. Second Annual Mailer- Not less than once per year during each Rate Year, Contractor shall prepare and distribute to each Customer a one (1) page, double - sided mailer printed in full color. City and Contractor shall meet and confer to determine the subject matter of mailer.. Contractor shall ensure delivery to Homeowner Associations is to service recipients rather billing addresses. • Corrective Action Notice - Contractor shall develop a corrective action notification form for use in instances where a Customer sets out inappropriate materials for Collection, that explains the appropriate manner for Disposal of such items. • Website - Contractor shall develop and maintain a website to display holiday schedules, explain proper HHW disposal procedures, which materials are to be placed in Recyclables Containers and other useful information, as well as informing Customers how to contact Contractor. 5.3.3 Contractor Representative Contractor shall retain on its staff an individual who shall, as part of his or her job function, routinely visit civic groups, school assemblies, and homeowners' associations to promote and explain the Recycling programs Contractor offers, and participate in demonstrations, and civic events, and coordinate those visits with the City. 5.3.4 Community Events At the direction of City, Contractor shall participate in and promote Recycling and other Diversion techniques at community events and local activities. Such participation would normally include providing, without cost, educational and publicity information promoting the goals of City's Solid Waste program. February 16, 2017 -63- City of Diamond Bar - Residential Packet Pg. 231 8.2.a 5.4 Waste Generation/Characterization Studies Contractor acknowledges that City must perform Solid Waste generation and Disposal characterization studies periodically to comply with the requirements of AB 939. Contractor agrees to participate and cooperate with City and its agents and to accomplish studies and data collection and prepare reports, as needed and directed by City, to determine weights and volumes of Solid Waste Collected and characterize Solid Waste generated, disposed, transformed, diverted or otherwise handled/ processed, by Customer type, to satisfy the requirements of AB 939. Contractor will at its sole expense conduct such a waste generation and characterization study upon request of City, but not more than once every two years. February 16, 2017 -64- City of Diamond Bar - Residential Packet Pg. 232 8.2.a ARTICLE 6 COMPANY COMPENSATION AND RATES 6.1 General The maximum rates set forth in Exhibit 2, and as more fully defined as Contractor Compensation in this Article, shall be the maximum amount Contractor may charge Customers as full, entire and complete compensation due pursuant to this Agreement for all labor, equipment, materials and supplies, taxes, insurance, bonds, letters of credit, overhead, Disposal, transfer, profit and all other things necessary to perform all the services required by this Agreement in the manner and at the times prescribed. Contractor shall impose no other charges for services provided to Customers unless approved by the City Manager. 6.2 Initial Rates The maximum rates that Contractor may charge Customers through the Rate Year ending June 30, 2018, shall not exceed the maximum rates set forth in Exhibit 2. 6.3 Schedule of Future Adjustments Beginning with the Rate Year starting July 1, 2011 and ending on June 30, 2012 and for all subsequent Rate Years, Contractor may request an annual adjustment to the maximum rates shown in Exhibit 2. The Contractor agrees to waive the annual rate adjustment that would be due July 2017. The Contractor shall submit its request in writing, to be received by City in Person or via certified mail, by the preceding March 31, and shall be based on the method of adjustment described in Section 6.4. The City shall consider a failure to submit a written request by March 31 as Contractor's determination not to seek an adjustment and shall constitute a waiver by Contractor of its right to request such an increase for the subsequent Rate Year. However, the City reserves the right to initiate a rate adjustment in instances where the Contractor fails to submit a written rate adjustment request. Adjustment to the maximum rates is subject to the approval of the City Manager. If an annual adjustment that would have resulted in a rate decrease is not implemented for any reason, the next rate adjustment will be measured based on the change in February 16, 2017 -65- City of Diamond Bar - Residential Packet Pg. 233 8.2.a indices from the last implemented rate adjustment; the intent is to ensure subsequent rate increases shall be offset with any decrease not previously implemented. 6.4 Method of Adjustments 6.4.1 General Pursuant to Section 6.3, the Contractor may request an adjustment to the maximum rates for all rates excluding temporary services rates according to the method described below and the formula shown in Exhibits 3A and 3B, subject to review and approval of City. All future adjustments are to be effective July 1 of the same calendar year, following the March 31 submission deadline. 6.4.2 Cost Components for Rate Adjustment Indices The approved rates consist of the following cost component categories. Each cost component may be adjusted by the change in the corresponding index below. See Section 6.4.3 for detailed rate adjustment procedures. Cost Weightings for Rate Adjustment Factor Cate or 7/1/18 Adjustment Change in the "Driver" Classification to be in effect as of the date the new rates go into effect (July 1) under the Agreement between Waste Management of San Gabriel/Pomona Valley, Inc. and Teamsters Automotive Labor 24.8% Industrial and Allied Workers Local No. 495(1) Producer Price Index WPU05522101, Fuels and related Fuel 3.0% products and power Producer Price Index, PCU336120336120, Heavy duty truck Equipment 16.3 % manufacturing Producer Price Index, PCU21232121232104, Construction Disposal 8% sand and gravel, west Transfer & Consumer Price Index - All Urban Consumers Transport 6.0% (CUUROOOOSEHG02) Garbage and trash collection Consumer Price Index for All Urban Consumers (CUURA421SAOLIE), all items less food and energy - Los All Other 41.9% Angeles -Riverside -Orange County, CA Total 100.0% (1) For example, under the agreement terminating September 30, 2019, these rates are: February 16, 2017 -66- City of Diamond Bar - Residential Packet Pg. 234 8.2.a Contract Date 10/01/16 10/01/17 10/01/18 Hourly Rate $21.85 $22.25 $22.65 Rate Adjustment Date n/a 7/01/18 7/01/19 Change to Labor Component n/ a 1.8% 1.8% Comparable rates from subsequent labor agreements will similarly apply. If a subsequent labor contract has not been executed prior to a rate adjustment calculation, the percentage change in the labor cost component used in the prior year's adjustment calculation will be used. In the event that the estimated labor component change is higher or lower than the actual change after a new labor contract is executed, no compensation adjustment shall be provided for prior periods. 6.4.3 Rate Adjustment Steps All rates, excluding temporary service rates, will be adjusted using the same methodology and cost component weightings. See Exhibit 3A. Step One - Calculate the percentage increase or decrease in the index for each cost category listed in Section 6.4.2. The increase or decrease in the published indices for fuel, equipment, transfer and transport, disposal, and all other (CPI) will be for the change in the average annual published index between the calendar year ended the December prior to the Rate Year anniversary date and prior calendar year. (See Exhibit 3B for an example average annual change in published index year over year.) Step Two - The weightings of the cost components for the first rate adjustment are identified in the table in Section 6.4. Components to be used in subsequent years shall be calculated in Step Four of the rate adjustment. For Step Two of each subsequent rate adjustment, use the cost components recalculated in Step Four during the previous rate adjustment. The hauler may elect to apply for a one-time reset of cost component weightings prior to the first rate adjustment based upon actual costs from August 16, 2010 through February 28, 2011. This request and supporting data shall be submitted to the City by March 31, 2011. The revision of the cost component weightings is subject to approval by the City Manager, which will review the request and supporting data for reasonableness. February 16, 2017 -67- City of Diamond Bar - Residential Packet Pg. 235 8.2.a Multiply the percentage changes for each rate adjustment component by that component's weighting and add these resulting percentages together to get the total weighted change to the rates. Step Three - Multiply the total weighted percent change from Step Two by the existing Customer rates to calculate the increase or decrease to the maximum rates. Add the rate increase or decrease to the existing rates to derive the newly adjusted rates. Step Four - Recalculate weightings for the following year based upon these changes. 6.4.4 Temporary Service Rate Adjustment Rates for temporary Roll -Off Box service, temporary Bin service and temporary container rental are equal to the rates for the same services under the City's Bin and Roll -Off Box Customer Solid Waste Management Services agreement with Valley Vista Services, and shall remain equal for the duration of the term of the Agreement, receiving the same rate adjustments as granted under the City's Bin and Roll -Off Box Customer Solid Waste Management Services agreement. 6.5 Extraordinary Adjustments Contractor may request an adjustment to maximum rates in the event of extraordinary changes in the cost of providing service under this Agreement, including changes in a direct per ton surcharge assessed at the Disposal Site by federal, state or local regulatory agencies after the Effective Date. These requests, with the exception of changes in a direct per ton surcharge assessed at the Disposal Site by federal, state or local regulatory agencies after the Effective Date, if approved, shall only be granted at the time of the annual July 1 increase per Section 6.3, must be submitted no later than March 31 of each year, and should be submitted as early as feasible to provide City with sufficient time to review the request prior to granting the annual July 1 increase. Changes in Disposal surcharges may be requested at other times. Such changes shall not include changes in Recyclable Material processing costs, inaccurate estimates by the Contractor of its proposed cost of operations, or unionization of Contractor's work force. Extraordinary rate adjustments shall only be effective after approval by City Council and may not be applied retroactively. For each request for an adjustment to the maximum rates that Contractor may charge Customers brought pursuant to this section, Contractor shall prepare a schedule February 16, 2017 -68- City of Diamond Bar - Residential Packet Pg. 236 8.2.a documenting the extraordinary costs. Such request shall be prepared in a form acceptable to City with support for assumptions made by Contractor in preparing the estimate. Contractor shall also submit a schedule showing how its total costs and total revenues have changed over the past three years for the services provided under this Agreement. City may request a copy of the Contractor's annual financial statements in connection with the City's review of Contractor's extraordinary rate adjustment request. City shall review the Contractor's request and, in City's sole judgment and absolute, unfettered discretion, make the final determination as to whether an adjustment to the maximum rates will be made, and, if an adjustment is permitted, the appropriate amount of the adjustment. City will confirm receipt of a request for an extraordinary rate adjustment within sixty (60) days of receipt of Contractor's request and will promptly coordinate with Contractor to assess the request. City may consider increases or decreases in the Contractor's total revenues and total cost of services when reviewing an extraordinary rate adjustment request. 6.6 Effect of Rate Challenge If a rate adjustment cannot be implemented due to a majority protest or a final court judgment finding that the Rates implemented are not consistent with applicable law, the following procedure shall be followed. Within thirty (30) days of a majority protest being found by the City Council to exist or the final court judgment being entered, the Contractor shall have the right to file a written request with the City to negotiate in good faith a reduction in programs, services, or fees to compensate the Contractor for any negative material impact on Contractor's business operations from such action. If the parties are unable to reach an agreement within sixty (60) days after the City's receipt of Contractor's notice or the City fails to commence good faith negotiations within thirty (30) days of receipt of Contractor's notice, the Contractor may provide written notice that it is terminating this Agreement. The effective date of the termination shall be no earlier than three -hundred (300) days from the date of the City's receipt of Contractor's notice of termination. In the event Contractor terminates this Agreement under this paragraph, neither party shall be liable to the other party for any claims, actions, losses or other remedies such party might otherwise have under this Agreement. The failure by Contractor to file its written request with the City within the thirty (30) -day period shall be deemed to February 16, 2017 -69- City of Diamond Bar - Residential Packet Pg. 237 8.2.a be a waiver by the Contractor of any right to the rates not implemented and Contractor shall continue to perform under the Contract. 6.7 Residential Recyclables Rebate to Customers By March 31 of each year, Contractor shall provide the City with a report that includes 1) The number of tons of Residential curbside Recyclables sold under this Agreement during the preceding calendar year: and, 2) Recyclables revenue received from the sale of recovered materials from Residential curbside Recyclables under this Agreement for the preceding calendar year. The reported Recyclables revenue and tonnage shall exclude, for purposes of this section, Green Waste and Construction and Demolition Debris tonnage, Bulky Items, or other material not Collected as part of the regularly scheduled Residential curbside Recycling program. Fifty percent (50%) of revenue in excess of $85.00 per ton on average for the preceding calendar year shall be rebated to Customers once per year in the form of a credit on each Customer's Billing account. The credit will post on the account for the Billing period that includes July 1 of the year following the calendar year in which the revenue was received. The $85.00 per ton threshold shall be fixed for the Term of the Agreement. The rebate shall be calculated per the example calculation below: February 16, 2017 -70- City of Diamond Bar - Residential Packet Pg. 238 8.2.a Example of Recycling Rebate Credit Calculation Recyclables Revenue Received in Year 1: $250,000 Tonnage Sold in Year 1: 5,000 Average Annual Revenue Per Ton in Year 1: $50.00 Average Annual Revenue per ton Over $85.00: ................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................ - If less than $0, no rebate shall be distributed. - If greater than $0, multiply by Tonnage Sold in Year 1: $5.00 - $25,000 Recyclables Revenue to be Rebated - 50%: $12,500 Number of Customers July 1 Year 2, when rebate is distributed: 15,500 Rebate per Customer (Rebate/ Customers): $0.81 In this example, each resident billed for service July 1 of Year 2 would receive a credit of $0.81 on the July 1, Year 2 Billing. February 16, 2017 -71- City of Diamond Bar - Residential Packet Pg. 239 8.2.a ARTICLE 7 REVIEW OF SERVICES AND PERFORMANCE 7.1 Performance Review Meeting City may hold a meeting annually to review Contractor's Solid Waste Collection efforts, source reduction, processing and other Diversion services and overall performance under this Agreement (the "Solid Waste Services and Performance Review Meeting'). The purpose of the Solid Waste Services and Performance Review Meeting is to provide for a discussion and review of technological, economic, and regulatory changes in Collection, source reduction, Recycling, processing and Disposal to achieve a continuing, advanced Solid Waste Collection, source reduction and Recycling and Disposal system; and to ensure services are being provided by Contractor with adequate quality, effectiveness and economy, and in full compliance with the terms of this Agreement. Topics for discussion and review at the Solid Waste Services and Performance Review Meeting shall include, but shall not be limited to, services provided, feasibility of providing new services, application of new technologies, Customer complaints, amendments to this Agreement, developments in the law, new initiatives for meeting or exceeding AB 939's goals, regulatory constraints, results of route audits, and Contractor performance. City and Contractor may each select additional topics for discussion at any Solid Waste Services and Performance Review Meeting. City shall notify Contractor of its intent to hold a Solid Waste Services and Performance Review Meeting at least sixty (60) days in advance thereof. Thirty (30) days after receiving notice from City of a Solid Waste Services and Performance Review Meeting, Contractor shall submit a report to City which may contain such information as it wishes to have considered, and shall contain the following: a) Current Diversion rates and a report on Contractor's outreach activities for the past year. b) Recommended changes and/or new services to improve City's ability to meet the goals of AB 939 and to contain costs and minimize impacts on rates. A specific plan for AB 939 compliance shall be included. c) Any specific plans for provision for new or changed services by Contractor. February 16, 2017 -72- City of Diamond Bar - Residential Packet Pg. 240 8.2.a The reports required by this Agreement regarding Customer complaints shall be used as one basis for review of Contractor's performance, and Contractor may submit other relevant performance information and reports for consideration at the Solid Waste Services and Performance Review Meeting. In addition to the above, City may request Contractor to submit any other specific information relating to its performance for consideration at the Solid Waste Services and Performance Review Meeting, and any Customer may submit comments or complaints during or before the Meeting, either orally or in writing. Contractor shall be present at and participate in the Solid Waste Services and Performance Review Meeting. As a result of its findings following any Solid Waste Services and Performance Review Meeting, City may require Contractor to provide expanded or new services within a reasonable time and City may direct or take corrective actions for any performance inadequacies (although nothing contained in this provision should be construed as requiring City to hold a Solid Waste Services and Performance Review Meeting in order to enforce any rights or remedies it has pursuant to the terms hereof.) Should City require expanded or new services as a remedy for Contractor's failure to perform its obligations hereunder, no additional compensation shall be due for such services. Otherwise, any new or expanded services required of Contractor shall be subject to the provisions of Section 2.10. 7.2 Performance Satisfaction Survey If requested by the City, Contractor will create and conduct a survey at Contractor's expense. If City would like to present results at a Solid Waste Services and Performance Review Meeting, City shall notify Contractor of its desire for such a survey at least 90 days in advance of the Solid Waste Services and Performance Review Meeting. The purpose of the survey is to determine Customer satisfaction with current Collection services and Customer service provided by Contractor. The Survey will be distributed to a minimum of ten percent (10%) of the Customers, selected at random. Contractor shall obtain City's approval of the survey's content, format, and mailing list prior to its distribution. City may require that Contractor have Customer responses to the survey returned directly to City. The survey results shall be made available to the City thirty (30) days prior to the Solid Waste Services and Performance Review Meeting. February 16, 2017 -73- City of Diamond Bar - Residential Packet Pg. 241 8.2.a ARTICLE 8 RECORDS, REPORTS AND INFORMATION REQUIREMENTS 8.1 General Contractor shall maintain such accounting, statistical and other records related to its performance under this Agreement as shall be necessary to develop the financial statements and other reports required by this Agreement. Also, Contractor agrees to conduct data collection, information and record keeping, and reporting activities needed to comply with applicable laws and regulations and to meet the reporting and Solid Waste program management needs of City. To this extent, such requirements set out in this and other Articles of this Agreement shall not be considered limiting or necessarily complete. In particular, this Article is intended to only highlight the general nature of records and reports and is not meant to define exactly what the records and reports are to be and their content. Further, with the written direction or approval of City, the records and reports to be maintained and provided by Contractor in accordance with this and other Articles of this Agreement shall be adjusted in number, format, or frequency. 8.2 Records 8.2.1 General, Right to Inspect Contractor shall maintain records required to conduct its operations, to support requests it may make to City, and to respond to requests from City in the conduct of City business. Adequate record security shall be maintained to preserve records from events that can be reasonably anticipated such as a fire, theft and earthquake. Electronically maintained data/records shall be protected and backed up. All records, with the exception of records to be maintained under Section 8.2.4, shall be maintained for five (5) years, and shall continue to be available for five (5) years after the expiration of this Agreement. After minimum holding periods are met, Contractor will notify City Manager and City Attorney ninety (90) days before destroying records and offer records to the City. City shall have the right to inspect or review the specific documents or records required expressly or by inference pursuant to this Agreement, or any other similar records or February 16, 2017 -74- City of Diamond Bar - Residential Packet Pg. 242 8.2.a reports of Contractor or its Affiliates that City shall deem, in its sole discretion, necessary to evaluate reports, and Contractor's performance provided for in this Agreement. Contractor agrees that such records shall be provided or made available to City and its official representatives. Account histories shall be accessible to the City by computer for a minimum of five (5) years after termination of the Agreement. Contractor shall make all records and documents to be reviewed and inspected by City as a part of any audit or other record review conducted by City, available for City's review, inspection and copying for the above purposes within five (5) days of receiving written notice from City requesting the same. Additionally, City may review records at Contractor's local facility for the above purposes during normal business hours, within five (5) days of request during normal business hours. Such records include, but are not limited to, financial, Solid Waste, CERCLA and Disposal records. 8.2.2 Financial Records Contractor shall maintain financial records relating to its operations pursuant to this Agreement separate and segregated from such records relating to its other operations. Contractor shall maintain at least the following records: • Audited financial statements for Contractor or, if a guarantee was provided, for the parent company guarantor as a whole; • Financial statements (compiled, reviewed or audited) of revenue and expense for this Agreement segregated from the other operations of Contractor (including without limitation those operations of Contractor in City and surrounding jurisdictions which are not covered by this Agreement), including a description of segregation methodology; and • Complete descriptions of related party transactions (corporate and/or regional management fees, inter -company profits from transfer, processing or Disposal operations). 8.2.3 Solid Waste Records Contractor shall maintain and make available to the City upon request the following records relating to its operations pursuant to this Agreement: a) Customer services and Billing/ City payment records; February 16, 2017 -75- City of Diamond Bar - Residential Packet Pg. 243 b) C) d) 8.2.a Records of tons Collected, processed, diverted and disposed by waste stream (Refuse, Recycling, Green Waste), by Customer type (Cart, Bin, Roll -Off Box), and the Facilities (Transfer Station, MRF, or landfill) where such material was taken; Quantity of Recyclable Materials recovered by material type, as well as quantity of material diverted from landfills in compliance with AB 939; Bulky Item results and Special Event tonnages, including tons disposed and diverted; Routes; Facilities, equipment and personnel used; Facilities and equipment operations, maintenance and repair; Number and type of Refuse, Recycling and Green Waste Containers in service; Complaints; and Missed pickups. 8.2.4 CERCLA Defense Records City views the ability to defend against the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and related litigation as a matter of great importance. For this reason, City regards the ability to prove where Solid Waste Collected in the City was taken for Disposal, as well as where it was not taken, to be matters of concern. Contractor shall maintain data retention and preservation systems which can establish where Solid Waste Collected in the City was landfilled (and therefore establish where it was not landfilled) for not less than twenty-five (25) years following the termination of this Agreement, and agrees to notify City Manager and City Attorney before destroying such records thereafter. At any time, including after the expiration of the Term hereof, Contractor shall provide copies of such records to City upon request. The requirements of this section shall survive the expiration of the Term of this Agreement. February 16, 2017 -76- City of Diamond Bar - Residential Packet Pg. 244 8.2.a 8.2.5 Section Deleted 8.2.6 Other Programs' Records Records for other programs shall be tailored to specific needs. In general, they shall include: a) Plans, tasks, and milestones; and, b) Accomplishments in terms such as dates, activities conducted, quantities of products used, produced or distributed, and numbers of participants and responses. 8.2.7 Audit City may conduct an audit of Contractor at any time. The scope of the audit, and auditing party, will be determined by City, and the scope may include, but is not limited to compliance with terms of this Agreement, Customer service levels and Billing, fee payments, Gross Receipts, tonnage, and verification of Diversion rate. The first audit, to be performed during calendar year 2012, will be based on the Contractor's reports and records from the start of the Agreement through calendar year 2011. Audits will be performed every third year thereafter. Contractor will pay to the City the cost of such audits (including audits conducted by City staff) up to $50,000 for the first audit, and $35,000 for each subsequent audit in 2012 dollars. After 2012, the $35,000 amount shall be increased annually by the change in CPI using the formula for the change in the "all other" component of the rates in Section 6.4. Audit payments from the Contractor to the City are due January 1 of year the audit is being performed. Should an audit conducted or authorized by the City disclose that fees payable by Company were underpaid by two percent (2%) or more, that tonnage was mis-reported by 2% or more, or that more than two percent (2%) of the Customers were inaccurately billed based on the auditor's sampling, for the period under review, City may expand the scope of the audit and recover all additional audit costs from the Contractor. 8.2.8 Payments and Refunds Should an audit disclose that fees payable by the Contractor were underpaid to City or that Customers were overcharged for the period under review, Contractor shall pay to City any underpayment of fees and/or refund to Contractor's Customers or to City, as February 16, 2017 -77- City of Diamond Bar - Residential Packet Pg. 245 8.2.a directed by City, any overcharges within thirty (30) days following the date of the audit. Contractor shall pay interest to the City for any underpayment or overcharges at an annual rate of 12%. Undercharges shall not be billed in arrears for more than ninety (90) days of service, with any remaining undercharges absorbed by Contractor. Should an audit disclose that fees were overpaid, City shall credit such amounts against future fees payable by Contractor. 8.3 Reports 8.3.1 Report Formats and Schedule Records shall be maintained in forms and by methods that facilitate flexible use of data contained in them to structure reports, as needed. Contractor shall utilize the Monthly Report template included in Exhibit 7, which may be adjusted by the City at any time. Contractor may propose the format for the Annual Report that is responsive to the objectives and audiences for report. The format of the Annual Report shall be approved by City, which may require changes and/or additions to the format. Reports shall be submitted within thirty (30) calendar days after the end of the reporting period. Annual reports shall be submitted within thirty (30) calendar days after the end of the calendar year. If requested, Contractor's complaint summary, described in Section 5.2.2, shall be sent to the City within five (5) business days of request. All reports shall be submitted in electronic format compatible with City's software/ computers, at no additional charge, to the City Manager and/or other City staff designated by the City Manager at e-mail addresses to be provided by City. City may additionally request hard copies, which would be delivered to: City Manager City of Diamond Bar 21810 Copley Drive Diamond Bar, CA 91765 8.3.2 Monthly Reports The information listed below shall be the minimum reported: February 16, 2017 -78- City of Diamond Bar - Residential Packet Pg. 246 8.2.a a) Solid Waste Collected by Contractor, sorted by type of Solid Waste Collected and diverted (Refuse, Recycling, Green Waste) in tons, including contamination and Diversion rates for each wastestream and Customer type (Cart, Bin, Roll -Off Box) and the Facilities where the tons were processed or disposed. Bulky Item tons Collected and diverted shall also be reported as a separate line item. b) Number of warning notices issued for contaminated Recyclable Materials and Green Waste Containers, and HHW improperly placed for Disposal. c) Narrative summary of problems encountered and actions taken with recommendations for City, as appropriate. d) Quantity of Recyclable Materials recovered by material type, as well as quantity of material diverted from landfills in compliance with AB 939; e) Description of Contractor outreach activities and copies of promotional and public education materials sent during the month. f) Other information or reports that City may reasonably request or require. 8.3.3 Annual Report The Annual Report is to be essentially in the form and content of the monthly report, but shall also include: a) A summary of the number of Containers in service as of December 31 by size (number of gallons/yards), service frequency, and type of service (Refuse, Recycling, Green Waste). b) Records of tons Collected, processed, diverted and disposed by waste stream (Refuse, Recycling, Green Waste), by Customer type (Cart Bin, Roll -Off Box), and the Facilities (Transfer Station, MRF, or landfill) where such material was taken. c) Gross Receipts by sector (Cart, Bin, Roll -Off Box)]. d) A complete inventory of vehicles used to provide all services, including make, year, type, fuel used, use, California license number and whether or not it is used as a spare. e) Number of routes and route hours per day by type of service as of December 31. f) General information about the Contractor and its most recent annual report. g) Other information or reports that City may reasonably request or require. February 16, 2017 -79- City of Diamond Bar - Residential Packet Pg. 247 8.2.a 8.3.4 Financial Report The City may, at City's option, request and be provided with Contractor's financial reports/ statements for the most recently completed fiscal year in connection with any audit, extraordinary rate adjustment request, or verification of other information required under this Agreement. Financial statements shall include a supplemental combining schedule showing Contractor's results of operations, including the specific revenues and expenses in connection with the operations provided for in this Agreement, separated from others included in such financial statements. The financial statements and footnotes shall be prepared in accordance with Generally Accepted Accounting Principles (GAAP). Financial Statements for the parent company guarantor shall be audited, in accordance with Generally Accepted Auditing Standards (GAAS) by a certified public accountant (CPA) licensed (in good standing) to practice public accounting in the State of California as determined by the State of California Department of Consumer Affairs Board of Accountancy. The cost for preparation of the financial statements and audit shall be borne by Contractor as a direct cost of service. In addition, Contractor shall provide to City the supplemental schedule on a compiled basis. 8.4 Reporting Adverse Information Contractor shall provide City two copies (one to the City Manager, one to the City Attorney) of all reports, pleadings, applications, notifications, Notices of Violation, communications or other material relating in any way to Contractor's performance of services pursuant to this Agreement, submitted by Contractor to, or received by Contractor from, the United States or California Environmental Protection Agency, CalRecycle, the Securities and Exchange Commission or any other federal, state or local agency, including any federal or state court. Copies shall be submitted to City within thirty (30) days of receipt by Contractor, or sooner if reasonably apparent that to do so is time critical, and any responses by Contractor shall be submitted to City simultaneously with Contractor's filing or submission of such matters with said agencies. Contractor's routine correspondence to said agencies need not be routinely submitted to City, but shall be made available to City promptly upon City's written request. February 16, 2017 -80- City of Diamond Bar - Residential Packet Pg. 248 8.2.a 8.5 Failure to Report The refusal or failure of Contractor to file any required reports, or to provide required information to City, or the inclusion of any materially false or misleading statement or representation by Contractor in such report shall be deemed a material breach of this Agreement as described in Section 11.1 and shall subject Contractor to all remedies which are available to the City under this Agreement, the Diamond Bar Municipal Code or otherwise. February 16, 2017 -81- City of Diamond Bar - Residential Packet Pg. 249 8.2.a ARTICLE 9 INDEMNIFICATION, INSURANCE, BOND AND LETTER OF CREDIT 9.1 Indemnification Contractor hereby agrees to and shall indemnify and hold harmless City, its elected and appointed boards, commissions, officers, employees, consultants and agents (collectively, "Indemnitees") from and against any and all loss, liability, penalty, forfeiture, claim, demand, action, proceeding or suit in law or equity of any and every kind and description (including, but not limited to, injury to and death of any Person and damage to property, or for contribution or indemnity claimed by third parties) arising or resulting from and in any way connected with (1) the omissions, negligence or willful misconduct of Contractor, its officers, employees, agents, contractors and/or subcontractors in performing services under this Agreement; (2) the failure of Contractor, its officers, employees, agents, contractors and/or subcontractors to comply in all respects with the provisions of this Agreement, applicable laws (including, without limitation, the Environmental Laws), ordinances and regulations, and/or applicable permits and licenses; and (3) the acts of Contractor, its officers, employees, agents, contractors and/or subcontractors in performing services under this Agreement for which strict liability is imposed by law (including, without limitation, the Environmental Laws). The foregoing indemnity shall apply regardless of whether such loss, liability, penalty, forfeiture, claim, demand, action, proceeding, suit, injury, death or damage is also caused in part by any of the Indemnitees' negligence, but shall not extend to matters resulting from the Indemnitees' sole negligence, or willful misconduct. Contractor further agrees to and shall, upon demand of City, at Contractor's sole cost and expense, defend (with attorneys acceptable to City) the Indemnitees against any claims, actions, suits in law or equity or other proceedings, whether judicial, quasi-judicial or administrative in nature, arising or resulting from any of the aforementioned events, and to reimburse City for any and all costs and expenses City incurs in providing any such defense, either before, during or after the time Contractor elects to provide such defense, including any and all costs incurred in overseeing any defense to be provided herein by Contractor. Contractor, upon demand of City, made by and through the City Attorney, shall protect City and appear in and defend the Indemnitees in any claims or actions by third parties, February 16, 2017 -82- City of Diamond Bar - Residential Packet Pg. 250 8.2.a whether judicial, administrative or otherwise, including, but not limited to disputes and litigation over the definitions of "Solid Waste" or "Recyclable Material," the scope of the rights granted herein, conflicts between the rights granted herein and rights asserted by other Persons, or the limits of City's authority with respect to the grant of licenses, or agreements, exclusive or otherwise, or asserting rights under the United States or California Constitutions or any federal or state law to provide Solid Waste Collection Services in the City. THE PROVISIONS OF THIS SECTION SHALL NOT TERMINATE OR EXPIRE, SHALL BE GIVEN THE BROADEST POSSIBLE INTERPRETATION AND SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT. 9.2 Hazardous Substances Indemnification A. Without regard to any insurance coverage or requirements, and without limiting the above general indemnification obligation in any way, Contractor specifically agrees to and shall, to the maximum extent permitted by law, defend (with counsel acceptable to City, which acceptance shall not be unreasonably withheld), reimburse, indemnify, and hold harmless Indemnitees from and against any and all claims, actions, liabilities, damages, demands, judgments, losses, costs, liens, expenses, suits, actions, attorneys' fees, consultant fees, penalties and any and all other losses, damages, fees and expenses of whatever kind or nature ("Claims") (including but not limited to response costs, investigative costs, assessment costs, monitoring costs, treatment costs, cleanup costs, removal costs, remediation costs, and similar costs, damages and expenses) that arise out of or are alleged to arise out of or in any way relate to any action, inaction or omission of Contractor that: 1. results in any demand, claim, notice, order, or lawsuit, asserting that any Indemnitee is liable, responsible or in any way obligated to investigate, assess, monitor, study, test, treat, remove, remediate, or otherwise cleanup, any Hazardous Contaminant (as defined herein); or 2. relates to material Collected, transported, recycled, processed, treated or disposed of by Contractor. February 16, 2017 -83- City of Diamond Bar - Residential Packet Pg. 251 8.2.a B. Contractor's obligations pursuant to this section shall apply, without limitation, to: 1. any Claims brought pursuant to or based on the provisions of any Environmental Law; 2. any Claims based on or arising out of or alleged to be arising out of the ownership, use, lease, sale, design, construction, maintenance or operation of Contractor of any Facility; 3. any Claims based on or arising out of or alleged to be arising out of the marketing, sale, distribution, storage, transportation, Disposal, processing or use of any materials recovered by Contractor; 4. any Claims based on or arising out of or alleged to be arising out of any breach of any express or implied warranty, representation or covenant arising out of or in connection with this Agreement. C. The foregoing indemnity and defense obligations shall apply irrespective of the negligence or willful misconduct of Contractor or any Affiliate of Contractor. D. The foregoing indemnity shall apply regardless of whether such loss, liability, penalty, forfeiture, claim, demand, action, proceeding, suit, injury, death or damage is also caused in part by any of the Indemnitees' negligence, but shall not extend to matters resulting from the Indemnitees' sole negligence, or willful misconduct. E. For purposes of this section, the term "Hazardous Contaminant" shall mean any Hazardous Substance, any Hazardous Waste, any crude oil or refined or unrefined petroleum product or any fraction or derivative thereof; and any asbestos or asbestos - containing material. The term "Hazardous Contaminant" shall also include any and all amendments to any referenced statutory or regulatory provisions made before or after the date of execution of this Agreement. F. In the event that the City exercises its right under Sections 2.11 and 4.8 to direct Contractor to use a facility other than a site approved in this Agreement, and such facility is not owned and operated by Contractor or any parent, affiliate or guarantor of the Contractor, this indemnification shall only apply to Claims arising out of Contractor's collection and transportation to such facility. February 16, 2017 -84- City of Diamond Bar - Residential Packet Pg. 252 8.2.a G. THE PROVISIONS OF THIS SECTION SHALL NOT TERMINATE OR EXPIRE, SHALL BE GIVEN THE BROADEST POSSIBLE INTERPRETATION AND SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT. 9.3 AB 939 Indemnification and Guarantee A. To the extent authorized by law, Contractor agrees to indemnify and hold harmless City from and against all fines and/or penalties imposed by CalRecycle in the event the source reduction and Recycling goals or any other requirement of AB 939 are not met by City with respect to the waste stream Collected under this Agreement. B. Contractor warrants and represents that it is familiar with City's waste characterization study as set forth in City's Source Recovery and Recycling Element (SRRE), and that it has the ability to and will provide sufficient programs and services to ensure City will meet or exceed the Diversion requirements (including, without limitation, amounts of Solid Waste to be diverted, time frames for Diversion, and any other requirements) set forth in AB 939, with respect to that portion of the Solid Waste generated in City that is the subject of this Agreement. 9.4 Insurance Contractor shall procure and maintain during the entire Term the following types of insurance, and shall maintain the following minimum levels of coverage, which shall apply to any claims which may arise from or in connection with Contractor's performance hereunder or the actions or inactions of any of Contractor's officers, agents, representatives, employees, or subcontractors in connection with Contractor's performance. The insurance requirements hereunder in no way limit Contractor's various defense and indemnification obligations, or any other obligations as set forth herein. A. Minimum Scope of Insurance. Coverage shall be at least as broad as: 1. The most recent editions of Insurance Services Office Commercial General Liability coverage ("occurrence" form CG 00 01). February 16, 2017 -85- City of Diamond Bar - Residential Packet Pg. 253 8.2.a 2. The most recent editions of Insurance Services Office form number CA 00 01 covering Automobile Liability, code 1 "any auto" and endorsement CA 00 25. 3. Workers' Compensation insurance as required by the Labor Code of the State of California and Employers Liability insurance. B. Minimum Limits of Insurance. Contractor shall maintain in force for the term of this Agreement limits no less than: 1. Comprehensive General Liability: Ten Million Dollars ($10,000,000) limit aggregate and Ten Million Dollars ($10,000,000) limit per occurrence for bodily injury, Personal injury and property damage. 2. Automobile Liability: Five Million Dollars ($5,000,000) single limit per accident for bodily injury and property damage. 3. Workers' Compensation and Employers Liability: Workers' compensation limits as required by the Labor Code of the State of California or provide evidence of State approval to be self-insured. Employers Liability in the minimum amount of $1,000,000. C. Deductibles and Self -Insured Retentions. Any deductibles or self-insured retentions are for the account of Contractor, and payable solely by Contractor. In the event that the City forms a reasonable belief that Contractor is unable to pay any deductibles or self-insured retentions, Contractor shall procure a performance bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. D. Other Insurance Provisions. The policies are to contain, or be endorsed to contain, the following provisions: 1. General Liability and Automobile Liability Coverages February 16, 2017 a) The Indemnitees shall be named as additional insureds as respects: liability arising out of activities performed by or on behalf of Contractor; products and completed operations of Contractor; Premises owned, leased or used by Contractor; or vehicles owned, leased, hired or borrowed by Contractor. The coverage shall -86- City of Diamond Bar - Residential Packet Pg. 254 8.2.a 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 indemnitiees. Any insurance or self-insurance maintained by the Indemnitees shall be excess of Contractor's insurance and shall not contribute with it. c) Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its officials, elective and appointive boards, commissions, employees, agents or volunteers. d) Coverage shall state that Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability 2. Workers' Compensation and Employers Liability Coverage - The insurer shall agree to waive all rights of subrogation against the Indemnitees for 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 canceled except after thirty (30) days' prior written notice (ten (10) days written notice in the event of cancellation for non-payment) by certified mail, return receipt requested, has been given to City. E. Acceptability of Insurers. The insurance policies required by this section shall be issued by an insurance company or companies authorized to do business in the State of California and with a rating in the most recent edition of Best's Insurance Reports of size category VII or larger and a rating classification of A or better. F. Verification of Coverage. Within thirty (30) days of the execution of this Agreement, or prior to the start of service under this Agreement, whichever comes first, Contractor shall furnish City certificates of each policy of insurance required hereunder, in form and substance satisfactory to City. Such certificates shall show the type and amount of coverage, effective dates and dates of expiration of policies and shall have all required endorsements. City reserves the right to review complete, certified copies of all required insurance policies at any time. February 16, 2017 -87- City of Diamond Bar - Residential Packet Pg. 255 8.2.a Renewal certificates will be furnished promptly upon renewal to City to demonstrate maintenance of the required coverage throughout the Term. G. Required Endorsements 1. Insurance policies shall contain an endorsement in substantially the following form: "Thirty (30) days prior written notice (ten (10) days written notice in the event of cancellation for non-payment) by certified mail, return receipt requested, shall be given to City in the event of cancellation, reduction in coverage, or non -renewal of this policy. Such notice shall be sent to: City Manager City of Diamond Bar 21810 Copley Drive Diamond Bar, CA 91765 2. "This policy shall be considered primary insurance as respects any other valid and collectible insurance maintained by City, including any self- insured retention or program of self-insurance, and any other such insurance shall be considered excess insurance only." 3. "Inclusion of City as an insured shall not affect City's rights as respects any claim, demand, suit or judgment brought or recovered against Contractor. This policy shall protect Contractor and City 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." February 16, 2017 -88- City of Diamond Bar - Residential Packet Pg. 256 8.2.a H. Other Insurance Requirements 1. In the event any services are delegated to another company or subcontractor, Contractor shall require such Contractor or subcontractor to provide statutory workers' compensation insurance and employer's liability insurance for all of the Contractor or subcontractor's employees engaged in the work in accordance with this Section 9.4. The liability insurance required by this Section 9.4 shall cover all Contractor or subcontractors or the Contractor or subcontractor must furnish evidence of insurance provided by it meeting all of the requirements of this Section 9.4. 2. Contractor shall comply with all requirements of the insurers issuing policies. The carrying of insurance shall not relieve Contractor from any obligation under this Agreement. If any claim exceeding the amount of any deductibles or self-insured reserves is made by any third Person against Contractor or any Contractor or subcontractor on account of any occurrence related to this Agreement, Contractor shall promptly report the facts in writing to the insurance carrier and to City. If Contractor fails to procure and maintain any insurance required by this Agreement, City may take out and maintain, at Contractor's expense, such insurance as it may deem proper and recover costs from the Contractor's Letter of Credit and/or Performance Bond provided under Sections 9.5 and 9.6. 9.5 Faithful Performance Bond Concurrently with execution of this Agreement, Contractor shall deliver to City a performance bond in the sum of the amount of One Hundred Twenty-five Thousand Dollars ($125,000), similar to the form provided in Exhibit 5, which secures the faithful performance of this Agreement, including, without limitation, payment of any penalty and the funding of any work to cure a breach of this Agreement, unless such requirement is waived by the City Manager. The bond shall contain the original notarized signature of an authorized officer of the surety and affixed thereto shall be a certified and current copy of his power of attorney. The bond shall be unconditional February 16, 2017 -89- City of Diamond Bar - Residential Packet Pg. 257 8.2.a and remain in force during the entire term of the Agreement and shall be released only upon written release from City per Section 9.9. 9.6 Faithful Performance Letter of Credit A. In addition to a corporate surety bond as noted in Section 9.5 above, Contractor shall furnish an irrevocable letter of credit in the amount of One Hundred Twenty-five Thousand Dollars ($125,000), from a financial institution acceptable to the City and in a form acceptable to the City Attorney as security for the performance of this Agreement (the "LOC"). The LOC shall be the sole responsibility of Contractor, shall be unconditional and remain in force during the entire term of the Agreement and shall be released only upon written release from City per Section 9.9. B. As an alternative to providing the performance bond and letter of credit required under 9.5 and 9.6.A, Contractor may provide a letter of credit in the amount of $250,000. The letter of credit shall be from a financial institution acceptable to the City in a form acceptable to the City Attorney as security for the performance of this Agreement. The LOC shall be the sole responsibility of Contractor, shall be unconditional and remain in force during the entire term of this Agreement and shall be released only upon written release from City per Section 9.9. 9.7 Forfeiture of Performance Bond In the event Contractor shall for any reason become unable to, or fail in any way to, perform as required by this Agreement, City may declare a portion or all of the performance bond forfeited to the City up to an amount which is necessary to recompense and make whole the City. Upon partial or full forfeiture of the performance bond, Contractor shall restore the performance bond to its face amount within thirty (30) days of the City's declaration. Failure to restore the performance bond to its full amount within thirty (30) days shall be a material breach of this Agreement. 9.8 Forfeiture of Letter Of Credit Thirty (30) days following City providing Contractor with written notice of its failure to pay City any amount owing under this Agreement, the LOC may be drawn upon by City for purposes including, but not limited to: February 16, 2017 -90- City of Diamond Bar - Residential Packet Pg. 258 8.2.a a. Payment of sums due under the terms of this Agreement which Contractor has failed to timely pay to City b. Reimbursement of costs borne by City to correct violations of this Agreement not corrected by Contractor, including but not limited to the liquidated damages described in Section 11.3. City may draw upon the entire LOC and convert it to a cash deposit if Contractor fails to cause the LOC to be extended or replaced with another satisfactory letter of credit no later than 60 days prior to its expiration during the term hereof. If City partially draws down LOC, Contractor must restore it to full amount within 30 days of City's draw. Failure to restore the LOC to its full amount within thirty (30) days shall be a material breach of this Agreement. 9.9 Performance Security Beyond Service Term Some Agreement requirements extend beyond the Term and other requirements, such as minimum Diversion rates per Section 4.2.5, will not be substantiated until after the final service date. Therefore, the Contractor shall not terminate the performance bond or letter of credit, and will renew them to ensure continuous availability to the City, until receiving a written release from the City or until the second annual anniversary of the end of the Term. Permission from the City to discontinue holding these performance securities does not relieve Contractor of payments to the City that may be due, or may become due. February 16, 2017 -91- City of Diamond Bar - Residential Packet Pg. 259 8.2.a ARTICLE 10 CITY'S RIGHT TO CONTRACT WITH THIRD PARTIES TO PERFORM FRANCHISED SERVICES City may contract with another Solid Waste enterprise to Collect and transport Solid Waste in the event Contractor for any reason refuses or is unable to Collect Solid Waste for a period of more than forty-eight (48) hours. City must provide twenty-four (24) hours prior written notice to Contractor during such time before contracting with another solid waste enterprise. In such event Contractor must identify sources from which such substitute solid waste services are immediately available and reimburse City for all of its expenses for such substitute services during period in which Contractor does not provide Collection and transportation services required by this Agreement. February 16, 2017 -92- City of Diamond Bar - Residential Packet Pg. 260 8.2.a ARTICLE 11 DEFAULT, REMEDIES AND LIQUIDATED DAMAGES 11.1 Events of Default Each of the following provisions, without limitations, are considered material and shall constitute an event of default by the Contractor. A. Fraud or Deceit or Misrepresentation. If the Contractor engages in, or attempts to practice, any fraud or deceit upon City or makes a misrepresentation regarding material information to City. B. Insolvency or Bankruptcy or Financial Irresponsibility. If Contractor becomes insolvent, unable, or unwilling to pay its debts, files a bankruptcy petition or takes steps to liquidate its assets. C. Failure to Maintain Coverage. If Contractor fails to provide or maintain or cause its subcontractors to provide or maintain in full force and effect the Workers' Compensation, liability, or indemnification coverage as required by this Agreement D. Violations of Regulations. Subject to Contractor's opportunity to cure in subsection I.1. below, if Contractor violates any orders or filings of any regulatory body having jurisdiction over Contractor relative to this Agreement, provided that Contractor may contest any such orders or filings by appropriate proceedings conducted in good faith, in which case no breach of the Franchise and this Agreement shall be deemed to have occurred until a final decision adverse to the Contractor is entered. E. Failure to Perform. If Contractor ceases to provide all or a portion of the Collection, processing or Recycling services, or any other Solid Waste Collection Services as required under this Agreement for a period of seven (7) consecutive days or more, unless, and only to the extent, performance is excused pursuant to Section 11.4. F. Failure to Pay. If Contractor fails to make any payments required under this Agreement and/or refuses to provide City, within ten (10) days of the demand, with required information, reports, and/or records in a timely manner as provided for in the Agreement. February 16, 2017 -93- City of Diamond Bar - Residential Packet Pg. 261 8.2.a G. Failure to Cooperate with Audits. Failure to complete, perform or cooperate with any audit as described by this Agreement. H. Failure to Submit Reports or Documentation. Failure to complete or to provide required reports or documents to City as required by this Agreement. I. Acts or Omissions. 1. Any act or omission by Contractor relative to the services provided under this Agreement which violates the terms, conditions, or requirements of this Agreement, or AB 939, or any law, statute, ordinance, order, directive, rule, or regulation issued pursuant to AB 939 not corrected or remedied within the time set in the written notice of the violation from the issuing entity or, if Contractor cannot reasonably correct or remedy the breach within the time set forth in such notice, if Contractor should fail to commence to correct or remedy such violation within the time set forth in such notice and diligently effect such correction or remedy. 2. Any situation in which Contractor or any of its officers, directors or employees are found guilty of any crime related to the performance of this Agreement, or of any crime related to anti-trust activities, illegal transport or Disposal of hazardous or toxic materials, or bribery of public officials. The term "found guilty" shall be deemed to include any judicial determination that Contractor or any of Contractor's officers, directors or employees is guilty as well as any admission of guilt by Contractor or any of Contractor's officers, directors or employees including, but not limited to, the plea of "guilty", "nolo contendere", "no contest", and "guilty to a lesser charge." J. False or Misleading Statements. Any representation or disclosure made to City by Contractor in connection with or as an inducement to entering into this Agreement, or any future amendment to this Agreement, which proves to be false or misleading in any material respect as of the time such representation or disclosure is made, whether or not any such representation or disclosure appears as part of this Agreement. K. Attachment. The seizure of, attachment of, or levy on, the operating equipment of Contractor, including, without limits, its equipment, maintenance or office facilities, or any part thereof. February 16, 2017 -94- City of Diamond Bar - Residential Packet Pg. 262 8.2.a L. Suspension or Termination of Service. Any termination or suspension of the transaction of business by Contractor, including, without limitation, due to labor unrest including strike, work stoppage or slowdown, sick-out, picketing, or other concerted job action lasting more than seven (7) consecutive days, unless, and only to the extent, performance is excused pursuant to Section 11.4. M. Failure to Provide Assurance of Performance. If Contractor fails to provide reasonable assurances of performance as required under Section 11.6. N. Commingling of Recyclables With Refuse/Landfilling of Recyclables. Subject to the requirements of Section 4.2.3, if Contractor empties a Container of properly set out Recyclable Materials or Green Waste into a Refuse load, or transports Recyclable Materials or Green Waste to a landfill or other location at which the material will not be diverted from landfilling (with the exception of Green Waste used as alternative daily cover provided full Diversion credit is received). O. Failure to Meet Diversion Goals. Contractor fails to achieve diversion goals specified in Section 4.2.5, for two consecutive calendar years (the initial calendar year triggering a compliance plan as described in Section 4.2.5 and a second year in which to approved compliance plan is implemented), beginning with calendar year 2011. P. Lapse of Performance Bond and/or Letter of Credit. Contractor fails to restore the full balance of the Performance Bond and/or Letter of Credit required under Sections 9.5 and 9.6 to the full required value within 30 days of being depleted due to payment to City under Sections 9.7 or 9.8, or Contractor allows either security at any time for any other reason to lapse or fall below required minimums for any period of time. Contractor shall have forty-eight (48) hours from the time it is given notification by City to cure any default arising under subsections E, F, G, H, K, L, M, N and P provided, however, that City shall not be obligated to provide Contractor with a notice and cure opportunity if Contractor has committed the same or similar breach within a twenty- four (24) month period. It is expressly understood that Contractor is not entitled to receive notice of default, or to cure such default, with respect to those matters listed in subsections A, B, C, D, I, J and O above. February 16, 2017 -95- City of Diamond Bar - Residential Packet Pg. 263 8.2.a 11.2 Right to Terminate Upon Default and Right to Specific Performance If Contractor commits a material breach, including specifically any of the matters listed in subsections A through P of Section 11.1 above (and, if permitted to cure, does not cure it within the forty-eight (48) hours), City shall be entitled to unilaterally terminate this Agreement or impose other such sanctions (which may include financial sanctions, temporary suspensions or any other conditions it deems appropriate short of termination) as it shall deem proper pursuant to the provisions in this Agreement or the Diamond Bar Municipal Code. Should City decide to terminate this Agreement upon a default by Contractor, City shall have the right to do so upon giving ten (10) days notice to Contractor, and shall not be required by this Agreement to take any further action (such as holding any hearing, bringing any suit or taking any other action.) City's rights to terminate this Agreement and City's termination of this Agreement shall not constitute an election of remedies. Instead, such remedies shall be in addition to any and all other legal and equitable rights and remedies which City may have. By virtue of the nature of this Agreement, the urgency of timely continuous and high- quality service for preservation of the public health, safety and welfare, the time required to effect alternative service, and the rights granted by City to Contractor, the remedy of damages for a breach hereof by Contractor is inadequate and City shall be entitled to seek injunctive relief and/or specific performance of any breach of this Agreement. 11.3 Liquidated Damages A. General. City finds, and Contractor agrees, that as of the time of the execution of this Agreement, it is impractical, if not impossible, to reasonably ascertain the extent of damages which shall be incurred by City as a result of a breach by Contractor of certain specific obligations under this Agreement. The factors relating to the impracticability of ascertaining damages include, but are not limited to, the fact that: (i) substantial damage results to members of the public who are denied services or denied quality or reliable service; (ii) such breaches cause inconvenience, anxiety, frustration, and deprivation of the benefits of the Agreement to individual members of the general public for whose benefit this Agreement exists, in subjective ways and in varying degrees of intensity which are incapable of measurement in precise monetary terms; (iii) that the services that are the subject of this Agreement might be available at February 16, 2017 -96- City of Diamond Bar - Residential Packet Pg. 264 8.2.a substantially lower costs than alternative services and the monetary loss resulting from denial of services or denial of quality or reliable services is impossible to calculate in precise monetary terms; and (iv) the termination of this Agreement for such specific breaches, and other remedies are, at best, a means of future correction and not remedies which make the public whole for past breaches. B. Service Performance Standards; Liquidated Damages for Failure to Meet Standards. The parties further acknowledge that consistent, reliable Solid Waste Collection Service is of utmost importance to City and the public health, safety, and welfare and that City has considered and relied on Contractor's representations as to its quality of service commitment in entering this Agreement with it. The Parties further recognize that some quantified standards of performance are necessary and appropriate to ensure consistent and reliable service and performance. The Parties further recognize that if Contractor fails to achieve the performance standards, or fails to submit required documents in a timely manner, City and its residents will suffer damages and that it is and will be impractical and extremely difficult to ascertain and determine the exact amount of damages which City will suffer. Therefore, without prejudice to City's right to treat such breaches as an event of default under this Article 11, the Parties agree that the following liquidated damage amounts represent a reasonable estimate of the amount of such damages for such specific breaches, considering all of the circumstances existing on the date of this Agreement, including the relationship of the sums to the range of harm to City that reasonably could be anticipated and the anticipation that proof of actual damages would be costly or impractical. In placing their initials at the places provided, each party specifically confirms the accuracy of the statements made above and the fact that each party has had ample opportunity to consult with legal counsel and obtain an explanation of the liquidated damage provisions at the time that the Agreement was made. Contractor Initial Here Contractor agrees to pay (as liquidated damages and not as a penalty) the amounts set forth below: February 16, 2017 -97- City of Diamond Bar - Residential Packet Pg. 265 8.2.a 1. Collection Reliability a) For each failure to commence service to a new Customer account within seven (7) days after order, which exceeds five (5) such failures annually: $100.00 b) For each failure, which exceeds ten (10) such failures annually, to Collect Solid Waste from any established Customer account on the scheduled Collection day and not make up the Collection within the time allotted per Section 4.6.1: $100.00 c) For each instance in which Contractor stops service to a Customer, other than at Customer request due to Customer vacating premises, without the advance written approval of the City: $100.00 2. Collection Quality a) For each occurrence of failure to properly return empty Containers to avoid pedestrian or vehicular traffic impediments or to place Containers upright which exceeds ten (10) such occurrences annually: $100.00 b) For each occurrence of excessive noise or discourteous behavior which exceed ten (10) annually: $250.00 c) For each occurrence of Collecting Solid Waste during unauthorized hours which exceeds five (5) such occurrences annually: $250.00 d) For each failure to clean up Solid Waste spilled from Solid Waste Containers within ninety (90) minutes that exceeds ten (10) such failures annually: $150.00 3. Customer Responsiveness a) For each failure to initially respond to a Customer complaint within one (1) business day, and for each additional day in which the complaint is not addressed, which exceed five (5) annually: $150.00 b) For each failure to process Customer complaints as required by Article 5, which exceed five (5) annually: $150.00 February 16, 2017 -98- City of Diamond Bar - Residential Packet Pg. 266 8.2.a c) For each failure to remove graffiti from Containers, or to replace with Containers bearing no graffiti, within three (3) business days of request from City or Customer: $ 50.00 per day d) For each failure to repair or replace a damaged or missing Container within two (2) business days of request from City or Customer: $ 50.00 per day e) For each failure to process a claim for damages within thirty (30) days from the date submitted to Contractor: $100.00 f) For each additional thirty (30) day increment of time in which Contractor has failed to undertake good faith efforts to resolve a claim for damages within thirty (30) days from the claim date: $100.00 g) For each violation under Section 5.2.3 (one month of excessive complaints or one quarter of excessive delays in answering customer service calls): $500.00 h) For each occurrence of inaccurate information being provided to Customers by Contractor's customer service department which exceeds ten (10) such occurrences annually: 4. Diversion Efforts a) For each calendar year beginning calendar year 2010 through calendar year 2017, in which Contractor fails to provide support to the City within thirty (30) days of year-end, documenting that it diverted at least 45% of the Solid Waste Contractor Collected under this Agreement: $25 for each ton below tonnage level necessary to meet 45% Diversion goal b) For every Green Waste Cart Collected as Refuse without issuing a red tag per Section 4.2.3: $50.00 per Cart c) For each failure to process Construction and Demolition Debris loads from Construction and Demolition sites or otherwise identified as such by Customer as required by Section 4.2.6: February 16, 2017 -99- City of Diamond Bar - Residential Packet Pg. 267 8.2.a $200 per load d) For each calendar year, beginning January 1, 2018, in which Contractor fails to provide support to the City within thirty (30) days of year-end, documenting that it diverted at least 45% of the Solid Waste Contractor Collected under this Agreement, as such percentage may be adjusted under Section 4.2.5, excluding Roll -Off and Temporary Bin loads: $25 for each ton below tonnage level necessary to meet 45% Diversion goal e) For each calendar year, beginning calendar year 2018, in which Contractor fails to provide support to the City within thirty (30) days of year-end, documenting that it diverted at least 75%, or the State -mandated Construction and Demolition diversion percentage (as such percentage may be adjusted by the State), whichever is greater, of all Construction and Demolition Debris loads it Collects under this Agreement: $25 for each ton below tonnage level necessary to meet 75%, or State -mandated Construction and Demolition Diversion goal, whichever is greater. 5. Timeliness of Submissions to City Any report shall be considered late until such time as a correct and complete report is received by City. For each calendar day a report is late, the daily liquidated damage amount shall be: i) Monthly Reports: $100.00 per day ii) Annual Reports: $200.00 per day 6. Accuracy of Billing Each Customer invoice that is not prepared in accordance with the City's approved rate schedule, in excess of ten (10) annually: $25.00 7. Cooperation with Service Provider Transition a) For each day routing information requested by City in accordance with Section 12.8 is received after City -established due dates, both for February 16, 2017 -100- City of Diamond Bar - Residential Packet Pg. 268 8.2.a preparation of a request for proposals and for new service provider's implementation of service: $1,000.00/day b) For each day delivery of keys, access codes, remote controls, or other means of access to Solid Waste Containers is delayed beyond one (1) day prior to new service provider servicing Customers with access issues, as described in Section 12.8: $1,000.00/ day c) For delay in not meeting the requirements contained in Sections 4.11 and 12.8 in a timely manner, in addition to the daily liquidated damages for breach under 7(a) and 7(b) above, liquidated damages of: $35,000.00 8. General Contract Adherence For each day that Franchisee fails to provide services required under the Agreement, or comply with terms of the Agreement, five (5) business days after receipt of written notification from City that such services are not being provided or terms are not being met: $300.00/ day City may determine the occurrence of events giving rise to liquidated damages through the observation of its own employees or representatives or through investigation of Customer complaints by such Persons. If any failure is permitted or excused by another section of this Agreement, such a failure shall not count towards assessment of liquidated damages (such as a failure to Collect would not apply if it were due to the presence of contamination, provided Contractor left a warning notice). Prior to assessing liquidated damages, the City Manager shall give Contractor notice of its intention to do so. The notice will include a brief description of the incident(s)/non- performance. Contractor may review (and make copies at its own expense) all information in the possession of City relating to incident(s)/non-performance. Contractor may, within ten (10) days after receiving the notice, request a meeting with City Manager. Contractor may present evidence in writing and through testimony at the meeting of its employees and others relevant to the incident(s)/non-performance. City Manager will provide Contractor with a written explanation of its determination on each incident(s)/non-performance prior to authorizing the assessment of liquidated damages. The decision of City Manager shall be final. February 16, 2017 -101- City of Diamond Bar - Residential Packet Pg. 269 8.2.a C. Amount. City may assess liquidated damages for each calendar day or event, as appropriate, that Contractor is determined to be liable in accordance with this Agreement. D. Timing of Payment. Contractor shall pay any liquidated damages assessed by City within ten (10) days after receipt of notice that liquidated damages are being assessed. If they are not paid within the ten (10) day period, City may proceed against the performance bond or letter of credit required by the Agreement or find Contractor in default and terminate this Agreement pursuant to Section 11.2, or both. 11.4 Suspension of Performance 11.4.1 Force Majeure The Parties shall be excused from performing their respective obligations hereunder in the event they are prevented from so performing by reason of floods, earthquakes, other natural disasters, war, civil insurrection, riots, acts of any government (including judicial action), and other similar catastrophic events which are beyond the control of and not the fault of the party claiming excuse from performance hereunder. The interruption or discontinuance of Contractor's services caused by one (1) or more of the events excused shall not constitute a default by Contractor under this Agreement provided that other services delivered to properties in Diamond Bar (such as and without limitation electricity, gas, water, or commercial solid waste collection services) have been similarly disrupted as a direct result of the catastrophic event. Notwithstanding the foregoing, however, if Contractor is excused from performing its obligations hereunder for any of the causes listed in this section, City may contract with another provider to perform all or part of this Agreement until such time Contractor is able to perform. If Contractor is unable to renew its performance of this Agreement for a period of thirty (30) days or more, where the City is not significantly impacted by the catastrophic event, City shall nevertheless have the right, in its sole discretion, to ter- minate this Agreement by giving ten (10) days' notice. 11.4.2 Labor Unrest Labor unrest, including work stoppage or slowdown or sick-out conducted by Contractor's employees or directed at Contractor is excused from performance only to the extent that the following requirements are met: February 16, 2017 -102- City of Diamond Bar - Residential Packet Pg. 270 8.2.a • Contractor provides a contingency plan to the City prior to the execution of this Agreement demonstrating how services will be provided. Plan is subject to City Manager approval and Contractor shall amend plan until it meets City requirements, including reasonably demonstrating how City's basic Collection and sanitary needs will be met to the City's satisfaction. • Contractor shall meet all requirements of this plan; if Contractor does not meet all requirements, City may choose to revoke this excuse from performance offered under this Agreement and may choose to use enforcement provisions under this Agreement, including Sections 11.1, 11.2 and 11.3. The party claiming excuse from performance shall, within two (2) days after such party has notice of such cause, give the other party notice of the facts constituting such cause and asserting its claim to excuse under this section. The interruption or discontinuance of Contractor's services caused by labor -related events excused under this Section 4.4.2 shall not constitute a default by Contractor under this Agreement. Notwithstanding the foregoing, however, if Contractor is excused from performing its obligations hereunder for any of the causes listed in this section for a period of thirty (30) days or more, City shall nevertheless have the right, in its sole discretion, to terminate this Agreement by giving ten (10) days' notice, and may contract with another party for Solid Waste Collection Services. 11.5 Dispute Resolution; Administrative Remedies; Termination Except as may otherwise be set forth expressly herein, all disputes arising under this Agreement shall be resolved as set forth in this section. 11.5.1 Negotiation and Mediation The Parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiations between the Parties' authorized representatives. The disputing Party shall give the other Parties written notice of any dispute. Within five (5) days after delivery of such notice, the authorized representatives shall meet at a mutually acceptable time and place, and thereafter as often as they reasonably deem necessary to exchange information and to attempt to resolve the dispute. If the matter has not been resolved within ten (10) days of the first meeting, any Party may initiate a mediation of the dispute. The mediation shall be February 16, 2017 -103- City of Diamond Bar - Residential Packet Pg. 271 8.2.a facilitated by a mediator that is acceptable to all Parties and shall conclude within thirty (30) days of its commencement, unless the Parties agree to extend the mediation process beyond such deadline. Upon agreeing on a mediator, the Parties shall enter into a written agreement for the mediation services with each Party paying a pro rata share of the mediator's fee, if any. The mediation shall be conducted in accordance with the Commercial Mediation Rules of the American Arbitration Association; provided, however, that no consequential damages shall be awarded in any such proceeding and each Party shall bear its own legal fees and expenses. 11.5.2 Confidentiality All negotiations and any mediation conducted pursuant to this section shall be confidential and shall be treated as compromise and settlement negotiations, to which Section 1152 of the California Evidence Code shall apply, which Section is incorporated in this Agreement by reference. 11.5.3 Injunctive Relief Notwithstanding the foregoing provisions, a Party may seek a preliminary injunction or other provisional judicial remedy if in its judgment such action is necessary to avoid irreparable damage or to preserve the status quo. 11.5.4 Continuing Obligation Each Party shall continue to perform its obligations under this Agreement pending final resolution of any dispute arising out of or relating to this Agreement. 11.5.5 Failure of Mediation If after good faith efforts to mediate a dispute under the terms of this Agreement the parties cannot agree to a resolution of the dispute, any party may pursue whatever legal remedies may be available to it at law or in equity before a court of competent jurisdiction and with venue in Los Angeles County. 11.6 Assurance of Performance City may, at its option and in addition to all other remedies it may have, demand from Contractor reasonable assurances of timely and proper performance of this Agreement, in such form and substance as City may require. If Contractor fails or refuses to February 16, 2017 -104- City of Diamond Bar - Residential Packet Pg. 272 8.2.a provide satisfactory assurances of timely and proper performance in the form and by the date required by City, such failure or refusal shall be an event of default. February 16, 2017 -105- City of Diamond Bar - Residential Packet Pg. 273 8.2.a ARTICLE 12 OTHER AGREEMENTS OF THE PARTIES 12.1 Relationship of Parties The Parties intend that Contractor shall perform the services required by this Agreement as an independent contractor engaged by City and not as an officer or employee of City nor as a partner of or joint venture with City. No employee or agent or Contractor shall be or shall be deemed to be an employee or agent of City. Except as expressly provided herein, Contractor shall have the exclusive control over the manner and means of conducting the Solid Waste Collection Services performed under this Agreement, and all Persons performing such services. Contractor shall be solely responsible for the acts and omissions of its officers, employees, Affiliates, contractors, subcontractors and agents. Neither Contractor nor its officers, employees, Affiliates, contractors, subcontractors and agents shall obtain any rights to retirement benefits, workers' compensation benefits, or any other benefits which accrue to City employees by virtue of their employment with City. 12.2 Compliance with Law In providing the services required under this Agreement, Contractor shall at all times, at its sole cost, comply with all applicable laws and regulations of the United States, the State of California, and any federal, state, regional or local administrative and regulatory agencies, now in force and as they may be enacted, issued or amended. 12.3 Governing Law This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California. 12.4 Jurisdiction Except for those matters where Federal Courts have exclusive jurisdiction, any lawsuits between the Parties arising out of this Agreement shall be brought and concluded in the courts of the State of California, which shall have exclusive jurisdiction over such lawsuits. February 16, 2017 -106- City of Diamond Bar - Residential Packet Pg. 274 8.2.a With respect to venue, the Parties agree that this Agreement is made in and will be performed in Los Angeles County. 12.5 Assignment Contractor shall not assign its rights, nor delegate, subcontract or otherwise transfer its obligations under this Agreement (collectively referred to as an "assignment") to any other Person without the prior written consent of City. Any such assignment made without the consent of City shall be void and the attempted assignment shall constitute a material breach of this Agreement. For purposes of this section the term "assignment" shall be given the broadest possible interpretation, and shall include, but not be limited to (i) a sale, exchange or other transfer of substantially all of Contractor's assets dedicated to service under this Agreement to a third party; (ii) a sale, exchange or other transfer of outstanding common stock of Contractor to a third party provided said sale, exchange or transfer may result in a change of control of Contractor; (iii) any dissolution, reorganization, consolidation, merger, re -capitalization, stock issuance or re -issuance, voting trust, pooling agreement, escrow arrangement, liquidation or other transaction which results in a change of ownership or control of Contractor; (iv) any assignment by operation of law, including those resulting from mergers or acquisitions by or of Contractor of any of its Affiliates, insolvency or bankruptcy, making assignment for the benefit of creditors, writ of attachment for an execution being levied against this Agreement, appointment of a receiver taking possession of Contractor's property, or transfer occurring in the event of a probate proceeding; and (v) any combination of the foregoing (whether or not in related or contemporaneous transactions) which has the effect of any such transfer or change of ownership, or change of control of Contractor. Contractor acknowledges that this Agreement involved rendering a vital service to City's residents and businesses, and that City has selected Contractor to perform the services specified herein based on (1) Contractor's experience, skill and reputation for conducting its Solid Waste Collection Services in a safe, effective and responsible fashion, at all times in keeping with applicable Environmental Laws, regulations and best Solid Waste management practices, and (2) Contractor's financial resources to maintain the required equipment and to support its indemnity obligations to City under this Agreement. City has relied on each of these factors, among others, in choosing Contractor to perform the services to be rendered by Contractor under this Agreement. February 16, 2017 -107- City of Diamond Bar - Residential Packet Pg. 275 8.2.a If Contractor requests City's consideration of and consent to an assignment, City may deny or approve such request in its sole discretion. Any request for an assignment must be approved by the City Manager in writing, and no request by Contractor for consent to an assignment need be considered by City unless and until Contractor has met (or with respect to matters that would only occur upon completion of the assignment if approved, made reasonable assurances that it will meet) the following requirements: a) Contractor shall pay City its reasonable expenses for attorney's fees and investigation costs necessary to investigate the suitability of any proposed assignee, and to review and finalize any documentation required as a condition for approving any such assignment. An advance payment towards expenses may be requested by City prior to City consideration of any assignment request and Contractor shall be responsible to pay all costs incurred by City in considering a request for assignment, including those in excess of the aforesaid deposit amount, regardless of whether City consents to the assignment. b) Except with respect to an assignment to an Affiliate where the parent guaranty is unchanged, Contractor shall pay the City a transfer fee equal to one percent (1 %) of the Gross Receipts it, or its assignee, will receive during the remaining term of the Agreement at rates and service levels in effect at the time of the assignment, as estimated by City. c) Except with respect to an assignment to an Affiliate where the parent guaranty is unchanged, Contractor shall furnish City with audited financial statements for itself, and the proposed assignee's operations for the immediately preceding three (3) operating years. d) Except with respect to an assignment to an Affiliate where the parent guaranty is unchanged, a proforma financial statement (income statement and balance sheet) for the proposed assignee with the projected results of operations assuming that the assignment is completed. Such proforma financial statement shall reflect any debt to be incurred by the assignee as part of the acquisition of Contractor's operations. e) Except with respect to an assignment to an Affiliate where the parent guaranty is unchanged, Contractor shall furnish City with satisfactory proof: (i) that the February 16, 2017 -108- City of Diamond Bar - Residential Packet Pg. 276 8.2.a proposed assignee has at least ten (10) years of Solid Waste management experience on a scale equal to or exceeding the scale of operations conducted by Contractor under this Agreement; (ii) that in the last five (5) years, the proposed assignee has not suffered any significant citations or other censure from any federal, state or local agency having jurisdiction over its Solid Waste management operations due to any significant failure to comply with state, federal or local Environmental Laws and that the assignee has provided City with a complete list of any such citations and censures; (iii) that the proposed assignee has at all times conducted its operations in an environmentally safe and conscientious fashion; (iv) that the proposed assignee conducts its Solid Waste management practices in accordance with sound Solid Waste management practices in full compliance with all federal, state and local laws regulating the Collection and Disposal of Solid Waste including Hazardous Substances; and, (v) of any other information required by City to ensure the proposed assignee can fulfill the terms of this Agreement in a timely, safe and effective manner. Under no circumstances shall City be obliged to consider any proposed assignment by City if Contractor is in default at any time during the period of consideration. Should City consent to any assignment request, such assignment shall not take effect until all conditions relating to City's approval have been met in accordance with Chapter 8.16 of the Diamond Bar Municipal Code, as amended from time to time. 12.6 Contracting or Subcontracting Contractor shall not engage any contractors or subcontractors for the Collection of Solid Waste. 12.7 Binding on Assigns The provisions of this Agreement shall inure to the benefit to and be binding on the permitted assigns (if any) of the Parties. 12.8 Cooperation in Preparation for Termination or Expiration of Contract Prior to, and at the end of the Term or in the event this Agreement is terminated for cause prior to the end of the Term, Contractor shall cooperate fully with City and any subsequent Solid Waste enterprise it designates to assure a smooth transition of Solid Waste Collection Services. Contractor's cooperation shall include, but not be limited to, February 16, 2017 -109- City of Diamond Bar - Residential Packet Pg. 277 8.2.a providing route lists, Billing information and other operating records needed to service all Premises covered by this Agreement. The failure to cooperate with City following termination shall be conclusively presumed to be grounds for specific performance of this covenant and/or other equitable relief necessary to enforce this covenant. Contractor shall provide a new service provider with all keys, security codes and remote controls used to access garages and Bin enclosures. Contractor shall be responsible for coordinating transfer immediately after Contractor's final pickups, so as not to disrupt service. Contractor shall provide City with detailed route sheets containing service names and addresses, Billing names and addresses, monthly rate and service levels (number and size of Containers and pickup days) at least 90 days prior to the transition date, and provide an updated list two weeks before the transition and a final list of changes the day before the transition. Contractor shall provide means of access to the new service provider at least one full business day prior to the first day of Collection by another party, and always within sufficient time so as not to impede in any way the new service provider from easily servicing all Containers. 12.9 Parties in Interest Nothing in this Agreement, whether express or implied, is intended to confer any rights on any Persons other than the Parties to it and their representatives, successors and permitted assigns. 12.10 Waiver The waiver by either party of any breach or violation of any provisions of this Agreement shall not be deemed to be a waiver of any breach or violation of any other provision nor of any subsequent breach of violation of the same or any other provision. The subsequent acceptance by either Party of any moneys which become due hereunder shall not be deemed to be a waiver of any pre-existing or concurrent breach or violation by the other Party of any provision of this Agreement. 12.11 Contractor's Investigation Contractor has made an independent investigation (satisfactory to Contractor) of the conditions and circumstances surrounding the Agreement and the work to be performed by it. February 16, 2017 -110- City of Diamond Bar - Residential Packet Pg. 278 8.2.a 12.12 Section Deleted 12.13 Notice All notices, demands, requests, proposals, approvals, consents and other communications which this Agreement requires, authorizes or contemplates, unless otherwise specified in this Agreement, shall be in writing and shall either be personally delivered to a representative of the Parties at the address below or be deposited in the United States mail, first class postage prepaid, addressed as follows: If to City: City Manager City of Diamond Bar 21810 Copley Drive Diamond Bar, CA 91765 If to Contractor: USA Waste of California, Inc. Attn: District Manager 13940 East Live Oak Avenue Baldwin Park, CA 91706 Copy to: Waste Management—Southern California Market Area 9081 Tujunga Avenue Sun Valley, CA 91352 Attn: Legal Counsel The address to which communications may be delivered may be changed from time to time by a written notice given in accordance with this section. Notice shall be deemed given on the day it is personally delivered or, if mailed, three days from the date it is deposited in the mail. This notice shall also be sent by e-mail to the City Manager. 12.14 Representatives of the Parties All actions to be taken by City shall be taken by the City Council except as expressly provided herein. The City Council may delegate authority to the City Manager, and/or to other City employees and may permit such employees, in turn, to delegate some or February 16, 2017 -111- City of Diamond Bar - Residential Packet Pg. 279 8.2.a all of such authority to subordinate employees. Contractor may rely upon actions taken by such delegates if they are within the scope of the authority so delegated to them. Contractor shall, by the Effective Date, designate in writing a responsible officer who shall serve as the representative of Contractor in all matters related to this Agreement and shall inform City in writing of such designation and of any limitations upon his or her authority to bind Contractor. City may rely upon action taken by such designated representative as actions of Contractor unless they are outside the scope of the authority expressly delegated to him/her by Contractor as communicated to City. 12.15 City Free to Negotiate with Third Parties City may investigate all options for the Collection, transporting, Recycling, processing and Disposal of Solid Waste for periods during which this Agreement has expired or been terminated. Without limiting the generality of the foregoing, City may solicit proposals from Contractor and from third parties for the provision of Solid Waste Collection Services which are the subject of this Agreement, including without limitation Collection services, Disposal services, Recycling services, Green Waste services and processing, and any combination thereof, and may negotiate and execute agreements for such services which will take effect upon the expiration or earlier termination of this Agreement pursuant to Section 11.2 or otherwise. 12.16 Compliance with Municipal Code Contractor shall comply with those provisions of the municipal code of City which are applicable, and with any and all amendments to such applicable provisions during the term of this Agreement. To the extent that an amendment to the Code results in a material change in the cost of services provided by Contractor, such changes will be addressed as a change in scope in accordance with Section 2.10.1. 12.17 Privacy Contractor shall strictly observe and protect the rights of privacy of Customers. Information identifying individual Customers or the composition or contents of a Customer's waste stream shall not be revealed to any Person, governmental unit, private agency, or company, unless upon the authority of a court of law, by statute, or upon valid authorization of the Customer. This provision shall not be construed to preclude Contractor from preparing, participating in, or assisting in the preparation of February 16, 2017 -112- City of Diamond Bar - Residential Packet Pg. 280 8.2.a waste characterization studies or waste stream analyses which may be required by AB 939. This provision shall not apply to reports or records provided to City pursuant to this Agreement. 12.18 Proprietary Information, Public Records The City acknowledges that a number of the records and reports of Contractor are proprietary and confidential. Contractor is obligated to permit City inspection of its records on demand and to provide copies to City where requested. City will endeavor to maintain the confidentiality of all proprietary information provided by Contractor. Notwithstanding the foregoing, any documents provided by Contractor to City that are public records may be disclosed pursuant to the California Public Records Act. 12.19 Guarantee of Contractor's Performance Pursuant to a guarantee in substantially the form attached as Exhibit 4, Waste Management Inc., a corporation which owns all of the issued and outstanding common stock of Contractor, has agreed to guarantee Contractor's performance of this Agreement. The Guarantee is being provided concurrently with Contractor's execution of this Agreement. February 16, 2017 -113- City of Diamond Bar - Residential Packet Pg. 281 13.1 13.2 13.3 13.4 13.5 8.2.a ARTICLE 13 MISCELLANEOUS PROVISIONS Entire Agreement This Agreement contains the entire integrated agreement and understanding concerning the subject matter herein and supersedes and replaces any prior negotiations, promises, proposals (including Contractor's Proposal), and agreements between the Parties, whether written or oral. The Parties acknowledges this document has been executed with the consent and upon the advice of counsel. Each of the Parties acknowledges that no Party or agent or attorney of any other party has made any promise, representation, or warranty, express or implied, not contained in this Agreement, to induce the other Party to execute this instrument. Section Headings The article headings and section headings in this Agreement are for convenience of reference only and are not intended to be used in the construction of this Agreement nor to alter or affect any of its provisions. References to Laws and Other Agreements All references in this Agreement to laws shall be understood to include such laws as they may be subsequently amended or recodified, unless otherwise specifically provided. Interpretation This Agreement, including the Exhibits attached hereto, shall be interpreted and construed reasonably and neither for nor against either Party, regardless of the degree to which either Party participated in its drafting. Agreement This Agreement may not be modified or amended in any respect except by a writing signed by the Parties. February 16, 2017 -114- City of Diamond Bar - Residential Packet Pg. 282 8.2.a 13.6 Severability Invalidation of any of the provisions contained in this Agreement, or of the application thereof to any person, by judgment or court order, shall in no way affect any of the other provisions hereof or the application thereof to any other person or circumstance, and that same shall remain in full force and effect, unless enforcement of this Agreement, as so invalidated, would be unreasonable or inequitable under all the circumstances or would frustrate the purposes of this Agreement and/or the rights and obligations of the parties hereto. 13.7 Exhibits Each of Exhibits identified as Exhibit "1" through "6" is attached hereto and incorporated herein and made a part hereof by this reference. 13.8 Attorneys' Fees If either Party to this Agreement is required to initiate or defend or made a party to any action or proceeding between the Parties in any way connected with this Agreement, the prevailing Party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to recover its reasonable attorney's fees and costs from the opposing Party. Attorneys' fees shall include attorney's fees on any appeal. A Party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery, expert fees, and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action. 13.9 Effective Date This Agreement shall be effective upon the date it has been executed by both Parties. Once so executed, the City's City Clerk shall insert the later date thereof in the opening paragraph of this Agreement. February 16, 2017 -115- City of Diamond Bar - Residential Packet Pg. 283 8.2.a IN WITNESS WHEREOF, City and Contractor have executed this Agreement as of the day and year first above written. CITY OF DIAMOND BAR ("City") DATED: CITY OF DIAMOND BAR am James DeStefano City Manager Approved as to form: as David DeBerry City Attorney DATED: CONTRACTOR By: NAME TITLE USA Waste of California, Inc. NAME OF COMPANY ATTEST: ADDRESS Tommye Clerk TELEPHONE City Clerk February 16, 2017 -116- City of Diamond Bar - Residential Packet Pg. 284 8.2.a EXHIBIT 1 PUBLIC EDUCATION PLAN (to be attached after City approval per Section 5.3.2) February 16, 2017 City of Diamond Bar - Residential Packet Pg. 285 8.2.a EXHIBIT 2 INITIAL MAXIMUM RATES' Following are the rates through June 30, 2018: Residential Service Rate Cart Service - one each refuse, recycling, and green waste cart Standard Rates ..................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................... - 35 -gallon refuse cart - 64 -gallon refuse cart - 96 -gallon refuse cart $22.06 per month $27.18 per month ....................... $32.62 per month Senior Reduced Rates - 35 -gallon refuse cart $18.98 per month - 64 -gallon refuse cart $23.45 per month - 96 -gallon refuse cart $27.96 per month Additional Carts 35 -gallon refuse cart $6.90 per month 64 -gallon refuse cart $10.34 per month 96 -gallon refuse cart $13.82 per month Additional Recycling Cart (beyond two carts) $1.92 per month Additional Green Waste Cart (beyond one cart) $4.88 per month Additional Cart Rates and Services Backyard Service Surcharge $22.88 per month Yard Waste Reduction Discount $3.31 per month Additional Special Overage Pickup for Automated Cart Customers (in excess of two pickups per year) $9.32 per pickup Additional Bulky Item pickups (in excess of permitted annual free pickups) $34.92 per item Cart Exchange (after free -exchange period) $17.46 per request Emergency Service Rates - one crew and one collection truck $98.96/ hour *Including all fees retained by, or paid to, City. February 16, 2017 2-1 City of Diamond Bar - Residential Packet Pg. 286 8.2.a EXHIBIT 2 INITIAL MAXIMUM RATES* (continued) Following are the rates through June 30, 2018: Temporary Services" Rate Temporary Roll -Off Box, 40 -cubic yards - including container rental, pull and disposal costs up to 6 tons $592.94 Temporary Roll -Off Box, Low Boy - including container rental, pull and disposal costs up to 6 tons $628.94 Temporary Bins - 3 cubic yards $133.75 Temporary Bins - 6 cubic yards $165.17 Container Rental Fee - for temporary containers retained beyond seven days without being serviced $24.18 day Redelivery/Return Trip Fee $104.21 * Including all fees retained by, or paid to, City. ** Rates to be set equal to rates in City's Bin and Roll -Off Service Customer Solid Waste Management Services agreement with Valley Vista Services. February 16, 2017 2 - 2 City of Diamond Bar - Residential Packet Pg. 287 8.2.a 1 W74 wo 8131.1BY.11 EXAMPLE RATE ADJUSTMENT FORMULA - RESIDENTIAL RATES Step One: Calculate percentage change in indices Step Two: Determine components A B C Row Adjustment Factor Index Old Index Value New Index Value Percent Change in Index ((Column B Column A) -1) 1 Labor (1) $ 20.91 $ 21.45 2.6% 2 Fuel (2) 200.8 176.6 -12.1% 3 Equipment 1 (3) 1 139.3 142.0 1.9% 4 Disposal (4) 105.8 110.8 4.7% 5 Transfer/ Transport (5) 425.8 432.0 1.5% 6 All Other (6) 240.9 245.4 1.9% Step Two: Determine components Step Three: Apply percentage change to rates E Row Adjustment Factor Index Cost Component Weighted as a /o of Component Total (7) Percent Change in Index Total Weighted Change (from Column C) (Column D x Column E) 7 Labor (1) 24.8% 2.6% 0.6% 8 lFuel (2) 1 3.0% -12.1% -0.4% 9 Equipment (3) 16.3% 1.9% 0.3% 10 Disposal (4) 8.0% 4.7% 0.4% 11 Transfer/ Transport (5) 6.0% 1.5`% 0.1% 12 All Other (6) 41.9% 1.91,11, 0.8% 13 Total (5) 100.0% 1.5% 1.8% Step Three: Apply percentage change to rates Step Four: Re -weight cost components Row Rate Category (8) Existing Customer Rate Total Weighted Percentage Change (Row 13, Column F) Rate Increase or Decrease (Column G x Column H) Adjusted Rate (Column G + Column I) 14 96 -gallon cart service $ 32.59 1.8% $ 0.59 $ 33.18 15 64 -gallon cart service $ 27.15 1.8% $ 0.49 $ 27.64 16 35 -gallon cart service 5 22.04 1.8% $ 0.40 $ 22.44 17 96 -gallon senior service s 27.93 1.8% $ 0.50 $ 28.43 18 Extra Bulky Item S 34.89 1.8% $ 0.63 $ 35.52 Step Four: Re -weight cost components (1) Rate increased for a "Driver" as described in the Articles of Agreement between Waste Management of San Gabriel/Pomona Valley, Inc. and Teamsters Automotive Industrial and Allied Workers Local No. 495. (2) Producer Price Index, WPU05522101 Fuels and related products and power. (3) Producer Price Index, PCU336120336120, Heavy duty truck manufacturing - average annual change. (4) Producer Price Index, PCU21232121232104 for Construction sand and gravel, West - average annual change. (5) Consumer Price Index for All Urban Consumers (CUUROOOOSEHG02) Garbage and trash collection (6) Consumer Price Index for All Urban Consumers (CUURA421SAOLIE), all items less food and energy index - Los Angeles -Riverside -Orange County - average annual change. (7) July 1, 2018 rate adjustment weightings come from Article 6.4.2. Subsequent years' weightings will come from Column O of the previous year rate adjustment (8) Example rates listed below. Adjustment applies to all applicable rate categories. (9) Rounded down by 0.1 % to allow the Total in Line 25 to equal 100.0%. February 16, 2017 3-1 City of Diamond Bar - Residential Packet Pg. 288 Row Adjustment Factor Index Cost Component Weighting (Column D) Percent Change as Applied to Rate Adjustment (Column E) m Increase in Cost Components (Column K x Column L) m Cost Component Increased (Column K + Column M) Cost Components Re - weighted to Equal 100% 19 Labor (1) 24.8% 2.6% 0.6% 25.4% 25.0% 20 Fuel (2) 3.0% -12.1% -0.4% 2.6% 2.6% 21 Equipment (3) 16.3% 1.9% 0.3% 16.6% 16.3% 22 Disposal (4) 8.0% 4.7% 0.4% 8.4% 8.3% 23 Transfer/ Transport (5) 6.0% 1.5% 0.1% 6.1% 6.0% 24 All Other (6) 41.91/ 1.9% 0.8% 42.7% 41.8% (9) 25 Total 100.0% 101.8% 100.0% (1) Rate increased for a "Driver" as described in the Articles of Agreement between Waste Management of San Gabriel/Pomona Valley, Inc. and Teamsters Automotive Industrial and Allied Workers Local No. 495. (2) Producer Price Index, WPU05522101 Fuels and related products and power. (3) Producer Price Index, PCU336120336120, Heavy duty truck manufacturing - average annual change. (4) Producer Price Index, PCU21232121232104 for Construction sand and gravel, West - average annual change. (5) Consumer Price Index for All Urban Consumers (CUUROOOOSEHG02) Garbage and trash collection (6) Consumer Price Index for All Urban Consumers (CUURA421SAOLIE), all items less food and energy index - Los Angeles -Riverside -Orange County - average annual change. (7) July 1, 2018 rate adjustment weightings come from Article 6.4.2. Subsequent years' weightings will come from Column O of the previous year rate adjustment (8) Example rates listed below. Adjustment applies to all applicable rate categories. (9) Rounded down by 0.1 % to allow the Total in Line 25 to equal 100.0%. February 16, 2017 3-1 City of Diamond Bar - Residential Packet Pg. 288 8.2.a Imo_e-:--T: EXAMPLE RATE ADJUSTMENT FORMULA Example Calculation of an Annual Change in a Published Index Consumer Price Index - All Urban Consumers, Los Angeles -Riverside -Orange County, CA All items less food and energy, CUUSA421SAOLlE Year I Jan I Feb I March I April I May I June I July I August I Sept I Oct I Nov I Dec I Average 2014 239.084 239.908 240.322 240.507 240.366 240.460 240.981 241.574 242.016 242.360 241.842 241.491 240.909 2015 242.003 242.806 243.957 244.138 244.800 245.236 245.394 245.896 246.488 247.539 248.120 248.140 245.376 Average Change: 1.9% February 16, 2017 3 - 2 City of Diamond Bar - Residential Packet Pg. 289 8.2.a EXHIBIT 4 CORPORATE GUARANTY GuaKqpty THIS GUARANTY (the "Guaranty) is given as of the day of 2009. THIS GUARANTY is made with reference to the following facts and circumstances A. USA Waste of California dba Waste Management of San Gabriel/Pomona Valley, hereinafter ("Owner") is a corporation organized under the laws of the State of California, all of the issued and outstanding stock of which is owned by Waste Management, Inc. (Guarantor). B. Owner and the City have negotiated an Agreement for collection, processing, and disposal of solid waste dated as of , (hereinafter "Agreement"). A copy of this Agreement is attached hereto. C. It is a requirement of the Agreement, and a condition to the City entering into the Agreement, that Guarantor guaranty Owner's performance of the Agreement. D. Guarantor is providing this Guaranty to induce the City to enter into the Agreement. NOW, THEREFORE, in consideration of the foregoing, Guarantor agrees as follows: 1. Guaranty of the Agreement. Guarantor hereby irrevocably and unconditionally guarantees to the City the complete and timely performance, satisfaction and observation by Owner of each and every term and condition of the Agreement which Owner is required to perform, satisfy or observe. In the event that Owner fails to perform, satisfy or observe any of the terms and conditions of the Agreement, Guarantor will promptly and fully perform, satisfy or observe them in the place of the Owner or cause them to be performed, satisfied or observed. Guarantor hereby guarantees payment to the City of any damages, costs or expenses which might become recoverable by the City from Owner due to its breach of the Agreement. 2. Guarantor's Obligations Are Absolute. The obligations of the Guarantor hereunder are direct, immediate, absolute, continuing, unconditional and unlimited, February 16, 2017 4 - 1 City of Diamond Bar - Residential Packet Pg. 290 8.2.a and with respect to any payment obligation of Owner under the Agreement, shall constitute a guarantee of payment and not of collection, and are not conditional upon the genuineness, validity, regularity or enforceability of the Agreement. In any action brought against the Guarantor to enforce, or for damages for breach of, its obligations hereunder, the Guarantor shall be entitled to all defenses, if any, that would be available to the Owner in an action to enforce, or for damages for breach of, the Agreement (other than discharge of, or stay of proceedings to enforce, obligations under the Agreement under bankruptcy law). 3. Waivers. Except as provided herein the Guarantor shall have no right to terminate this Guaranty or to be released, relieved, exonerated or discharged from its obligations under it for any reason whatsoever, including, without limitation: (1) the insolvency, bankruptcy, reorganization or cessation of existence of the Owner; (2) the actual or purported rejection by a trustee in bankruptcy of the Agreement, or any limitation on any claim in bankruptcy resulting from the actual or purported termination of the Agreement; (3) any waiver with respect to any of the obligations of the Agreement guaranteed hereunder or the impairment or suspension of any of the City's rights or remedies against the Owner; or (4) any merger or consolidation of the Owner with any other corporation, or any sale, lease or transfer of any or all the assets of the Owner. Without limiting the generality of the foregoing, Guarantor hereby waives the rights and benefits under California Civil Code Section 2819. The Guarantor hereby waives any and all benefits and defenses under California Civil Code Section 2846, 2849, and 2850, including without limitation, the right to require the City to (a) proceed against Owner, (b) proceed against or exhaust any security or collateral the City may hold now or hereafter hold, or (c) pursue any other right or remedy for Guarantor's benefit, and agrees that the City may proceed against Guarantor for the obligations guaranteed herein without taking any action against Owner or any other guarantor or pledgor and without proceeding against or exhausting any security or collateral the City may hold now or hereafter hold. City may unqualifiedly exercise in it sole discretion any or all rights and remedies available to it against Owner or any other guarantor or pledgor without impairing the City's rights and remedies in enforcing this Guaranty. Any assignment of the Agreement which does not require City's approval shall not affect the liability of the Guarantor. The Guarantor hereby expressly waives diligence, presentment, demand for payment or performance, protest and all notices February 16, 2017 4-2 City of Diamond Bar - Residential Packet Pg. 291 8.2.a whatsoever, including, but not limited to, notices of non-payment or non-performance, notices of protest, notices of any breach or default, and notices of acceptance of this Guaranty. If all or any portion of the obligations guaranteed hereunder are paid or performed, Guarantor's obligations hereunder shall continue and remain in full force and effect in the event that all or any part of such payment or performance is avoided or recovered directly or indirectly from the City as a preference, fraudulent transfer or otherwise, irrespective of (a) any notice of revocation given by Guarantor or Owner prior to such avoidance or recovery, and (b) payment in full of any obligations then outstanding. 4. Term. This Guaranty is not limited to any period of time, but shall continue in full force and effect until all of the terms and conditions of the Agreement have been fully performed or otherwise discharged and Guarantor shall remain fully responsible under this Guaranty without regard to the acceptance by the City of any performance bond or other collateral to assure the performance of Owner's obligations under the Agreement. Guarantor shall not be released of its obligations hereunder so long as there is any claim by the City against Owner arising out of the Agreement based on Owner's failure to perform which has not been settled or discharged. 5. No Waivers. No delay on the part of the City in exercising any rights under this Guaranty or failure to exercise such rights shall operate as a waiver of such rights. No notice to or demand on Guarantor shall be a waiver of any obligation of Guarantor or right of the City to take other or further action without notice or demand. No modification or waiver of any of the provisions of this Guaranty shall be effective unless it is in writing and signed by the City and by Guarantor, nor shall any waiver be effective except in the specific instance or matter for which it is given. 6. Attorneys Fees. In addition to the amounts guaranteed under this Guaranty, Guarantor agrees in the event of Guaranty's breach of its obligations to pay reasonable attorney's fees and all other reasonable costs and expenses incurred by the City in enforcing this Guaranty, or in any action or proceeding arising out of or relating to this Guaranty, including any action instituted to determine the respective rights and obligations of the parties hereunder. 7. Governing Law: Jurisdiction. This Guaranty is and shall be deemed to be a contract entered into in and pursuant to the laws of the State of California and shall be governed and construed in accordance with the laws of California without regard to its February 16, 2017 4 - 3 City of Diamond Bar - Residential Packet Pg. 292 8.2.a conflicts of laws, rules for all purposes including, but not limited to, matters of construction, validity and performance. Guarantor agrees that any action brought by the City to enforce this Guaranty may be brought in any court of the State of California and Guarantor consents to personal jurisdiction over it by such courts. Guarantor appoints the following person as its agents for service of process in California: With a copy by certified mail to: 8. Severability. If any portion of this Guaranty is held to be invalid or unenforceable, such invalidity will have not have an affect upon the remaining portions of this Guaranty, which shall be severable and continue in full force and effect. 9. Binding On Successors. This Guaranty shall inure to the benefit of the City and its successors and shall be binding upon Guarantor and its successors, including transferee(s) of substantially all of its assets and its shareholder(s) in the event of its dissolution or insolvency. 10. Authority. Guarantor represents and warrants that it has the corporate power and authority to give this Guaranty, that its execution of this Guaranty has been authorized by all necessary action under its Article of Incorporation and By -Laws, and that the person signing this Guaranty on its behalf has the authority to do so. 11. Notices. Notice shall be given in writing, deposited in the U.S. mail, registered or certified, first class postage prepaid, addressed as follows: To the City: February 16, 2017 City Manager City of Diamond Bar 21810 Copley Drive Diamond Bar, CA 91765 City of Diamond Bar - Residential Packet Pg. 293 8.2.a with a copy to the City Attorney at the same address. To the Guarantor: By: (title) By: (title) February 16, 2017 4 - 5 City of Diamond Bar - Residential Packet Pg. 294 8.2.a EXHIBIT 5 Contractor's Faithful Performance Bond KNOW ALL MEN BY THESE PRESENTS: That , a California , as PRINCIPAL, and a Corporation organized and doing business by virtue of the laws of the State of California, and duly licensed for the purpose of making, guaranteeing, or becoming sole surety upon bonds or undertakings required or authorized by the laws of the State of California, as SURETY, are held and firmly bound to City, hereinafter called OBLIGEE, in the penal sum of one hundred twenty five thousand dollars ($125,000) lawful money of the United States, for the payment of which, well and truly to be made, we and each of us hereby bind ourselves, and our and each of our heirs, executors, administrators, successors, and assigns, jointly and severally, firmly by these presents. NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH THAT: WHEREAS, the above bounden PRINCIPAL has entered into a contract, entitled "RESIDENTIAL SOLID WASTE MANAGEMENT SERVICES" with City, to do and perform the following work, to wit: Collect, Process and dispose of Solid Waste generated within City, in accordance with the contract. NOW, THEREFORE, if the above bounden PRINCIPAL shall well and truly perform, or cause to be performed each and all of the requirements and obligations of said contract to be performed by said PRINCIPAL, as in said contract set forth, then this BOND shall be null and void; otherwise it will remain in full force and effect. And the said Surety, for value received hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the contract or to the work to be performed thereunder or the specifications accompanying the same shall in any wise affect its obligations on this BOND, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the contract or to the work or to the specifications. February 16, 2017 5 - 1 City of Diamond Bar - Residential Packet Pg. 295 8.2.a In the event suit is brought by OBLIGEE to enforce the provisions of this bond, said Surety will pay to OBLIGEE a reasonable attorney's fee, plus costs of suit, in an amount to be fixed by the court. IN WITNESS WHEREOF, said PRINCIPAL and said SURETY have caused these presents to be duly signed and sealed this DAY OF , 200— a California Corporation (PRINCIPAL) (SEAL) February 16, 2017 By: SURETY (ATTORNEY IN FACT) (SEAL) 5 - 2 City of Diamond Bar - Residential Packet Pg. 296 8.2.a EXHIBIT 6 NOTARY CERTIFICATION ACKNOWLEDGMENT State of California County of ) On before me, (insert name and title of the officer) personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) February 16, 2017 City of Diamond Bar - Residential Packet Pg. 297 AMENDED AND RESTATED AGREEMENT BETWEEN CITY OF DIAMOND BAR AND LISA WASTE OF CALIFORNIA INC. FOR RESIDENTIAL CART CUSTOMER SOLID WASTE MANAGEMENT SERVICES February 16,20_17 8.2.b Deleted: ,DBA¶ WASTE MANAGEMENT OF SAN GABRIEL/ POMONA Deleted: February 8, 2017January 27, 2017 Packet Pg. 298 AGREEMENT BETWEEN CITY OF DIAMOND BAR AND USA WASTE OF CALIFORNIA, INC. ,FOR RESIDENTIAL CART CUSTOMER SOLID WASTE MANAGEMENT SERVICES TABLE OF CONTENTS RECITALS Page 8.2.b Deleted: CALIFORNIA Formatted: TEXT, Left Deleted: dba¶ WASTE MANAGEMENT OF SAN GABRIEL/PC VALLEY ARTICLE1.................................................................................................................................................3 DEFINITIONS.......................................................................................................................................................................... 3 1.1 AB 939......................................................................................................................................................................3 1.2 AFFILIATE....................................................................................................................,.............................................3 1.3 BILLINGS...................................................................................................................................................................4 1.4 BIN............................................................................................................................................................................4 1.5 BIN SERVICE............................................................................................................................................................. 4 1.6 BULKY ITEMS............................................................................................................................................................4 1.7 CART ........................................... .................. ....................... ......... ............................................... ......... ._.................. 5 1.8 CITY..........................................................................................................................................................................5 1.9 COLLECT/ COLLECTION ...........................................................................................................................................5 1.10 COMMERCIAL SERVICES......................................................................................................................................5 1.11 COMMERCIAL PREMISES...................................................................................................................................... 5 1.12 CONTRACTOR......................................................................................................................................................6 1.13 CONTRACTOR COMPENSATION.......................................................................................................................... 6 1.14 CONSTRUCTION AND DEMOLITION DEBRIS....................................................................................................... 6 1.15 CONTAINER.........................................................................................................................................................6 1.16 CPI.......................................................................................................................................................................6 1.17 CUSTOMER...........................................................................................................................................................6 1.18 DISPOSAL.............................................................................................................................................................6 1.19 DISPOSALSITE(S).................................................................................................................................................6 1.20 DIVERSION...........................................................................................................................................................7 1.21 ENVIRONMENTAL LAWS..................................................................................................................................... 7 1.22 FACILITY.............................................................................................................................................................. 7 1.23 FOOD WASTE........................................................................................................................................................ 7 1.24 GREEN WASTE..................................................................................................................................................... 8 1.25 GREEN WASTE PROCESSING FACILITY................................................................................................................ 8 1.26 GROSS RECEIPTS.................................................................................................................................................. 8 1.27 HAZARDOUS SUBSTANCE.................................................................................................................................... 8 1.28 HAZARDOUS WASTE...........................................................................................................................................9 1.29 HOUSEHOLD HAZARDOUS WASTE("HHW")...................................................................................................9 1.30 MATERIALS RECOVERY FACILITY („MRF").......................................................................................................9 1.31 MULTI -FAMILY DWELLING.................................................................................................................................9 ,_.,_.... Deleted: 10 1.32 ORGANIC WASTE.............................................................................................................................................. 10 1.33 ORGANIC WASTE PROCESSING FACILITY......................................................................................................... 10 Deleted: February 8, 2017January 27, 2017 of Diamond Bar - Residential Packet Pg. 299 1.34 PERSON..............................................................................................................................................................10 1.35 PREMISES........................................................................................................................................................... 10 1.36 RATE YEAR........................................................................................................................................................ 10 1.37 RECYCLING........................................................................................................................................................10 1.38 RECYCLABLE MATERIALS.................................................................................................................................. 10 1.39 REFUSE...............................................................................................................................................................11 1.40 RESIDENTIAL SERVICES..................................................................................................................................... 11 1.41 RESIDENTIAL CUSTOMERS ...... .......................................... ..................... .......................... ......... ........... ................ 11 1.42 RESIDENTIAL PREMISES..................................................................................................................................... 11 1.43 ROLL -OFF BOX................................................................................................................................................... 12 1.44 SINGLE FAMILY DWELLING............................................................................................................................... 12 1.45 SOLID WASTE.................................................................................................................................................... 12 1.46 SOLID WASTE COLLECTION SERVICES.............................................................................................................. 12 1.47 SOURCE SEPARATED.......................................................................................................................................... 12 1.48 STATE.................................................................................................................................................................12 1.49 TEMPORARY SERVICE........................................................................................................................................ 13 1.50 TRANSFORMATION............................................................................................................................................13 1.51 TRANSFER STATION........................................................................................................................................... 13 1.52 WASTE GENERATOR............................................................................................................................................. 13 ARTICLE2...............................................................................................................................................14 GRANT AND ACCEPTANCE OF FRANCHISE.............................................................................................................14 2.1 GRANT AND ACCEPTANCE OF FRANCHISE, INDEM1\1TY OF AWARD...................................................................14 ................................................ 2.2 SECTION DELETED..................................................................... ..............................14 2.3 EFFECTIVE DATE.................................................................................................................................................... 14 2.4 TERM OF AGREEMENT............................................................................................................................................ 14 2.5 CITY'S OPTION TO EXTEND TERM.......................................................................................................................... 15 2.6 REPRESENTATIONS AND WARRANTIES OF CONTRACTOR.................................................................................... 15 2.7 CONDITIONS TO EFFECTIVENESS OF AGREEMENT... ............. _ ................ ........................... ........ _ ....... _ .............. 17 2.8 DELEGATION OF AUTHORITY................................................................................................................................ 17 2.9 LIMITATIONS TO SCOPE........................................................................................................................................... 18 2.10 CITY's RIGHT To DIRECT CHANGES.................................................................................................................. 20 2.10.1 General.....................................................................................................................................................20 2.10.2 New Diversion Programs......................................................................................................................... 20 2.11 OWNERSHIP OF SOLID WASTE.......................................................................................................................... 21 2.12 PERMITS AND LICENSES................................................................................................ .................................... 21 ARTICLE3...............................................................................................................................................23 FEESPAID TO THE CITY................................................................................................................................................... 23 3.1 CONTRACTING FEE................................................................................................................................................ 23 3.2 OTHER CITY FEES................................................................................................................................................... 23 3.2.1 Franchise Fee................................................................................................................................................. 23 3.2.2 AB 939 Fee.................................................................................................................................................... 23 3.2.3 Street Sweeping Funding.............................................................................................................................. 24 3.2.4 Residential Collection Vehicle Road Maintenance Cost Reimbursement..................................................... 24 3.2.5 Environmental Education Fee....................................................................................................................... 24 3.2.6 Late Payment of Fees..................................................................................................................................... 25 3.3 FUTURE FEES.......................................................................................................................................................... 25 ARTICLE4...............................................................................................................................................26 DIRECTSERVICES.............................................................................................................................................................. 26 4.1 REFUSE....................................................................................................................................................................26 of Diamond Bar - Residential 8.2.b .W 0 Deleted: February 8, 2017January 27, 2017 E s R rr w a Packet Pg. 300 4.1.1 General..........................................................................................................................................................26 4.1.2 Residential Cart Refuse Collection................................................................................................................ 26 4.1.3 Refuse Cart Overage..................................................................................................................................... 27 4.1.4 Backyard Service.......................................................... ................................................................................. 27 4.1.5 Backyard Service for the Disabled................................................................................................................. 27 4.1.6 Section Deleted.............................................................................................................................................. 28 4.1.7 Determination of Service Type...................................................................................................................... 28 4.1.8 Overflowing Containers................................................................................................................................ 28 4.1.9 Section Deleted.............................................................................................................................................. 29 4.1.10 Temporary Roll -Off and Temporary Bin Services.................................................................................... 29 4.1.11 Section Deleted......................................................................................................................................... 30 4.1.12 Section Deleted......................................................................................................................................... 30 4.1.13 Section Deleted......................................................................................................................................... 30 4.1.14 Section Deleted......................................................................................................................................... 30 4.1.15 On -Call Bulky Item Pickup...................................................................................................................... 30 4.1.16 Bulky Item Diversion............................................................................................................................... 31 4.1.17 Disposal of Electronic and Other Special Wastes..................................................................................... 31 4.1.18 Door -to -Door HHW Collection................................................................................................................ 31 4.1.19 Annual Household Hazardous Waste Event............................................................................................ 32 4.1.20 Curbside Used Oil and Oil Filter Collection............................................................................................ 32 4.1.21 Service Exceptions; Hazardous Waste Notifications................................................................................ 32 4.1.22 Sharp's Mail Back Program..................................................................................................................... 33 4.1.23 Medication Takeback Program................................................................................................................. 33 4.1.24 FreeCycle.com...........................................................................................................................................34 4.2 RECYCLING .............................................................................................................................................................34 4.2.1 Recycling Collection...................................................................................................................................... 34 4.2.2 Section Deleted.............................................................................................................................................. 34 4.2.3 Contaminated Loads, Warning Notice.......................................................................................................... 34 4.2.4 Marketing and Sale of Recyclable Materials................................................................................................. 35 4.2.5 Minimum Diversion Requirements.............................................................................................................. 35 4.2.6 Construction and Demolition Debris Diversion........................................................................................... 36 4.2.7 Optional Food Waste Diversion Program..................................................................................................... 37 4.3 GREEN WASTE PROGRAM......................................................................................................................................37 4.3.1 Single Family Green Waste Collection......................................................................................................... 37 4.3.2 Holiday Tree Collection Program................................................................................................................. 38 4.3.3 Section Deleted.............................................................................................................................................. 38 4.3.4 End Uses for Green Waste............................................................................................................................ 38 4.3.5 Mulch Give-a-Way....................................................................................................................................... 38 4.4 CART SELECTION, DISTRIBUTION, EXCHANGES AND REMOVAL......................................................................... 39 4.4.1 Cart Selection and Distribution.................................................................................................................... 39 4.4.2 Cart Exchanges............................................................................................................................................. 39 4.4.3 Removal of Carts Distributed Under the Previous Contract........................................................................ 39 4.5 CITY SERVICES........................................................................................................................................................39 4.5.1 Section Deleted.............................................................................................................................................. 39 4.5.2 City Sponsored Events.................................................................................................................................. 39 4.5.3 Emergency Collection and Disposal Service................................................................................................. 40 4.5.4 Abandoned Item Collection from City Right -of -Way or Other Public Property .......................................... 40 4.5.5 Community Development Review Services.................................................................................................. 40 4.5.6 Large Venue Event Assistance, Event Recycling......................................................................................... 41 4.5.7 Confiscation of Unauthorized Containers .................................... .......... ...... ......... ........................................ 41 4.5.8 Provision of Storage Containers................................................................................................................... 41 4.6 OPERATIONS...........................................................................................................................................................42 4.6.1 Schedules, Missed Pickups............................................................................................................................ 42 of Diamond Bar - Residential 8.2.b Deleted: February 8, 2017January 27, 2017 Packet Pg. 301 4.6.2 Vehicles.........................................................................................................................................................42 4.6.3 Containers.....................................................................................................................................................46 4.6.3.1 Carts.........................................................................................................................................................47 4.6.3.2 Cart Maintenance and Replacement Responsibilities................................................................_............. 48 4.6.3.3 Bins.......................................................................................................................................................... 48 4.6.3.4 Roll -off Boxes............................................................................................................................................ 49 4.6.4 Litter Abatement........................................................................................................................................... 49 4.6.5 Personnel.......................................................................................................................................................50 4.6.6 Identification Required.................................................................................................................................. 51 4.6.7 Unauthorized Fees and Gratuities................................................................................................................ 51 4.6.8 Non-Discrimination......................................................................................................................................51 4.6.9 Report of Accumulation of Solid Waste; Unauthorized Dumping............................................................... 52 4.7 TRANSPORTATION OF SOLID WASTE..................................................................................................................... 52 4.8 APPROVED FACILITIES........................................................................................................................................... 52 4.9 STATUS OF DISPOSAL SITE..................................................................................................................................... 53 4.10 DEDICATED ROUTES.......................................................................................................................................... 53 4.11 ROUTE AUDIT....................................................................................................................................................53 ARTICLE5...............................................................................................................................................55 OTHERSERVICES...............................................................................................................................................................55 5.1 CUSTOMER BILLING AND CONTRACTOR COMPENSATION................................................................................... 55 5.1.1 Billing...........................................................................................................................................................55 5.1.2 Contractor's Invoices.................................................................................................................................... 55 5.1.3 Yard Waste Reduction Discount.................................................................................................................. 55 5.1.4 Disabled Customer Discount........................................................................................................................ 56 5.1.5 Senior Discount............................................................................................................................................56 5.1.6 Non -Payment; Suspension of Service ........................................................................................................... 57 5.1.6.1 Quarterly Cart Billings............................................................................................................................ 57 5.1.6.2 Temporary Bin and Roll -Off Box Service................................................................................................. 57 5.1.6.3 Collection Proceedings.............................................................................................................................57 5.1.6.4 Continued Provision of Service................................................................................................................ 58 5.2 CUSTOMER SERVICE...............................................................................................................................................58 5.2.1 Local Office ................................. ................................................... ............... ................................................. 58 5.2.2 Complaint Documentation............................................................................................................................ 58 5.2.3 Customer Service Standards......................................................................................................................... 59 5.2.4 Resolution of Customer Complaints............................................................................................................. 60 5.2.5 Contract Liaison............................................................................................................................................ 60 5.2.6 Service Liaison......................................................................................--........_......................,...................61 5.3 EDUCATION AND PUBLIC AWARENESS................................................................................................................. 61 5.3.1 General..........................................................................................................................................................61 5.3.2 Implementation and On-going Education Requirements............................................................................. 61 5.3.3 Contractor Representative............................................................................................................................63 5.3.4 Community Events....................................................................................................................................... 63 5.4 WASTE GENERATION/ CHARACTERIZATION STUDIES.......................................................................................... 64 ARTICLE6...............................................................................................................................................65 COMPANY COMPENSATION AND RATES.................................................................................................................65 6.1 GENERAL................................................................................................................................................................65 6.2 INITIAL RATES........................................................................................................................................................ 65 6.3 SCHEDULE OF FUTURE ADJUSTMENTS................................................................................................................... 65 6.4 METHOD OF ADJUSTMENTS................................................................................................................................... 66 6.4.1 General..........................................................................................................................................................66 of Diamond Bar - Residential 8.2.b Deleted: February 8, 2017January 27, 2017 Packet Pg. 302 6.4.2 Cost Components for Rate Adjustment Indices............................................................................................ 66 6.4.3 Rate Adjustment Steps................................................................................................................................. 67 6.4.4 Temporary Service Rate Adjustment............................................................................................................ 68 6.5 EXTRAORDINARY ADJUSTMENTs........................................................................................................................... 68 6.6 EFFECT OF RATE CHALLENGE................................................................................................................................ 69 6.7 RESIDENTIAL RECYCLABLES REBATE TO CUSTOMERS........................................................................................... 70 ARTICLE7.............................................................................................................................................................................. 72 REVIEW OF SERVICES AND PERFORMANCE............................................................................................................72 7.1 PERFORMANCE REVIEW MEETING......................................................................................................................... 72 7.2 PERFORMANCE SATISFACTION SURVEY................................................................................................................ 73 ARTICLE8...............................................................................................................................................74 RECORDS, REPORTS AND INFORMATION REQUIREMENTS .............................................................................74 8.1 GENERAL................................................................................................................................................................74 8.2 RECORDS................................................................................................................................................................ 74 8.2.1 General, Right to Inspect................._............................................•...._........_............,.................................. 74 8.2.2 Financial Records.......................................................................................................................................... 75 8.2.3 Solid Waste Records...................................................................................................................................... 75 8.2.4 CERCLA Defense Records............................................................................................................................ 76 8.2.5 Section Deleted.............................................................................................................................................. 77 8.2.6 Other Programs' Records............................................................................................................................. 77 8.2.7 Audit.............................................................................................................................................................77 8.2.8 Payments and Refunds................................................................................................................................. 77 8.3 REPORTS................................................................................................................................................................. 78 8.3.1 Report Formats and Schedule....................................................................................................................... 78 8.3.2 Monthly Reports........................................................................................................................................... 78 8.3.3 Annual Report.............................................................................................................................................. 79 8.3.4 Financial Report............................................................................................................................................ 80 8.4 REPORTING ADVERSE INFORMATION.................................................................................................................... 80 8.5 FAILURE TO REPORT............................................................................................................................................... 81 ARTICLE9...............................................................................................................................................82 9.1 INDEMNIFICATION................................................................................................................................................. 82 9.2 HAZARDOUS SUBSTANCES INDEMNIFICATION..................................................................................................... 83 9.3 AB 939 INDEMNIFICATION AND GUARANTEE...................................................................................................... 85 9.4 INSURANCE............................................................................................................................................................. 85 9.5 FAITHFUL PERFORMANCE BOND........................................................................................................................... 89 9.6 FAITHFUL PERFORMANCE LETTER OF CREDIT...................................................................................................... 90 9.7 FORFEITURE OF PERFORMANCE BOND.................................................................................................................. 90 9.8 FORFEITURE OF LETTER OF CREDIT....................................................................................................................... 90 9.9 PERFORMANCE SECURITY BEYOND SERVICE TERM.............................................................................................. 91 ARTICLE10.............................................................................................................................................92 CITY'S RIGHT TO CONTRACT WITH THIRD PARTIES TO PERFORM FRANCHISED SERVICES.............92 ARTICLE11.............................................................................................................................................93 DEFAULT, REMEDIES AND LIQUIDATED DAMAGES............................................................................................ 93 11.1 EVENTS OF DEFAULT......................................................................................................................................... 93 11.2 RIGHT TO TERMINATE UPON DEFAULT AND RIGHT TO SPECIFIC PERFORMANCE ......................................... 96 11.3 LIQUIDATED DAMAGES..................................................................................................................................... 96 11.4 SUSPENSION OF PERFORMANCE...................................................................................................................... 102 11.4.1 Force Majeure.................. .......................... .............. ......... ....................................................... ............... 102 of Diamond Bar - Residential 8.2.b Deleted: February 8, 2017January 27, 2017 Packet Pg. 303 11.4.2 Labor Unrest..........................................................................................................................................102 11.5 DISPUTE RESOLUTION; ADMINISTRATIVE REMEDIES; TERMINATION........................................................... 103 11.5.1 Negotiation and Mediation.................................................................................................................... 103 11.5.2 Confidentiality........................................................................................................................................104 11.5.3 Injunctive Relief.....................................................................................................................................104 11.5.4 Continuing Obligation...........................................................................................................................104 11.5.5 Failure of Mediation...............................................................................................................................104 11.6 ASSURANCE OF PERFORMANCE...................................................................................................................... 104 ARTICLE12...........................................................................................................................................106 OTHER AGREEMENTS OF THE PARTIES..................................................................................................................106 12.1 RELATIONSHIP OF PARTIES............................................................................................................................. 106 12.2 COMPLIANCE w1TH LAW................................................................................................................................ 106 12.3 GOVERNING LAw.........................................._................................................................................................106 12.4 JURISDICTION...................................................................................................................................................106 12.5 ASSIGNMENT ..................... ....................................... .......... -................................................................. ..........107 12.6 CONTRACTING OR SUBCONTRACTING................................................................................................ ............ 109 12.7 BINDING ON ASSIGNS...................................................................................................................................... 109 12.8 COOPERATION IN PREPARATION FOR TERMINATION OR EXPIRATION OF CONTRACT ................................. 109 12.9 PARTIES IN INTEREST....................................................................................................................................... 110 12.10 WAIVER........................................................................................................................................................... 110 12.11 CONTRACTOR'S INVESTIGATION..................................................................................................................... 110 12.12 SECTION DELETED............................................................................................................................................111 12.13 NOTICE............................................................................................................................................................ III 12.14 REPRESENTATIVES OF THE PARTIES................................................................................................................ III 12.15 CITY FREE TO NEGOTIATE WITH THIRD PARTIES............................................................................................ 112 12.16 COMPLIANCE WITH MUNICIPAL CODE.......................................................................................................... 112 12.17 PRIVACY...........................................................................................................................................................112 12.18 PROPRIETARY INFORMATION, PUBLIC RECORDS............................................................................................ 113 12.19 GUARANTEE OF CONTRACTOR'S PERFORMANCE.......................................................................................... 113 ARTICLE13...........................................................................................................................................114 MISCELLANEOUS PROVISIONS..................................................................................................................................114 13.1 ENTIRE AGREEMENT....................................................................................................................................... 114 13.2 SECTION HEADINGS........................................................................................................................................ 114 13.3 REFERENCES TO LAWS AND OTHER AGREEMENTS........................................................................................ 114 13.4 INTERPRETATION............................................................................................................................................. 114 13.5 AGREEMENT....................................................................................................................................................114 13.6 SEVERABILITY..................................................................................................................................................115 13.7 EXHIBITS.......................................................................................................................................................... 115 13.8 ATTORNEYS' FEES............................................................................................................................................115 Exhibits 1. Public Education Plan 2. Initial Maximum Rates 3. Example Rate Adjustment Formula_: 3A: Residential Rates 3B: Calculation of an Annual Change in a Published Index 4. Corporate Guarantee 5. Faithful Performance Bond of Diamond Bar - Residential 8.2.b Deleted: February 8, 2017January 27, 2017 Packet Pg. 304 6 Notary Certification 7. Example Monthly Report Format February 16, 2017 of Diamond Bar - Residential 8.2.b Deleted: February 8, 2017January 27, 2017 Packet Pg. 305 8.2.b AGREEMENT This Amended and Restated Agreement for Integrated Solid Waste Management Services (hereinafter the "Agreement") is entered into this _ day of , 20r by and - Deleted: 09 between the City of Diamond Bar, California, ("City") and USA Waste of California, Inc "Contractor"), for the collection, transportation, recycling, processing, and disposal — Deleted: , dba Waste Management of San - Gabriel/Pomona Valley of residential solid waste and other services related to meeting the goals and requirements of the California Integrated Waste Management Act. RECITALS WHEREAS, the Legislature of the State of California, by enactment of the California Integrated Waste Management Act of 1989 (AB 939) (California Public Resources Code Sections 49100 et seq.), has declared that it is in the public interest to authorize and require local agencies to make adequate provisions for solid waste handling within their jurisdictions; and, WHEREAS, pursuant to California Public Resources Code Section 49300 and 49500-49524, the City of Diamond Bar has determined that the public health, safety, and well-being require that an exclusive franchise for residential solid waste collection services be awarded to a qualified company for the collection, transfer and transportation, recycling, processing, and disposal of solid waste and other services related to meeting the diversion goals required by AB 939, and other requirements of the California Integrated Waste Management Act; and, WHEREAS, City desires to maintain reasonable rates and quality service related to the collection, transfer and transportation, recycling, processing, and disposal of solid waste and other services; and, WHEREAS, Contractor is the current residential solid waste hauler for the City and the term of the Initial Agreement, as defined below is set to expire on August 15, 2018; and, Deleted: current agreement under which it oper the City will expire on August 16, 2010 WHEREAS, City and Contractor ("Parties") have negotiated, and desire to enter into this Agreement in order that Contractor continue to serve as the City's exclusive residential cart customer solid waste hauler for the term hereof; and, WHEREAS, City and Contractor are mindful of the provisions of the laws governing the safe collection, transport, recycling, processing and disposal of solid waste, including Deleted: February 8, 2017January 27, 2017 ary 16, 2017 -1- City of Diamond Bar - Residential Packet Pg. 306 AB 939, the Resource Conservation and Recovery Act ("RCRA"), and the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"). City and Contractor desire to leave no doubt as to their respective roles and to memorialize that by entering into this Agreement, City is not thereby becoming an "arranger" or a "generator" as those terms are used in CERCLA, and that it is Contractor, not City, that is "arranging for" the collection from premises in the City, transport for disposal, composting or other processing, and recycling of municipal solid waste which may contain hazardous substances; and further to confirm that as a material inducement to City entering into this Agreement, Contractor has agreed to fully indemnify City in connection with any claims, losses, liabilities, lawsuits or actions relating to the inadvertent or intentional collection, transportation and/or disposal of hazardous materials that may occur in connection with Contractor's performance under this Agreement; and, WHEREAS, Contractor has agreed, as part of this Agreement, acting as an independent contractor to provide such personnel, equipment and supplies as are necessary to ensure City complies with the requirements of Public Resources Code Section 49100, et seq. WHEREAS. the Parties entered in that certain agreement for Solid Waste Management Services on August 16, 2010 ("Initial Agreement"), which term expires on August 15, 2018. The Parties intend that in entering into this Agreement that this Agreement shall replace in its entirety the Initial Agreement and all amendments thereto upon the Effective Date as defined herein. NOW, THEREFORE, in consideration of theec�r itals above stated, which recitals are a material part of this Agreement and the terms, conditions, covenants and agreements contained herein, the Parties do hereby agree as follows: Deleted: premises 8.2.b Deleted: February 8, 2017January 27, 2017 i -2- City of Diamond Bar - Residential Packet Pg. 307 8.2.b ARTICLE 1 DEFINITIONS The terms used in this Agreement shall have the meaning set forth in this Article 1. In the event a term is not defined in this Article 1, then it shall have the meaning set forth in the Diamond Bar Municipal Code or in Division 30, Part 1, Chapter 2 of the California Public Resources Code (with precedence given to definitions in the Diamond Bar Municipal Code over conflicting definitions contained in the Public Resources Code). Except as provided in Article 1, words beginning with lower case letters are being used with their common ordinary meanings, not as defined terms. Otherwise, the following capitalized words and terms shall have the following meanings: 1.1 AB 939 "AB 939" means the California Integrated Waste Management Act of 1989 (California Public Resources Code Section 40000 et seq.), as it may be amended from time to time. 1.2 Affiliate "Affiliate" means all businesses (including corporations, limited and general partnerships and sole proprietorships) which are directly or indirectly related to Contractor by virtue of direct or indirect ownership interest or common management. These shall be deemed to be "Affiliated with" Contractor and included within the term "Affiliates" as used herein. An Affiliate shall include a business in which Contractor owns a direct or indirect ownership interest, a business which has a direct or indirect ownership interest in Contractor and/or a business which is also owned, controlled or managed by any business or individual which has a direct or indirect ownership interest in Contractor. For purposes of determining whether an indirect ownership interest exists, the constructive ownership provisions of Section 318(a) of the Internal Revenue Code of 1986, as in effect on the date of this Agreement, shall apply; provided, however, that (i) "ten percent (10%)" shall be substituted for "fifty percent (50%)" in Section 318(a)(2)(C) and in Section 318(a)(3)(C) thereof; and (ii) Section 318(a)(5)(C) shall be disregarded. For purposes of determining ownership under this paragraph and constructive or indirect ownership under Section 318(a), ownership interest of less than ten percent (10%) shall be disregarded and percentage interests shall be determined on Deleted: February 8, 2017January 27, 2017 -3- City of Diamond Bar - Residential Packet Pg. 308 8.2.b the basis of the percentage of voting interest or value which the ownership interest represents, whichever is greater. 1.3 Billings "Billings" or "Billing" or "Bill" means the statements of charges provided to Customers for services rendered by Contractor. 1.4 Bin "Bin" means a metal Container with hinged lids and wheels with a capacity of less than ten (10) cubic yards. 1.5 Bin Service "Bin Service" means Solid Waste Collection Services in which a Bin is used for the Collection of Solid Waste. 1.6 Bulky Items "Bulky Items" means Solid Waste that cannot and/or would not typically be accommodated within a Cart including specifically: furniture (including chairs, sofas, mattresses, and rugs); appliances (including refrigerators, ranges, washers, dryers, water heaters, dishwashers, plumbing, small household appliances and other similar items, commonly known as "white goods"); unusually large amounts of yard debris and Green Waste and small pieces of wood limited to one cubic yard of contained material; electronic equipment (including stereos, televisions, computers and monitors, VCRs, microwaves and other similar items commonly known as "brown goods" and "e - waste"); and clothing. Bulky Items do not include car bodies, tires, Construction and Demolition Debris or items requiring more than two persons to remove. Other items not specifically included or excluded above will be Collected provided that they are not more than eight feet in length, four feet in width, or more than 150 pounds. In the event a question ever arises as to whether a specific item or category of items meets the definition of Bulky Items, City shall be responsible to determine whether said definition shall apply, which determination shall be final and binding on the Parties. Deleted: February 8, 2017January 27, 2017 -4- City of Diamond Bar - Residential Packet Pg. 309 8.2.b 1.7 Cart "Cart" means a plastic Container with a hinged lid and wheels serviced by an automated or semi -automated truck with a capacity of no less than 32- and no greater than 101 -gallons. 1.8 City "City" means City of Diamond Bar, California, a municipal corporation, and all the territory lying within the municipal boundaries of City as presently existing or as such boundaries may be modified during the term of this Agreement. 1.9 Collect/Collection "Collect" or "Collection" means to take physical possession, transport, and remove Solid Waste within and from City. 1.10 Commercial Services "Commercial Services" refer to Solid Waste Collection Services performed at or for Commercial Premises. 1.11 Commercial Premises "Commercial Premises" means Premises upon which business activity is conducted, including but not limited to retail sales, services, wholesale operations, manufacturing and industrial operations, but excluding Residential Premises upon which business activities are conducted when such activities are permitted under applicable zoning regulations and are not the primary use of the property. Notwithstanding any provision to the contrary herein, in the Diamond Bar Municipal Code, or otherwise, for purposes of this Agreement, Premises upon which the following uses (as defined in the Diamond Bar Municipal Code) are occurring shall be deemed to be Commercial Premises: Assisted Living Facilities, Convalescent Homes, Dormitories, Extended Stay Motels, Hotels, and Motels. Deleted: February 8, 2017January 27, 2017 i -5- City of Diamond Bar - Residential Packet Pg. 310 8.2.b 1.12 Contractor m c LL "Contractor" means USA Waste of California, Inc. a corporation organized and 4) operating under the laws of the State of Delaware and its officers, directors, employees, m agents, companies and subcontractors. M 1.13 Contractor Compensation c a� "Contractor Compensation" means the revenue received by the Contractor from M Customers in return for providing services in accordance with this Agreement. 1.14 Construction and Demolition Debris 0 v r r N "Construction and Demolition Debris" means Solid Waste generated at a Premises that is directly related to construction, renovation or demolition activities occurring thereon. m 1.15 Container c d "Container" means any and all types of Solid Waste receptacles, including Carts, Bins 0 and Roll -off Boxes. a� Q 1.16 CPI 'a a� "CPI" means the Consumer Price Index for All Urban Consumers (CPI -U), all items 0 index less food and energy - Los Angeles -Riverside -Orange County, CA, CUURA421SAOLIE. 1.17 Customer d c a� "Customer" means a Person receiving Solid Waste Collection Services from Contractor E pursuant to the terms of this Agreement. Q 1.18 Disposal CU CO "Disposal" means the ultimate disposition of Solid Waste Collected by Contractor at a c landfill or otherwise in full regulatory compliance. 0 E 1.19 Disposal Site(s) 2 O .Q "Disposal Site(s)" means the Solid Waste handling Facility or Facilities utilized for the 06 ultimate Disposal of Solid Waste Collected by Contractor. Deleted: February s, 2017January 27, 2017 C m E s y 16, 2017 -6- City of Diamond Bar - Residential R M w a Packet Pg. 311 1.20 Diversion "Diversion" means any combination of waste prevention (source reduction), recycling, reuse, composting and Transformation activities that reduces waste disposed at landfills, provided such activities are recognized byCam "CIWMB") as Diversion in its determination of the City's Diversion rate and compliance with AB 939. Transformation tonnage that will be considered toward the 45% Diversion goal under this Agreement may be limited by the City to 10% of Solid Waste Collected by Contractor each calendar year under this Agreement to the extent total tonnage transformed by Contactor, the City's Bin and Roll -Off Box service provider, and other sources within the City exceeds 10% of City-wide Disposal. 1.21 Environmental Laws "Environmental Laws" means all federal and state statutes, county, local and City ordinances concerning public health, safety and the environment including, by way of example and not limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 USC §9601 et seq.; the Resource Conservation and Recovery Act, 42 USC §6902 et seq.; the Federal Clean Water Act, 33 USC §1251 et seq.; the Toxic Substances Control Act, 15 USC §1601 et seq.; the California Hazardous Waste Control Act, California Health and Safety Code §25100 et seq.; the California Hazardous Substance Account Act, California Health and Safety Code §25300 et seq.; the Porter -Cologne Water Quality Control Act, California Water Code §13000 et seq.; the Safe Drinking Water and Toxic Enforcement Act, California Health and Safety Code §25249.5 et seq.; as currently in force or as hereafter amended, and all rules and regulations promulgated thereunder. 1.22 Facility "Facility" means any plant or site, owned or leased and maintained, operated or used by Contractor for purposes of performing under this Agreement. 1.23 Food Waste "Food Waste" means: • All food (including fruits, vegetables, meat, poultry, seafood, shellfish, bones, rice, beans, pasta, bread, cheese and eggshells); Deleted: February 8, 2017January 27, 2017 i of Diamond Bar - Residential February 16, 2017, -7 - 8.2.b Deleted: the California Integrated Waste Manag Board Packet Pg. 312 8.2.b • Food -soiled paper that is mixed in with Ebod Waste (including waxed cardboard, Deleted: food Waste waxed paper, napkins, paper towels, paper plates, paper milk cartons); • Tea bags; and, • Coffee grounds and filters. Food Waste is a subset of Organic Waste. 1,? -4 Green Waste l Deleted: 23 "Green Waste" means tree trimmings, small pieces of wood, grass cuttings, dead plants, leaves, branches, flowers, plant stocks, and dead trees (not more than four (4) inches in diameter or 48 inches in length) and similar materials. Green Waste is a subset of Organic Waste. 1,2-5 Green Waste Processing Facility Deleted: 24 "Green Waste Processing Facility" means a permitted Facility where Green Waste is sorted, mulched or separated for the purposes of Recycling, reuse or composting. 1,�-6 Gross Receipts — Deleted: 25 "Gross Receipts" means any and all revenue received from Billings, and compensation in any form, of Contractor or subsidiaries, parent companies or other Affiliates of Contractor, for the Collection and transportation of Solid Waste pursuant to this Agreement, in accordance with Generally Accepted Accounting &ind les including, Deleted: Principals but not limited to, Customer fees for Collection of Solid Waste, without subtracting Disposal fees, City fees or other fees or any other cost of doing business. Gross Receipts does not include revenue from the sale of Recyclables. 1.; Hazardous Substance "Hazardous Substance" shall mean any of the following: (a) any substances defined, regulated or listed (directly or by reference) as "Hazardous Substances", "hazardous materials", "Hazardous Waste" "toxic waste", "pollutants" or "toxic substances" or similarly identified as hazardous to human health or the environment, in or pursuant to (i) the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 USC §9601 et seq. (CERCLA); (ii) the Hazardous Materials Transportation Act, -8- of Diamond Bar - Residential Deleted: 26 Deleted: February 8, 2017January 27, 2017 Packet Pg. 313 49 USC §1802, et seq.; (iii) the Resource Conservation and Recovery Act, 42 USC §6901 et seq.; (iv) the Clean Water Act, 33 USC §1251 et seq.; (v) California Health and Safety Code §§25115-25117, 25249.8, 25281, 25316, 25501 and 25501.1; (vi) the Clean Air Act, 42 USC §7901 et seq.; and (vii) California Water Code §13050; (b) any amendments, rules or regulations promulgated thereunder to such enumerated statutes or acts currently existing or hereafter enacted; and (c) any other hazardous or toxic substance, material, chemical, waste or pollutant identified as hazardous or toxic or regulated under any other applicable federal, state or local Environmental Laws currently existing or hereinafter enacted, including, without limitation, friable asbestos, polychlorinated biphenyl's ("PCBs"), petroleum, natural gas and synthetic fuel products, and by- products. 1,28 Hazardous Waste "Hazardous Waste" means all substances defined as Hazardous Waste, acutely Hazardous Waste, or extremely Hazardous Waste by the State of California in Health and Safety Code §25110.02, §25115, and §25117 or in the future amendments to or recodifications of such statutes or identified and listed as Hazardous Waste by the US Environmental Protection Agency (EPA), pursuant to the Federal Resource Conservation and Recovery Act (42 USC §6901 et seq.), all future amendments thereto, and all rules and regulations promulgated thereunder. 1,?_9 Household Hazardous Waste ("HIM') "Household Hazardous Waste" means Hazardous Waste generated at Residential Premises. 1,30Materials Recovery Facility ("MRF") "Materials Recovery Facility" means a permitted Solid Waste Facility where Solid Wastes or Recyclable Materials are sorted or separated for the purposes of Recycling, processing or composting. 1,31 Multi -Family Dwelling "Multi -Family Dwelling" means any building or lot containing two or more dwelling units. Multi -Family Dwelling units generally receive Refuse Collection service through Deleted: 27 Deleted: 28 Deleted: 29 Deleted: 30 8.2.b Deleted: February 8, 2017January 27, 2017 -9- City of Diamond Bar - Residential Packet Pg. 314 the use of shared Bins, but may use Carts. Multi -Family Dwelling Units receiving Cart Refuse Collection are included in this Agreement. 1.32 Organic Waste "Organic Waste" means Food Waste and Green Waste, and other compostables, collectively or individually. 1.33 Organic Waste Processing Facility "Organic Waste Processing Facility" means a permitted Facility where Organic Waste is sorted, mulched or separated for the purposes of Recycling, reuse or composting, Person "Person" means any individual, firm, association, organization, partnership, limited liability company, corporation, business trust, joint venture, the United States, the State of California, the County of Los Angeles, cities, and special purpose districts. Premises "Premises" means any land, or building in City where Solid Waste is generated or accumulated. 1,36 Rate Year "Rate Year" means the period July 1 to June 30, for each year during the Term of this Agreement. For the first year of this Agreement, the Rate Year is August 16 to June 30. 1,37 Recycling "Recycling" means the processing of Recyclable Materials for the purpose of returning them to the economy in the form of raw materials for new, reused, or reconstituted products. The Collection, transportation or Disposal of Solid Waste not intended for, or capable of, reuse is not Recycling. Recycling does not include use of Solid Waste for conversion to energy. 1,38 Recyclable Materials "Recyclable Materials" means material that has been separated from the Customer's waste stream for the intended purpose of collection and processing to return it to the -10- of Diamond Bar - Residential 8.2.b Formatted: Normal Deleted: 31 Deleted. 32 Deleted: 33 Deleted: 34 Deleted: 35 j Deleted: Solid Waste that is Source Separated, h potential economic value, and is set aside, handle / packaged, or offered for Collection in a manner d from Refuse in order to allow it to be processed 5 Recycling. Deleted: February 8, 2017January 27, 2017 Packet Pg. 315 economy in the form of raw materials for new, reused, or reconstituted products by means of available markets and processes. As of the Effective Date, the list of acceptable Recyclable Materials consists of empty aluminum cans; empty glass jars and bottles; bi- metal, and tin cans; empty aerosol containers; empty polyethylene terephthalate plastic ("PET"); high density_ polyethylene plastic (°HDPE" )plastics types 3 - 7; plastic toys and tools, and other plastic materials (if readily identifiable as being recyclable by plastic type number, but excluding expanded polytyrene and plastic bags); metal foil; dry newspaper; dry mixed paper (e.g., ledger, computer paper, junk mail, magazines, paperback books, cereal boxes, envelopes, paper shopping bags and nonmetallic wrapping paper); dry corrugated cardboard; and telephone books. City and Contractor agree to meet and confer from time to time as needed to modify the list of acceptable Recyclable Material to address developments in processing technologies, emerging uses for types of materials, or changes in available markets. 13.,_9 Refuse "Refuse" means putrescible and non-putrescible Solid Waste. Residential Services "Residential Services" refer to Solid Waste Collection Services performed at and for Residential Premises that are included under this Agreement. 1; 41 Residential Customers "Residential Customer" means all Customers on Residential Premises that are included under this Agreement. Residential Premises "Residential Premises" means Premises upon which dwelling units exist, including, without limitation, Single Family and Multi -Family Dwellings, apartments, boarding or rooming houses, condominiums, mobile homes, efficiency apartments, second units, and Group Residential Facilities, Group Care Facilities. Notwithstanding any provision to the contrary herein, in the Diamond Bar Municipal Code, or otherwise, for purposes of this Agreement, Premises upon which the following uses are occurring shall not be deemed to be Residential Premises, and rather shall be deemed to be Commercial Premises: Assisted Living Facilities, Convalescent Homes, Dormitories, Extended Stay -11- Citv of Diamond Bar - Residential 8.2.b Deleted: 36 Deleted: 37 Deleted: 38 Deleted: 39 Deleted: February 8, 2017January 27, 2017 Packet Pg. 316 8.2.b Motels, Hotels, Motels, and any other businesses not specifically listed at which residency is transient in nature and hence should be classified as Commercial Premises as determined by City on a case by case basis. Roll -off Box Deleted: 4o "Roll -off Box" means Solid Waste Collection Containers of 10 cubic yards or larger. 1&4 Single Family Dwelling Deleted: 41 "Single Family Dwelling" means a Residential Premises that includes only one dwelling unit. Single Family Dwellings may receive either Cart or Bin Refuse Service. 1; 45 Solid Waste I Deleted: 42 "Solid Waste" means all discarded putrescible and non-putrescible solid, semisolid, and liquid wastes, including Refuse, Construction and Demolition Debris, Bulky Items, Recyclable Materials, and Organic Waste, or any combination thereof which are Deleted: Green permitted to be disposed of in a Class III landfill, and which are included in the definition of "Non -hazardous Solid Waste" set forth in the California Code of Regulations. 1146 Solid Waste Collection Services "Solid Waste Collection Services" means the Collection, transfer, transport, Recycling, processing, and Disposal of Solid Waste placed for Collection pursuant to this Agreement. Source "Source Separated" means the segregation by the Waste Generator of individual components of Solid Waste, which otherwise would become Refuse (such as glass bottles, metal cans, newspapers, plastic containers, etc.) into separate Container(s) for the purpose of allowing the Recycling of such materials. 1:�8 State "State" means the State of California. ,_- Deleted: 43 Deleted: 44 Deleted: 45 Deleted: February 8, 2017January 27, 2017 i -12- City of Diamond Bar - Residential Packet Pg. 317 1,49 Temporary Service "Temporary Service" means Solid Waste Collection Services provided to a Premises on a temporary, as needed basis to any Premises within the City in conjunction with construction, demolition, cleanup or other projects, and by use of temporarily placed Bins or Roll -off Boxes 15,0 Transformation "Transformation" means incineration, pyrolysis, distillation, gasification, or biological conversion other than composting. 1,51 Transfer Station "Transfer Station" means a Facility that received Solid Waste from collection vehicles and transfers the material to larger vehicles for transport to landfills and other facilities. Transfer Stations may or may not also include MRFs, transferring residual Refuse (Refuse left after the sorting of Recyclable Materials) to landfills and Recyclable Materials (including, for example, Organic Waste and/or Construction and Demolition debris), to processors, brokers or end-users. 1,52 Waste Generator "Waste Generator" means any Person whose act or process produced Solid Waste as defined in the Public Resources Code, or whose act first causes Solid Waste to become subject to regulation. 8.2.b Deleted. 46 Deleted: 47 Deleted: 48 Deleted: Green Deleted. 49 Deleted: February 8, 2017January 27, 2017 -13- City of Diamond Bar - Residential Packet Pg. 318 8.2.b ARTICLE 2 GRANT AND ACCEPTANCE OF FRANCHISE 2.1 Grant and Acceptance of Franchise, Indemnity of Award Subject to the terms and conditions of this Agreement (including but not limited to the exclusions set forth in Section 2.9 hereof) and applicable State laws, and to the rights of State, county and school district facilities to use a Solid Waste enterprise other than Contractor, City hereby grants to Contractor and Contractor hereby accepts from City, for the Term hereof, the exclusive franchise, right and privilege to provide Solid Waste Collection Services at all Residential Premises within the City that receive Residential Cart style Solid Waste Collection service (the "Franchise'). Contractor agrees to and shall timely take all actions that are reasonably necessary to defend the validity and enforceability of this Agreement and shall pay all costs related to such defense. Contractor shall defend, indemnify, protect and hold harmless, the City, its officers, agents and employees from any and all claims, actions or proceedings to attack, set aside, void, annul or seek monetary damages resulting from an approval by the City of this Agreement. The City shall promptly notify Contractor of any such claim, action, or proceeding. The City and Contractor shall meet in good faith in an effort to come to a mutual agreement for a joint defense; provided that the City shall be entitled to select legal counsel of its choice to conduct the defense if an agreement cannot be reached. Contractor's obligations to pay all costs, defend, indemnify, protect and hold harmless under this section shall not be altered in the event City retains separate counsel. 2.2 Section Deleted 2.3 Effective Date The "Effective Date" of this Agreement shall be the date on which the City Council approves this Agreement. 2.4 Term of Agreement Deleted: eight F Deleted: 8 The term of this Agreement (the "Term") shall be hirteen 13) years and fifteen (15) % , Deleted: 15 Deleted: 2018 days, commencing on August 16, 2010, and expiring AugusQ1 2023, subject to Deleted: February 8, 2017January 27, 2017 -14- Citv of Diamond Bar - Residential Packet Pg. 319 2.5 2.6 extension as provided herein. Notwithstanding the foregoing, the unexcused failure or refusal of Collector to perform any material term, covenant, obligation or condition contained in this Agreement shall give rise to the right, in favor of City, for earlier termination of this Agreement for cause in accordance with the procedures elsewhere contained herein. City's Option to Extend Term City shall have the sole option to extend the Term Jor up to Twenty-four (24) months Deleted: of this Agreement following expiration of the Term under Section 2.4. The City may, upon at least ninety- Deleted: twelve (12) --- - days (90 -days) advance written notice to the Contractor prior to the expiration of the Deleted: initial contract Tern, exercise this extension option. If City provides this extension notice, this Deleted: of this Agreement Agreement will automatically renew up to a maximum of twenty-four (24) months. Deleted: twelve (12) This extension period shall terminate, upon the earlier of: (i) the expiration of the aforementioned Jwent-f�(24)months, or (ii) ninety (90) days following the date Deleted: twelve (12) months upon which City gives Contractor written notice of final termination. Representations and Warranties of Contractor Contractor hereby covenants, represents, and warrants the following to City for the purpose of inducing City to enter into this Agreement and to consummate the transaction contemplated hereby, all of which shall be true as of the date of this Agreement and as of the Effective Date: a) Contractor is wholly owned by Waste Managemen�-Inc., which is duly organized and validly existing as a corporation under the laws of the State of Delaware. b) Neither the execution of this Agreement nor the delivery by Contractor of services nor the performance by Contractor of its obligations hereunder: (1) conflicts with, violates or results in a breach of any applicable law; (2) conflicts with, violates or results in a breach of any term or condition of any judgment, decree, agreement (including, without limitation, the certificate of incorporation of Contractor) or instrument to which Contractor is a party or by which Contractor or any of its properties or assets are bound, or constitutes a default under any such judgment, decree, agreement or instrument; or (3) will result in the creation or imposition of any encumbrance of any nature whatsoever upon Deleted: Holdings 8.2.b any of the properties or assets of Contractor. Deleed:ryb, 2017January 27, 2017 17 -15- City of Diamond Bar - Residential Packet Pg. 320 8.2.b 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 Deleted: Holdings Contractor or Waste Management nc. which is likely to result in an unfavorable Deleted: decision, ruling or finding which would materially and adversely affect the validity or enforceability of this Agreement or any such agreement or instrument entered into by Contractor or Waste Management Inc. in connection with the transactions contemplated hereby, or which could materially and adversely affect the ability of Contractor to perform its obligations hereunder or which would have a material adverse effect on the financial condition of Contractor or Waste Management Inc. d) Contractor has no knowledge of any applicable law in effect as of the date of this Agreement that would prohibit the performance by Contractor of this Agreement and the transactions contemplated hereby. e) Contractor has made an independent investigation, satisfactory to it, of the conditions and circumstances surrounding this Agreement and the work to be performed by it, and is satisfied that those conditions and circumstances will not impair its ability to perform the work and provide the Collection services required by this Agreement. f) The information supplied by Contractor in all submittals made in connection with negotiation and execution of this Agreement, including all materials in Exhibits to this Agreement, and all representations and warranties made by Contractor throughout this Agreement are true, accurate, correct and complete in all material respects on and as of the Effective Date of this Agreement. g) Contractor's representative, designated in Section 5.2.5, shall have authority in all daily operational matters related to this Agreement. City may rely upon action taken by such designated representative as action of Contractor unless the actions taken are not within the scope of this Agreement. h) That it is duly organized, validly existing and in good standing under applicable laws. It is qualified to transact business in the State of California and has the power to own its properties and to carry on its business as now owned and operated and as required by this Agreement. Deleted: February 8, 2017January 27, 2017 i -16- City of Diamond Bar - Residential Packet Pg. 321 2.7 2.8 i) That it has the authority to enter into and perform its obligations under this Agreement. The Board of Directors or partners of Contractor (or the shareholders, if necessary) have taken all actions required by law, its articles of incorporation, its bylaws or otherwise to authorize the execution of this Agreement. The Persons signing this Agreement on behalf of Contractor have authority to do so. Contractor shall authorize one employee for the City as a single point of contact for issues arising under this Agreement, and Contractor acknowledges and agrees that City may expect and assume that this employee's actions are taken on behalf of and with the full approval of the Contractor. Conditions to Effectiveness of Agreement The satisfaction of each and all of the conditions set out below, each of which may be waived in whole or in part by City in writing, is a condition precedent to the effectiveness of this Agreement, and a condition of Contractor's continued right to the benefits conveyed herein: a) Accuracy of Representations. All representations and warranties made by Contractor and set forth in this Agreement shall be accurate, true and correct on and as of the Effective Date. b) Absence of Litigation. There shall be no litigation pending in any court challenging the award of this Agreement to Contractor or the execution of this Agreement or seeking to restrain or enjoin its performance. c) Furnishing of Insurance, Bond, and Letter of Credit. Contractor shall have furnished evidence of the insurance, bonds and letter of credit required by Article 9, and shall comply with all ongoing requirements relating thereto. d) Contractor shall have paid the contracting fee to City, as provided in Section 3.1. Delegation of Authority The administration of this Agreement by City shall be under the supervision and direction of City Manager's office and the actions specified in this Agreement, unless otherwise stated, shall be taken by the City Manager, or his or her designee. Deleted: Franchise 8.2.b Deleted: February 8, 2017January 27, 2017 i -17- City of Diamond Bar - Residential Packet Pg. 322 2.9 Limitations to Scope Notwithstanding any provision to the contrary contained herein, the exclusive franchise, right and privilege to provide Solid Waste Collection Services at Premises within City granted to Contractor by this Agreement (Residential Premises that receive weekly Refuse Collection using Carts) specifically excludes the following services, which services may be provided by Persons other than Contractor and which may be the subject of other permits, licenses, franchises or agreements issued or entered by City: a) The sale or donation of source -separated Recyclable Material and/or Organic Waste by the Waste Generator to any Person or entity other than Contractor; provided, however, if the Generator is required to pay any monetary or non - monetary consideration, directly or indirectly, for the Collection, transportation, transfer, or processing of Recyclable Material, it shall not be considered a sale or donation and shall not be exempt; b) Solid Waste, including Recyclable and/or Organic Material, that is removed from any Premises by the Waste Generator by means of "self -hauling (as described in the Diamond Bar Municipal Code), and that is transported personally by such Generator (or by his or her full-time employees) to a processing or Disposal Facility in a manner consistent with all applicable laws and regulations; c) Green Waste removed from a Premises by a gardening, landscaping, or tree trimming Contractor, utilizing its own equipment, as an incidental part of a total service offered by that Contractor rather than as a hauling service; d) The Collection, transfer, transport, Recycling, processing, and disposal of animal remains from slaughterhouse or butcher shops for use as tallow; e) The Collection, transfer, transport, Recycling, processing, and disposal of by- products of sewage treatment, including sludge, sludge ash, grit and screenings; f) The Collection, transfer, transport, Recycling, processing, and disposal of Hazardous Substances, Hazardous Waste, Household Hazardous Waste and radioactive waste regardless of its source; Deleted: Material Deleted: Materials and Green Waste 8.2.b Deleted: February 8, 2017January 27, 2017 -18- City of Diamond Bar - Residential Packet Pg. 323 8.2.b g) Construction and Demolition Debris which is removed by a duly -licensed construction or demolition company or as part of a total service offered by said licensed company or by the City, where the licensed company utilizes its own equipment in compliance with Construction and Demolition Debris requirements of the Diamond Bar Municipal Code; h) Collection services provided exclusively by City's Commercial contractor under the City's exclusive Bin and Roll -Off Box Customer Solid Waste Management Services Agreement, including servicing any Commercial premises, and Residential Premises that receive Bin service. Contractor shall service Single Family Dwellings that receive Cart Refuse service under this Agreement and the City's Commercial contractor shall provide service to Single Family Customers that request regularly scheduled Bin service pursuant to the Bin and Roll -Off Box Customer Solid Waste Management Services Agreement; i) The Collection, transfer, transport, Recycling, processing, and Disposal of Solid Waste by City through City officers or employees in the normal course of their City employment;, Deleted: and, j) Solid Waste Collection Services for governmental agencies other than City, which may have facilities in City, but over which City has no jurisdiction in connection with the regulation of Solid Waste, such as State, county and school district facilities, Deleted:. k) The Collection, transfer, transport, Recycling, and processing of Organic Waste for use as animal feed; and, 1) Food that is donated or otherwise provided to charitable organizations or food banks for use as food for human consumption. The exclusive franchise, right and privilege to provide Solid Waste Collection Services within City granted to Contractor by this Agreement shall be interpreted to be consistent with all applicable state and federal laws, now in effect and adopted during the term of this Agreement, and the scope of this Agreement shall be limited by all applicable current and developing laws and regulations. In the event that future interpretations of current law, future enactments or developing legal trends limit the ability of City to lawfully grant Contractor the scope of services as specifically set forth herein, Contractor agrees that the scope of this Agreement will be limited to those Deleted: February s, 2017January 27, 2017 y 16, 2017 -19- City of Diamond Bar - Residential Packet Pg. 324 2.10 8.2.b services and materials which may be lawfully provided, and that City shall not be responsible for any lost profits claimed by Contractor as a result thereof. City's Right to Direct Changes 2.10.1 General City may direct Contractor to perform additional services (including new Diversion programs, etc.) or modify the manner in which it performs existing services or Bills for services. Pilot programs and innovative services which may entail new Collection methods, and different kinds of services and/or new requirements for Waste Generators are included among the kinds of changes which City may direct. Contractor acknowledges that State law may increase the Diversion requirement during the term of this agreement and Contractor agrees to propose services to meet such Diversion requirements. If City directs Contractor to perform additional services, Contractor shall be entitled to an adjustment in its Contractor Compensation for providing such additional or modified services, including a profit factor equal to ten percent (10%) of the incremental cost of such additional or modified services, unless the Parties otherwise agree. City may utilize cost components included in the Contractor's Proposal in calculating equitable rate adjustments. Agreed upon rates and service enhancements require approval of the City Council. If City and Contractor cannot agree Deleted: does not direct contractor to perform additional services on compensation for new or additional services, then City may contract with other parties for such services, which shall be considered exempt from the exclusivity provisions of Section 2.1. Contractor shall not receive a rate increase to provide additional services implemented to bring Contractor into compliance with contractually -required minimum diversion rates per Section 4.2.5 or as a remedy for failure to perform under Section 7.1. Additional or modified services shall be included in written amendment and shall require approval of the City Council. 2.10.2 New Diversion Programs Contractor shall present, within thirty (30) business days of a request to do so by City, a proposal to provide additional or expanded Diversion services. The proposal shall contain a complete description of the following: -20- of Diamond Bar - Residential Deleted: February 8, 2017January 27, 2017 Packet Pg. 325 8.2.b • Collection methodology to be employed (equipment, manpower, etc.). • Equipment to be utilized (vehicle number, types, capacity, age, etc.). • Labor requirements (number of employees by classification). • Type(s) of Containers to be utilized. • Type(s) of material to be Collected. • Provision for program publicity/education/marketing. • Annual projection of the financial results of the program's operations in an operating statement format including documentation of the key assumptions underlying the projections and the support for those assumptions. 2.11 Ownership of Solid Waste City and Contractor understand and agree that it is Contractor, and not City, who will arrange to Collect Solid Waste; that City has not, and, by this Agreement does not, instruct Contractor on its Collection methods, nor supervise the Collection process; nor do the Parties intend to place title to Solid Waste Collected by Contractor in City. Rather, the Parties intend that whatever, if any, title in and to the Solid Waste that is Collected by Contractor which otherwise might exist in or with City in the absence of this Agreement is hereby transferred to Contractor; and further that if Contractor gains title to such Solid Waste it is by operation of law and agreement with its Customers and is not the result of this Agreement. Subject to the provisions of this Agreement, and unless City exercises its rights to direct the location for Disposal and processing of Solid Waste, Contractor shall have the right to retain, Recycle, process, dispose of, and otherwise use Solid Waste Collected pursuant to the terms hereof in any lawful fashion or for any lawful purpose; and, further, shall have the right to retain any benefit resulting from its right to retain, Recycle, process, dispose of, or reuse the Solid Waste which it Collects. Ownership of Solid Waste properly placed for Collection shall transfer to Contractor when Customer places it at point of Collection. 2.12 Permits and Licenses Contractor shall acquire and maintain all necessary permits and licenses for the Collecting, transporting, processing, and storing of Solid Waste and Recyclables, Deleted: February 8, 2017January 27, 2017 y 16, 2017 -21- City of Diamond Bar - Residential Packet Pg. 326 8.2.b disposing of Solid Waste, and the Recycling of Recyclables as required under this Agreement. Failure to maintain all required permits shall be deemed a material breach of contract for which City may terminate this Agreement as provided in Section 11.2. Contractor must follow requirements of the Diamond Bar Municipal Code, including, but not limited to, obtaining a City of Diamond Bar business license. Deleted: February 8, 2017January 27, 2017 i -22- City of Diamond Bar - Residential Packet Pg. 327 3.1 3.2 ARTICLE 3 FEES PAID TO THE CITY In addition to any other consideration set forth herein, as part of its consideration for entering into this Agreement, and for the exclusive franchise, right and privilege to provide Solid Waste Collection Services as specified herein, Contractor shall provide the following: Contracting Fee Contractor paid to City a Contracting Fee in a one-time lump sum payment of seventy five thousand dollars ($75,000) within seven days of execution of the Initial Agreement to reimburse the City for costs it incurred in connection with entering thethe Initial Agreement. A contract extension fee of $75,000 shall be paid to the City within seven (7) days of execution of this Agreement to reimburse the City for costs it incurred in Deleted: Deleted: shall pay Deleted: this Deleted: this connection with entering into this Agreement Other City Fees 3.2.1 Franchise Fee In consideration of the exclusive right to Collect provided in Section 2.1 of this Agreement, throughout the Term Contractor shall pay to City a Franchise Fee in an Deleted: of this Agreement amount equal to five percent (5%) of the Gross Receipts received by Contractor for all services provided in City pursuant to the terms of this Agreement. Payments shall be made quarterly. The initial payment shall be due by October 30, 2010, covering the period August 16 to September 30, and each subsequent payment shall be due within 30 days of the end of the calendar quarter (January 30, April 30, July 30, October 30), for the prior calendar quarter. 3.2.2 AB 939 Fee In support of the City's outreach and administration of various Solid Waste programs and public education efforts, Contractor shall pay an amount equal to four and seven - tenths percent (4.7%) of the Gross Receipts received by Contractor for all services provided in City pursuant to the terms of this Agreement. Deleted: February 8, 2017January 27, 2017 of Diamond Bar - Residential -23- 8.2.b Packet Pg. 328 8.2.b Payments shall be made quarterly. The initial payment shall be due by October 30, 2010, covering the period August 16 to September 30, and each subsequent payment shall be due within 30 days of the end of the calendar quarter (January 30, April 30, July 30, October 30), for the prior calendar quarter. 3.2.3 Street Sweeping Funding Contractor shall pay $85,000 during the first contract year, and an adjusted amount annually thereafter. The amount shall be adjusted by the twelve-month change in CPI through the December prior to the start of each rate year. Payments shall be made quarterly, with $21,250 due each quarter for the first contract year. The initial payment shall be due August 16, 2010, and each subsequent payment due within 30 days of the end of the calendar quarter (October 30, January 30, April 30, and July 30). The annual amount shall increase to $190,000 beginning August 16, 2017, and an adjusted amount annually thereafter as described above. Quarterly payments for the contract year beginning August 16, 2017 shall increase to $47,500 with the first payment due October 30, 2017 and subsequent quarterly payments as described above. 3.2.4 Residential Collection Vehicle Road Maintenance Cost Reimbursement To reimburse the City for road maintenance due to the use of Contractor's Collection vehicles on City streets, Contractor shall pay $115,000 during the first contract year, and an adjusted amount annually thereafter. The amount shall be adjusted by the twelve- month change in CPI through the December prior to the start of each rate year. Payments shall be made quarterly, with $28,750 due each quarter for the first contract year. The initial payment shall be due August 16, 2010, and each subsequent payment due within 30 days of the end of the calendar quarter (October 30, January 30, April 30, and July 30). The annual fee amount as of August 16, 2016 was $125,525. 3.2.5 Environmental Education Fee Pursuant to the terms of this Agreement, Contractor shall pay an annual Environmental Education Fee in the amount of Six Thousand, Five Hundred Dollars ($6,500). The first such payment shall be due and payable to the City on July 1, 2017, and subsequent payments shall be due and payable to the City on or before July 1 of each subsequent Deleted: February 8, 2017January 27, 2017 Y 16, 2017 -24- City of Diamond Bar - Residential Packet Pg. 329 year. The amount of the Environmental Education Fee shall be adjusted annually for the average annual change in the CPI between the calendar year ended the December preceding the fee payment due date and the prior calendar year. For example, for the fee payment due July 1, 2018, the percentage adjustment to the $6,500 payment amount from the prior year would be equal to the average annual change in the CPI comparing calendar vear 2017 to calendar vear 2016. 3.2,6 Late Payment of Fees If any of the fees provided for in this Section 3.2 are not paid on or before the due date, Contractor shall pay to City a penalty in an amount equal to ten percent (10%) of the amount owing for that month, plus interest at a rate of one and one-half (1.5%) per month for each month the payment is late thereafter. 3.3 Future Fees In the event that City implements a new fee not included in Section 3.2, or increases the amount of an existing fee, Contractor shall be entitled to a rate adjustment in an amount sufficient to recover the fee from Customers. City may elect to have Contractor pay in accordance with the requirements of fee payments made in Section 3.2, or on another schedule as City identifies with associated deadlines and late fees. Deleted:5 8.2.b Deleted: February 8, 2017January 27, 2017 -25- City of Diamond Bar - Residential Packet Pg. 330 8.2.b ARTICLE 4 DIRECT SERVICES 4.1 Refuse 4.1.1 General The work to be done by Contractor pursuant to this Agreement shall include, but not be limited to, the furnishing of all labor, supervision, equipment, materials, supplies, and all other items necessary to perform the services required. The enumeration of, and specification of requirements for, particular items of labor or equipment shall not relieve Contractor of the duty to furnish all others, as may be required, whether enumerated elsewhere in this Agreement or not. The work to be done by Contractor pursuant to this Agreement shall be accomplished in a thorough and professional manner so that all Customers are provided reliable, courteous and high-quality Solid Waste Collection Services at all times. The enumeration of, and specification of requirements for, particular aspects of service quality shall not relieve Contractor of the duty of accomplishing all other aspects in the manner provided in this section, whether such other aspects are enumerated elsewhere in this Agreement or not. 4.1.2 Residential Cart Refuse Collection Contractor shall provide all Customers at Residential Dwellings without Bin Service one Refuse Cart ("Refuse Cart(s)"), and shall Collect all Refuse placed therein for Collection not less than once per week. If Residential units share Refuse Carts due to space constraints or otherwise, each unit shall still be assessed the full Residential Cart service rate. Customers that regularly require more than one Refuse Cart may request additional Carts for an additional charge per Cart per month in accordance with the approved rate schedule. Deleted: February 8, 2017January 27, 2017 i -26- City of Diamond Bar - Residential Packet Pg. 331 4.1.3 Refuse Cart Overage Residential Cart Customers may periodically generate more Refuse than will fit in the Refuse Cart(s). Residential Customers are therefore entitled to two annual pickups per calendar year and an end -of -year pickup of material that does not fit in the Refuse Cart(s) at no additional cost, as provided in this Section 4.1.3. A pickup shall consist of up to the equivalent of three (3) large bags, boxes or barrels of Refuse and placement of more than that amount at any one time shall constitute two pickups. In addition to the two (2) free pickups, Contractor shall Collect all additional Refuse placed out for Collection in the Residential Customer's own Containers (bags, boxes, barrels, etc.) at no additional charge for two weeks beginning each December 26. This service is limited to Refuse that could otherwise be placed in the Refuse Cart, and not Bulky Items which are Collected in accordance with Section 1.6 and 4.1.15. Contractor shall Collect, and Customers may be charged an extra fee per pickup (in accordance with the approved rate schedule for overage pickups) of, all Refuse put out for Collection that does not fit in the Refuse Cart(s) above and beyond the free pickups described above. Customer shall be instructed to call in both free and additional overages. However, if not called in, Contractor shall Collect and record pickup per Section 4.1.8. 4.1.4 Backyard Service Backyard service means the Contractor removes all Collection Carts, Green Waste bundles and Refuse Cart Overages per Section 4.1.3 from a Cart Customer's designated Collection location other than curbside, such as backyard, side yard, or drive, for Collection, and returns Carts and other containers when Collection is complete. Contractor may charge customers requesting backyard service in accordance with the approved rate schedule, unless the Customer falls under the exception described in Section 4.1.5 below. 4.1.5 Backyard Service for the Disabled Contractor shall provide disabled Customers with backyard service at no additional charge. Contractor will remove Refuse, Recyclable and Green Waste Containers, Green Waste bundles and Refuse Cart Overages per Section 4.1.3 from Customer's storage area, place them out for Collection, and return Containers to Customer's storage area after Collection, ensuring that all doors or gates are closed securely. In order to qualify as disabled under this section, Customers must have been issued a handicap placard -27- of Diamond Bar - Residential 8.2.b Deleted: February 8, 2017January 27, 2017 Packet Pg. 332 8.2.b from the Department of Motor Vehicles or otherwise obtain approval to receive such service from the City, following a verification site visit by Contractor's route supervisor. Additionally, walk -out service need not be provided if an able-bodied adult resides with the disabled Customer. 4.1.6 Section Deleted 4.1.7 Determination of Service Type Contractor may not transition a Customer from Bin to Cart service or visa versa without prior advance written approval of the City. If Contractor and Customer have a disagreement as to whether a Refuse Cart is appropriate, or if City determines the Collection in a Refuse Cart causes health and safety or other concerns, or if the City determines Bin service is more appropriate, City shall make the final determination as to whether Refuse Collection shall be from a Cart, or from a Bin. In all cases, City retains absolute discretion in the determination of which type of service a Customer shall receive, and therefore which with hauler will provide service. 4.1.8 Overflowing Containers Customers that regularly produce more Solid Waste than their current level of service can accommodate may have their service level increased in accordance with the following procedure: First Incident in Three Month Period - If more material is placed for Collection than fits in a Cart (unless Collection of the overage has been properly arranged under Section 4.1.3), Contractor shall photograph the overflowing Cart, Collect the Solid Waste, and send to the Customer (at both the service and billing addresses) the picture and a letter instructing that further instances of an overflowing Cart may result in a charge, and possibly in an increase in the level of service. Second Incident in Three Month Period - Upon the second event of an overfilled Cart (unless Collection of the overage has been properly arranged under Section 4.1.3) in a three-month period, Contractor shall photograph the overflowing Cart, Collect the Solid Waste, and send to the Customer the picture and a letter instructing that a third incident in that same three month period may result in an increase in the level of service. If Refuse was left beside the Cart for Collection other than as permitted under Deleted: February 8, 2017January 27, 2017 -28- City of Diamond Bar - Residential Packet Pg. 333 8.2.b Section 4.1.3, Contractor may charge the Cart Overage Fee in the approved Rate Schedule. Third Incident in Three Month Period - Upon the third event of an overfilled Cart (unless Collection of the overage has been properly arranged under Section 4.1.3) in a three-month period, Contractor shall photograph the overflowing Cart, Collect the Solid Waste, and send to the Customer the picture and a letter requesting that Customer increase its service level. If the Customer declines, Contractor may petition City to permit Contractor to increase the service level to accommodate the higher demand for service. If Refuse was left beside the Cart for Collection other than as permitted under Section 4.1.3, Contractor may charge the Cart Overage Fee in the approved Rate Schedule. Each incident shall be counted as one of the Customer's free pickups or, if Customer has used the annual free pickups, Contractor shall Bill Customer for the additional pickups per the approved rate schedule. Contractor shall send City via e-mail or U.S. mail a copy of each letter and picture sent to a Customer under this Section 4.1.8. 4.1.9 Section Deleted 4.1.10 Temporary Roll -Off and Temporary Bin Services Contractor shall provide temporary Roll -off Box and temporary Bin Collection service upon request only to existing Residential Customers (Customers to whom Contractor provides weekly Solid Waste Collection service using Carts) for cleanup or construction work performed at their existing residences. The provision of temporary Collection services for the Construction of new residences, and all work on Commercial premises, and Residential Premises that receive Bin service, are excluded from this franchise, and exclusivity is further limited by Section 2.9. In the event Temporary Services are required for a project involving multiple Customers that receive service under both the City's Residential Cart and Commercial Bin and Roll -Off franchisees, this service is not included under this Agreement. In the event there is a dispute as to whether a particular service is included in the franchise, City shall make the final determination. Contractor must deliver a temporary Roll -Off Box or temporary Bin to its existing Residential Customer within forty-eight (48) hours of request (Sundays excluded). Deleted: February 8, 2017January 27, 2017 -29- City of Diamond Bar - Residential Packet Pg. 334 Contractor will provide Roll -off Boxes and Bins for Temporary Services. There will be no charges other than the specific charges identified in the approved rate schedule, attached as Exhibit 2. Contractor shall confirm that Customer has obtained an encroachment permit from the City prior to Contractor placing a Container in the public right-of-way. 4.1.11 Section Deleted 4.1.12 Section Deleted 4.1.13 Section Deleted 4.1.14 Section Deleted 4.1.15 On -Call Bulky Item Pickup Contractor shall provide Bulky Item pickup service to all Residential Customers. Each Residential Dwelling Unit shall be entitled to four Bulky Item pickups per calendar year at no additional charge. Residential Customers may put out up to three (3) cubic yards of material at each pickup. Contractor may instruct Customers to provide Contractor with a minimum of one business day's notice for the items, which shall be Collected on the Customer's next regular Collection day following notification by Customer. Contractor shall Collect all Bulky Items as defined in Section 1.6 including items referred to as electronic waste or "e -waste." The following provisions shall apply to this program: • No single item that cannot be handled by two workers will be accepted. • The following items will not be picked up: Hazardous Substances, Hazardous Waste, including waste oil or anti -freeze, with the exception of Bulky Items per Section 1.6 (including without limitation, universal wastes such as fluorescent bulbs, household batteries, and televisions, monitors and other items commonly referred to as "e -waste" that will be Collected by and disposed of by Contractor in accordance with this section as well as Sections 4.1.16 and 4.1.17.) • Contractor shall record by class and weight (in tons) the Solid Waste Collected from Bulky Item pickups. Contractor shall record the kinds and weights (in tons) of this -30- of Diamond Bar - Residential 8.2.b Deleted: February 8, 2017January 27, 2017 Packet Pg. 335 Solid Waste that is diverted from the landfill through Recycling, reuse, Transformation or other means of Diversion. Contractor shall include this information in its monthly reporting per Section 8.3.2(a). Residential Customers that exceed the number of free pickups and Commercial business Customers may receive Bulky Item Collection for a fee, in accordance with the approved rate schedule in Exhibit 2. 4.1.16 Bulky Item Diversion Bulky Items Collected by Contractor in accordance with Section 4.1.15, or otherwise Collected under this Agreement, may not be landfilled or disposed of until the following hierarchy of Diversion efforts has been followed by Contractor: 1) Reuse as is 2) Disassemble for reuse or Recycling 3) Recycle 4) Disposal This hierarchy is intended to preclude the use of front or rear loading packer vehicles for Bulky Items unless the compaction mechanism is not used to compact the Bulky Items. An exception maybe made for items that have been designated for Disposal. Mattresses set out for collection shall in no instance be collected in a packer vehicle. The Contractor shall Recycle or contract with a third -party vendor to Recycle all mattresses collected within the City. 4.1.17 Disposal of Electronic and Other Special Wastes Contractor shall divert waste requiring special handling, such as electronic waste, or "e- ='l Deleted: universal or waste," Collected in accordance with Sections 4.1.15, 4.1.16 or 4.5.4, or by other means under this Agreement, by taking these goods to a properly permitted Facility, and not by landfilling. 4.1.18 Door -to -Door HHW Collection Contractor shall provide Residential Customers with door-to-door call-in HHW Collection service, Each Residential Dwelling Unit shall be entitled to two door-to-door Deleted: at no additional cost Deleted: -31- Citv of Diamond Bar - Residential 8.2.b 8, 2017January 27, 2017 Packet Pg. 336 8.2.b HHW pickups per calendar year at no additional charge. Items to be Collected include, at a minimum: paint and paint products including but not limited to thinners, glues, caulking, stains, wood preservatives and strippers; universal waste, household cleaners; automotive wastes; swimming pool chemicals; garden chemicals; fluorescent tubes; thermometers; and household batteries, Deleted: syringes and other Sharps; Deleted: ; and electronic wastes Contractor may direct Residential Customers to use the Bulky Item pickup option for televisions, computers and other H1 -IW that may safely and legally be Collected as Bulky Items as described in Section 4.1.15„ . - Deleted: two (z) weeks 4.1.19 Annual Household Hazardous Waste Event Waste Management will assist the City in increasing awareness of Household Formatted: Normal, Indent: First line: 0" Hazardous Waste events by promoting the Los Angeles County Household Hazardous Waste collections held in Diamond Bar. Promotional activities will include: posting on Waste Management's website, inclusion in the Annual Brochures/Mailings mailed to each Residential Customer, billing inserts, social media targeted outreach, and press releases to local news outlets. Formatted: Font: Falatino 4.1,E Curbside Used Oil and Oil Filter Collection Contractor shall Collect used oil placed curbside beside Refuse Collection Cart on regular Collection day at no additional charge. Contractor shall educate Customers to place used oil in clean containers and used oil filters in clean zip -lock bags. Deleted:l9 Formatted: Indent: Left: 0", First line: 0.5" 4.1,E Service Exceptions; Hazardous Waste Notifications Deleted: 20 A. Failure to Collect. When Solid Waste is not Collected from any Customer, % Deleted: Solid Waste service recipient Contractor shall notify Customer in writing, at the time Collection is not made, through Deleted: its service recipient the use of a "red tag' or otherwise,of the reasons why the Collection was not made, Deleted: (such assn accordance with section 4.2 such as the placement of Hazardous Waste in the Container or the Recycling Container including non-Recyclables. B. Hazardous Waste Inspection and Reporting. Contractor reserves the right to inspect Solid Waste put out for Collection and to reject Solid Waste observed to be contaminated with Hazardous Waste and the right not to Collect Hazardous Waste put out with Solid Waste. Contractor shall notify all agencies with jurisdiction, if appropriate, including the California Department of Toxic Substances Control and Deleted: February 8, 2017January 27, 2017 i of Diamond Bar - Residential -32- Packet Pg. 337 Local Emergency Response Providers and the National Response Center of reportable quantities of Hazardous Waste, found or observed in Solid Waste anywhere within City. In addition to other required notifications, if Contractor observes any substances which it or its employees reasonably believe or suspect to contain Hazardous Wastes unlawfully disposed of or released on any City property, including storm drains, streets or other public rights of way, Contractor will immediately notify City Manager or City Manager's designee. Contractor shall implement and maintain a training program that will assist its employees in identifying and properly disposing of any Hazardous Waste that may come into their possession. C. Hazardous Waste Diversion Records. Contractor shall maintain records 8.2.b showing the types and quantities, if any, of Hazardous Waste found in Solid Waste and which was inadvertently Collected from Customers within City, but diverted from .- Deleted: service recipients landfilling. 4.1,E Sharp's Mail Back Program Within six months of the effective date of this Agreement, Contractor will implement a program for Collection and safe processing of Sharps generated by its Customers, through a mail -based program and/or a drop-off program. Through a mail -based program, Residential Customers requesting Sharps services may apply to Contractor to participate in this program, and Sharps containers will be delivered directly to them at no cost to the Customer or City. Through a drop-off program, Contractor would make arrangements with pharmacies and/or other locations throughout the City for residents to drop-off Sharps at no cost to the Customer or City. 4.1.23 Medication Takeback Program Waste Management will assist the City in increasing awareness of medication takeback Deleted: 21 Deleted: This is in addition to the provision of d door HfiW Collection provided under Section 4.; which also provides for Sharps Collection. pro ams provided by the Los Angeles County Sheriff's station and any third -party events held in Diamond Bar. Promotional activities will include: posting on Waste Formatted: Font: Not Bold Management's website, inclusion in the Annual Brochures/Mailings mailed to each Residential Customer, billing inserts, social media targeted outreach, and press releases Formatted: Font: Not Bold to local news outlets. l Formatted: Font: Not Bold j Deleted: February 8, 2017January 27, 2017 -33- City of Diamond Bar - Residential Packet Pg. 338 4.2 8.2.b 4.1,E FreeCycle.com Deleted: 22 Within six (6) months of the Effective Date, Contractor will2ublicize to Residential Deleted: make available Customers its free materials exchange/ gifting program, known as FreeCycle.org, and shall promote FreeCycle.org Contractor's website, and the Annual Brochure/ Mailings Deleted: inpublic education materials described in Section 5.3.2. Recycling 4.2.1 Recycling Collection Contractor shall provide all Customers with a Cart for Recyclable Materials ("Recycling Cart(s)"), and shall Collect all Recyclable Materials placed therein for Collection not less than once per week. Contractor shall Collect Recyclable Material placed in Recycling Carts for Collection from each Customer on the same day as Customers' Refuse Cart is Collected. Contractor shall have a Recycling program whereby it, at a minimum, Collects all materials that can be recovered at the local processing Facility used by Contractor. Contractor will update public education materials accordingly as new items are added to those recovered by the Facility. Customers may request one additional Cart at no additional charge. Residents with carts beyond two per dwelling unit may be charged in accordance with the approved rate schedule. Contractor shall take whatever actions may be appropriate, lawful and effective to discourage the unauthorized removal of Recyclable Materials from the Solid Waste stream, commonly referred to as scavenging. 4.2.2 Section Deleted 4.2.3 Contaminated Loads, Warning Notice Contractor shall place a red tag or other warning notice approved by the City on all Recyclable Material or Green Waste loads that are contaminated, indicating to the Customer why the load was not Collected and diverted, and providing Contractor's phone number. For Cart Customers with off-site management such as small apartment buildings, Contractor shall also mail a copy of the warning to the Customer's Billing Deleted: February 8, 2017January 27, 2017 y 16, 2017 -34- City of Diamond Bar - Residential Packet Pg. 339 address. Contractor shall notify City on a monthly basis of any warning notices issued pursuant to this section, and shall provide copies of such warnings to City upon request. With prior written City authorization, Contractor may remove Recycling and Green Waste Carts from habitual contaminators that have received a total of three warnings on either or both Carts in any six-month period. Residential Recycling and Green Waste Carts will be returned only after six months, or upon direction of the City, or if there is a change of occupancy. 4.2.4 Marketing and Sale of Recyclable Materials Contractor shall be responsible for marketing and sale of all Recyclable Materials Collected pursuant to this Agreement. Revenue from the sale of materials Collected, and tonnage sold, shall be reported to the City on an annual basis by March 31 of each year for the previous calendar year (by March 312011, Contractor shall report for the period August 16, 2010 to December 31, 2010). If Recyclable Materials are delivered to a Material Recovery Facility (MRF), reported revenue from the sale of materials Collected shall be defined as the revenue received from selling the materials to a Contractor shall rebate to Customers a portion of Recyclable Materials revenue once per year in accordance with Section 6.7. Contractor shall report the amount of such revenues to City on an annual basis per Section 6.7 and upon request. 4.2.5 Minimum ,piversion Requirements Deleted: Recycling Contractor shall divert from landfilling a minimum of 45% of all Solid Waste Contractor Collects under this Agreement. Contractor shall divert from landfilling a minimum of 75%, or the State -mandated Construction and Demolition diversion percentage, whichever is greater, of all Construction and Demolition Debris loads Contractor Collects under this Agreement. Construction and Demolition Debris tonnage shall be included in the overall 45% diversion calculation. Upon the request of either party, not more often than once everY two (2) years, the parties agree to meet and confer regarding adjustments to the minimum diversion rate, based on factors including waste characterization data provided by Company, trends in source reduction and reuse, trends in third party diversion, extent of reverse logistics, the availability of permitted facilities that are capable of processing material to achieve the required levels of diversion, emerging methods of processing and recycling/reusing -35- of Diamond Bar - Residential 8.2.b Formatted: Left, Indent: First line: 0" Deleted: , and negotiate in good faith, Deleted: February 8, 2017January 27, 2017 Packet Pg. 340 new waste materials, the availability of markets, transportation constraints, embargoes, and the impact of scavenging. City shall consider such information provided by Contractor and other industry data and shall, at its sole discretion, determine if any adjustments to the minimum diversion requirements shall be made, and such changes must be approved by the City Council before becoming effective. Compliance with each of these minimums will be measured, initially, for the first period from August 16, 2010 to December 31, 2010, and subsequently on a calendar year basis. Recycling or Diversion of materials not Collected by the Contractor is not to be counted towards meeting this requirement. If Contractor fails to comply with these diversion rate requirements, Contractor must submit a plan for compliance, including without limitation implementation of applicable portions of City's Source Reduction and Recycling Element, within sixty (60) days of the end of the calendar year. Contractor's plan is subject to approval by the City Manager, and to be approved must constitute a good faith plan to implement applicable portions of City's Source Reduction and Recycling Element and be reasonably likely to achieve compliance with the above requirement. Costs for providing the services in the compliance plan to meet this existing obligation will be borne by Contractor and shall not be the subject of a rate adjustment. If, following implementation of the plan for compliance, Contractor does not achieve compliance with the above requirement for the calendar year in which the plan was submitted, liquidated damages shall be assessed under Section 11.3 for failure to meet this requirement. In the event the State increases diversion rate goals, City may require Contractor to implement programs to meet the goal, and parties shall negotiate a rate adjustment. Should parties fail to reach a mutually acceptable agreement, City may hire a third party to provide those services, 4.2.6 Construction and Demolition Debris Diversion Contractor shall process all C&D loads. Contractor will bring all loads of mixed Construction and Demolition Debris from Construction and Demolition sites, and other C&D identified as such by Contractor, or identified as such by customer at the time of the request for service to a C&D processing facility designated per Section 4.8 for separation and recovery of this material. Contractor may deliver separated loads of -36- Citv of Diamond Bar - Residential 8.2.b Deleted. or terminate this Agreement Deleted: February 8, 2017January 27, 2017 Packet Pg. 341 4.3 Construction and Demolition Debris, such as clean dirt, concrete or rebar, to facilities specializing in the reuse of such materials, provided this material is diverted from landfilling. Contractor shall divert from landfilling a minimum of 75 % of all Construction and Demolition Debris Collected. 4.2.7 Optional Food Waste Diversion Program City reserves the right to require Contractor to implement a program to divert Food Waste, either co -collected with Green Waste or separately Collected. Contractor shall only be required to implement a Residential Food Waste diversion pro rg am if mandated by CalRecycle. The program shall be implemented following the exercise of the City's right and adjustment of rates as described below. The Contractor shall be entitled to a rate adjustment of three percent (3%) for implementation of the Food Waste program. This is in addition to the annual adjustment implemented pursuant to Section 6.4. The three percent (3%,) rate adjustment shall only pply to the "Standard Rates' and "Senior Reduced Rates" for Residential Cart service included in Exhibit 2, and shall not apply to Additional Cart Rates and Services or Temporary Services included in Exhibit 2. Green Waste Program 4.3.1 Single Family Green Waste Collection Contractor shall provide all Customers with a Cart for Collection of Green Waste ("Green Waste Cart(s)"), unless the Customer has qualified for the yard waste reduction discount described under Section 5.1.3. Contractor shall Collect all Green Waste placed in Green Waste Carts, as well as all Green Waste bundled as set forth below, and put out for Collection by Customers not less than once per week on the same day as Refuse Collection. Contractor shall have a Green Waste Recycling program whereby it, at a minimum, Collects the types of Green Waste defined in Section1.24. Contractor shall only be obligated to Collect Green Waste set out for Collection in bundles if it is a maximum of four (4) feet long and eighteen (18) inches in diameter. Customers may request one additional Cart at no additional charge. Residents with carts beyond two per dwelling unit may be charged in accordance with the approved rate schedule. -37- of Diamond Bar - Residential 8.2.b Deleted: food waste Deleted: Contractor would be entitled to a rate adjustment for the reasonable additional costs inc processing the waste and in transporting the was accordance with Section 2.10. Transportation cost increase or decrease, depending upon the locatioi food wasteFood Waste processing facility to be u, Deleted: 1.23 Deleted: February 8, 2017January 27, 2017 Packet Pg. 342 8.2.b 4.3.2 Holiday Tree Collection Program Contractor shall operate an annual holiday tree Collection program from December 26 through the second Sunday in January. During this period all holiday trees placed out for Collection by Residential Customers shall be Collected by Contractor. After this period, trees will be Collected as Bulky Items under Section 1.6. Trees up to seven (7) feet in length will be Collected and diverted without Customers needing to cut them. Contractor may request that Customers with larger trees cut the trees to pieces no longer than seven (7) feet. Contractor will divert all holiday trees from landfilling. Notwithstanding the above, Contractor is required to Collect but is not required to divert artificial holiday trees, or trees containing decorations, ornaments, tinsel, debris, Deleted: collect or accept support stands or other foreign matter as part of this diversion program. 4.3.3 Section Deleted 4.3.4 End Uses for Green Waste Contractor shall divert Green Waste materials Collected through weekly Cart and bundle Collection, holiday tree Collection, Roll -off Box Collection and mixed waste processing from Disposal. Contractor must provide end uses for Green Waste that maximize Diversion credit for City according to regulations established by theCalRecycle, Green Waste may be used as alternative daily cover ("ADC') only to Deleted: the extent that the City will get full Diversion credit for its use. Diversion credit for Deleted: California Integrated waste Managema ADC is not allowed after Tanuary 1, 2020 per Assembly Bill 1594. Contractor is responsible for monitoring how the Green Waste will be diverted at selected facilities and for selecting alternative facilities if necessary to ensure full Diversion credit. Failure to do so places the Contractor in default. City has the option, but not obligation, to direct Contractor where to deliver the material. 4.3.5 Mulch Give -a -Way Contractor shall distribute free mulch to Residential Customers. Contractor shall distribute coupons through quarterly Billings entitling Residential Customers to receive two bags per event at two community events per year to be identified by City. Deleted: February 8, 2017January 27, 2017 -38- City of Diamond Bar - Residential Packet Pg. 343 4.4 4.5 Cart Selection, Distribution, Exchanges and Removal 4.4.1 Cart Selection and Distribution Contractor shall provide Residential Cart Customers with the option of 35, 64 and 96 - gallon Cart sizes for Refuse Collection, and 35 and 64 -gallon Cart sizes for Recycling and Green Waste. Residential Customers may request different sizes for each waste stream. In the event a Residential Customer does not indicate a preference, the standard, default size for each wastestream shall be 64 -gallons. 4.4.2 Cart Exchanges Customers may each request one free exchange in cart sizes beginning 60 days after the initial cart is delivered and ending six months after the initial cart is delivered. One exchange includes all Cart size changes included in the same Customer request and may include changes being made to one, two or three of the Customer's Carts. If a second request is made, or if a request is made following the initial six-month period, Contractor may charge for each request, regardless of the number of carts exchanged, in accordance with the approved rate schedule. New Customers shall be granted the same no -charge exchange period. 4.4.3 Removal of Carts Distributed Under the Previous Contract Contractor shall Collect and Recycle or Dispose of Carts distributed under the previous franchise agreement at no additional charge to City or Customers. City Services 4.5.1 Section Deleted 4.5.2 City Sponsored Events Contractor shall provide Solid Waste and Recycling Collection and Disposal/processing service for City -sponsored events. This shall include providing Containers (Bins, Roll- off Boxes, clearly labeled Recycling Containers and cardboard waste boxes with liners) to Collect and dispose of, or process, all Solid Waste and Recyclable Materials. The Contractor shall provide these services at City -sponsored events upon City request, at -39- Citv of Diamond Bar - Residential 8.2.b Deleted: February 8, 2017January 27, 2017 Packet Pg. 344 8.2.b no cost to City or ratepayers. The City's intent will be to alternate events assigned to Contractor with those events it assigns to the City's bin and roll -off customer services franchisee; however, City does not guarantee that events will be evenly distributed based upon either level of effort or number of events. City -sponsored events include, but are not limited to: • Concerts in the Park • City Birthday Celebration • Fourth of July • Fall Fun Festival • Winter Snow Festival • Arbor Day • Easter Egg Hunt 4.5.3 Emergency Collection and Disposal Service Contractor will assist City at the City's request with emergency Collection and Disposal service (in the event of major disaster, such as an earthquake, storm, riot or civil disturbance), or as otherwise determined necessary by the City, by providing Collection equipment and drivers normally assigned to City. Contractor may charge City for actual Disposal costs plus service rates per the approved rate schedule. 4.5.4 Abandoned Item Collection from City Right -of -Way or Other Public Property Contractor will Collect and dispose of, at no additional charge, within one business day of notification from City, all items left in the City's right-of-way, such as sidewalks, alleys, streets, and parkways. Contractor will properly divert from landfilling or Dispose of such items in accordance with Sections 4.1.16 and 4.1.17. City will contact either the residential Cart or the Bin and Roll -Off Box franchisee to provide this service, depending on the location of the abandoned item. 4.5.5 Community Development Review Services Upon City request and at no additional charge, Contractor will review building permit applicants' plans and advise regarding adequacy of Container storage space and access, particularly to accommodate Recycling containers. Deleted: February 8, 2017January 27, 2017 y 16, 2017 -40- City of Diamond Bar - Residential , Packet Pg. 345 4.5.6 Large Venue Event Assistance, Event Recycling Contractor will assist planners of large venue events with reporting and planning needs as may be useful in meeting the requirements of AB 2176, found at California Public Resources Code 42648 et seq. at no additional charge. Contractor shall provide Recycling services upon request to special event planners. 4.5.7 Confiscation of Unauthorized Containers City authorizes Contractor to confiscate illegal Collection Containers located within the City's public rights-of-way. Upon notification from City, or Contractor's locating of an illegally placed Container, Contractor shall begin the following procedure within 24 hours: Contractor shall first place a notice on Container, directing the illegal hauler or its Customer to remove the Container within 24 -hours of notice, citing relevant sections of the City's municipal code, indicating where the Container may be retrieved, impound and storage costs, and warning that, should a second Container belonging to that company be found in the City in violation of the City Municipal Code, that Container may be removed without warning. If the company can be identified and its address ascertained, Contractor shall mail the warning as well. 2. Notify City of the notice and request authorization to impound the Container. 3. With City approval, impound the Container if it has not yet been removed by the illegal hauler. 4. For subsequent violations by the same company after the initial notice has been posted, and after Contractor has mailed a warning to the company, Contractor may request approval from City to remove company's Containers immediately, mailing a notice if address is known as to where the Container may be retrieved and impound and storage costs. If address is unknown, Contractor shall place the notice as close as feasible to where the Container was located. 4.5.8 Provision of Storage Containers Contractor will provide the City with eleven 40 -cubic -yard portable storage containers three currently in use and up to e_e_ fight more at City's request) to be used for storage at City facilities and schools for the duration of this Agreement, and will maintain them in -41- Citv of Diamond Bar - Residential 8.2.b Deleted: two Deleted: nine Deleted: February 8, 2017January 27, 2017 Packet Pg. 346 4.6 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. Operations 4.6.1 Schedules, Missed Pickups To preserve peace and quiet, Solid Waste shall only be Collected between 6:30 a.m. and 6:30 p.m. Collection is only permitted Monday through Friday, with Saturday Collection permitted during holiday weeks. Contractor may not make exceptions to these Collection days and times without advance written approval from the City. If the regularly scheduled Collection day falls on New Year's Day, Memorial Day, Fourth of July, Labor Day, Thanksgiving Day, or Christmas Day, Collection days for the remainder of that week shall all be postponed one Collection day. Contractor shall review its operations plan outlining the Collection routes, intervals of Collection and Collection times for all materials Collected under this Agreement with City upon thirty (30) days written notice requesting said review. Contractor shall submit a copy of its schedule and route map within seven (7) business days if requested by City. If the plan is determined to be inadequate by City, Contractor shall revise it incorporating any changes reasonably necessary to make it satisfactory to City within thirty (30) days. Change in schedules and routing shall not be implemented without City approval and not until at least fifteen (15) business days following notification to Customers. The City may restrict the timing and frequency of any route changes based upon the City's Municipal code or any other applicable law or requirements. When notified of a missed pickup (which was not justified under the provisions of this Agreement) prior to 12:00 p.m., Contractor shall Collect the Refuse, Recyclable Materials, and/or Green Waste that was not Collected the same day. If notified after 12:00 p.m., Collection must take place no later than the next business day. If Contractor determined that the missed pickup was justified under this Agreement, Contractor will notify Customer as to the reason within this same time period. 4.6.2 Vehicles A. General. Contractor is responsible for providing all vehicles that may be required for the Collection of Solid Waste that are sufficient in number and capacity to -42- of Diamond Bar - Residential 8.2.b Deleted: February 8, 2017January 27, 2017 Packet Pg. 347 8.2.b efficiently perform the work required by this Agreement in strict accordance with its terms. Contractor is expressly obligated to provide such Collection Vehicles and routes as are required to meet the service standards set forth herein. Contractor shall have available on Collection days sufficient back-up vehicles for each type of Collection Vehicle used to respond to complaints and emergencies. All equipment of Contractor used to provide the services set forth in this Agreement shall be subject to inspection by City upon request. B. Specifications. At the start of service under this Agreement, 50% of Collection vehicles used to provide service under this Agreement, excluding spares, shall use exclusively liquefied natural gas (LNG) or compressed natural gas (CNG). By December 31, 2011,100% of Collection vehicles used to provide service under this Agreement, excluding spares, shall use exclusively liquefied natural gas or compressed natural gas. Spares that do not use exclusively LNG or CNG shall not be used for more than thirty (30) days per calendar year per route. No Collection vehicle, including spares, used in the City shall be more than 10 years old at any time during this Agreement Term. Up to four Collection vehicles refurbished to like -new condition will be considered new for purposes of this provision as of the date the refurbishment is completed. Contractor and City Manager, or his designee, shall meet within six (6) months of the Effective Date and periodically thereafter to review vehicle performance and determine the specific improvements (such as painting, sealing truck bodies, or mechanical systems) required as part of the refurbishment to allow the Collection vehicle to be considered like -new. The fuel and vehicle age requirements set forth above apply only to those automated front -loading and side -loading Collection vehicles used routinely to provide services, and do not apply to Collection vehicles used for special purposes or on a non- routine basis, including spare vehicles used for no more than thirty (30) days per year per route, scout vehicles, flat-bed Bulky Item vehicles or vehicles not used for Collection. All vehicles used in the City must be registered with the California Department of Motor Vehicles and, where used for Collection, shall have water -tight bodies designed to prevent leakage, spillage or overflow. At all times during the term of this Agreement, Contractor's Collection vehicles shall comply with South Coast Air Quality Management District Requirements and the California Air Resource Board requirements as they are currently in force and as they may be approved for Refuse removal vehicles, as well as other Federal, State and local laws and regulations that may be enacted during the term of this Agreement. Deleted: February 8, 2017January 27, 2017 i -43- City of Diamond Bar - Residential Packet Pg. 348 C. Vehicle Identification and Labeling. Each Collection vehicle shall be marked with Contractor's name, toll free phone number, and a vehicle identification number designated by Contractor for each Collection Vehicle which shall be prominently displayed on all such Vehicles, in lettering at least six inches in height. City must approve truck labeling. D. Cleaning and Maintenance 1) Contractor shall maintain all vehicles and equipment used in providing service under this Agreement in a good, safe, neat, clean and operable condition at all times. 2) Collection Vehicles shall be painted, thoroughly washed, and thoroughly steam cleaned on a regular basis so as to present a clean appearance. Contractor shall make all Collection Vehicles available to the County of Los Angeles for inspection regarding health concerns and requirements at any frequency it requests. Contractor agrees to replace or repair to the City's satisfaction, any Collection Vehicle which City determines to be of unsightly appearance, leaking, or in unsatisfactory operating condition. 3) Contractor shall repaint any or all Collection Vehicles within thirty (30) days' notice from City, if City reasonably determines that their appearance warrants painting. City may not require a vehicle to be repainted if it has been repainted within the previous thirty (36) months. 4) Contractor shall inspect each Collection Vehicle daily to ensure that all equipment is operating properly. Collection Vehicles which are not operating properly shall be removed from service until repaired and operating properly. Contractor shall perform all scheduled maintenance functions upon Collection Vehicles in accordance with the manufacturer's specifications and schedule. Contractor shall keep accurate records of all Collection Vehicle maintenance, recorded according to date and shall make such records available to City upon request. 5) Contractor shall repair, or arrange for the repair of, all of its vehicles and equipment for which repairs are needed because of accident, breakdown or any other cause so as to maintain all equipment in a safe and operable condition. Contractor shall maintain accurate records of repair, which shall include the -44- of Diamond Bar - Residential 8.2.b Deleted: February 8, 2017January 27, 2017 Packet Pg. 349 date, nature of repair and the verification by signature of a maintenance supervisor that the repair has been properly performed. 6) Upon request, Contractor shall furnish City a written inventory of all equipment, including Collection Vehicles, used in providing service pursuant to this Agreement. This inventory shall list all equipment by manufacturer, year of production, ID number, date of acquisition, type, capacity, and whether the vehicle is a spare. 7) All vehicles used to provide services under this Agreement shall at all times have in the cab the registration of the truck, evidence of insurance meeting the requirements of this Agreement and an identification card with the name of whom to telephone in case of an accident or emergency. Each truck shall be equipped with a minimum of a 20 -pound fire extinguisher that has been certified by the state fire marshal. This fire extinguisher shall be recharged as needed, but not less than once annually. Vehicles shall be equipped with a shovel and broom to clean up any spillage. 8) All trucks used to provide services under this Agreement in the City shall be required to be completely enclosed with a nonabsorbent cover while transporting refuse, recyclables or compostable materials or other solid waste materials in or through the city. "Completely enclosed with a nonabsorbent cover" means that refuse, trash, recyclable or compostable materials shall not be visible from the public highway, nor shall any of the substances be permitted to leak, spill or become deposited along any public highway. E. Operation. Vehicles shall be operated in compliance with the California Vehicle Code, and all applicable safety and local ordinances. Contractor shall not load vehicles in excess of the manufacturer's recommendations or limitations imposed by state or local weight restrictions on vehicles. Contractor's equipment shall comply with US EPA noise emission regulations, currently codified at 40 CFR Part 205 and other applicable noise control regulations, and such noise control features shall be incorporated throughout the entire fleet of Collection Vehicles. Noise levels of equipment used for Collection shall comply with Diamond Bar Municipal Code Chapter 8.12 and in no event shall the noise level exceed 75 dba when measured at a distance of 25 feet from the vehicle, five feet from the -45- of Diamond Bar - Residential 8.2.b Deleted: a certificate Deleted: February 8, 2017January 27, 2017 Packet Pg. 350 8.2.b ground. Contractor shall store all equipment in safe and secure locations in accordance with City's applicable zoning regulations. Contractor shall be responsible for any damage, normal wear and tear excepted, resulting from or directly attributable to any of its operations, and which it causes to: City's driving surfaces, whether or not paved, public or private; associated curbs, gutters and traffic control devices; and all other public and private improvements. F. City Inspection Per Code. City may cause any vehicle used in performance of this Agreement to be inspected and tested at any commercially reasonable time and in such manner as may be appropriate to determine that the vehicle is being maintained in compliance with the provisions of the State Vehicle Code, including, but not limited to, California Vehicle Code Sections 27000(b), 23114, 23115, 42030, 42032, and all Vehicle Code Sections regarding smog equipment requirements. City may direct the removal of any vehicle from service if that vehicle is found not to be in conformance with applicable codes. No vehicle directed to be removed from service shall be returned to service until it conforms with, and its return to service has been approved by City. G. Vehicle Inspections. Upon City request, Contractor shall submit the Safety Compliance Report/ Terminal Record Update from its Biennial Inspection of Terminal, or BIT. If Contractor receives a terminal rating below satisfactory, Contractor shall notify the City, and Contractor is in violation of this Agreement. Contractor has the time allowed by the Department of California Highway Patrol ("CHP") to cure violations and bring the terminal rating up to satisfactory. If the CHP does not adjust the rating to satisfactory or better within six (6) months, then the Contractor shall be considered in default of the contract and the City may terminate this Agreement. H. Correction of Defects. Following any inspection, the City Manager shall have the right to cause Contractor, at its sole cost and expense, to recondition or replace any vehicle or equipment found to be unsafe, unsanitary or unsightly. The City Manager's decision shall be final. Deleted: determination may be appealed to the Council, whose 4.6.3 Containers Contractor will provide Containers to be used under this Agreement. On or before December 31, 2017, Contractor shall ensure that all Containers comply with requirements included in Sections 4.6.3.1 through 4.6.3.4 and provide a report to the Cit, lig replaced or repaired containers including service addresses. Deleted: February 8, 2017January 27, 2017 Y 16, 2017 -46- City of Diamond Bar - Residential Packet Pg. 351 4.6.3.1 Carts A. Cart Design Requirements Carts and Cart lids must meet color, size, uniformity and quality requirements of the City. Existing Carts in good working order and meeting all Agreement requirements will not be required to be replaced at the start of service under this Agreement. However, the City will not permit Carts and Cart lids with inconsistent colors or in poor condition to be used in the City at any time during the term of this Agreement, and may require Contractor to replace such Carts. All Carts provided by Contractor utilized in the performance of this Agreement shall be manufactured by injection or rotational molding and meet the Cart design and performance requirements as specified below. All Carts selected shall be subject to City's approval prior to Contractor placing the order. B. Capacity The references in Section 4.4 to Cart sizes of 96, 64 and 35 -gallons may be approximate. The Cart size, excluding lid capacity, may fall within the following range: • 30 - 35 gallons • 60 - 70 gallons • 90 -101 gallons The selected sizes must be consistent throughout the City for a uniform appearance. C. Cart Color and Appearance The Refuse, Recycling and Green Waste Carts will be differentiated by color. The colors shall be colorfast and resistant to fading as a result of weathering or ultraviolet degradation. Color must be approved in advance by the City. Cart and Cart lid colors shall be consistent throughout the City. D. Cart Labeling and Hot Stamping Labels used on Carts shall be placed on the inside of the Cart lid, and hot stamps shall be on the top of the lid and/or on the body of the Cart. Each Cart shall be hot stamped with the material type (e.g., trash, Recycling, Green Waste) in English, Mandarin and February 16 2017 -47- City of Diamond Bar - Residential 8.2.b Deleted: "Refuse," "Recycling" or "Green Wast, Deleted: February 8, 2017January 27, 2017 Packet Pg. 352 8.2.b Korean. Contractor and the City shall meet and confer to determine textual content for Labels. Design for both the labels and the hot stamps must be approved by City prior to ordering labels or Carts. City shall approve what information is included on the label and in the hot stamp, as well as approve design and quality. Labels shall be replaced when worn, and when information on the label is in need of updating, but no later than 90 days of request from City. Information on the Carts shall include the telephone number to call for Contractor, Bulky Item pickups and HHW disposal information, and an anti -scavenging warning. 4.6.3.2 Cart Maintenance and Replacement Responsibilities Contractor shall be responsible for Cart repair and maintenance, graffiti removal and replacing lost, stolen or damaged Carts within three (3) business days, at no additional charge to the Customer or to City, unless Contractor can demonstrate to the City Manager beyond a reasonable doubt that the damage or loss was due exclusively to Customer's intentional or negligent behavior. City Manager shall make the final determination. If City permits a repair or replacement charge to be assessed against a Customer, charge shall be no more than the actual cost of repair or the Contractor's purchase price for a new Cart, whichever is lower. All repairs must restore the Cart to its full functionality. Unsightly/worn-out Carts shall be replaced by Contractor upon Customer request at no additional charge. 4.6.3.3 Bins A. Cleaning. Contractor shall maintain Bins in a clean, sound condition free from putrescible residue. All Bins in use shall be constructed of heavy metal, or other suitable, durable material, and shall be watertight and well painted. Wheels, forklift slots, and other apparatuses, which were designed for movement, loading, or unloading of the Bin shall be maintained in good repair. Upon Customer or City request, or if required to maintain the Containers in a clean condition, Contractor shall clean all Bins once per year at no additional charge. Contractor shall perform cleaning or replacement of Bins more frequently if necessary to prevent a nuisance caused by odors or vector harborage, or if requested by Customer or City, for an additional fee in accordance with the approved rate schedule. When a Bin is removed for cleaning, Contractor shall replace the Bin, either temporarily or as a change -out, with another Container. Contractor shall remove graffiti from any Deleted: February 8, 2017January 27, 2017 i� y 16, 2017 -48- City of Diamond Bar - Residential Packet Pg. 353 8.2.b Container within three (3) business days of request by City or Customer. Contractor iE required to proactively look for graffiti when Collecting Bins, with all graffiti removed from Containers in no later than three (3) business days after any Collection without notification. B. Bin Identification and Color. Each Bin placed in City by Contractor shall be clearly labeled on the front of the Bin with the Bin type (Refuse, Recycling, Cardboard, Green Waste) and the name of Contractor and phone number in letters not less than three (3) inches high on the exterior of the Bin so as to be visible when the Bin is placed for use. Alternatively, the Bin type (Refuse, Recycling, Cardboard, Green Waste) may be identified with an affixed sign. Labels shall also be placed on the inside of the Bin lid. Labels shall include English, Mandarin, Korean and graphic instruction on what materials should and should not be placed in each Bin, and an anti -scavenging warning. Contractor shall have labels approved by City prior to ordering and placement on Bins. Labels shall be replaced when worn, and when information on the label is in need of updating, but no later than 90 days of request from City. Contractor shall repaint Bins upon City's request if the City deems it necessary to maintain a neat appearance. 4.6.3.4 Roll -off Boxes Contractor shall provide Roll -off Boxes clean, free from graffiti, equipped with reflectors, and with the name and phone number of Contractor in letters not less than three (3) inches high on the exterior of the Roll -off Box so as to be visible when the Roll- off Box is placed for use. Contractor shall properly cover all open Roll -off Boxes during transport as required by the State Vehicle Code. 4.6.4 Litter Abatement A. Minimization of Spills. Contractor shall use due care to prevent Solid Waste or fluids from leaking, being spilled and/or scattered during the Collection or transporta- tion process and shall clean up any leaks or spills from its vehicles per the National Pollutant Discharge Elimination System (NPDES) permit in effect at the time. No fluids shall be washed into storm drains at any time. All NPDES dry-cleaning measures shall be complied with. All Collection Vehicles must be equipped with absorbent for such cleanup efforts and shall carry a broom, shovel, absorbent, and containment materials at all times for this purpose. See Section 11.3.B.2.d. Deleted: February 8, 2017January 27, 2017 i -49- City of Diamond Bar - Residential Packet Pg. 354 8.2.b Contractor shall not transfer loads from one vehicle to another on any public street, unless it is necessary to do so because of mechanical failure, accidental damage to a vehicle, or a pre -approved method of Solid Waste transfer between vehicles, without prior written approval by City. B. Clean Up. During the Collection or transportation process, Contractor shall clean up all litter spilled during Collection or otherwise caused by Contractor. Contractor shall leave a "red tag' notice for Customer if litter not caused by Contractor is found in Container enclosure or around Containers. Contractor may charge Customers in accordance with the approved rate schedule for the cleaning of Container enclosures or around the Container if it is littered due to overflowing Containers. Contractor may address habitual offenders in accordance with Section 4.1.8. In the event of a spill of materials (vehicle fluids, Green Waste leachate, etc.), Contractor shall provide a cleanup of the spill to the satisfaction of City and other governing agencies. Cleanup methods may include pressure washing (Contractor must capture and reclaim water) or other similar clean-up methods. C. Covering of Loads. Contractor shall properly cover all open debris boxes during transport to the Disposal Site or processing facility. 4.6.5 Personnel A. Qualified Personnel. Contractor shall furnish such qualified drivers, mechanical, supervisory, clerical, management and other personnel as may be necessary to provide the services required by this Agreement in a satisfactory, safe, economical and efficient manner. All drivers shall be trained and qualified in the operation of vehicles they operate and must possess a valid license, of the appropriate class, issued by the California Department of Motor Vehicles. B. Hazardous Waste Employee Training. Contractor shall establish and vigorously enforce an educational program which will train Contractor's employees in the identification of Hazardous Waste. Contractor's employees shall not knowingly place such Hazardous Waste in the Collection Vehicles, nor knowingly dispose of such Hazardous Wastes at the processing Facility or Disposal Site. Deleted: February 8, 2017January 27, 2017 i -50- City of Diamond Bar - Residential Packet Pg. 355 C. Unauthorized Material Removal. Contractor shall dismiss or discipline employees who remove documents or any other material from Containers, other than specifically for the purposes of Disposal and Diversion as described in this Agreement. D. Training. Contractor shall provide suitable operations, health and safety training for all of its employees who use or operate equipment or who are otherwise directly involved in Collection or other related operations. 4.6.6 Identification Required Contractor shall provide its employees, companies and subcontractors with identification for all individuals who may make personal contact with residents or businesses in City. City may require Contractor to notify Customers yearly of the form of said identification. Contractor shall provide a list of current employees, companies, and subcontractors to City upon request. City reserves the right to perform a security and identification check through the City's Police Department on the Contractor and all their present and future employees employed by Contractor to work in the City, in accordance with accepted procedures established by City, or for probable cause. 4.6.7 Unauthorized Fees and Gratuities Contractor shall not, nor shall it permit any agent, employee, or subcontractors employed by it to request, solicit or demand, either directly or indirectly, any compensation or gratuity for services authorized to be performed under this Agreement except as described in this Agreement, in accordance with Exhibit 2 as updated and approved by City throughout the Term of this Agreement. 4.6.8 Non -Discrimination Contractor shall not discriminate in the provision of service or the employment of persons engaged in performance of this Agreement on account of race, color, religion, sex, sexual orientation, age, physical handicap or medical condition in violation of any applicable federal or State law. -51- of Diamond Bar - Residential 8.2.b Deleted: February 8, 2017January 27, 2017 Packet Pg. 356 4.7 4.8 8.2.b 4.6.9 Report of Accumulation of Solid Waste; Unauthorized Dumping Contractor shall direct its drivers to note (1) the addresses of any Premises serviced under this Agreement at which they observe that Solid Waste is accumulating and which is not being placed out for Collection; and (2) the address, or other location description, at which Solid Waste has been dumped in an apparently unauthorized manner. Contractor shall deliver the address or description to City within one (1) working day of such observation. Transportation of Solid Waste Contractor shall transport all Refuse Collected to a City -approved Facility (e.g. Transfer Station, Waste -to -Energy Facility, Green Waste Processing Facility, MRF, Disposal Site). Contractor agrees to make all reasonable efforts to separate Recyclable Materials from Refuse for Diversion from landfill Disposal. Contractor shall maintain accurate records of the quantities of Solid Waste transported to all Facilities utilized and will cooperate with City in any audits or investigations of such quantities. Contractor shall cooperate with the operator of any Facility it uses with regard to operations therein, including, for example, complying with directions from the operator to unload Collection vehicles in designated areas, accommodating to maintenance operations and construction of new facilities, cooperating with its Hazardous Waste exclusion program, and so forth. Approved Facilities The Contractor shall dispose of Refuse Collected that is not required to be processed at the approved Disposal Site. Contractor must receive written advance approval from City to use each transfer station, transformation facility, processing facility or other Facility used by Contractor in the fulfillment of this Agreement. Contractor is responsible for ensuring that each Facility it uses is properly permitted prior to requesting City approval to use such Facility. Unless and until the City instructs otherwise, the designated Disposal Site and other Facilities are: Puente Hills aterial Deleted: Landfill Recovery Facility, El Sobrante Landfill, Allan Company,,Azusa Land Reclamation, Inc. - 1 Deleted: and Waste Management Recycle Amer l Recycling Parkin Material Recovery Facility and Landfill, Downtown Diversion, Grand Central Transfer ed Station, and Pomona Transfer Station, and Agromin Corporation, Delet: (scheduled to open 2011) j Deleted: February 8, 2017January 27, 2017 Y 16, 2017 -52- City of Diamond Bar - Residential Packet Pg. 357 4.9 Status of Disposal Site Any Disposal Site utilized by Contractor, shall be designed and constructed in accordance with 23 California Code of Regulations Section 2510 et seq. ("Subchapter 15"). Anydandfill Dispshall have been issued all permits from federal, state, Deleted: su h osal Site regional, county and city agencies necessary for it to operate as a Class III Sanitary Landfill and is in full regulatory compliance with all such permits. 4.10 Dedicated Routes Solid Waste Collected in the City shall not be commingled in Collection vehicles with Solid Waste from other jurisdictions. All routes approved under this Agreement shall be dedicated exclusively to Solid Waste Collected in the City of Diamond Bar, ,= Deleted: Solid Waste 4.11 Route Audit Once during the first year, and subsequently upon request by the City or as initiated by Contractor, but in no event more than lour (4) times per year, Contractor shall conduct Deleted: once an audit of its Collection routes in the City. In setting these audit dates, City will establish due dates for Contractor providing routing and account information, and later, the report, to City. The route audit, at minimum, shall consist of an independent physical observation by person(s) other than the route driver of each Customer in City. This person(s) is to be approved in advance by City. The route audit information shall include, as a minimum, the following information for each account: • Route Number; • Truck Number; • Number and size of Carts/Bins by waste stream (Refuse, Recycling, Green Waste). Within forty-five (45) days after the completion of the route audit, Contractor shall submit to City a report summarizing the results of the audit. This summary shall include: • Identification of the routes; • Route map; • Truck numbers; • Number of accounts, by route and in total; February 16 2017 -53- City of Diamond Bar - Residential 8.2.b Deleted: February 8, 2017January 27, 2017 Packet Pg. 358 8.2.b • Confirmation that all routes are dedicated exclusively to City Customers; • Number and type of exceptions observed; • Total monthly service charge, pre -audit; • Total monthly service charge, post -audit (subsequent to corrections of identified exceptions). The report shall include a description of the procedures followed to complete the route audit. This description shall include the names and titles of those supervising the route audits and the name and titles of those performing the observations. The report shall also include a description of the changes and Contractor's plans to resolve the exceptions. The results of the audit, and supporting back-up data, shall be available for review by City or its representative. Deleted: February 8, 2017January 27, 2017 i -54- City of Diamond Bar - Residential Packet Pg. 359 5.1 ARTICLE 5 OTHER SERVICES Customer Billing and Contractor Compensation 5.1.1 Billing Contractor shall Bill Customers quarterly in accordance with the approved rate schedule attached as Exhibit 2. Billing Customers for services provided during prior invoicing periods, up to and including the prior three (3) months, shall only be permitted subsequent to Contractor receiving approval by the City, Cart customers shall be Billed quarterly, with invoice dated no sooner than the first day of the quarter Billed for, and payment shall be due no sooner than 30 days after invoice date. The quarters shall begin on February 1, May 1, August 1 and November 1. Extra Bulky Item pickups or extra overage pickups may be added to quarterly Billing, or may be Billed at time of service. Customers' temporary Bin and Roll -Off Box services may be Billed at the time of, or in advance of, service, or on a monthly or bi-monthly Billing cycle. Contractor Compensation is exclusively derived from revenue received as a result of the Billings for services listed on the approved rate schedule, and Contractor shall charge no additional fees unless approved in advance by the City. Contractor shall be responsible for bad debt. 5.1.2 Contractor's Invoices Bills must be itemized by Container size, frequency of service, discounts per Sections 5.1.3, 5.1.4 and 5.15 described below, and period billed for. City must approve the format of Contractor billing invoices. All bills must carry a due date, not "due upon receipt." Bills will not carry an itemization of fees remitted to the City. 5.1.3 Yard Waste Reduction Discount Customers may apply for a yard waste reduction discount under the following conditions: Deleted: 8.2.b Deleted: February 8, 2017January 27, 2017 -55- City of Diamond Bar - Residential Packet Pg. 360 A. Customer borrows and watches instructional DVD from City regarding backyard composting or attends a City -sponsored composting class; B. Customer obtains composting bin during a City -sponsored composting event, or from a local retailer; and, C. Contractor removes yard waste Cart from Customer after Customer applies to City for reduction in green waste services pursuant to Diamond Bar Municipal Code Chapter 8.16. D. Customers that reside in master -billed communities and mobile home parks that utilize landscapers to remove all Green Waste from the property and have no Green Waste Carts on the Premises. 5.1.4 Disabled Customer Discount Deleted: from Contractor 8.2.b Customers determined to be disabled, either by the issuance of a handicap placard from the Department of Motor Vehicles or by meeting City -established guidelines, will Deleted: otherwise obtaining approval from the - - under receive a 15% discount off the standard monthly rate for one Refuse, Recycling and Green Waste Cart service or, the Single Family monthly Bin rate. The disabled party must be the Customer named on the Billing. The discount shall be itemized or otherwise noted on Customer invoices. Contractor shall administer the review and nrocessina of Customer discount applications. Contractor shall provide to the City an annual report containing the name and service address of all Customers receiving the Disabled Customer Discount. 5.1.5 Senior Discount Customers entitled to the senior rates included in the approved rate schedule are Customers that are listed on the Bill, reside at the Premises where service is received and are 60 years of age or older. The discount shall be itemized or otherwise noted on invoices. Contractor shall administer the review and processing of Customer discount applications. Contractor shall provide to the City an annual report (or more frequently_ if requested by City) containing the name and service address of all Customers receiving the Senior Customer Discount. -56- of Diamond Bar - Residential Deleted: February 8, 2017January 27, 2017 Packet Pg. 361 8.2.b 5.1.6 Non -Payment; Suspension of Service 5.1.6.1 Quarterly Cart Billings The following procedures apply to Customer accounts that are Billed quarterly for weekly Cart service: 1. For balances outstanding for 60 days after due date, Contractor shall send a reminder notice to Customer that payment is overdue. Notice should include a warning that balances outstanding after 75 days shall be assessed a late fee, and that, if balance remains outstanding after 90 days, service shall be suspended. 2. For balances outstanding for 75 days after due date, Contractor shall send a notice that that service may be discontinued if overdue balance is not received within 15 days. Contractor shall provide list of these Customers to the City the time these notices have been sent. Contractor may charge a late fee equal to 10% of balance outstanding for at least 75 days after due date. 3. For balances outstanding for 90 days, Contractor may provide Customer with notice that service has been suspended until outstanding balance is paid in full, including late payment fee, provided Contractor has completed steps 1 and 2 above and has provided City with a list of Customers being so notified. 5.1.6.2 Temporary Bin and Roll -Off Box Service 1. Contractor may request advance payment for temporary services. 2. Contractor may require outstanding temporary services balances be paid prior to providing subsequent temporary services. 3. Weekly Cart Collection services shall not be suspended due to outstanding balances for Bin or Roll -Off Box Services. 5.1.6.3 Collection Proceedings Contractor may pursue independent collections against Customers. City will not pursue collections on behalf of Contractor. Deleted: February 8, 2017January 27, 2017 -57- City of Diamond Bar - Residential Packet Pg. 362 5.1.6.4 Continued Provision of Service In the event of a Billing dispute or to avoid an immediate threat to public health or safety, Contractor shall continue to provide service to Customers if requested in writing by City, without regard to the status of said Customer account and at no expense to City. Ailling disputes between Contractor and Customer may be resolved by City, and Deleted: City's decision shall be final and binding. 5.2 Customer Service 5.2.1 Local Office Contractor shall maintain a local office. Said office shall be open ("Office Hours'), at a minimum, from 7:00 A.M. to 5:00 P.M., Monday through Friday, exclusive of holidays. A responsible and qualified representative of Contractor shall be available during Office Hours for personal communication with the public at the local office. Contractor shall have either a representative, a message machine, or an answering service available outside of Office Hours. Calls received outside of Office Hours shall be responded to on the next business day. Contractor shall provide City with a twenty-four (24) hour emergency number to a live person, not voice -mail. 5.2.2 Complaint Documentation Service complaints received by City will be directed to Contractor. Contractor shall keep daily logs of complaints forwarded to it for a minimum of three (3) years. Contractor shall log all complaints received and said log shall include the date and time the complaint was received, the name, address and telephone number of the caller/ complainant, a description of the complaint, the name of the employee recording the complaint and the action taken by Contractor to respond to and remedy the complaint. The log shall also include each instance that Solid Waste and/or Recyclables are not Collected and the form of notification used to inform the participants of the reasons for non -Collection and the end result or means of resolution of the incident. All written Customer complaints and inquiries shall be date-stamped when received. All complaints shall be initially responded to within one (1) business day of receipt. Contractor shall use best efforts to resolve complaints within two (2) business days. February 16 2017 -58- 8.2.b Deleted: February 8, 2017January 27, 2017 of Diamond Bar - Residential Packet Pg. 363 8.2.b Contractor shall log action taken by Contractor to respond to and remedy the complaint. All Customer service records and logs kept by Contractor shall be available to City upon request. City shall, at any time during regular Office Hours, have access to Contractor's Customer service department for purposes that may include monitoring the quality of Customer service or researching Customer complaints. 5.2.3 Customer Service Standards Customer care is among the most important aspects of the services to be required of the Contractor. Contractor shall perform customer service at a level that can be measured by the following two standards: A. The number of complaints in any one month period totaling no more that 1 % of the number of residential customers served. In Diamond Bar, there are an estimated 15,475 residential cart customers, meaning that in any given month, there must not be more than 154 complaints. Any compliant level in excess of this measure will be considered a separate violation of this Agreement. B. Sufficient telephone line capacity during normal office hours to ensure that all calls will be answered in less than an average of thirty (30) seconds. Contractor shall insure that all incoming calls are answered courteously and promptly during the office hours stated above. Calls will be answered in less than an average of thirty (30) seconds, and thereafter will not be placed on hold longer than an average of one (1) minute before talking to a customer service representative of the Contractor. This standard must be measured quarterly, and the Contractor shall not exceed this standard or it will be considered a separate violation of the Agreement. Contractor shall track complaints and call ringing and hold requirements, and include results in its quarterly report to the City. In any 12 -month period, accumulation by the Contractor of four or more separate customer service violations shall be deemed a material breach of this Agreement and shall subject Contractor to all remedies which are available to the City under this Agreement or otherwise. A violation is one month in which the number of complaints exceeds the maximum permitted under Section 5.2.3(A) or one calendar quarter in which fewer than 90% of calls placed by the City and Deleted: February 8, 2017January 27, 2017 y 16, 2017 -59- City of Diamond Bar - Residential , Packet Pg. 364 8.2.b its Customers to Contractor are answered by a live customer service representative before the fourth ring under Section 5.2.3(B). Contractor shall train its employees in Customer courtesy, shall prohibit the use of loud or profane language, and shall instruct Collection crews to perform the work quietly. Contractor shall use its best efforts to assure that all employees present a neat appearance and conduct themselves in a courteous manner. If any employee is found to be discourteous or not to be performing services in the manner required by this Agreement, Contractor shall take all necessary corrective measures including, but not limited to, transfer, discipline or termination. If City has notified Contractor of a complaint related to discourteous or improper behavior, Contractor will consider reassigning the employee to duties not entailing contact with the public while Contractor is pursuing its investigation and corrective action process. Contractor shall record Customer complaints regarding Customer service personnel in accordance with Section 5.2.2. Customer service representatives receiving multiple complaints are to be transferred from Customer service duties or, with City approval, disciplined and appropriately trained. 5.2.4 Resolution of Customer Complaints Disputes between Contractor and Customers regarding the services provided in accordance with this Agreement may be resolved by City. City's decision shall be final and binding. Intervention by City is not a condition precedent to any rights or remedies third parties might otherwise have in any dispute with Contractor. Nothing in this section is intended to affect the remedies of third parties against Contractor. 5.2.5 Contract Liaison Contractor shall designate in writing a "Contract Liaison" who shall be responsible for working with City and/or City's designated representative(s) to resolve Agreement - related issues. City shall have the right to approve the Contractor's choice for a liaison. City shall be notified in advance of any change in Contract Liaison. Deleted: February 8, 2017January 27, 2017 i -60- City of Diamond Bar - Residential Packet Pg. 365 8.2.b 5.2.6 Service Liaison Contractor shall designate in writing a field supervisor as "Service Liaison' who shall be responsible for working with City and/or City's designated representative(s) to resolve Customer service related complaints. City shall have the right to approve the Contractor's choice for a liaison. City shall be notified in advance of any change in Service Liaison. 5.2.7 Customer Service Documentation Review The City reserves the right to review for accuracy documentation ("Green Pages") provided to Customer Service personnel specific to this Agreement which is used when responding to Customer inquiries. 5.3 Education and Public Awareness 5.3.1 General Contractor acknowledges and agrees that education and public awareness are critical elements of efforts to achieve the requirements of AB 939. Accordingly, Contractor agrees to take direction from City to exploit opportunities to expand public and Customer knowledge concerning needs and methods to reduce, reuse and Recycle Solid Waste and to cooperate fully with City in this regard. Contractor shall maintain its own program of providing information relevant to needs and methods to reduce, reuse and recycle Solid Waste to be distributed, when appropriate, along with its Bills. All public education materials shall be subject to approval in advance by City and shall be printed in English, Mandarin and Korean. 5.3.2 Implementation and On-going Education Requirements In order to promote public education, in addition to any other materials it develops, Contractor shall create the following public education materials and programs at its expense, which will be distributed as indicated below. All of these materials and programs shall be produced and/or available in English, Mandarin and Korean languages, including pictures wherever applicable. All brochures, mailings, and other educational materials are subject to approval by City in advance of distribution. A Public Education Plan shall be submitted to City for review within sixty (60) days of the Deleted: February 8, 2017January 27, 2017 -61- City of Diamond Bar - Residential Packet Pg. 366 8.2.b execution of this Agreement. The plan shall address the items described in this section. The approved plan shall be attached to this Agreement as Exhibit 1. • Initial Mailing -Within forty-five (45) days of the start of Collection service under this Agreement, Contractor will prepare and mail an initial mailing to all Customers explaining the transition from the existing Solid Waste Collection Service program to the new program as defined by this Agreement. The mailing will describe roll- out of new Carts, program changes, new fees or changes in Collection charges, route changes if any, dates of program implementation, Recycling and Diversion programs available, and other pertinent information. • Instructional "How-to" Packets - An information packet shall be provided to pack Deleted: each customer at the Start of service ur Agreement and to new Customer throughout the Agreement term. This packet shall: describe available services, including available Recycling and Diversion programs; provide instructions for proper use of the Containers (such as how to place Carts or other permitted items for Collection, the types of materials to be placed in each Cart and other similar information); detailed holiday Collection schedules; provide billing and Customer service telephone numbers; identify who to contact with service or Billing questions; and who to contact for Bulky Item pickups. All customers shall be promptly notified of anychanges to such information. The packet should also clearly indicate what materials, such as syringes and other Household Hazardous Wastes (HHW), should not be disposed of in the Containers. The packet shall include instructions on how Customers should dispose of HHW. • Container Labels and Hot Stamps Containers shall carry stickers/ labels and hot stamps as described in Sections 4.6.3.1.D and 4.6.3.3.B. • Billing Inserts - City may require Contractor to insert notices in Contractor's Billings up to four (4) times per year. City may instruct Contractor to prepare such notices at Contractor's expense, or may choose to provide such notices for insertion. Additionally, City may periodically request that Contractor include informative language directly on the invoices it sends. • Annual Brochures/Mailings - Not less than once per year during each Rate Year, Contractor shall prepare and distribute to each Customer a mailing to update Customers regarding program basics, program changes, holiday schedules and other service related information. Mailings should promote and explain: all Solid -62- of Diamond Bar - Residential Deleted: Recyclables and Green Waste Deleted: February 8, 2017January 27, 2017 Packet Pg. 367 8.2.b Waste programs offered by City and Contractor (such as Recycling, Green Waste, Holiday Tree,,Bulky Item Collections, and FreeCycle.com) described in detail; the Deleted: and environmental, regulatory, and other benefits of participating in Recycling; how to properly dispose of Household Hazardous Waste such as syringes, paint, etc.; Collection schedules, including holiday schedules; Customers service numbers; and the procedures to begin and terminate services (if moving from Premises). This brochure shall be at least four (4) pages, and printed in full color. Contractor is responsible for all associated costs. • Second Annual Mailer- Not less than once per year during each Rate Year, Formatted: Bulleted + Level: 1 + Aligned at: Indent at: 0.75' Contractor shall nrenare and distribute to each Customer a one (1) naee, double - sided mailer printed in full color. City and Contractor shall meet and confer to determine the subject matter of mailer,, Contractor shall ensure delivery to Deleted: Contractor is responsible for all associ; costs. The method of delivery to Customers is at i Homeowner Associations is to service recipients rather billing addresses. discretionwill be determined by mutual agreeme Contractor and City Manager • Corrective Action Notice - Contractor shall develop a corrective action notification form for use in instances where a Customer sets out inappropriate materials for Collection, that explains the appropriate manner for Disposal of such items. • Website - Contractor shall develop and maintain a website to display holiday schedules, explain proper HHW disposal procedures, which materials are to be placed in Recyclables Containers and other useful information, as well as informing Customers how to contact Contractor. 5.3.3 Contractor Representative Contractor shall retain on its staff an individual who shall, as part of his or her job function, routinely visit civic groups, school assemblies, and homeowners' associations to promote and explain the Recycling programs Contractor offers, and participate in demonstrations, and civic events, and coordinate those visits with the City. 5.3.4 Community Events At the direction of City, Contractor shall participate in and promote Recycling and other Diversion techniques at community events and local activities. Such participation would normally include providing, without cost, educational and publicity information promoting the goals of City's Solid Waste program. Deleted: February 8, 2017January 27, 2017 -63- City of Diamond Bar - Residential Packet Pg. 368 5.4 Waste Generation/Characterization Studies Contractor acknowledges that City must perform Solid Waste generation and Disposal characterization studies periodically to comply with the requirements of AB 939. Contractor agrees to participate and cooperate with City and its agents and to accomplish studies and data collection and prepare reports, as needed and directed by City, to determine weights and volumes of Solid Waste Collected and characterize Solid Waste generated, disposed, transformed, diverted or otherwise handled/ processed, by Customer type, to satisfy the requirements of AB 939. Contractor will at its sole expense conduct such a waste generation and characterization study upon request of City, but not more than once every two years. -64- Citv of Diamond Bar - Residential 8.2.b Deleted: February 8, 2017January 27, 2017 Packet Pg. 369 8.2.b ARTICLE 6 COMPANY COMPENSATION AND RATES 6.1 General The maximum rates set forth in Exhibit 2, and as more fully defined as Contractor Compensation in this Article, shall be the maximum amount Contractor may charge Customers as full, entire and complete compensation due pursuant to this Agreement for all labor, equipment, materials and supplies, taxes, insurance, bonds, letters of credit, overhead, Disposal, transfer, profit and all other things necessary to perform all the services required by this Agreement in the manner and at the times prescribed. Contractor shall impose no other charges for services provided to Customers unless approved by the City Manager. 6.2 Initial Rates The maximum rates that Contractor may charge Customers through the Rate Year ending June 30, �M shall not exceed the maximum rates set forth in Exhibit 2. Deleted: 2mi 6.3 Schedule of Future Adjustments Beginning with the Rate Year starting July 1, 2011 and ending on June 30, 2012 and for all subsequent Rate Years, Contractor may request an annual adjustment to the maximum rates shown in Exhibit 2,_ The Contractor agrees to waive the annual rate Deleted: adjustment that would be due Jul 2�The Contractor shall submit its request in writing, to be received by City in Person or via certified mail, by the preceding March 31, and shall be based on the method of adjustment described in Section 6.4. The City Deletes: Failure 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 Deleted: reserves the right to initiate a rate adjustment in instances where the Contractor fails to submit a written rate adjustment request. Adjustment to the maximum rates is subject to the approval of the City Manager. If an annual adjustment that would have resulted in a rate decrease is not implemented ' Formatted: Indent: First line: 0" for any reason, the next rate adjustment will be measured based on the change in Deleted: February 8, 2017January 27, 2017 y 16, 2017 -65- City of Diamond Bar - Residential Packet Pg. 370 indices from the last implemented rate adjustment; the intent is to ensure subsequent rate increases shall be offset with any decrease not previously implemented. 6.4 Method of Adjustments 6.4.1 General Pursuant to Section 6.3, the Contractor may request an adjustment to the maximum rates for all rates excluding temporary services rates according to the method described below and the formula shown in Exhibits 3A and 313, subject to review and approval of City. All future adjustments are to be effective July 1 of the same calendar year, following the March 31 submission deadline. 6.4.2 Cost Components for Rate Adjustment Indices The approved rates consist of the following cost component categories. Each cost component may be adjusted by the change in the corresponding index below. See Section 6.4.3 for detailed rate adjustment procedures. Cost Caftory Weightings for Rate Adjustment Factor 7M8 Adjustment Change in the "Driver" Classification to be in effect as of the date the new rates go into effect (July 1) under the Agreement between Waste Management of San Gabriel/Pomona Valley, Inc. and Teamsters Automotive Labor 24.8% Industrial and Allied Workers Local No. 495(1) Producer Price Index WPU05522101, Fuels and related products and power Fuel 3.00/- Producer Price Index, PCU336120336120, Heavy duty truck Equipment 16.3% manufacturing Producer Price Index, PCU21232121232104, Construction sand and-grayglwes Disposal 8% Transfer & 6.0% Consumer Price Index - All Urban Consumers CUUROOOOSEHG02 Garba e and trash collection Transport Consumer Price Index for All Urban Consumers (CUURA421SAOLIE), all items less food and energy - Los All Other 41.9% Angeles -Riverside -Orange County, CA Total 100.0% For example, under the -66- these rates are: of Diamond Bar - Residential 8.2.b Deleted: 25.6 Deleted: 5.0 Deleted: Producer Price Index wPU 0531, Fuels related products and power, natural gas Deleted: 16.5 Deleted: 22.8 Deleted: Consumer Price Index for All Urban Consumers (CUURA421SAOLIE), all items less fc energy - Los Angeles -Riverside -Orange County, Formatted: Indent: Left: 0", First line: 0", Lin( spacing: At least 12 pt Deleted: 30.1 Deleted, I Deleted: October 1, 20 Deleted: 09 Deleted: February 8, 2017January 27, 2017 Packet Pg. 371 Contract Date JOI 01 16 JOI 01 17 10 01 18 Hourly Rate $ 1.85 $22.25 $ 2.65 Rate Adjustment Date n/a 7/01/J8 7/01/J9 Change to Labor Component n/a J.8% J.8% Comparable rates from subsequent labor agreements will similarly apply. If a subsequent labor contract has not been executed prior to a rate adjustment calculation, the percentage change in the labor cost component used in the prior year's adjustment 8.2.b ,— Deleted: 10/1/06 Deleted: 10/1/07 Deleted: 10/01/08 Deleted: 17.25 Deleted: 18.15 Deleted: 18.80 calculation will be used. In the event that the estimated labor component change is higher or lower than the actual change after a new labor contract is executed, no compensation adjustment shall be provided for prior periods. 6.4.3 Rate Adjustment Steps All rates, excluding temporary service rates, will be adjusted using the same methodology and cost component weightings. See Exhibit 3A. Step One - Calculate the percentage increase or decrease in the index for each cost category listed in Section 6.4.2. The increase or decrease in the published indices for fuel, equipment, transfer and transport, disposal, and all other (CPI) will be for the change in the average annual published index between the calendar year ended the December prior to the Rate Year anniversary date and prior calendar year. (See Exhibit 3B for an example average annual change in published index year over year.) Step Two - The weightings of the cost components for the first rate adjustment are identified in the table in Section 6.4. Components to be used in subsequent years shall be calculated in Step Four of the rate adjustment. For Step Two of each subsequent rate adjustment, use the cost components recalculated in Step Four during the previous rate adjustment. The hauler may elect to apply for a one-time reset of cost component weightings prior to the first rate adjustment based upon actual costs from August 16, 2010 through February 28, 2011. This request and supporting data shall be submitted to the City by March 31, 2011. The revision of the cost component weightings is subject to approval by the City Manager, which will review the request and supporting data for reasonableness. Deleted. 08 Deleted: 09 Deleted: 5.2 Deleted: 3.6 Deleted: February 8, 2017January 27, 2017 i -67- City of Diamond Bar - Residential Packet Pg. 372 6.5 Multiply the percentage changes for each rate adjustment component by that component's weighting and add these resulting percentages together to get the total weighted change to the rates. Step Three - Multiply the total weighted percent change from Step Two by the existing Customer rates to calculate the increase or decrease to the maximum rates. Add the rate increase or decrease to the existing rates to derive the newly adjusted rates. Step Four - Recalculate weightings for the following year based upon these changes. 6.4.4 Temporary Service Rate Adjustment Rates for temporary Roll Off Box service, temporary Bin service and temporary container rental are equal to the rates for the same services under the City's Bin and Roll -Off Box Customer Solid Waste Management Services agreement with Valley Vista Services, and shall remain equal for the duration of the term of the Agreement, receiving the same rate adjustments as granted under the City's Bin and Roll -Off Box Customer Solid Waste Management Services agreement. Extraordinary Adjustments Contractor may request an adjustment to maximum rates in the event of extraordinary changes in the cost of providing service under this Agreement, including changes in a direct per ton surcharge assessed at the Disposal Site by federal, state or local regulatory agencies after the Effective Date. These requests, with the exception of changes in a direct per ton surcharge assessed at the Disposal Site by federal, state or local regulatory agencies after the Effective Date, if approved, shall only be granted at the time of the annual July 1 increase per Section 6.3, must be submitted no later than March 31 of each year, and should be submitted as early as feasible to provide City with sufficient time to review the request prior to granting the annual July 1 increase. Changes in Disposal surcharges may be requested at other times. Such changes shall not include changes in Recyclable Material processing costs, inaccurate estimates by the Contractor of its proposed cost of operations, or unionization of Contractor's work force. Extraordinary rate adjustments shall only be effective after approval by City Council and may not be applied retroactively. For each request for an adjustment to the maximum rates that Contractor may charge Customers brought pursuant to this section, Contractor shall prepare a schedule -68- of Diamond Bar - Residential 8.2.b Deleted: February 8, 2017January 27, 2017 Packet Pg. 373 6.6 documenting the extraordinary costs.. Such request shall be prepared in a form acceptable to City with support for assumptions made by Contractor in preparing the estimate. Contractor shall also submit a schedule showing how its total costs and total revenues have changed over the past three years for the services provided under this Agreement. City may request a copy of the Contractor's annual financial statements in connection with the City's review of Contractor's extraordinary rate adjustment request. City shall review the Contractor's request and, in City's sole judgment and absolute, unfettered discretion, make the final determination as to whether an adjustment to the maximum rates will be made, and, if an adjustment is permitted, the appropriate amount of the adjustment. City will confirm receipt of a request for an extraordinary rate adjustment within sixty (60) days of receipt of Contractor's request and will promptly coordinate with Contractor to assess the request. City may consider increases or decreases in the Contractor's total revenues and total cost of services when reviewing an extraordinary rate adjustment request. Effect of Rate Challenge If a rate adjustment cannot be implemented due to a majority_ protest or a final court judgment finding that the Rates implemented are not consistent with applicable law, the following procedure shall be followed. Within thirty (30) days of a majority protest being found by the City Council to exist or the final court judgment being entered, the Contractor shall have the right to file a written request with the City to negotiate in good faith a reduction in programs, services, or fees to compensate the Contractor for any negative material impact on Contractor's business operations from such action. If the parties are unable to reach an agreement within sixty (60) days after the City's receipt of Contractor's notice or the City fails to commence good faith negotiations within thirty (30) days of receipt of Contractor's notice, the Contractor may provide written notice that it is terminating this Agreement. The effective date of the termination shall be no earlier than three -hundred (300) days from the date of the City's receipt of Contractor's notice of termination. In the event Contractor terminates this Agreement under this paragraph, neither party shall be liable to the other party for any claims, actions, losses or other remedies such party might otherwise have under this Agreement. The failure by Contractor to file its written request with the City within the thirty (30) -day period shall be deemed to -69- Citv of Diamond Bar - Residential 8.2.b Deleted: February 8, 2017January 27, 2017 Packet Pg. 374 6.7 be a waiver by the Contractor of any right to the rates not implemented and Contractor shall continue to perform under the Contract. Residential Recyclables Rebate to Customers By March 31 of each year, Contractor shall provide the City with a report that includes: 1) The number of tons of Residential curbside Recyclables sold under this Agreement during the preceding calendar year: and, 2) Recyclables revenue received from the sale of recovered materials from Residential curbside Recyclables under this Agreement for the preceding calendar year. The reported Recyclables revenue and tonnage shall exclude, for purposes of this section, Green Waste and Construction and Demolition Debris tonnage, Bulky Items, or other material not Collected as part of the regularly scheduled Residential curbside Recycling program. Fifty percent (50%) of revenue in excess of $85.00 per ton on average for the preceding calendar year shall be rebated to Customers once per year in the form of a credit on each Customer's Billing account. The credit will post on the account for the Billing period that includes July 1 of the year following the calendar year in which the revenue was received. The $85.00 per ton threshold shall be fixed for the Term of the Agreement. The rebate shall be calculated per the example calculation below: 8.2.b Deleted: If a rate adjustment approved by the C Manager or City Council is prevented from implementation due to a protest under Propositi( Contractor is permitted to terminate this Agreem one-year notice. Parties do not believe and do no to imply that Proposition 218 applies to Contrach charges. (i) a majority protest that prevents a pro] rate increase from being implemented or (ii) a coi that the Rates implemented pursuant to this Agre are not consistent with applicable law, the follow procedures shall be followed. If an adjustment tc Rates is not approved as requested by Contractor Contractor shall have the right, within sixty (60) ( the disapproval, to request, in writing, the City n, in good faith regarding reductions in programs, s or fees to compensate for any negative and mater impact on Contractor's business operations. If th fail to complete good faith negotiations within si) days after receipt of written notice from Contract the acts or omissions of City, or City does not con negotiations in good faith within forty-five (45) d receipt of that written notice, then Contractor ma terminate this Agreement noearlier than one hur eighty (180) days after the end of the sixty (60) da Deleted: February 8, 2017January 27, 2017 -70- City of Diamond Bar - Residential Packet Pg. 375 8.2.b Example of Recycling Rebate Credit Calculation Recyclables Revenue Received in Year 1: $250,000 Tonnage Sold in Year 1: 5,000 Average Annual Revenue Per Ton in Year 1: $50.00 Average Annual Revenue per ton Over $85.00: ......................................................................................................................................................................................................................................................................................................................................................................................... - If less than $0, no rebate shall be distributed. - If greater than $0, multiply by Tonnage Sold in Year 1: $5.00 _.. _.. _.. _.. _.. _.. _.. _.. _.. _.. - $25,000 Recyclables Revenue to be Rebated - 50°x: $12,500 Number of Customers July 1 Year 2, when rebate is distributed: 15,500 Rebate per Customer (Rebate/ Customers): $0.81 In this example, each resident billed for service July 1 of Year 2 would receive a credit of $0.81 on the July 1, Year 2 Billing. Deleted: February 8, 2017January 27, 2017 i -71- City of Diamond Bar - Residential Packet Pg. 376 7.1 ARTICLE 7 REVIEW OF SERVICES AND PERFORMANCE Performance Review Meeting City may hold a meeting annually to review Contractor's Solid Waste Collection efforts, source reduction, processing and other Diversion services and overall performance under this Agreement (the "Solid Waste Services and Performance Review Meeting'). The purpose of the Solid Waste Services and Performance Review Meeting is to provide for a discussion and review of technological, economic, and regulatory changes in Collection, source reduction, Recycling, processing and Disposal to achieve a continuing, advanced Solid Waste Collection, source reduction and Recycling and Disposal system; and to ensure services are being provided by Contractor with adequate quality, effectiveness and economy, and in full compliance with the terms of this Agreement. Topics for discussion and review at the Solid Waste Services and Performance Review Meeting shall include, but shall not be limited to, services provided, feasibility of providing new services, application of new technologies, Customer complaints, amendments to this Agreement, developments in the law, new initiatives for meeting or exceeding AB 939's goals, regulatory constraints, results of route audits, and Contractor performance. City and Contractor may each select additional topics for discussion at any Solid Waste Services and Performance Review Meeting. City shall notify Contractor of its intent to hold a Solid Waste Services and Performance Review Meeting at least sixty (60) days in advance thereof. Thirty (30) days after receiving notice from City of a Solid Waste Services and Performance Review Meeting, Contractor shall submit a report to City which may contain such information as it wishes to have considered, and shall contain the following: a) Current Diversion rates and a report on Contractor's outreach activities for the past year. b) Recommended changes and/or new services to improve City's ability to meet the goals of AB 939 and to contain costs and minimize impacts on rates. A specific plan for AB 939 compliance shall be included. c) Any specific plans for provision for new or changed services by Contractor. -72- of Diamond Bar - Residential 8.2.b Deleted: February 8, 2017January 27, 2017 Packet Pg. 377 7.2 The reports required by this Agreement regarding Customer complaints shall be used as one basis for review of Contractor's performance, and Contractor may submit other relevant performance information and reports for consideration at the Solid Waste Services and Performance Review Meeting. In addition to the above, City may request Contractor to submit any other specific information relating to its performance for consideration at the Solid Waste Services and Performance Review Meeting, and any Customer may submit comments or complaints during or before the Meeting, either orally or in writing. Contractor shall be present at and participate in the Solid Waste Services and Performance Review Meeting. As a result of its findings following any Solid Waste Services and Performance Review Meeting, City may require Contractor to provide expanded or new services within a reasonable time and City may direct or take corrective actions for any performance inadequacies (although nothing contained in this provision should be construed as requiring City to hold a Solid Waste Services and Performance Review Meeting in order to enforce any rights or remedies it has pursuant to the terms hereof.) Should City require expanded or new services as a remedy for Contractor's failure to perform its obligations hereunder, no additional compensation shall be due for such services. Otherwise, any new or expanded services required of Contractor shall be subject to the provisions of Section 2.10. Performance Satisfaction Survey If requested by the City, Contractor will create and conduct a survey at Contractor's expense. If City would like to present results at a Solid Waste Services and Performance Review Meeting, City shall notify Contractor of its desire for such a survey at least 90 days in advance of the Solid Waste Services and Performance Review Meeting. The purpose of the survey is to determine Customer satisfaction with current Collection services and Customer service provided by Contractor. The Survey will be distributed to a minimum of ten percent (10%) of the Customers, selected at random. Contractor shall obtain City's approval of the survey's content, format, and mailing list prior to its distribution. City may require that Contractor have Customer responses to the survey returned directly to City. The survey results shall be made available to the City thirty (30) days prior to the Solid Waste Services and Performance Review Meeting. -73- Citv of Diamond Bar - Residential 8.2.b Deleted: February 8, 2017January 27, 2017 Packet Pg. 378 ARTICLE 8 RECORDS, REPORTS AND INFORMATION REQUIREMENTS 8.1 General Contractor shall maintain such accounting, statistical and other records related to its performance under this Agreement as shall be necessary to develop the financial statements and other reports required by this Agreement. Also, Contractor agrees to conduct data collection, information and record keeping, and reporting activities needed to comply with applicable laws and regulations and to meet the reporting and Solid Waste program management needs of City. To this extent, such requirements set out in this and other Articles of this Agreement shall not be considered limiting or necessarily complete. In particular, this Article is intended to only highlight the general nature of records and reports and is not meant to define exactly what the records and reports are to be and their content. Further, with the written direction or approval of City, the records and reports to be maintained and provided by Contractor in accordance with this and other Articles of this Agreement shall be adjusted in number, format, or frequency. 8.2 Records 8.2.1 General, Right to Inspect Contractor shall maintain records required to conduct its operations, to support requests it may make to City, and to respond to requests from City in the conduct of City business. Adequate record security shall be maintained to preserve records from events that can be reasonably anticipated such as a fire, theft and earthquake. Electronically maintained data/records shall be protected and backed up. All records, with the exception of records to be maintained under Section 8.2.4, shall be maintained for five (5) years, and shall continue to be available for five (5) years after the expiration of this Agreement. After minimum holding periods are met, Contractor will notify City Manager and City Attorney ninety (90) days before destroying records and offer records to the City. City shall have the right to inspect or review the specific documents or records required expressly or by inference pursuant to this Agreement, or any other similar records or Deleted: February 8, 2017January 27, 2017 of Diamond Bar - Residential -74- 8.2.b Packet Pg. 379 reports of Contractor or its Affiliates that City shall deem, in its sole discretion, necessary to evaluate; eports, and Contractor's performance provided for in this Agreement. Contractor agrees that such records shall be provided or made available to City and its official representatives. Account histories shall be accessible to the City by computer for a minimum of five (5) years after termination of the Agreement. Contractor shall make all records and documents to be reviewed and inspected by City as a part of any audit or other record review conducted by City, available for City's review, inspection and copying for the above purposes within five (5) days of receiving written notice from City requesting the same. Additionally, City may review records at Contractor's local facility for the above purposes during normal business hours, within five (5) days of request during normal business hours. Such records include, but are not limited to, financial, Solid Waste, CERCLA and Disposal records. 8.2.2 Financial Records Contractor shall maintain financial records relating to its operations pursuant to this Agreement separate and segregated from such records relating to its other operations. Contractor shall maintain at least the following records: • Audited financial statements for Contractor or, if a guarantee was provided, for the parent company guarantor as a whole; • Financial statements (compiled, reviewed or audited) of revenue and expense for this Agreement segregated from the other operations of Contractor (including without limitation those operations of Contractor in City and surrounding jurisdictions which are not covered by this Agreement), including a description of segregation methodology; and • Complete descriptions of related party transactions (corporate and/or regional management fees, inter -company profits from transfer, processing or Disposal operations). 8.2.3 Solid Waste Records Contractor shall maintain and make available to the City upon request the following records relating to its operations pursuant to this Agreement: a) Customer services and Billing/City payment records; -75- 8.2.b Deleted: annual Deleted: February 8, 2017January 27, 2017 i of Diamond Bar - Residential Packet Pg. 380 8.2.b b) Records of tons Collected, processed, diverted and disposed by waste stream (Refuse, Recycling, Green Waste), by Customer type (Cart, Bin, Roll -Off Box), and the Facilities (Transfer Station, MRF, or landfill) where such material was taken; c) Quantity of Recyclable Materials recovered by material type, as well as quantity of material diverted from landfills in compliance with AB 939; d) Bulky Item results and Special Event tonnages, including tons disposed and diverted; e) Routes; f) Facilities, equipment and personnel used; g) Facilities and equipment operations, maintenance and repair; h) Number and type of Refuse, Recycling and Green Waste Containers in service; i) Complaints; and j) Missed pickups. 8.2.4 CERCLA Defense Records City views the ability to defend against the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and related litigation as a matter of great importance. For this reason, City regards the ability to prove where Solid Waste Collected in the City was taken for Disposal, as well as where it was not taken, to be matters of concern. Contractor shall maintain data retention and preservation systems which can establish where Solid Waste Collected in the City was landfilled (and therefore establish where it was not landfilled) for not less than twenty-five (25) years following the termination of this Agreement, and agrees to notify City Manager and City Attorney before destroying such records thereafter. At any time, including after the expiration of the Term hereof, Contractor shall provide copies of such records to City upon request. The requirements of this section shall survive the expiration of the Term of this Agreement. Deleted: February 8, 2017January 27, 2017 -76- City of Diamond Bar - Residential Packet Pg. 381 8.2.5 Section Deleted 8.2.6 Other Programs' Records Records for other programs shall be tailored to specific needs. In general, they shall include: a) Plans, tasks, and milestones; and, b) Accomplishments in terms such as dates, activities conducted, quantities of products used, produced or distributed, and numbers of participants and responses. 8.2.7 Audit 8.2.b 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 tc compliance with terms of this Agreement, Customer service levels and - Deleted:, Billing, fee payments, Gross Receipts, tonnage, and verification of Diversion rate. The first audit, to be performed during calendar year 2012, will be based on the Contractor's reports and records from the start of the Agreement through calendar year 2011. Audits will be performed every third year thereafter. Contractor will jay to the City the cost of such audits (including audits conducted by City staff) up to $50,000 for the first audit, and $35,000 for each subsequent audit in 2012 dollars. After 2012, the $35,000 amount shall be increased annually by the change in CPI using the formula for the change in the .all other' component of the rates in Section 6.4. Audit payments from the Contractor to the City are due lanuary 1 of year the audit is being performed,, Should an audit conducted or authorized by the City disclose that fees payable by Company were underpaid by two percent (2%) or more, that tonnage was mis-reported by 2% or more, or that more than two percent (2%) of the Customers were inaccurately billed based on the auditor's sampling, for the period under review, City may expand the scope of the audit and recover all additional audit costs from the Contractor. 8.2.8 Payments and Refunds Should an audit disclose that fees payable by the Contractor were underpaid to City or that Customers were overcharged for the period under review, Contractor shall pay to City any underpayment of fees and/or refund to Contractor's Customers or to City, as -77- of Diamond Bar - Residential Deleted: reimburse Deleted: Deleted: February 8, 2017January 27, 2017 Packet Pg. 382 8.3 directed by City, any overcharges within thirty (30) days following the date of the audit. Contractor shall pay interest to the City for any underpayment or overcharges at an annual rate of 12%. Undercharges shall not be billed in arrears for more than ninety (90) days of service, with any remaining undercharges absorbed by Contractor. Should an audit disclose that fees were overpaid, City shall credit such amounts against future fees payable by Contractor. Reports 8.3.1 Report Formats and Schedule Records shall be maintained in forms and by methods that facilitate flexible use of data contained in them to structure reports, as needed. Contractor shall utilize the Monthly Report template included in Exhibit 7, which may be adjusted by the City at any time. Contractor may propose the format for the Annual Report that is responsive to the objectives and audiences for report. The format of the Annual Report shall be approved by City, which may require changes and/or additions to the format. Reports shall be submitted within thirty (30) calendar days after the end of the reporting period. Annual reports shall be submitted within thirty (30) calendar days after the end of the calendar year. If requested, Contractor's complaint summary, described in Section 5.2.2, shall be sent to the City within five (5) business days of request. All reports shall be submitted in electronic format compatible with City's software/ computers, at no additional charge, to the City Manager and/or other City staff designated by the gity Manager at e-mail addresses to be provided by City. City may additionally request hard copies, which would be delivered to: gity Manager City of Diamond Bar ;1810 Copley Drive Diamond Bar, CA 91765 8.3.2 Monthly Reports The information listed below shall be the minimum reported: February 16 2017 -78- of Diamond Bar - Residential , 8.2.b Deleted: Contractor may propose report format: responsive to the objectives and audiences for ea( The format of each report Deleted: Public Works Director Deleted: Public Works Director Deleted: Public Works Director Deleted: 21825 Deleted: February 8, 2017January 27, 2017 Packet Pg. 383 a) Solid Waste Collected by Contractor, sorted by type of Solid Waste Collected and diverted (Refuse, Recycling, Green Waste) in tons, including contamination and Diversion rates for each wastestream and Customer type (Cart, Bin, Roll -Off Box) and the Facilities where the tons were processed or disposed. Bulky Item tons Collected and diverted shall also be reported as a separate line item. b) Number of warning notices issued for contaminated Recyclable Materials and Green Waste Containers, and HHW improperly placed for Disposal. c) Narrative summary of problems encountered and actions taken with recommendations for City, as appropriate. d) Quantity of Recyclable Materials recovered by material type, as well as quantity of material diverted from landfills in compliance with AB 939; e) Description of Contractor outreach activities and copies of promotional and public education materials sent during the month. f) Other information or reports that City may reasonably request or require. 8.3.3 Annual Report The Annual Report is to be essentially in the form and content of the monthly report, but shall also include: a) A summary of the number of Containers in service as of December 31 by size (number of gallons/yards), service frequency, and type of service (Refuse, Recycling, Green Waste). b) Records of tons Collected, processed, diverted and disposed by waste stream (Refuse, Recycling, Green Waste), by Customer type (Cart Bin, Roll -Off Box), and the Facilities (Transfer Station, MRF, or landfill) where such material was taken. c) Gross Receipts by sector (Cart, Bin, Roll -Off Box)]. d) A complete inventory of vehicles used to provide all services, including make, year, type, fuel used, use, California license number and whether or not it is used as a spare. e) Number of routes and route hours per day by type of service as of December 31. f) General information about the Contractor and its most recent annual report. g) Other information or reports that City may reasonably request or require. -79- of Diamond Bar - Residential 8.2.b Deleted: February 8, 2017January 27, 2017 Packet Pg. 384 8.2.b 8.3.4 Financial Report The City may, at City's option, request and be provided with Contractor's financial reports/statements for the most recently completed fiscal year in connection with any audit, extraordinary rate adjustment request, or verification of other information required under this Agreement. Financial statements shall include a supplemental combining schedule showing Contractor's results of operations, including the specific revenues and expenses in connection with the operations provided for in this Agreement, separated from others included in such financial statements. The financial statements and footnotes shall be prepared in accordance with Generally Accepted Accounting Principles (GAAP). Financial Statements for the parent company guarantor shall be audited, in accordance with Generally Accepted Auditing Standards (GAAS) by a certified public accountant (CPA) licensed (in good standing) to practice public accounting in the State of California as determined by the State of California Department of Consumer Affairs Board of Accountancy. The cost for preparation of the financial statements and audit shall be borne by Contractor as a direct cost of service. In addition, Contractor shall provide to City the supplemental schedule on a compiled basis. 8.4 Reporting Adverse Information Contractor shall provide City two copies (one to the City Manager, one to the City Attorney) of all reports, pleadings, applications, notifications, Notices of Violation, communications or other material relating in any way to Contractor's performance of services pursuant to this Agreement, submitted by Contractor to, or received by Contractor from, the United States or California Environmental Protection Agency, ca clecycle the Securities and Exchange Commission or any other federal, state or local Deleted: the California Integrated Waste Manag Board agency, including any federal or state court. Copies shall be submitted to City within thirty (30) days of receipt by Contractor, or sooner if reasonably apparent that to do so is time critical, and any responses by Contractor shall be submitted to City simultaneously with Contractor's filing or submission of such matters with said agencies. Contractor's routine correspondence to said agencies need not be routinely submitted to City, but shall be made available to City promptly upon City's written request. Deleted: February 8, 2017January 27, 2017 -80- City of Diamond Bar - Residential Packet Pg. 385 8.2.b 8.5 Failure to Report The refusal or failure of Contractor to file any required reports, or to provide required information to City, or the inclusion of any materially false or misleading statement or representation by Contractor in such report shall be deemed a material breach of this Agreement as described in Section 11.1 and shall subject Contractor to all remedies which are available to the City under this Agreement, the Diamond Bar Municipal Code or otherwise. Deleted: February 8, 2017January 27, 2017 i -81- City of Diamond Bar - Residential Packet Pg. 386 8.2.b ARTICLE 9 INDEMNIFICATION, INSURANCE, BOND AND LETTER OF CREDIT 9.1 Indemnification Contractor hereby agrees to and shall indemnify and hold harmless City, its elected and appointed boards, commissions, officers, employees, consultants and agents (collectively, "Indemnitees') from and against any and all loss, liability, penalty, forfeiture, claim, demand, action, proceeding or suit in law or equity of any and every kind and description (including, but not limited to, injury to and death of any Person and damage to property, or for contribution or indemnity claimed by third parties) arising or resulting from and in any way connected with (1) the omissions, negligence or willful misconduct of Contractor, its officers, employees, agents, contractors and/or subcontractors in performing services under this Agreement; (2) the failure of Contractor, its officers, employees, agents, contractors and/or subcontractors to comply in all respects with the provisions of this Agreement, applicable laws (including, without limitation, the Environmental Laws), ordinances and regulations, and/or applicable permits and licenses; and (3) the acts of Contractor, its officers, employees, agents, contractors and/or subcontractors in performing services under this Agreement for which strict liability is imposed by law (including, without limitation, the Environmental Laws). The foregoing indemnity shall apply regardless of whether such loss, liability, penalty, forfeiture, claim, demand, action, proceeding, suit, injury, death or damage is also caused in part by any of the Indemnitees' negligence, but shall not extend to matters resulting from the Indemnitees' sole negligence, or willful misconduct. Contractor further agrees to and shall, upon demand of City, at Contractor's sole cost and expense, defend (with attorneys acceptable to City) the Indemnitees against any claims, actions, suits in law or equity or other proceedings, whether judicial, quasi-judicial or administrative in nature, arising or resulting from any of the aforementioned events, and to reimburse City for any and all costs and expenses City incurs in providing any such defense, either before, during or after the time Contractor elects to provide such defense, including any and all costs incurred in overseeing any defense to be provided herein by Contractor. Contractor, upon demand of City, made by and through the City Attorney, shall protect City and appear in and defend the Indemnitees in any claims or actions by third parties, Deleted: February 8, 2017January 27, 2017 i� y 16, 2017 -82- City of Diamond Bar - Residential Packet Pg. 387 whether judicial, administrative or otherwise, including, but not limited to disputes and litigation over the definitions of "Solid Waste' or "Recyclable Material," the scope of the rights granted herein, conflicts between the rights granted herein and rights asserted by other Persons, or the limits of City's authority with respect to the grant of licenses, or agreements, exclusive or otherwise, or asserting rights under the United States or California Constitutions or any federal or state law to provide Solid Waste Collection Services in the City. THE PROVISIONS OF THIS SECTION SHALL NOT TERMINATE OR EXPIRE, SHALL BE GIVEN THE BROADEST POSSIBLE INTERPRETATION AND SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT. 9.2 Hazardous Substances Indemnification A. Without regard to any insurance coverage or requirements, and without limiting the above general indemnification obligation in any way, Contractor specifically agrees to and shall, to the maximum extent permitted by law, defend (with counsel acceptable to City, which acceptance shall not be unreasonably withheld), reimburse, indemnify, and hold harmless Indemnitees from and against any and all claims, actions, liabilities, damages, demands, judgments, losses, costs, liens, expenses, suits, actions, attorneys' fees, consultant fees, penalties and any and all other losses, damages, fees and expenses of whatever kind or nature ("Claims") (including but not limited to response costs, investigative costs, assessment costs, monitoring costs, treatment costs, cleanup costs, removal costs, remediation costs, and similar costs, damages and expenses) that arise out of or are alleged to arise out of or in any way relate to any action, inaction or omission of Contractor that: 1. results in any demand, claim, notice, order, or lawsuit, asserting that any Indemnitee is liable, responsible or in any way obligated to investigate, assess, monitor, study, test, treat, remove, remediate, or otherwise cleanup, any Hazardous Contaminant (as defined herein); or 2. relates to material Collected, transported, recycled, processed, treated or disposed of by Contractor. Deleted: indemnities 8.2.b Deleted: February 8, 2017January 27, 2017 -83- City of Diamond Bar - Residential Packet Pg. 388 B. Contractor's obligations pursuant to this section shall apply, without limitation, to: 1. any Claims brought pursuant to or based on the provisions of any Environmental Law; 2. any Claims based on or arising out of or alleged to be arising out of the ownership, use, lease, sale, design, construction, maintenance or operation of Contractor of any Facility; 3. any Claims based on or arising out of or alleged to be arising out of the marketing, sale, distribution, storage, transportation, Disposal, processing or use of any materials recovered by Contractor; 4. any Claims based on or arising out of or alleged to be arising out of any breach of any express or implied warranty, representation or covenant arising out of or in connection with this Agreement. C. The foregoing indemnity and defense obligations shall apply irrespective of the negligence or willful misconduct of Contractor or any Affiliate of Contractor. D. The foregoing indemnity shall apply regardless of whether such loss, liability, penalty, forfeiture, claim, demand, action, proceeding, suit, injury, death or damage is also caused in part by any of the Indemnitees' negligence, but shall not extend to matters resulting from the Indemnitees' sole negligence, or willful misconduct. E. For purposes of this section, the term "Hazardous Contaminant" shall mean any Hazardous Substance, any Hazardous Waste, any crude oil or refined or unrefined petroleum product or any fraction or derivative thereof; and any asbestos or asbestos - containing material. The term "Hazardous Contaminant" shall also include any and all amendments to any referenced statutory or regulatory provisions made before or after the date of execution of this Agreement. F. In the event that the City exercises its right under Sections 2.11 and 4.8 to direct Contractor to use a facility other than a site approved in this Agreement, and such facility is not owned and operated by Contractor or any parent, affiliate or guarantor of the Contractor, this indemnification shall o, n apRlly to Claims arising out of Contractor's collection and transportation to such facility., February 16, 2017 -84- of Diamond Bar - Residential 8.2.b Deleted: not Deleted: for the tonnage directed by the City to facility. Deleted: February 8, 2017January 27, 2017 Packet Pg. 389 8.2.b G. THE PROVISIONS OF THIS SECTION SHALL NOT TERMINATE OR EXPIRE, SHALL BE GIVEN THE BROADEST POSSIBLE INTERPRETATION AND SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT. 9.3 AB 939 Indemnification and Guarantee A. To the extent authorized by law, Contractor agrees to indemnify and hold harmless City from and against all fines and/or penalties imposed by CalRecycle in the event the Deleted: the California Integrated waste Manag Board source reduction and Recycling goals or any other requirement of AB 939 are not met by City with respect to the waste stream Collected under this Agreement. B. Contractor warrants and represents that it is familiar with City's waste characterization study as set forth in City's Source Recovery and Recycling Element (SRRE), and that it has the ability to and will provide sufficient programs and services to ensure City will meet or exceed the Diversion requirements (including, without limitation, amounts of Solid Waste to be diverted, time frames for Diversion, and any other requirements) set forth in AB 939, with respect to that portion of the Solid Waste generated in City that is the subject of this Agreement. 9.4 Insurance Contractor shall procure and maintain during the entire Term the following types of insurance, and shall maintain the following minimum levels of coverage, which shall apply to any claims which may arise from or in connection with Contractor's performance hereunder or the actions or inactions of any of Contractor's officers, agents, representatives, employees, or subcontractors in connection with Contractor's performance. The insurance requirements hereunder in no way limit Contractor's various defense and indemnification obligations, or any other obligations as set forth herein. A. Minimum Scope of Insurance. Coverage shall be at least as broad as: 1. The most recent editions of Insurance Services Office Commercial General Liability coverage ("occurrence" form CG 00 01). -85- of Diamond Bar - Residential r Deleted: of this Agreement Deleted: February 8, 2017January 27, 2017 Packet Pg. 390 2. The most recent editions of Insurance Services Office form number CA 00 01 covering Automobile Liability, code 1 "any auto" and endorsement CA 00 25. 3. Workers' Compensation insurance as required by the Labor Code of the State of California and Employers Liability insurance. B. Minimum Limits of Insurance. Contractor shall maintain in force for the term of this Agreement limits no less than: 1. Comprehensive General Liability: Ten Million Dollars ($10,000,000) limit aggregate and Ten Million Dollars ($10,000,000) limit per occurrence for bodily injury, Personal injury and property damage. 2. Automobile Liability: Five Million Dollars ($5,000,000) single limit per accident for bodily injury and property damage. 3. Workers' Compensation and Employers Liability: Workers' compensation limits as required by the Labor Code of the State of California or provide evidence of State approval to be self-insured. Employers Liability in the minimum amount of $1,000,000. C. Deductibles and Self -Insured Retentions. Any deductibles or self-insured retentions,gre for the account of Contractor, and payable solely by Contractor. JrLthe event that the City forms a reasonable belief that Contractor is unable to pay any deductibles or self-insured retentions, Contractor shall procure a performance bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. D. Other Insurance Provisions. The policies are to contain, or be endorsed to contain, the following provisions: 1. General Liability and Automobile Liability Coverages 8.2.b Deleted: must be declared to and a Deleted: At the option of City, either: the insur reduce or eliminate such deductibles or self-insut retention's as respects City, its officials, employee agents; or a) The Indemnitees shall be named as additional insureds as respects: Deleted: City, its elective and appointive board — ` commissions, officials, employees, agents and vo: liability arising out of activities performed by or on behalf of are to Contractor; products and completed operations of Contractor; Premises owned, leased or used by Contractor; or vehicles owned, leased, hired or borrowed by Contractor. The coverage shall -86- of Diamond Bar - Residential Deleted: February 8, 2017January 27, 2017 Packet Pg. 391 8.2.b contain no special limitations on the scope of protection afforded to the Indemnitees. Deleted: City, its elective and appointive boards commissions, officials, employees, agents or volu b) Contractor's insurance coverage shall be primary insurance as respects the indemnitiees. Any insurance or self-insurance Deleted: City, its elective and appointive boards commissions, officials, employees, agents and vo: maintained by the Indemnitees shall be excess of Contractor's Deleted: City, its officials, elective and appointii insurance and shall not contribute with it. boards, commissions; employees, agents or volur c) Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its officials, elective and appointive boards, commissions, employees, agents or volunteers. d) Coverage shall state that Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 2. Workers' Compensation and Employers Liability Coverage - The insurer shall agree to waive all rights of subrogation against the Indemnitees for Deleted: City, its officials, elective and appoinffi boards, commissions, employees, agents and voh 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; anceled except after thirty / Deleted: suspended, voided, (30) days' prior written notice (ten (10) days written notice in the event of Deleted: by either parry, reduced in coverage or cancellation for non-payment) by certified mail, return receipt requested, has been given to City. E. Acceptability of Insurers. The insurance policies required by this section shall be issued by an insurance company or companies authorized to do business in the State of California and with a rating in the most recent edition of Best's Insurance Reports of size category VII or larger and a rating classification of A or better. F. Verification of Coverage. Within thirty (30) days of the execution of this Agreement, or prior to the start of service under this Agreement, whichever comes first, Contractor shall furnish City certificates of each policy of insurance required hereunder, in form and substance satisfactory to City. Such certificates shall show the type and amount of coverage, effective dates and dates of expiration of policies and shall have all required endorsements. _ City reserves the right to all required insurance policies at any time. -87- certified of Diamond Bar - Residential Deleted: If City requests, copies of each policy, t with all endorsements, shall also be promptly del city. Deleted: February 8, 2017January 27, 2017 Packet Pg. 392 Renewal certificates will be furnished promptly upon renewal to City to demonstrate maintenance of the required coverage throughout the Term. G. Required Endorsements 1. Insurance policies shall contain an endorsement in substantially the following form: "Thirty (30) days prior written notice (ten (10) days written notice in the event of cancellation for non-payment) by certified mail, return receipt requested, shall be given to City in the event of cancellation, reduction in coverage, or non -renewal of this policy. Such notice shall be sent to: City Manager City of Diamond Bar 21810 Copley Drive Diamond Bar, CA 91765 2. "This policy shall be considered primary insurance as respects any other valid and collectible insurance maintained by City, including any self- insured retention or program of self-insurance, and any other such insurance shall be considered excess insurance only." 3. "Inclusion of City as an insured shall not affect City's rights as respects any claim, demand, suit or judgment brought or recovered against Contractor. This policy shall protect Contractor and City 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." Deleted: 21825 8.2.b Deleted: February 8, 2017January 27, 2017 i -88- City of Diamond Bar - Residential Packet Pg. 393 8.2.b H. Other Insurance Requirements 1. In the event any services are delegated to another company or subcontractor, Contractor shall require such Contractor or subcontractor to provide statutory workers' compensation insurance and employer's liability insurance for all of the Contractor or subcontractor's employees engaged in the work in accordance with this Section 9.4. The liability insurance required by this Section 9.4 shall cover all Contractor or subcontractors or the Contractor or subcontractor must furnish evidence of insurance provided by it meeting all of the requirements of this Section 9.4. 2. Contractor shall comply with all requirements of the insurers issuing policies. The carrying of insurance shall not relieve Contractor from any obligation under this Agreement. If any claim exceeding the amount of any deductibles or self-insured reserves is made by any third Person against Contractor or any Contractor or subcontractor on account of any occurrence related to this Agreement, Contractor shall promptly report the facts in writing to the insurance carrier and to City. If Contractor fails to procure and maintain any insurance required by this Agreement, City may take out and maintain, at Contractor's expense, such insurance as it may deem proper and recover costs from the Contractor's Letter of Credit and/or Performance Bond provided under Sections 9.5 and 9.6. 9.5 Faithful Performance Bond Concurrently with execution of this Agreement, Contractor shall deliver to City a performance bond in the sum of the amount of One Hundred Twenty-five Thousand Dollars ($125,000), similar to the form provided in Exhibit 5, which secures the faithful performance of this Agreement, including, without limitation, payment of any penalty and the funding of any work to cure a breach of this Agreement, unless such requirement is waived by the City Manager. The bond shall contain the original notarized signature of an authorized officer of the surety and affixed thereto shall be a certified and current copy of his power of attorney. The bond shall be unconditional Deleted: February 8, 2017January 27, 2017 i -89- City of Diamond Bar - Residential Packet Pg. 394 8.2.b and remain in force during the entire term of the Agreement and shall be released only upon written release from City per Section 9.9. 9.6 Faithful Performance Letter of Credit A. In addition to a corporate surety bond as noted in Section 9.5 above, Contractor shall furnish an irrevocable letter of credit in the amount of One Hundred Twenty-five Thousand Dollars ($125,000), from a financial institution acceptable to the City and in a form acceptable to the City Attorney as security for the performance of this Agreement (the "LOC"). The LOC shall be the sole responsibility of Contractor, shall be unconditional and remain in force during the entire term of the Agreement and shall be released only upon written release from City per Section 9.9. B. As an alternative to providing the performance bond and letter of credit required under 9.5 and 9.6.A, Contractor may provide a letter of credit in the amount of $250,000. The letter of credit shall be from a financial institution acceptable to the City in a form acceptable to the City Attorney as security for the performance of this Agreement. The LOC shall be the sole responsibility of Contractor, shall be unconditional and remain in force during the entire term of this Agreement and shall be released only upon written release from City per Section 9.9. 9.7 Forfeiture of Performance Bond In the event Contractor shall for any reason become unable to, or fail in any way to, perform as required by this Agreement, City may declare a portion or all of the performance bond forfeited to the City up to an amount which is necessary to recompense and make whole the City. Upon partial or full forfeiture of the performance bond, Contractor shall restore the performance bond to its face amount within thirty (30) days of the City's declaration. Failure to restore the performance bond to its full amount within thirty (30) days shall be a material breach of this Agreement. 9.8 Forfeiture of Letter Of Credit Thirty (30) days following City providing Contractor with written notice of its failure to pay City any amount owing under this Agreement, the LOC may be drawn upon by City for purposes including, but not limited to: Deleted: February 8, 2017January 27, 2017 i -90- City of Diamond Bar - Residential Packet Pg. 395 9.9 a. Payment of sums due under the terms of this Agreement which Contractor has failed to timely pay to City b. Reimbursement of costs borne by City to correct violations of this Agreement not corrected by Contractor, including but not limited to the liquidated damages described in Section 11.3. City may draw upon the entire LOC and convert it to a cash deposit if Contractor fails to cause the LOC to be extended or replaced with another satisfactory letter of credit no later than 60 days prior to its expiration during the term hereof. If City partially draws down LOC, Contractor must restore it to full amount within 30 days of City's draw. Failure to restore the LOC to its full amount within thirty (30) days shall be a material breach of this Agreement. Performance Security Beyond Service Term Some Agreement requirements extend beyond the Term and other requirements, such Deleted: of this Agreement as minimum Diversion rates per Section 4.2.5, will not be substantiated until after the final service date. Therefore, the Contractor shall not terminate the performance bond or letter of credit, and will renew them to ensure continuous availability to the City, until receiving a written release from the City or until the, second annual anniversary of Deleted: filth the end of the Term, Permission from the City to discontinue holding these Deleted: of this Agreement performance securities does not relieve Contractor of payments to the City that may be due, or may become due. -91- of Diamond Bar - Residential 8.2.b Deleted: February 8, 2017January 27, 2017 Packet Pg. 396 ARTICLE 10 CITY'S RIGHT TO CONTRACT WITH THIRD PARTIES TO PERFORM FRANCHISED SERVICES City may contract with another Solid Waste enterprise to Collect and transport Solid Waste in the event Contractor for any reason refuses or is unable to Collect Solid Waste for a period of more than forty-eight (48) hours. City must provide twenty-four (24) hours prior written notice to Contractor during such time before contracting with another solid waste enterprise. In such event Contractor must identify sources from which such substitute solid waste services are immediately available and reimburse City for all of its expenses for such substitute services during period in which Contractor does not provide Collection and transportation services required by this Agreement. -92- of Diamond Bar - Residential 8.2.b Deleted: (except as provided below regarding F Majeure) Deleted: February 8, 2017January 27, 2017 Packet Pg. 397 8.2.b ARTICLE 11 DEFAULT, REMEDIES AND LIQUIDATED DAMAGES 11.1 Events of Default Each of the following provisions, without limitations, are considered material and shall constitute an event of default by the Contractor. A. Fraud or Deceit or Misrepresentation. If the Contractor engages in, or attempts to practice, any fraud or deceit upon City or makes a misrepresentation regarding material information to City. B. Insolvency or Bankruptcy or Financial Irresponsibility. If Contractor becomes insolvent, unable, or unwilling to pay its debts, files a bankruptcy petition or takes steps to liquidate its assets. C. Failure to Maintain Coverage. If Contractor fails to provide or maintain or cause its subcontractors to provide or maintain in full force and effect the Workers' Compensation, liability, or indemnification coverage as required by this Agreement. D. Violations of Regulations. Subject to Contractor's opportunity to cure in subsection I.1. below4 below'Contractor violates any orders or filings of any regulatory body Deleted:1 having jurisdiction over Contractor relative to this Agreement, provided that Contractor may contest any such orders or filings by appropriate proceedings conducted in good faith, in which case no breach of the Franchise and this Agreement shall be deemed to have occurred until a final decision adverse to the Contractor is entered. E. Failure to Perform. If Contractor ceases to provide all or a portion of the Collection, processing or Recycling services, or any other Solid Waste Collection Services as required under this Agreement for a period of seven (7) consecutive days or more, unless, and only to the extent, performance is excused pursuant to Section 11.4. F. Failure to Pay. If Contractor fails to make any payments required under this Agreement and/or refuses to provide City, within ten (10) days of the demand, with required information, reports, and/or records in a timely manner as provided for in the Agreement. j Deleted: February 8, 2017January 27, 2017 -93- City of Diamond Bar - Residential Packet Pg. 398 G. Failure to Cooperate with Audits. Failure to complete, perform or cooperate with any audit as described by this Agreement. H. Failure to Submit Reports or Documentation. Failure to complete or to provide required reports or documents to City as required by this Agreement. I. Acts or Omissions. 1. Any act or omission by4:ontractorrelative to the services provided under this Agreement which violates the terms, conditions, or requirements of this Agreement, or AB 939, or any law, statute, ordinance, order, directive, rule, or regulation issued pursuant to AB 939 not corrected or remedied within the time set in the written notice of the violation from the issuing entity or, if Contractor cannot reasonably correct or remedy the breach within the time set forth in such notice, if gontractor should fail to commence to correct or remedy such violation within the time set forth in such notice and diligently effect such correction or remedy. -� Deleted: Franchisee Deleted: Franchisee Deleted: Franchisee 2. Any situation in which Contractor or any of its officers, directors or Deleted: Franchisee employees are found guilty of any crime related to the performance of this Agreement, or of any crime related to anti-trust activities, illegal transport or Disposal of hazardous or toxic materials, or bribery of public officials. The term "found guilty" shall be deemed to include any judicial determination that Contractor or any of Contractor's officers, directors or employees is Deleted: Franchisee guilty as well as any admission of guilt by Contractor or any of Contractor's Deleted: Franchisee's ----- officers, directors or employees including, but not limited to, the plea of Deleted: Franchisee Deleted: Franchisee's "guilty", "nolo contendere", "no contest", and "guilty to a lesser charge." J. False or Misleading Statements. Any representation or disclosure made to City by Contractor in connection with or as an inducement to entering into this Agreement, or any future amendment to this Agreement, which proves to be false or misleading in any material respect as of the time such representation or disclosure is made, whether or not any such representation or disclosure appears as part of this Agreement. K. Attachment. The seizure of, attachment of, or levy on, the operating equipment of Contractor, including, without limits, its equipment, maintenance or office facilities, or any part thereof. -94- of Diamond Bar - Residential 8.2.b Deleted: February 8, 2017January 27, 2017 Packet Pg. 399 8.2.b L. Suspension or Termination of Service. Any termination or suspension of the transaction of business by Contractor, including, without limitation, due to labor unrest including strike, work stoppage or slowdown, sick-out, picketing, or other concerted job action lasting more than seven (7) consecutive days, unless, and only to the extent, performance is excused pursuant to Section 11.4. M. Failure to Provide Assurance of Performance. If Contractor fails to provide reasonable assurances of performance as required under Section 11.6. N. Commingling of Recyclables With Refuse/Landfilling of Recyclables. Subject to the requirements of Section 4.2 f Contractor empties a Container of properly set Deleted: 2 out Recyclable Materials or Green Waste into a Refuse load, or transports Recyclable Deleted: i Materials or Green Waste to a landfill or other location at which the material will not be diverted from landfilling (with the exception of Green Waste used as alternative daily cover provided full Diversion credit is received). O. Failure to Meet Diversion Goals. Contractor fails to achieve diversion goals specified in Section 4.2.5, for two consecutive calendar years (the initial calendar year triggering a compliance plan as described in Section 4.2.5 and a second year in which to approved compliance plan is implemented), beginning with calendar year 2011. P. Lapse of Performance Bond and/or Letter of Credit. Contractor fails to restore the full balance of the Performance Bond and/or Letter of Credit required under Sections 9.5 and 9.6 to the full required value within 30 days of being depleted due to payment to City under Sections 9.7 or 9.8, or Contractor allows either security at any time for any other reason to lapse or fall below required minimums for any period of time. Contractor shall have forty-eight (48) hours from the time it is given notification by City to cure any default arising under subsections E, F, G, H, K, L, M, N and P provided, however, that City shall not be obligated to provide Contractor with a notice and cure opportunity if Contractor has committed the same or similar breach within a twenty- four (24) month period. It is expressly understood that Contractor is not entitled to receive notice of default, or to cure such default, with respect to those matters listed in subsections A, B, C, D, I, J and O above. Deleted: February 8, 2017January 27, 2017 i -95- City of Diamond Bar - Residential Packet Pg. 400 11.2 Right to Terminate Upon Default and Right to Specific Performance If Contractor commits a material breach, including specifically any of the matters listed in subsections A through P of Section 11.1 above (and, if permitted to cure, does not cure it within the forty-eight (48) hours), City shall be entitled to unilaterally terminate this Agreement or impose other such sanctions (which may include financial sanctions, temporary suspensions or any other conditions it deems appropriate short of termination) as it shall deem proper pursuant to the provisions in this Agreement or the Diamond Bar Municipal Code. Should City decide to terminate this Agreement upon a default by Contractor, City shall have the right to do so upon giving ten (10) days notice to Contractor, and shall not be required by this Agreement to take any further action (such as holding any hearing, bringing any suit or taking any other action.) City's rights to terminate this Agreement and City's termination of this Agreement shall not constitute an election of remedies. Instead, such remedies shall be in addition to any and all other legal and equitable rights and remedies which City may have. By virtue of the nature of this Agreement, the urgency of timely continuous and high- quality service for preservation of the public health, safety and welfare, the time required to effect alternative service, and the rights granted by City to Contractor, the remedy of damages for a breach hereof by Contractor is inadequate and City shall be entitled to seek injunctive relief and/or specific performance of any breach of this Agreement. 11.3 Liquidated Damages A. General. City finds, and Contractor agrees, that as of the time of the execution of this Agreement, it is impractical, if not impossible, to reasonably ascertain the extent of damages which shall be incurred by City as a result of a breach by Contractor of certain specific obligations under this Agreement. The factors relating to the impracticability of ascertaining damages include, but are not limited to, the fact that: (i) substantial damage results to members of the public who are denied services or denied quality or reliable service; (ii) such breaches cause inconvenience, anxiety, frustration, and deprivation of the benefits of the Agreement to individual members of the general public for whose benefit this Agreement exists, in subjective ways and in varying degrees of intensity which are incapable of measurement in precise monetary terms; (iii) that the services that are the subject of this Agreement might be available at Deleted: February 8, 2017January 27, 2017 i� of Diamond Bar - Residential -96- 8.2.b Packet Pg. 401 8.2.b substantially lower costs than alternative services and the monetary loss resulting from denial of services or denial of quality or reliable services is impossible to calculate in precise monetary terms; and (iv) the termination of this Agreement for such specific breaches, and other remedies are, at best, a means of future correction and not remedies which make the public whole for past breaches. B. Service Performance Standards; Liquidated Damages for Failure to Meet Standards. The parties further acknowledge that consistent, reliable Solid Waste Collection Service is of utmost importance to City and the public health, safety, and welfare and that City has considered and relied on Contractor's representations as to its quality of service commitment in entering this Agreement with it. The Parties further recognize that some quantified standards of performance are necessary and appropriate to ensure consistent and reliable service and performance. The Parties further recognize that if Contractor fails to achieve the performance standards, or fails to submit required documents in a timely manner, City and its residents will suffer damages and that it is and will be impractical and extremely difficult to ascertain and determine the exact amount of damages which City will suffer. Therefore, without prejudice to City's right to treat such breaches as an event of default under this Article 11, the Parties agree that the following liquidated damage amounts represent a reasonable estimate of the amount of such damages for such specific breaches, considering all of the circumstances existing on the date of this Agreement, including the relationship of the sums to the range of harm to City that reasonably could be anticipated and the anticipation that proof of actual damages would be costly or impractical. In placing their initials at the places provided, each party specifically confirms the accuracy of the statements made above and the fact that each party has had ample opportunity to consult with legal counsel and obtain an explanation of the liquidated damage provisions at the time that the Agreement was made. Contractor Initial Here Contractor agrees to pay (as liquidated damages and not as a penalty) the amounts set forth below: Deleted: February 8, 2017January 27, 2017 i -97- City of Diamond Bar - Residential Packet Pg. 402 I 2. 3. 8.2.b a) For each occurrence of failure to properly return empty Containers to avoid a� pedestrian or vehicular traffic impediments or to place Containers upright m which exceeds ten (10) such occurrences annually: $100.00 .a c Collection Reliability LL +, exceed ten (10) annually: $250.00 r- 4) a) For each failure to commence service to a new Customer account within m seven (7) days after order, which exceeds five (5) such failures annually: $100.00 M d) For each failure to clean up Solid Waste spilled from Solid Waste Containers E b) For each failure, which exceeds ten (10) such failures annually, to Collect y Solid Waste from any established Customer account on the scheduled Collection day and not make up the Collection within the time allotted per pp Section 4.6.1: $100.00 r c) For each instance in which Contractor stops service to a Customer, other r m than at Customer request due to Customer vacating premises, without the _ advance written approval of the City: $100.00 Collection Quality c m E a) For each occurrence of failure to properly return empty Containers to avoid a� pedestrian or vehicular traffic impediments or to place Containers upright Q which exceeds ten (10) such occurrences annually: $100.00 .a a� b) For each occurrence of excessive noise or discourteous behavior which .r N exceed ten (10) annually: $250.00 c) For each occurrence of Collecting Solid Waste during unauthorized hours CU which exceeds five (5) such occurrences annually: $250.00 c d) For each failure to clean up Solid Waste spilled from Solid Waste Containers E within ninety (90) minutes that exceeds ten (10) such failures annually: Q $150.00 Customer Responsiveness pp c a) For each failure to initially respond to a Customer complaint within one (1) p business day, and for each additional day in which the complaint is not E addressed, which exceed five (5) annually: $150.00 0 .Q b) For each failure to process Customer complaints as required by Article 5, ry 06 which exceed five (5) annually: $150.00 Deleted: February 8, 2017January 27, 2017 C m E s 17 -98- City of Diamond Bar - Residential . R M w a Packet Pg. 403 4. 8.2.b c) For each failure to remove graffiti from Containers, or to replace with Containers bearing no graffiti, within three (3) business days of request from City or Customer: $ 50.00 per day d) For each failure to repair or replace a damaged or missing Container within two (2) business days of request from City or Customer: $ 50.00 per day e) For each failure to process a claim for damages within thirty (30) days from the date submitted to Contractor: $100.00 f) For each additional thirty (30) day increment of time in which Contractor has failed to undertake good faith efforts to resolve a claim for damages within thirty (30) days from the claim date: $100.00 g) For each violation under Section 5.2.3 (one month of excessive complaints or one quarter of excessive delays in answering customer service calls): $500.00 For each occurrence of inaccurate information being provided to Customers by Contractor's customer service department which exceeds en (10) such Deleted: five (5) occurrences annually: Formatted: Indent: Left: 1", Hanging: 0.31", Before: Opt DivPrcinn Fffnrtc a) For each calendar yeareginning calendar year 2010 through calendar year De1`d 2017, in which Contractor fails to provide support to the City within thirty Deleted` ) (30) days of year-end, documenting that it diverted at least 45 % of the Solid Waste Contractor Collected under this Agreement: $25 for each ton below tonnage level necessary to meet 45 % Diversion goal b) For every Green Waste Cart Collected as Refuse without issuing a red tag per Section 4.2.3: $50.00 per Cart c) For each failure to process Construction and Demolition Debris loads from Construction and Demolition sites or otherwise identified as such by Customer as required by Section 4.2.6: Deleted: February 8, 2017January 27, 2017 -99- City of Diamond Bar - Residential Packet Pg. 404 5. 6. d) For each calendar year, beginning January 1, 2018, in which Contractor fails to provide support to the City within thirty (30) days of year-end, documenting that it diverted at least 45% of the Solid Waste Contractor Collected under this Agreement, as such percentage may be adjusted under Section 4.2.5, excluding Roll -Off and Temporary Bin loads: $25 for each ton below tonnage level necessary to meet 45% Diversion goal e) For each calendar year, beginning calendar year 2018, in which Contractor fails to provide support to the City within thirty (30) daysyear-end, documenting that it diverted at least 75 %, or the State -mandated Construction and Demolition diversion percentage (as such percentage may be adjusted by the State), whichever is greater, of all Construction and Demolition Debris loads it Collects under this Agreement: $25 for each ton below tonnage level Formatted: Tab stops: 5.56", Left Deleted: , whichever is greater, 8.2.b necessary to meet 75%, or State -mandated ' Formatted: Indent: Left: 1", Hanging: 0.31", Before: 0 pt, Tab stops: 3.83", Left + Not at 5 Construction and Demolition Diversion goal, whichever is greater, 6.81" Formatted: Font: Not Bold Timeliness of Submissions to City Any report shall be considered late until such time as a correct and complete report is received by City. For each calendar day a report is late, the daily liquidated damage amount shall be: i) Monthly Reports: $100.00 per day ii) Annual Reports: $200.00 per day Accuracy of Billing Each Customer invoice that is not prepared in accordance with the City's approved rate schedule, in excess of ten (10) annually: $25.00 Cooperation with Service Provider Transition a) For each day routing information requested by City in accordance with Section 12.8 is received after City -established due dates, both for Deleted: February 8, 2017January 27, 2017 17 -100- City of Diamond Bar - Residential Packet Pg. 405 8.2.b preparation of a request for proposals and for new service provider's implementation of service: $1,000.00/ day b) For each day delivery of keys, access codes, remote controls, or other means of access to Solid Waste Containers is delayed beyond one (1) day prior to new service provider servicing Customers with access issues, as described in Section 12.8: $1,000.00/ day c) For delay in not meeting the requirements contained in Sections 4.11 and 12.8 in a timely manner, in addition to the daily liquidated damages for breach under 7(a) and 7(b) above, liquidated damages of: $35,000.00 8. General Contract Adherence For each day that Franchisee fails to provide services required under the Agreement, or comply with terms of the Agreement, five (5) business days after receipt of written notification from City that such services are not being provided or terms are not being met: $300.00/ day City may determine the occurrence of events giving rise to liquidated damages through the observation of its own employees or representatives or through investigation of Customer complaints by such Persons. If any failure is permitted or excused by another section of this Agreement, such a failure shall not count towards assessment of liquidated damages (such as a failure to Collect would not apply if it were due to the presence of contamination, provided Contractor left a warning notice). Prior to assessing liquidated damages, the City Manager shall give Contractor notice of its intention to do so. The notice will include a brief description of the incident(s)/non- performance. Contractor may review (and make copies at its own expense) all information in the possession of City relating to incident(s)/non-performance. Contractor may, within ten (10) days after receiving the notice, request a meeting with City Manager. Contractor may present evidence in writing and through testimony at the meeting of its employees and others relevant to the incident(s)/non-performance. City Manager will provide Contractor with a written explanation of its determination on each incident(s)/non-performance prior to authorizing the assessment of liquidated damages. The decision of City Manager shall be final. Deleted: February 8, 2017January 27, 2017 -101- City of Diamond Bar - Residential Packet Pg. 406 11.4 C. Amount. City may assess liquidated damages for each calendar day or event, as appropriate, that Contractor is determined to be liable in accordance with this Agreement. D. Timing of Payment. Contractor shall pay any liquidated damages assessed by City within ten (10) days after receipt of notice that liquidated damages are being assessed. If they are not paid within the ten (10) day period, City may proceed against the performance bond or letter of credit required by the Agreement or find Contractor in default and terminate this Agreement pursuant to Section 11.2, or both. Suspension of Performance 11.4.1 Force Majeure The Parties shall be excused from performing their respective obligations hereunder in the event they are prevented from so performing by reason of floods, earthquakes, other natural disasters, war, civil insurrection, riots, acts of any government (including judicial action), and other similar catastrophic events which are beyond the control of and not the fault of the party claiming excuse from performance hereunder. The interruption or discontinuance of Contractor's services caused by one (1) or more of the events excused shall not constitute a default by Contractor under this Agreement provided that other services delivered to properties in Diamond Bar (such as and without limitation electricity, gas, water, or commercial solid waste collection services) have been similarly disrupted as a direct result of the catastrophic event. Notwithstanding the foregoing, however, if Contractor is excused from performing its obligations hereunder for any of the causes listed in this section, Ci!y 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 Ci is not significantly impacted by the catastrophic event, City shall nevertheless have the right, in its sole discretion, to ter- minate this Agreement by giving ten (10) days'notice, 11.4.2 Labor Unrest Labor unrest, including work stoppage or slowdown or sick-out conducted by Contractor's employees or directed at Contractor is excused from performance only to the extent that the following requirements are met: Deleted: February 8, — -anuary 27, 2017 i of Diamond Bar - Residential 8.2.b ,i Deleted: Diamond Bar Deleted: , and may contract with another party l Waste Collection Services -102- Packet Pg. 407 8.2.b • Contractor provides a contingency plan to the City prior to the execution of this Agreement demonstrating how services will be provided. Plan is subject to City Manager approval and Contractor shall amend plan until it meets City requirements, including reasonably demonstrating how City's basic Collection and sanitary needs will be met to the City's satisfaction. • Contractor shall meet all requirements of this plan; if Contractor does not meet all requirements, City may choose to revoke this excuse from performance offered under this Agreement and may choose to use enforcement provisions under this Agreement, including Sections 11.1, 11.2 and 11.3. The party claiming excuse from performance shall, within two (2) days after such party has notice of such cause, give the other party notice of the facts constituting such cause and asserting its claim to excuse under this section. The interruption or discontinuance of Contractor's services caused by labor -related events excused under this Section 4.4.2 shall not constitute a default by Contractor under this Agreement. Notwithstanding the foregoing, however, if Contractor is excused from performing its obligations hereunder for any of the causes listed in this section for a period of thirty (30) days or more, City shall nevertheless have the right, in its sole discretion, to terminate this Agreement by giving ten (10) days' notice, and may contract with another party for Solid Waste Collection Services. 11.5 Dispute Resolution; Administrative Remedies; Termination Except as may otherwise be set forth expressly herein, all disputes arising under this Agreement shall be resolved as set forth in this section. 11.5.1 Negotiation and Mediation The Parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiations between the Parties' authorized representatives. The disputing Party shall give the other Parties written notice of any dispute. Within five (5) days after delivery of such notice, the authorized representatives shall meet at a mutually acceptable time and place, and thereafter as often as they reasonably deem necessary to exchange information and to attempt to resolve the dispute. If the matter has not been resolved within ten (10) days of the first meeting, any Party may initiate a mediation of the dispute. The mediation shall be Deleted: February 8, 2017January 27, 2017 y 16, 2017 -103- City of Diamond Bar - Residential Packet Pg. 408 facilitated by a mediator that is acceptable to all Parties and shall conclude within thirty (30) days of its commencement, unless the Parties agree to extend the mediation process beyond such deadline. Upon agreeing on a mediator, the Parties shall enter into a written agreement for the mediation services with each Party paying a pro rata share of the mediator's fee, if any. The mediation shall be conducted in accordance with the Commercial Mediation Rules of the American Arbitration Association; provided, however, that no consequential damages shall be awarded in any such proceeding and each Party shall bear its own legal fees and expenses. 11.5.2 Confidentiality All negotiations and any mediation conducted pursuant to this section shall be confidential and shall be treated as compromise and settlement negotiations, to which Section 1152 of the California Evidence Code shall apply, which Section is incorporated in this Agreement by reference. 11.5.3 Injunctive Relief Notwithstanding the foregoing provisions, a Party may seek a preliminary injunction or other provisional judicial remedy if in its judgment such action is necessary to avoid irreparable damage or to preserve the status quo. 11.5.4 Continuing Obligation Each Party shall continue to perform its obligations under this Agreement pending final resolution of any dispute arising out of or relating to this Agreement. 11.5.5 Failure of Mediation If after good faith efforts to mediate a dispute under the terms of this Agreement the parties cannot agree to a resolution of the dispute, any party may pursue whatever legal remedies may be available to it at law or in equity before a court of competent jurisdiction and with venue in Los Angeles County. 11.6 Assurance of Performance City may, at its option and in addition to all other remedies it may have, demand from Contractor reasonable assurances of timely and proper performance of this Agreement, in such form and substance as City may require. If Contractor fails or refuses to -104- of Diamond Bar - Residential 8.2.b Deleted: February 8, 2017January 27, 2017 Packet Pg. 409 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. FebruarV 16, 2017 -105- City of Diamond Bar - Residential 8.2.b Deleted: February 8, 2017January 27, 2017 Packet Pg. 410 12.1 12.2 8.2.b ARTICLE 12 OTHER AGREEMENTS OF THE PARTIES Relationship of Parties The Parties intend that Contractor shall perform the services required by this Agreement as an independent contractor engaged by City and not as an officer or employee of City nor as a partner of or joint venture with City. No employee or agent or Contractor shall be or shall be deemed to be an employee or agent of City. Except as expressly provided herein, Contractor shall have the exclusive control over the manner and means of conducting the Solid Waste Collection Services performed under this Agreement, and all Persons performing such services. Contractor shall be solely responsible for the acts and omissions of its officers, employees, Affiliates, contractors, subcontractors and agents. Neither Contractor nor its officers, employees, Affiliates, contractors, subcontractors and agents shall obtain any rights to retirement benefits, workers' compensation benefits, or any other benefits which accrue to City employees by virtue of their employment with City. Compliance with Law In providing the services required under this Agreement, Contractor shall at all times, at its sole cost, comply with all applicable laws and regulations of the United States, the State of California, and any federal, state, regional or local administrative and regulatory agencies, now in force and as they may be enacted, issued or amended. 12.3 Governing Law This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California. 12.4 Jurisdiction Except for those matters where Federal Courts have exclusive jurisdiction, any lawsuits between the Parties arising out of this Agreement shall be brought and concluded in the courts of the State of California, which shall have exclusive jurisdiction over such lawsuits. Deleted: February 8, 2017January 27, 2017 -106- City of Diamond Bar - Residential Packet Pg. 411 12.5 With respect to venue, the Parties agree that this Agreement is made in and will be performed in Los Angeles County. Assignment Contractor shall not assign its rights, nor delegate, subcontract or otherwise transfer its obligations under this Agreement (collectively referred to as an "assignment") to any other Person without the prior written consent of City. Any such assignment made without the consent of City shall be void and the attempted assignment shall constitute a material breach of this Agreement. For purposes of this section the term "assignment" shall be given the broadest possible interpretation, and shall include, but not be limited to (i) a sale, exchange or other transfer of substantially all of Contractor's assets dedicated to service under this Agreement to a third party; (ii) a sale, exchange or other transfer of outstanding common stock of Contractor to a third party provided said sale, exchange or transfer may result in a change of control of Contractor; (iii) any dissolution, reorganization, consolidation, merger, re -capitalization, stock issuance or re -issuance, voting trust, pooling agreement, escrow arrangement, liquidation or other transaction which results in a change of ownership or control of Contractor; (iv) any assignment by operation of law, including those resulting from mergers or acquisitions by or of Contractor of any of its Affiliates, insolvency or bankruptcy, making assignment for the benefit of creditors, writ of attachment for an execution being levied against this Agreement, appointment of a receiver taking possession of Contractor's property, or transfer occurring in the event of a probate proceeding; and (v) any combination of the foregoing (whether or not in related or contemporaneous transactions) which has the effect of any such transfer or change of ownership, or change of control of Contractor. Contractor acknowledges that this Agreement involved rendering a vital service to City's residents and businesses, and that City has selected Contractor to perform the services specified herein based on (1) Contractor's experience, skill and reputation for conducting its Solid Waste Collection Services in a safe, effective and responsible fashion, at all times in keeping with applicable Environmental Laws, regulations and best Solid Waste management practices, and (2) Contractor's financial resources to maintain the required equipment and to support its indemnity obligations to City under this Agreement. City has relied on each of these factors, among others, in choosing Contractor to perform the services to be rendered by Contractor under this Agreement. -107- Citv of Diamond Bar - Residential 8.2.b Deleted: February 8, 2017January 27, 2017 Packet Pg. 412 8.2.b If Contractor requests City's consideration of and consent to an assignment, City may deny or approve such request in its sole discretion. Any request for an assignment must be approved by the City Manager in writing, and no request by Contractor for consent to an assignment need be considered by City unless and until Contractor has met (or with respect to matters that would only occur upon completion of the assignment if approved, made reasonable assurances that it will meet) the following requirements: a) Contractor shall pay City its reasonable expenses for attorney's fees and investigation costs necessary to investigate the suitability of any proposed assignee, and to review and finalize any documentation required as a condition for approving any such assignment. An advance payment towards expenses may be requested by City prior to City consideration of any assignment request and Contractor shall be responsible to pay all costs incurred by City in considering a request for assignment, including those in excess of the aforesaid deposit amount, regardless of whether City consents to the assignment. b) Except with respect to an assignment to an Affiliate where the parent guaranty is unchanged, Contractor shall pay the City a transfer fee equal to one percent (1%) of the Gross Receipts it, or its assignee, will receive during the remaining term of the Agreement at rates and service levels in effect at the time of the assignment, as estimated by City. c) Except with respect to an assignment to an Affiliate where the parent guaranty is unchanged, Contractor shall furnish City with audited financial statements for itself, and the proposed assignee's operations for the immediately preceding three (3) operating years. d) Except with respect to an assignment to an Affiliate where the parent guaranty is unchanged, a proforma financial statement (income statement and balance sheet) for the proposed assignee with the projected results of operations assuming that the assignment is completed. Such proforma financial statement shall reflect any debt to be incurred by the assignee as part of the acquisition of Contractor's operations. e) Except with respect to an assignment to an Affiliate where the parent guaranty is unchanged, Contractor shall furnish City with satisfactory proof: (i) that the Deleted: February 8, 2017January 27, 2017 y 16, 2017 -108- City of Diamond Bar - Residential Packet Pg. 413 8.2.b proposed assignee has at least ten (10) years of Solid Waste management experience on a scale equal to or exceeding the scale of operations conducted by Contractor under this Agreement; (ii) that in the last five (5) years, the proposed assignee has not suffered any significant citations or other censure from any federal, state or local agency having jurisdiction over its Solid Waste management operations due to any significant failure to comply with state, federal or local Environmental Laws and that the assignee has provided City with a complete list of any such citations and censures; (iii) that the proposed assignee has at all times conducted its operations in an environmentally safe and conscientious fashion; (iv) that the proposed assignee conducts its Solid Waste management practices in accordance with sound Solid Waste management practices in full compliance with all federal, state and local laws regulating the Collection and Disposal of Solid Waste including Hazardous Substances; and, (v) of any other information required by City to ensure the proposed assignee can fulfill the terms of this Agreement in a timely, safe and effective manner. Under no circumstances shall City be obliged to consider any proposed assignment by City if Contractor is in default at any time during the period of consideration. Should City consent to any assignment request, such assignment shall not take effect until all conditions relating to City's approval have been met in accordance with Chapter 8.16 of the Diamond Bar Municipal Code, as amended from time to time. 12.6 Contracting or Subcontracting Contractor shall not engage any contractors or subcontractors for the Collection of Solid Waste. 12.7 Binding on Assigns The provisions of this Agreement shall inure to the benefit to and be binding on the permitted assigns (if any) of the Parties. 12.8 Cooperation in Preparation for Termination or Expiration of Contract Prior to, and at the end of the Term or in the event this Agreement is terminated for cause prior to the end of the Term, Contractor shall cooperate fully with City and any subsequent Solid Waste enterprise it designates to assure a smooth transition of Solid Waste Collection Services. Contractor's cooperation shall include, but not be limited to, Deleted: February 8, 2017January 27, 2017 -109- of Diamond Bar - Residential Packet Pg. 414 8.2.b providing route lists, Billing information and other operating records needed to service all Premises covered by this Agreement. The failure to cooperate with City following termination shall be conclusively presumed to be grounds for specific performance of this covenant and/or other equitable relief necessary to enforce this covenant. Contractor shall provide a new service provider with all keys, security codes and remote controls used to access garages and Bin enclosures. Contractor shall be responsible for coordinating transfer immediately after Contractor's final pickups, so as not to disrupt service. Contractor shall provide City with detailed route sheets containing service names and addresses, Billing names and addresses, monthly rate and service levels (number and size of Containers and pickup days) at least 90 days prior to the transition date, and provide an updated list two weeks before the transition and a final list of changes the day before the transition. Contractor shall provide means of access to the new service provider at least one full business day prior to the first day of Collection by another party, and always within sufficient time so as not to impede in any way the new service provider from easily servicing all Containers. 12.9 Parties in Interest Nothing in this Agreement, whether express or implied, is intended to confer any rights on any Persons other than the Parties to it and their representatives, successors and permitted assigns. 12.10 Waiver The waiver by either party of any breach or violation of any provisions of this Agreement shall not be deemed to be a waiver of any breach or violation of any other provision nor of any subsequent breach of violation of the same or any other provision. The subsequent acceptance by either Party of any moneys which become due hereunder shall not be deemed to be a waiver of any pre-existing or concurrent breach or violation by the other Party of any provision of this Agreement. 12.11 Contractor's Investigation Contractor has made an independent investigation (satisfactory to Contractor) of the conditions and circumstances surrounding the Agreement and the work to be performed by it. Deleted: February 8, 2017January 27, 2017 -110- City of Diamond Bar - Residential Packet Pg. 415 8.2.b 12.12 Section Deleted 12.13 Notice All notices, demands, requests, proposals, approvals, consents and other communications which this Agreement requires, authorizes or contemplates, unless otherwise specified in this Agreement, shall be in writing and shall either be personally delivered to a representative of the Parties at the address below or be deposited in the United States mail, first class postage prepaid, addressed as follows: If to City: City Manager City of Diamond Bar 21810 Copley Drive Deleted: 21825 Diamond Bar, CA 91765 If to Contractor: I Deleted: Susan Moulton USA Waste of California, 11 Lc. Deleted: Director of Public Sector Services, Grea Attn: District Manager Angeles Market 13940 East Live Oak Avenue " Formatted: Indent: Left: 2" Baldwin Park, CA 91706 � --_ Deleted:1970 E. 213th ¶ ,y Long Beach CA 90810 ^ r ~ \ Formatted: Font: Book Antiqua, 12 pt `uUy w. rvabie ivialtc%Muieiii- 9081 Tujunga Avenue Sun Valley, CA 91352 Attn: Legal Counsel The address to which communications may be delivered may be changed from time to time by a written notice given in accordance with this section. Notice shall be deemed given on the day it is personally delivered or, if mailed, three days from the date it is deposited in the mail. This notice shall also be sent by e-mail to the City Manager. 12.14 Representatives of the Parties Formatted: Indent: Left: 0", First line: 0" Formatted: Font: Book Antiqua, 12 Formatted: Indent: Left: 2" 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 Deleted: February 8, 2017January 27, 2017 y 16, 2017 -111- City of Diamond Bar - Residential , Packet Pg. 416 all of such authority to subordinate employees. Contractor may rely upon actions taken by such delegates if they are within the scope of the authority so delegated to them. Contractor shall, by the Effective Date, designate in writing a responsible officer who shall serve as the representative of Contractor in all matters related to this Agreement and shall inform City in writing of such designation and of any limitations upon his or her authority to bind Contractor. City may rely upon action taken by such designated representative as actions of Contractor unless they are outside the scope of the authority expressly delegated to him/her by Contractor as communicated to City. 12.15 City Free to Negotiate with Third Parties City may investigate all options for the Collection, transporting, Recycling, processing and Disposal of Solid Waste for periods during which this Agreement has expired or been terminated. Without limiting the generality of the foregoing, City may solicit proposals from Contractor and from third parties for the provision of Solid Waste Collection Services which are the subject of this Agreement, including without limitation Collection services, Disposal services, Recycling services, Green Waste services and processing, and any combination thereof, and may negotiate and execute agreements for such services which will take effect upon the expiration or earlier termination of this Agreement pursuant to Section 11.2 or otherwise. 12.16 Compliance with Municipal Code Contractor shall comply with those provisions of the municipal code of City which are applicable, and with any and all amendments to such applicable provisions during the term of this Agreement. To the extent that an amendment to the Code results in a material change in the cost of services provided by Contractor, such changes will be addressed as a chanee in scone in accordance with Section 2.10.1. 12.17 Privacy Contractor shall strictly observe and protect the rights of privacy of Customers. Information identifying individual Customers or the composition or contents of a Customer's waste stream shall not be revealed to any Person, governmental unit, private agency, or company, unless upon the authority of a court of law, by statute, or upon valid authorization of the Customer. This provision shall not be construed to preclude Contractor from preparing, participating in, or assisting in the preparation of -112- of Diamond Bar - Residential 8.2.b Deleted: February 8, 2017January 27, 2017 Packet Pg. 417 8.2.b waste characterization studies or waste stream analyses which may be required by AB 939. This provision shall not apply to reports or records provided to City pursuant to this Agreement. 12.18 Proprietary Information, Public Records The City acknowledges that a number of the records and reports of Contractor are proprietary and confidential. Contractor is obligated to permit City inspection of its records on demand and to provide copies to City where requested. City will endeavor to maintain the confidentiality of all proprietary information provided by Contractor. Notwithstanding the foregoing, any documents provided by Contractor to City that are public records may be disclosed pursuant to the California Public Records Act. 12.19 Guarantee of Contractor's Performance Pursuant to a guarantee in substantially the form attached as Exhibit 4, Waste Management Inc., a corporation which owns all of the issued and outstanding common stock of Contractor, has agreed to guarantee Contractor's performance of this Agreement. The Guarantee is being provided concurrently with Contractor's execution of this Agreement. Deleted: February 8, 2017January 27, 2017 -113- City of Diamond Bar - Residential Packet Pg. 418 8.2.b ARTICLE 13 MISCELLANEOUS PROVISIONS 13.1 Entire Agreement This Agreement contains the entire integrated agreement and understanding concerning the subject matter herein and supersedes and replaces any prior negotiations, promises, proposals (including Contractor's Proposal), and agreements between the Parties, whether written or oral. The Parties acknowledges this document has been executed with the consent and upon the advice of counsel. Each of the Parties acknowledges that no Party or agent or attorney of any other party has made any promise, representation, or warranty, express or implied, not contained in this Agreement, to induce the other Party to execute this instrument. 13.2 Section Headings The article headings and section headings in this Agreement are for convenience of reference only and are not intended to be used in the construction of this Agreement nor to alter or affect any of its provisions. 13.3 References to Laws and Other Agreements All references in this Agreement to laws shall be understood to include such laws as they may be subsequently amended or recodified, unless otherwise specifically provided. 13.4 Interpretation This Agreement, including the Exhibits attached hereto, shall be interpreted and construed reasonably and neither for nor against either Party, regardless of the degree to which either Party participated in its drafting. 13.5 Agreement This Agreement may not be modified or amended in any respect except by a writing signed by the Parties. j Deleted: February 8, 2017January 27, 2017 -114- City of Diamond Bar - Residential Packet Pg. 419 13.6 Severability Invalidation of any of the provisions contained in this Agreement, or of the application thereof to any person, by judgment or court order, shall in no way affect any of the other provisions hereof or the application thereof to any other person or circumstance, and that same shall remain in full force and effect, unless enforcement of this Agreement, as so invalidated, would be unreasonable or inequitable under all the circumstances or would frustrate the purposes of this Agreement and/or the rights and obligations of the parties hereto. 13.7 Exhibits Each of Exhibits identified as Exhibit "1" through "6" is attached hereto and incorporated herein and made a part hereof by this reference. 13.8 Attorneys' Fees If either Party to this Agreement is required to initiate or defend or made a party to any action or proceeding between the Parties in any way connected with this Agreement, the prevailing Party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to recover its reasonable attorney's fees and costs from the opposing Party. Attorneys' fees shall include attorney's fees on any appeal. A Party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery, expert fees, and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action. 13.9 Effective Date This Agreement shall be effective upon the date it has been executed by both Parties. Once so executed, the City's City Clerk shall insert the later date thereof in the opening paragraph of this Agreement. -115- of Diamond Bar - Residential 8.2.b Deleted: February 8, 2017January 27, 2017 Packet Pg. 420 8.2.b m c IN WITNESS WHEREOF, City and Contractor have executed this Agreement as of the day and LL year first above written. ami CITY OF DIAMOND BAR ("City") DATED: DATED: CITY OF DIAMOND BAR CONTRACTOR By: City Manager Approved as to form: By: City Attorney ATTEST: City Clerk By. NAME TITLE USA Waste.ofCalifor NAME OF COMPANY ADDRESS IY�IIhI�:[�AIY -116- E m a� �a c a� rn 0 Deleted: COMPANY r r m c m E nla, Inc. Deleted. Management Formatted: Underline L a� Formatted: Tab stops: 6.75', Left + Not at 7 Q a� rn a� c m c a� E Q CU C0 c 0 E M N CD Deleted: February 8, 2017January 27, 2017 E of Diamond Bar - Residential . U M rr w a Packet Pg. 421 February 16, 2017 EXHIBIT 1 PUBLIC EDUCATION PLAN (to be attached after City approval per Section 5.3.2) City of Diamond Bar - Residential 8.2.b Deleted: February 8, 2017January 27, 2017 Packet Pg. 422 EXHIBIT 2 INITIAL MAXIMUM RATES' Following are the rates through June 30,2918: Residential Service Rate Cart Service - one each refuse, recycling, and green waste cart Standard Rates - 35 -gallon refuse cart - 64 -gallon refuse cart - 96 -gallon refuse cart $22.06 per month $27.18 per month $32.62 per month Senior Reduced Rates - 35 -gallon refuse cart $18.98 per month - 64 -gallon refuse cart $23.45 per month - 96 -gallon refuse cart $27.96 per month Additional Carts 35 -gallon refuse cart $6.90 per month 64 -gallon refuse cart $10.34 per month 96 -gallon refuse cart $13.82 per month Additional Recycling Cart (beyond two carts) $1.92 per month Additional Green Waste Cart (beyond one cart) $4.88 per month Additional Cart Rates and Services Backyard Service Surcharge $22.88 per month Yard Waste Reduction Discount $3.31 per month Additional Special Overage Pickup for Automated Cart Customers (in excess of two pickups per year) $9.32 per pickup Additional Bulky Item pickups (in excess of permitted annual free pickups) $34.92 per item Cart Exchange (after free -exchange period) $17.46 per request Emergency Service Rates - one crew and one collection truck $98.96/hour Deleted: for August 16, 2010 Deleted: 2011 8.2.b *Including all fees retained by, or paid to, City. Deleted: February 8, 2017January 27, 2017 i February 16, 2017 2-1 City of Diamond Bar - Residential Packet Pg. 423 EXHIBIT 2 INITIAL MAXIMUM RATES' (continued) Following are the rates through June 30,2018: Temporary Services" Rate Temporary Roll -Off Box, 40 -cubic yards - including container rental, pull and disposal costs up to 6 tons $592.94 Temporary Roll -Off Box, Low Boy - including container rental, pull and disposal costs up to 6 tons $628.94 Temporary Bins - 3 cubic yards $133.75 Temporary Bins - 6 cubic yards $165.17 Container Rental Fee - for temporary containers retained beyond seven days without being serviced $24.18 day Redelivery/ Return Trip Fee $104.21 * Including all fees retained by, or paid to, City. "* Rates to be set equal to rates in City's Bin and Roll -Off Service Customer Solid Waste Management Services agreement with Valley Vista Services. February 16, 2017 2-2 of Diamond Bar - Residential 8.2.b Deleted: for August 16, 2010 -- Deleted: 2011 Deleted: February 8, 2017January 27, 2017 Packet Pg. 424 8.2.b EXHIBIT 3A EXAMPLE RATE ADJUSTMENT FORMULA - RESIDENTIAL RATES Step One: Calculate percentage change in indices Row Adjustment Factor Index Old Index Value New Index Value Percent Change in Index ((Column B+ Column A) -1) 1 Labor 1 $ 20.91 $ 21.45 2.6% 2 Fuel (2) 200.8 176.6 -12.1% 3 Equipment (3) 139.3 142.0 1.9% 4 Disposal 4 105.8 110.8 4.7% 5 Transfer/Transport (5) 425.8 432.0 1.5% 6 All Other (6) 240.9 245.4 1.9% Step Two: Determine components Row Adjustment Factor Index Cost Component Weighted as a °/a of Component Total (7) Percent Change in Index Total Weighted Change (from Column C) (Column D x Column E) 7 Labor (1) 24.8% 2.6% 0.6% 8 Fuel (2) 3.0% -12.1% -0.4% 9 Equipment 3 16.3% 1.9% 0.3% 10 Disposal 4) 8.0% 4.7% 0.4% 11 Transfer/Transport (5) 6.0% 1.5% 0.1% 12 All Other 6 41.9% 1.9% 0.8% 13 ITotal 1 100.0% 1.8% 1.8% Step Three: Apply percentage change to rates Step Four: Re -weight cost components Row Adjustment Factor Index 1 Percent Change as Cost Component Applied to Rate Weighting (Column D) PP r Adjustment (Column E) Increase in Cost Cost Component Components Column Increased Column K+ px Col ( ( K x Column L) Column M) Total Weighted 19 Labor Rate Increase or Adjusted Rate Row Rate Category (8) Existing Customer Rate Percentage Change (Row Decrease (Column G x (Column G + Column 1) (2) 3.0% -12.1% 13, Column F) 2.6% Column H) ment 21 Equipment 14 96 -gallon cart service $ 32.59 1.8% $ 0.59 $ 33.18 15 64 -gallon cart service $ 27.15 1.8% $ 0.49 $ 27.64 16 35 -gallon cart service $ 22.04 1.8% $ 0.40 $ 22.44 17 96 -gallon senior service $ 27.93 1.8% $ 0.50 $ 28.43 18 lExtra Bulky Item $ 34.89 1.8% 1 $ 0.63 $ 35.52 Step Four: Re -weight cost components Row Adjustment Factor Index 1 Percent Change as Cost Component Applied to Rate Weighting (Column D) PP r Adjustment (Column E) Increase in Cost Cost Component Components Column Increased Column K+ px Col ( ( K x Column L) Column M) Cost Components Re - weighted to Equal 100% 19 Labor (1) 24.8% 2.6% 0.6% 25.4% 25.0% 20 Fuel (2) 3.0% -12.1% -0.4% 2.6% 2.6% ment 21 Equipment 3) 16.3% 1.9% 0.3% 16.6% 22 Disosal (4) 8.0% 4.7% 0.4% 8.4% 8.3% 23 Transfer/Transport (5) 6.0% 1.5% 0.1% 6.1% 6.0% 24 All Other 6 41.9% 1.9% 0.8% 42.7% 41.8% 9 25 ITotal 100.0% 101.8% 100.0% (1) Rate increased for a "Driver" as described in the Articles of Agreement between Waste Management of San Gabriel/Pomona Valley, Inc. and Teamsters Automotive Industrial and Allied Workers Local No. 495. (2) Producer Price Index, WPU05522101 Fuels and related products and power. (3) Producer Price Index, PCU336120336120, Heavy duty truck manufacturing - average annual change. (4) Producer Price Index, PCU21232121232104 for Construction sand and gravel, West - average annual change. (5) Consumer Price Index for All Urban Consumers (CUUROOOOSEHG02) Garbage and trash collection (6) Consumer Price Index for All Urban Consumers (CUURA421SAOLIE), all items less food and energy index - Los Angeles -Riverside -Orange County - average annual change. (7) July 1, 2018 rate adjustment weightings come from Article 6.4.2. Subsequent years' weightings will come from Column O of the previous year rate adjustment (8) Example rates listed below. Adjustment applies to all applicable rate categories. (9) Rounded down by 0.1 % to allow the Total in Line 25 to equal 100.0%. Deleted: February 8, 2017January 27, 2017 3-1 City of Diamond Bar - Residential Packet Pg. 425 EXHIBIT 3B EXAMPLE RATE ADJUSTMENT FORMULA Example Calculation of an Annual Change in a Published Index Consumer Price Index - All Urban Consumers, Los Angeles -Riverside -Orange County, CA All items less food and energy, CUUSA421SAOLlE Year I Jan I Feb I March I April I May I June I July I August I Sept I Oct I Nov I Dec I Average 2014 239.084 239.908 240.322 240.507 240.366 240.460 240.981 241.574 242.016 242.360 241.842 241.491 240.909 2015 242.003 242.806 243.957 244.138 244.800 245.236 245.394 245.896 246.488 247.539 248.120 248.140 245.376 Average Change: 1.9% FebruarV 16, 2017 3 - 2 City of Diamond Bar - Residential 8.2.b Deleted: February 8, 2017January 27, 2017 Packet Pg. 426 8.2.b EXHIBIT 4 CORPORATE GUARANTY Guaran THIS GUARANTY (the "Guaranty) is given as of the day of , 2009. THIS GUARANTY is made with reference to the following facts and circumstances: A. USA Waste of California dba Waste Management of San Gabriel/Pomona Valley, hereinafter ("Owner") is a corporation organized under the laws of the State of California, all of the issued and outstanding stock of which is owned by Waste Management, Inc. (Guarantor). Deletes: xolau< B. Owner and the City have negotiated an Agreement for collection, processing, and disposal of solid waste dated as of (hereinafter "Agreement"). A copy of this Agreement is attached hereto. C. It is a requirement of the Agreement, and a condition to the City entering into the Agreement, that Guarantor guaranty Owner's performance of the Agreement. D. Guarantor is providing this Guaranty to induce the City to enter into the Agreement. NOW, THEREFORE, in consideration of the foregoing, Guarantor agrees as follows: 1. Guaranty of the Agreement. Guarantor hereby irrevocably and unconditionally guarantees to the City the complete and timely performance, satisfaction and observation by Owner of each and every term and condition of the Agreement which Owner is required to perform, satisfy or observe. In the event that Owner fails to perform, satisfy or observe any of the terms and conditions of the Agreement, Guarantor will promptly and fully perform, satisfy or observe them in the place of the Owner or cause them to be performed, satisfied or observed. Guarantor hereby guarantees payment to the City of any damages, costs or expenses which might become recoverable by the City from Owner due to its breach of the Agreement. 2. Guarantor's Obligations Are Absolute. The obligations of the Guarantor hereunder are direct, immediate, absolute, continuing, unconditional and unlimited, j Deleted: February 8, 2017January 27, 2017 February 16, 201 ; 4-1 City of Diamond Bar - Residential i Packet Pg. 427 and with respect to any payment obligation of Owner under the Agreement, shall constitute a guarantee of payment and not of collection, and are not conditional upon the genuineness, validity, regularity or enforceability of the Agreement. In any action brought against the Guarantor to enforce, or for damages for breach of, its obligations hereunder, the Guarantor shall be entitled to all defenses, if any, that would be available to the Owner in an action to enforce, or for damages for breach of, the Agreement (other than discharge of, or stay of proceedings to enforce, obligations under the Agreement under bankruptcy law). 3. Waivers. Except as provided herein the Guarantor shall have no right to terminate this Guaranty or to be released, relieved, exonerated or discharged from its obligations under it for any reason whatsoever, including, without limitation: (1) the insolvency, bankruptcy, reorganization or cessation of existence of the Owner; (2) the actual or purported rejection by a trustee in bankruptcy of the Agreement, or any limitation on any claim in bankruptcy resulting from the actual or purported termination of the Agreement; (3) any waiver with respect to any of the obligations of the Agreement guaranteed hereunder or the impairment or suspension of any of the City's rights or remedies against the Owner; or (4) any merger or consolidation of the Owner with any other corporation, or any sale, lease or transfer of any or all the assets of the Owner. Without limiting the generality of the foregoing, Guarantor hereby waives the rights and benefits under California Civil Code Section 2819. The Guarantor hereby waives any and all benefits and defenses under California Civil Code Section 2846, 2849, and 2850, including without limitation, the right to require the City to (a) proceed against Owner, (b) proceed against or exhaust any security or collateral the City may hold now or hereafter hold, or (c) pursue any other right or remedy for Guarantor's benefit, and agrees that the City may proceed against Guarantor for the obligations guaranteed herein without taking any action against Owner or any other guarantor or pledgor and without proceeding against or exhausting any security or collateral the City may hold now or hereafter hold. City may unqualifiedly exercise in it sole discretion any or all rights and remedies available to it against Owner or any other guarantor or pledgor without impairing the City's rights and remedies in enforcing this Guaranty. of the Agreement which does not rec affect the liability of the Guarantor )roval shall not The Guarantor hereby expressly waives diligence, presentment, demand for payment or performance, protest and all notices February 16, 201 ; 4-2 City of Diamond Bar - Residential 8.2.b Deleted: The Guarantor hereby waives and agrc waive at any future time at the request of the Citl extent now or then permitted by applicable law, < all rights which the Guarantor may have or whic] time hereafter may be conferred upon it, by statu regulation or otherwise, to avoid any of its obliga under, or to terminate, cancel, quit or surrender t Guaranty. Waiver of any provision of this Agreer shall waive the same as applied to the Guarantor, shall not be deemed a waiver of or affect the liabi Guarantor for compliance with any other provisi- forth in this Agreement. Deleted: ¶ Deleted: February 8, 2017January 27, 2017 w a Packet Pg. 428 whatsoever, including, but not limited to, notices of non-payment or non-performance, notices of protest, notices of any breach or default, and notices of acceptance of this Guaranty. If all or any portion of the obligations guaranteed hereunder are paid or performed, Guarantor's obligations hereunder shall continue and remain in full force and effect in the event that all or any part of such payment or performance is avoided or recovered directly or indirectly from the City as a preference, fraudulent transfer or otherwise, irrespective of (a) any notice of revocation given by Guarantor or Owner prior to such avoidance or recovery, and (b) payment in full of any obligations then outstanding. 4. Term. This Guaranty is not limited to any period of time, but shall continue in full force and effect until all of the terms and conditions of the Agreement have been fully performed or otherwise discharged and Guarantor shall remain fully responsible under this Guaranty without regard to the acceptance by the City of any performance bond or other collateral to assure the performance of Owner's obligations under the Agreement. Guarantor shall not be released of its obligations hereunder so long as there is any claim by the City against Owner arising out of the Agreement based on Owner's failure to perform which has not been settled or discharged. 5. No Waivers. No delay on the part of the City in exercising any rights under this Guaranty or failure to exercise such rights shall operate as a waiver of such rights. No notice to or demand on Guarantor shall be a waiver of any obligation of Guarantor or right of the City to take other or further action without notice or demand. No modification or waiver of any of the provisions of this Guaranty shall be effective unless it is in writing and signed by the City and by Guarantor, nor shall any waiver be effective except in the specific instance or matter for which it is given. 6. Attorney's Fees. In addition to the amounts guaranteed under this Guaranty, Guarantor agrees in the event of Guaranty's breach of its obligations to pay reasonable attorney's fees and all other reasonable costs and expenses incurred by the City in enforcing this Guaranty, or in any action or proceeding arising out of or relating to this Guaranty, including any action instituted to determine the respective rights and obligations of the parties hereunder. 7. Governing Law: Jurisdiction. This Guaranty is and shall be deemed to be a contract entered into in and pursuant to the laws of the State of California and shall be governed and construed in accordance with the laws of California without regard to its February 16, 201 ; 4-3 City of Diamond Bar - Residential Deleted: February 8, 2017January 27, 2017 Packet Pg. 429 conflicts of laws, rules for all purposes including, but not limited to, matters of construction, validity and performance. Guarantor agrees that any action brought by the City to enforce this Guaranty may be brought in any court of the State of California and Guarantor consents to personal jurisdiction over it by such courts. Guarantor appoints the following person as its agents for service of process in California: With a copy by certified mail to: 8. Severability. If any portion of this Guaranty is held to be invalid or unenforceable, such invalidity will have not have an affect upon the remaining portions of this Guaranty, which shall be severable and continue in full force and effect. 9. Binding On Successors. This Guaranty shall inure to the benefit of the City and its successors and shall be binding upon Guarantor and its successors, including transferee(s) of substantially all of its assets and its shareholder(s) in the event of its dissolution or insolvency. 10. Authori . Guarantor represents and warrants that it has the corporate power and authority to give this Guaranty, that its execution of this Guaranty has been authorized by all necessary action under its Article of Incorporation and By -Laws, and that the person signing this Guaranty on its behalf has the authority to do so. 11. Notices. Notice shall be given in writing, deposited in the U.S. mail, registered or certified, first class postage prepaid, addressed as follows: To the City: City Manager City of Diamond Bar 1810 Copley Drive Diamond Bar, CA 91765 February 16, 2017 8.2.b Deleted: 21825 Deleted: February 8, 2017January 27, 2017 4-4 City of Diamond Bar - Residential Packet Pg. 430 with a copy to the City Attorney at the same address. To the Guarantor: By: (title) By: (title) February 16, 201 4-5 City of Diamond Bar - Residential 8.2.b Deleted: February 8, 2017January 27, 2017 Packet Pg. 431 EXHIBIT 5 Contractor's Faithful Performance Bond KNOW ALL MEN BY THESE PRESENTS: That 'a California , as PRINCIPAL, and a Corporation organized and doing business by virtue of the laws of the State of California, and duly licensed for the purpose of making, guaranteeing, or becoming sole surety upon bonds or undertakings required or authorized by the laws of the State of California, as SURETY, are held and firmly bound to City, hereinafter called OBLIGEE, in the penal sum of one hundred twenty five thousand dollars ($125,000) lawful money of the United States, for the payment of which, well and truly to be made, we and each of us hereby bind ourselves, and our and each of our heirs, executors, administrators, successors, and assigns, jointly and severally, firmly by these presents. NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH THAT: WHEREAS, the above bounden PRINCIPAL has entered into a contract, entitled "RESIDENTIAL SOLID WASTE MANAGEMENT SERVICES" with City, to do and perform the following work, to wit: Collect, Process and dispose of Solid Waste generated within City, in accordance with the contract. NOW, THEREFORE, if the above bounden PRINCIPAL shall well and truly perform, or cause to be performed each and all of the requirements and obligations of said contract to be performed by said PRINCIPAL, as in said contract set forth, then this BOND shall be null and void; otherwise it will remain in full force and effect. And the said Surety, for value received hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the contract or to the work to be performed thereunder or the specifications accompanying the same shall in any wise affect its obligations on this BOND, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the contract or to the work or to the specifications. February 16, 2017 5-1 of Diamond Bar - Residential 8.2.b Deleted: February 8, 2017January 27, 2017 Packet Pg. 432 In the event suit is brought by OBLIGEE to enforce the provisions of this bond, said Surety will pay to OBLIGEE a reasonable attorney's fee, plus costs of suit, in an amount to be fixed by the court. IN WITNESS WHEREOF, said PRINCIPAL and said SURETY have caused these presents to be duly signed and sealed this a California Corporation By: (PRINCIPAL) (SEAL) February 16, 201 DAY OF 200_. SURETY By: (ATTORNEY IN FACT) (SEAL) 5-2 City of Diamond Bar - Residential 8.2.b Deleted: February 8, 2017January 27, 2017 Packet Pg. 433 EXHIBIT 6 NOTARY CERTIFICATION ACKNOWLEDGMENT State of California County of ) On before me, (insert name and title of the officer) personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) February 16, 2017 City of Diamond Bar - Residential 8.2.b Deleted: February 8, 2017January 27, 2017 Packet Pg. 434 CITY COUNCIL 8.3 Agenda #: 8.3 Meeting Date: February 21, 2017 AGENDA REPORT TO: Honorable Mayor and Members of the City Council FROM: James DeStefano, City Managers { TITLE: APPROVE AMENDED AND RESTATED` AGREEMENT BETWEEN CITY OF DIAMOND BAR AND VALLEY VISTA SERVICES FOR BIN ROLL -OFF BOX CUSTOMER SOLID WASTE MANAGEMENT SERVICES RECOMMENDATION: Approve agreement. FINANCIAL IMPACT: The agreement will generate total annual revenues of approximately $481,500 as described in detail in subsequent sections. BACKGROUND: Valley Vista Services (VVS) has been the City's exclusive commercial solid waste hauler since 2000 under two separately negotiated franchise agreements. Under these agreements, VVS has provided good customer service, maintained competitive rates, and offered a variety of refuse and recycling programs and options to residents and businesses. The eight year term of the current agreement expires August 15, 2018. At the Study Session of March 22, 2016, the City Council directed staff to initiate exclusive negotiations with VVS. To assist with the complex process of franchise negotiations and ensure customer -friendly, cost-effective, and environmentally -friendly terms, the City released a Request for Proposals (RFP) for Solid Waste Consulting Services and received three proposals by the April 14, 2016 deadline. Upon receipt and review of the RFP responses, the City Council, at the Regular Meeting of June 7, 2016, awarded a contract to HF&H Consultants, LLC (HF&H). HF&H is an industry leader, assisting more than 400 local agencies with solid waste and recycling franchise negotiations, administration, and programming. As noted below, the agreed-upon franchise terms include a reimbursement from VVS for the City's cost for this consulting. DISCUSSION: The goals of the exclusive negotiation process was to update and improve upon a solid foundational Agreement by: • Providing high quality refuse and recycling services at competitive rates Packet Pg. 435 8.3 • Expanding special recycling, e -waste, and household hazardous waste services. • Generating revenues/added value to the public that can be used to fund key community -wide initiatives and enhanced Environmental Services programs • Maintaining continuity of service/avoiding service interruption Following a series of productive meetings that commenced in August 2016, the City's team of staff, consultants, and the City Attorney concluded negotiations, coming to initial terms on an amended and restated franchise agreement for commercial solid waste services with VVS. The amended and restated agreement, which is attached as Exhibit A, begins immediately upon approval of the City Council, with all newly negotiated terms and conditions superseding those of the previous franchise. Key provisions of the amended and restated agreement include: 1. Term of Agreement Extends the current agreement by five years, with a new expiration date of August 31, 2023. The City retains the sole option to extend the agreement by a period of no more than two years. 2. Regular Service The City's residential sector utilizes a system known as source separation. This typically requires residents to separate their waste into three different barrels - one for trash, one for recyclables, and one for green waste. For the commercial sector, new technologies have made it possible to achieve state -mandated waste diversion requirements. Trash collected from Diamond Bar businesses and multi -family customers is taken directly to the Valley Vista Services Material Recovery Facility (MRF) in the City of Industry. Collection trucks dump their loads onto a massive tipping floor where the trash begins its journey through a series of automated and manual sorting lines to extract recyclables. Once recyclables are removed from the waste stream, the residual trash is loaded onto large transfer trucks and taken to area landfills. The VVS MRF is capable of processing more than 5,000 tons of waste each day. It is fully enclosed with a high-tech air filtration system which eliminates odor from escaping to the outside air. The number and types of (permanent) containers in service is dependent on the needs of the businesses and multi -family complexes. The majority of Valley Vista customers receive the standard three (3) cubic yard bin for mixed refuse and recyclables. Valley Vista offers customers smaller capacity bins of 1.5 cubic yards, and larger capacity roll -off boxes up to 40 cubic yards. All refuse generated in the City is taken to a material recycling facility, and sorted by green waste, recyclables, and refuse. 3. Rates The agreement freezes commercial service rates at current levels and precludes annual adjustment requests during the first year of the agreement, an estimated ratepayer savings of $48,278. VVS is eligible for a rate increase request beginning in July 2018. Rate increase requests are based on a standardized formula that accounts for actual business-related costs, including annual changes in disposal rates, labor, fuel, and other factors. The standardized formula may also help to limit extraordinary rate increases. Packet Pg. 436 8.3 A comparison of the City's rates to other agencies in the region is included below. City Company Commercial & Multi -Family Std. Service Monthly Rate (3 yard bin) Diamond Bar WM 132.98 Arcadia WM Non-exclusive -rates unavailable Azusa Athens 110.40 Baldwin Park WM 185.28 Chino Hills Republic 98.73 Covina Athens 165.25 Glendora Athens 162.22 La Verne WM 144.55 San Dimas WM 166.17 San Marino Athens 116.44 S. Pasadena Athens 153.71 Temple City Athens 199.99 Walnut Valley Vista 134.61 W. Covina Athens 183.13 It should be noted that each agency's agreement contains unique contractual provisions, payments, and policies that result in different rates. These unique features make it extremely difficult to make an apples -to -apples comparison between agencies. For example, Diamond Bar's agreements provide residents with a wide variety of refuse, recycling, and environmental services programs at little or no cost (see below for details), whereas other agencies may choose to subsidize or not offer such programs. Similarly, Diamond Bar has chosen to collect a franchise fee while others have other local funding sources (malls, auto dealerships, racetracks, etc.) to make up the difference. These policy choices have a significant impact on rates. 4. Fees The City of Diamond Bar prides itself on prudent fiscal management, making best use of the resources that are available. Diamond Bar does not have the luxury of major commercial developments, auto dealerships, or major tourist attractions that generate significant tax revenues to be used to provide essential public services. Diamond Bar's 5.9% share of the County property tax pool is among the lowest in the County, further highlighting the need to identify and secure the revenue sources required to maintain expected service levels into the future. The amended and restated agreement includes two customer -based fees and several non -customer payments. AB 939 and Franchise Fees rates are based on gross revenues generated and are unchanged from current levels. AB 939 and Franchise Fees will generate approximately $400,000 in year one of the agreement. A new Environmental Education Fee of $6,500 is due to the City annually. In addition, a one-time contracting reimbursement fee of $75,000 is due upon execution of the contract. In total, payments of approximately $481,500 will be made to the City in the first year of the agreement. Street sweeping and road Packet Pg. 437 8.3 maintenance payments will be adjusted by CPI each year thereafter. A detailed accounting for these fees and payments is as follows: • AB 939 Fees — 13% of monthly bill The AB 939 rate is unchanged and has not been increased from current levels. It is estimated that $290,000 in AB 939 fees will be generated in the first year of the franchise. AB 939 fees are used to fund the City's environmental services programs, including public events such as Exo Expo/America Recycles Day, Earth Day, Arbor Day, annual Household Hazardous Waste Collection, and the Summer Smart Gardening Composting Workshop series, recycling programs, including collection of household batteries and spent light bulbs (partnership with Ace Hardware), business and school recycle bin program, storm water pollution prevention, and education and outreach, including Envirolink, street sweeping magnets, and the Discovery Cube Eco Challenge program for local fifth and sixth grade students. • Franchise Fees — 5% of monthly bill The franchise fee rate is unchanged and has not been increased from current levels. It is estimated that $111,600 in Franchise Fees will be generated in the first year of the agreement. Franchise fees are used to offset the cost of franchise administration and General Fund expenditures, including the City's law enforcement contract, road maintenance, park maintenance and development, Parks & Recreation programming, special events like the City Birthday and Concerts/Movies in the Park, and other city-wide programs that benefit the community at large. 5. Other Funding Per the terms of the franchise, VVS shall make the following payments to the City: • Environmental Education Funding - $6,500 annually This annual payment will be used to fund various community education programs, including the Discovery Cube program for fifth and sixth grade students. • Contracting Funds - $75,000 one-time payment This one-time VVS payment will offset solid waste consulting costs related to the negotiations. 6. Minimum Diversion Requirements VVS must divert from landfilling a minimum of 25% of all solid waste collected and a minimum 75% of all construction and demolition materials collected. 7. Organic Waste Collection Services In October 2014, Governor Brown signed Assembly Bill 1826 (AB 1826), requiring businesses to recycle their organic waste (food waste, yard waste, food -soiled paper and wood waste) starting in April 1, 2016. To better assist each business in meeting the requirements of AB 1826, the city is working with VVS to Packet Pg. 438 8.3 offer customized, on site recycling program assistance to businesses. To comply with AB 1826, VVS will offer cart services to multi -family and commercial properties and assist the City in identifying properties that have yet to subscribe for organics services. Organic waste may be taken to Puente Hills for processing, once cleared of contaminants, the slurry is pumped into anaerobic digesters, which contains sewage sludge from the plants waste water treatment operations. The digester produces biogas, which is then used to produce electricity. 8. Program Enhancements The City and VVS have agreed to a comprehensive and proactive approach to customer service and environmental stewardship. In addition to the provision of weekly commercial refuse collection, bin, and roll -off services, the agreement includes an extensive list of enhanced services, including: • Scout Service Businesses and multi -families complexes can sometimes experience space constraints that impedes safe collection of refuse from the enclosure locations. Scout Services would allow VVS to safely roll the container to an alternate pick-up point and once serviced, return it to its enclosure space. • On-call Bulky Item Pickup/E-waste Collection & Disposal Multi- family residents are eligible for four free bulky item pickups per year. Bulky items may include furniture, appliances, large amounts of green waste, and electronic waste such as televisions, computers, and cell phones. • Door -to -Door Household Hazardous Waste (HHW) Collection & Disposal VVS will provide multi -family residents a door-to-door call-in household hazardous waste (HHW) collection service at no additional cost. HHW includes syringes/sharps, paint products, automotive wastes, household and pool chemicals and cleaners, etc. • Holiday Tree Collection & Disposal Each year, from December 26 to the second Sunday in January, VVS will dispose of natural holiday trees (maximum of seven feet in length and free of all decoration) placed out for collection. • City Facilities Service VVS will provide free refuse, recycling, and green waste collection services to City facilities, including City Hall/Library, Diamond Bar Center, City parks and free storage bins for the City's street maintenance operations. The free services are valued at approximately $102,000 annually, which would otherwise be paid from the City's General Fund. • City Sponsored Events VVS will provide free bin and container services at City events, which may include the City Birthday Celebration, Concerts in the Park, and Fourth of Packet Pg. 439 July Blast, among others. This free service is valued at approximately $5,000 annually, which would otherwise be paid from the City's General Fund. • Educational and Marketing Materials To better inform commercial and multi -family residents, VVS is required to produce a variety of print materials, including a comprehensive customer guide with service and educational information, a minimum of four billing inserts per year and an annual brochure or other mailing as directed by the City. These items shall promote and explain all solid waste programs offered, the benefits of recycling, proper methods of disposing of HHW and e -waste, etc. 9. Accountability To ensure franchisee compliance and accountability to the City and its residents, a series of performance management requirements are included. • Reporting - VVS will provide standardized reporting of diversion rates/AB 939 compliance, special services rendered (bulky item/HHW, etc.), customer outreach/complaints, financial statements, etc. City staff will meet regularly with VVS representatives to review reports and discuss matters of concern. • Performance Audits - The City may choose to conduct an audit of VVS. The scope of the audit is at the City's discretion, and may include general contract compliance, customer service levels, financial review, tonnage/diversion rates, etc. VVS shall reimburse the City for the cost of the audit, up to $50,000 for the first audit and up to $35,000 for each audit thereafter. • Customer Service Satisfaction Survey - at the City's request, VVS will conduct a survey of customers to determine overall customer satisfaction with services. The content of the survey must be approved by the City. SUMMARY: Staff and VVS agree that the goals of the exclusive negotiation period have been met. Because the agreed-upon terms provide business owners and multi -family residents with robust services at competitive rates while meeting all state environmental and diversion mandates, staff recommends the City Council approve the amended and restated agreement with VVS. LEGAL REVIEW: The City Attorney has reviewed and approved the document as presented. PREPARED BY: 8.3 Packet Pg. 440 AAW 190102AAW ya !Lean, A sisOnt City Manager 2/21/2017 REVIEWED BY: *M,nr,ayWE511, Fingnqtf Director 2/8/2017 Attachments: 1. 8.3.a VVS Amended and Restated Agreement 2. 8.3.b VVS Amended and Restated Agreement - Redline 8.3 Packet Pg. 441 AMENDED AND RESTATED AGREEMENT BETWEEN CITY OF DIAMOND BAR AND VALLEY VISTA SERVICES FOR BIN AND ROLL -OFF BOX CUSTOMER SOLID WASTE MANAGEMENT SERVICES February 16, 2017 8.3.a m L :c c L U. 2 An M to r Packet Pg. 442 8.3.a AGREEMENT BETWEEN CITY OF DIAMOND BAR AND VALLEY VISTA SERVICES FOR BIN AND ROLL -OFF BOX SOLID WASTE MANAGEMENT SERVICES TABLE OF CONTENTS PA, -,,e RECITALS 1 ARTICLE1.................................................................................................................................................3 DEFINITIONS.......................................................................................................................................................................... 3 1.1 AB 939......................................................................................................................................................................3 1.2 AFFILIATE................................................................................................................................................................. 3 1.3 BILLINGS...................................................................................................................................................................4 1.4 BIN............................................................................................................................................................................4 1.5 BIN SERVICE............................................................................................................................................................. 4 1.6 BULKY ITEMS............................................................................................................................................................ 4 1.7 CART.........................................................................................................................................................................4 1.8 CITY.......................................................................................................................................................................... 5 1.9 COLLECT/ COLLECTION ...........................................................................................................................................5 1.10 COMMERCIAL SERVICES...................................................................................................................................... 5 1.11 COMMERCIAL PREMISES...................................................................................................................................... 5 1.12 CONTRACTOR...................................................................................................................................................... 5 1.13 CONTRACTOR COMPENSATION.......................................................................................................................... 5 1.14 CONSTRUCTION AND DEMOLITION DEBRIS....................................................................................................... 6 1.15 CONTAINER......................................................................................................................................................... 6 1.16 CPI.......................................................................................................................................................................6 1.17 CUSTOMER...........................................................................................................................................................6 1.18 DISPOSAL............................................................................................................................................................. 6 1.19 DISPOSAL SITE(S)................................................................................................................................................. 6 1.20 DIVERSION...........................................................................................................................................................6 1.21 ENVIRONMENTAL LAWS..................................................................................................................................... 7 1.22 FACILITY.............................................................................................................................................................. 7 1.23 FOOD WASTE........................................................................................................................................................ 7 1.24 GREEN WASTE.....................................................................................................................................................7 1.25 GREEN WASTE PROCESSING FACILITY................................................................................................................ 8 1.26 GROSS RECEIPTS.................................................................................................................................................. 8 1.27 HAZARDOUS SUBSTANCE.................................................................................................................................... 8 1.28 HAZARDOUS WASTE...........................................................................................................................................9 1.29 HOUSEHOLD HAZARDOUS WASTE ("HHW")................................................................................................... 9 1.30 MATERIALS RECOVERY FACILITY („MRF")....................................................................................................... 9 1.31 MULTI -FAMILY DWELLING.................................................................................................................................9 a� A :c c LL 2 An a� M to February 16, 2017 i City of Diamond Bar - Commercial Packet Pg. 443 8.3.a 1.32 ORGANIC WASTE................................................................................................................................................ 9 1.33 ORGANIC WASTE PROCESSING FACILITY........................................................................................................... 9 1.34 PERSON.............................................................................................................................................................. 10 1.35 PREMISES........................................................................................................................................................... 10 1.36 RATE YEAR........................................................................................................................................................ 10 1.37 RECYCLING........................................................................................................................................................10 1.38 RECYCLABLE MATERIALS.................................................................................................................................. 10 1.39 REFUSE............................................................................................................................................................... 10 1.40 RESIDENTIAL SERVICES..................................................................................................................................... 10 1.41 RESIDENTIAL CUSTOMERS................................................................................................................................. 11 1.42 RESIDENTIAL PREMISES..................................................................................................................................... 11 d N 1.43 ROLL -OFF Box................................................................................................................................................... 1 I 1.44 SINGLE FAMILY DWELLING............................................................................................................................... 11 c�C L 1.45 SOLID WASTE.................................................................................................................................................... 11 LL 1.46 SOLID WASTE COLLECTION SERVICES.............................................................................................................. 12 N 1.47 SOURCE SEPARATED.......................................................................................................................................... 12 9 1.48 STATE................................................................................................................................................................. 12 m 1.49 TEMPORARY SERVICE........................................................................................................................................ 12 1.50 TRANSFORMATION............................................................................................................................................ 12 1.51 TRANSFER STATION........................................................................................................................................... 12 1.52 WASTE GENERATOR.......................................................................................................................................... 13 ARTICLE2...............................................................................................................................................14 c GRANT AND ACCEPTANCE OF FRANCHISE.............................................................................................................14 2.1 GRANT AND ACCEPTANCE OF FRANCHISE, INDEMNITY OF AWARD................................................................... 14 2.2 SECTION DELETED.................................................................................................................................................. 14 Q 2.3 EFFECTIVE DATE.................................................................................................................................................... 14 N 2.4 TERM OF AGREEMENT............................................................................................................................................ 14 .r « 2.5 CITY'S OPTION TO EXTEND TERM 15 N .......................................................................................................................... 2.6 REPRESENTATIONS AND WARRANTIES OF CONTRACTOR.................................................................................... 15 2.7 CONDITIONS TO EFFECTIVENESS OF AGREEMENT................................................................................................. 17 R 2.8 DELEGATION OF AUTHORITY................................................................................................................................ 17 d 2.9 LIMITATIONS TO SCOPE.......................................................................................................................................... 18 C 2.10 CITY'S RIGHT TO DIRECT CHANGES.................................................................................................................. 20 2.10.1 General.....................................................................................................................................................20 Q 2.10.2 New Diversion Programs......................................................................................................................... 20 y 2.11 OWNERSHIP OF SOLID WASTE.......................................................................................................................... 21 2.12 PERMITS AND LICENSES.................................................................................................................................... 21 ri ARTICLE3 ...............................................................................................................................................23 FEES PAID TO THE CITY................................................................................................................................................... 23 E 3.1 CONTRACTING FEE................................................................................................................................................ 23 z U 3.2 OTHER CITY FEES................................................................................................................................................... 23 Q 3.2.1 Franchise Fee................................................................................................................................................. 23 3.2.2 AB 939 Fee.................................................................................................................................................... 23 3.2.3 Environmental Education Fee.......................................................................................................................24 3.2.4 Section Deleted.............................................................................................................................................. 24 3.2.5 Late Payment of Fees..................................................................................................................................... 24 3.3 FUTURE FEES.......................................................................................................................................................... 24 ARTICLE4...............................................................................................................................................25 DIRECTSERVICES..............................................................................................................................................................25 February 16, 2017 ii City of Diamond Bar - Commercial Packet Pg. 444 8.3.a 4.1 REFUSE....................................................................................................................................................................25 4.1.1 General..........................................................................................................................................................25 4.1.2 Section Deleted.............................................................................................................................................. 25 4.1.3 Section Deleted.............................................................................................................................................. 25 4.1.4 Section Deleted.............................................................................................................................................. 25 4.1.5 Section Deleted.............................................................................................................................................. 25 4.1.6 Bin Refuse Collection.................................................................................................................................... 25 4.1.7 Determination of Service Type...................................................................................................................... 26 4.1.8 Overflowing Containers................................................................................................................................ 26 4.1.9 Permanent Roll -off Box Service.................................................................................................................... 27 4.1.10 Temporary Bin and Temporary Roll -Off Box Service.............................................................................. 27 4.1.11 Bin Pushout Service................................................................................................................................. 28 4.1.12 Scout Service............................................................................................................................................28 4.1.13 Locking Bins............................................................................................................................................. 28 4.1.14 Redelivery/Return Trip Fee...................................................................................................................... 28 4.1.15 On -Call Bulky Item Pickup...................................................................................................................... 29 4.1.16 Bulky Item Diversion............................................................................................................................... 29 4.1.17 Disposal of Electronic and Other Special Wastes..................................................................................... 30 4.1.18 Door -to -Door HHW Collection................................................................................................................ 30 4.1.19 SECTION DELETED............................................................................................................................................. 30 4.1.20 Service Exceptions; Hazardous Waste Notifications................................................................................ 30 4.2 RECYCLING.............................................................................................................................................................31 4.2.1 Recyclables Collection................................................................................................................................... 31 4.2.2 Processing of Solid Waste............................................................................................................................. 32 4.2.3 Section Deleted.............................................................................................................................................. 32 4.2.4 Marketing and Sale of Recyclable Materials................................................................................................. 32 4.2.5 Minimum Diversion Requirements.............................................................................................................. 32 4.2.6 Construction and Demolition Debris Diversion........................................................................................... 33 4.2.7 Organic Waste Collection Services............................................................................................................... 33 4.2.8 Section Deleted.............................................................................................................................................. 34 4.3 GREEN WASTE PROGRAM...................................................................................................................................... 34 4.3.1 Holiday Tree Collection Program................................................................................................................. 34 4.3.2 Roll -Off Green Waste.................................................................................................................................... 34 4.3.3 End Uses for Green Waste............................................................................................................................ 34 4.4 SECTION DELETED.................................................................................................................................................. 35 4.5 CITY SERVICES........................................................................................................................................................ 35 4.5.1 City Facilities Collection............................................................................................................................... 35 4.5.2 City Sponsored Events.................................................................................................................................. 35 4.5.3 Emergency Collection and Disposal Service................................................................................................. 36 4.5.4 Abandoned Item Collection from City Right -of -Way or Other Public Property .......................................... 36 4.5.5 Community Development Review Services.................................................................................................. 36 4.5.6 Large Venue Event Assistance, Event Recycling......................................................................................... 36 4.5.7 Confiscation of Unauthorized Containers..................................................................................................... 36 4.5.8 Provision of Storage Containers................................................................................................................... 37 4.6 OPERATIONS...........................................................................................................................................................37 4.6.1 Schedules; Missed Pickups............................................................................................................................ 37 4.6.2 Vehicles......................................................................................................................................................... 38 4.6.3 Containers.....................................................................................................................................................42 4.6.3.1 Carts.........................................................................................................................................................42 4.6.3.2 Cart Maintenance and Replacement Responsibilities.............................................................................. 43 4.6.3.3 Bins.......................................................................................................................................................... 43 4.6.3.4 Roll -off Boxes............................................................................................................................................ 44 4.6.4 Litter Abatement...........................................................................................................................................44 February 16, 2017 iii City of Diamond Bar - Commercial Packet Pg. 445 8.3.a 4.6.5 Personnel.......................................................................................................................................................45 4.6.6 Identification Required.................................................................................................................................. 46 4.6.7 Unauthorized Fees and Gratuities................................................................................................................ 46 4.6.8 Non-Discrimination......................................................................................................................................46 4.6.9 Report of Accumulation of Solid Waste, Unauthorized Dumping............................................................... 47 4.7 TRANSPORTATION OF SOLID WASTE..................................................................................................................... 47 4.8 APPROVED FACILITIES........................................................................................................................................... 47 4.9 STATUS OF DISPOSAL SITE..................................................................................................................................... 48 4.10 DEDICATED ROUTES.......................................................................................................................................... 48 4.11 ROUTE AUDIT.................................................................................................................................................... 48 ARTICLE5...............................................................................................................................................50 OTHERSERVICES...............................................................................................................................................................50 5.1 CUSTOMER BILLING AND CONTRACTOR COMPENSATION................................................................................... 50 5.1.1 Billing........................................................................................................................................................... 50 5.1.2 Contractor's Invoices.................................................................................................................................... 50 5.1.3 Section Deleted.............................................................................................................................................. 50 5.1.4 Section Deleted.............................................................................................................................................. 50 5.1.5 Section Deleted.............................................................................................................................................. 50 5.1.6 Non -Payment, Collections, Suspension of Service....................................................................................... 50 5.2 CUSTOMER SERVICE............................................................................................................................................... 51 5.2.1 Local Office....................................................................................................................................................51 5.2.2 Complaint Documentation............................................................................................................................ 51 5.2.3 Customer Service Standards......................................................................................................................... 52 5.2.4 Resolution of Customer Complaints............................................................................................................. 53 5.2.5 Contract Liaison............................................................................................................................................ 54 5.2.6 Service Liaison.............................................................................................................................................. 54 5.3 EDUCATION AND PUBLIC AWARENESS................................................................................................................. 54 5.3.1 General..........................................................................................................................................................54 5.3.2 Implementation and On-going Education Requirements............................................................................. 54 5.3.3 Contractor Representative............................................................................................................................ 56 5.3.4 Community Events....................................................................................................................................... 56 5.4 WASTE GENERATION/ CHARACTERIZATION STUDIES.......................................................................................... 57 ARTICLE6...............................................................................................................................................58 COMPANY COMPENSATION AND RATES.................................................................................................................58 6.1 GENERAL................................................................................................................................................................58 6.2 INITIAL RATES........................................................................................................................................................ 58 6.3 SCHEDULE OF FUTURE ADJUSTMENTS................................................................................................................... 58 6.4 METHOD OF ADJUSTMENTS................................................................................................................................... 59 6.4.1 General..........................................................................................................................................................59 6.4.2 Cost Components for Rate Adjustment Indices............................................................................................ 59 6.4.3 Rate Adjustment Steps for Bin, Temporary and Other Services.................................................................. 60 6.4.4 Rate Adjustment Steps for Pull Plus Dump Roll -Off Rates......................................................................... 61 6.5 EXTRAORDINARY ADJUSTMENTS........................................................................................................................... 62 6.6 EFFECT OF RATE CHALLENGE................................................................................................................................ 63 ARTICLE7..............................................................................................................................................................................64 REVIEW OF SERVICES AND PERFORMANCE............................................................................................................64 7.1 PERFORMANCE REVIEW MEETING......................................................................................................................... 64 7.2 PERFORMANCE SATISFACTION SURVEY................................................................................................................ 65 ARTICLE8...............................................................................................................................................66 February 16, 2017 iv City of Diamond Bar - Commercial Packet Pg. 446 8.3.a RECORDS, REPORTS AND INFORMATION REQUIREMENTS............................................................................. 66 8.1 GENERAL................................................................................................................................................................66 85 8.2 RECORDS................................................................................................................................................................ 66 88 8.2.1 General..........................................................................................................................................................66 94 11.4.1 Force Majeure........................................................................................................................................... 8.2.2 Financial Records.......................................................................................................................................... 67 94 8.2.3 Solid Waste Records...................................................................................................................................... 67 11.5.1 Negotiation and Mediation...................................................................................................................... 8.2.4 CERCLA Defense Records............................................................................................................................ 68 8.2.5 Section Deleted.............................................................................................................................................. 69 11.5.4 Continuing Obligation............................................................................................................................. 8.2.6 Other Programs' Records............................................................................................................................. 69 96 8.2.7 Audit.............................................................................................................................................................69 96 8.2.8 Payments and Refunds................................................................................................................................. 69 8.3 REPORTS................................................................................................................................................................. 70 8.3.1 Report Formats and Schedule....................................................................................................................... 70 8.3.2 Monthly/Quarterly Reports.......................................................................................................................... 70 8.3.3 Annual Report.............................................................................................................................................. 71 8.3.4 Financial Report............................................................................................................................................ 72 8.4 REPORTING ADVERSE INFORMATION.................................................................................................................... 72 8.5 FAILURE To REPORT............................................................................................................................................... 73 ARTICLE9...............................................................................................................................................74 INDEMNIFICATION, INSURANCE, BOND AND LETTER OF CREDIT...............................................................74 9.1 INDEMNIFICATION................................................................................................................................................. 74 9.2 HAZARDOUS SUBSTANCES INDEMNIFICATION..................................................................................................... 75 9.3 AB 939 INDEMNIFICATION AND GUARANTEE...................................................................................................... 77 9.4 INSURANCE............................................................................................................................................................. 77 9.5 FAITHFUL PERFORMANCE BOND........................................................................................................................... 81 9.6 FAITHFUL PERFORMANCE LETTER OF CREDIT...................................................................................................... 81 9.7 FORFEITURE OF PERFORMANCE BOND.................................................................................................................. 82 9.8 FORFEITURE OF LETTER OF CREDIT OR DEPOSIT................................................................................................... 83 9.9 PERFORMANCE SECURITY BEYOND SERVICE TERM.............................................................................................. 83 ARTICLE10.............................................................................................................................................84 CITY'S RIGHT TO CONTRACT WITH THIRD PARTIES TO PERFORM FRANCHISED SERVICES.............84 ARTICLE11.............................................................................................................................................85 DEFAULT, REMEDIES AND LIQUIDATED DAMAGES............................................................................................85 11.1 EVENTS OF DEFAULT......................................................................................................................................... 85 11.2 RIGHT TO TERMINATE UPON DEFAULT AND RIGHT TO SPECIFIC PERFORMANCE ......................................... 88 11.3 LIQUIDATED DAMAGES..................................................................................................................................... 88 11.4 SUSPENSION OF PERFORMANCE........................................................................................................................ 94 11.4.1 Force Majeure........................................................................................................................................... 94 11.4.2 Labor Unrest............................................................................................................................................ 94 11.5 DISPUTE RESOLUTION....................................................................................................................................... 95 11.5.1 Negotiation and Mediation...................................................................................................................... 95 11.5.2 Confidentiality..........................................................................................................................................96 11.5.3 Injunctive Relief....................................................................................................................................... 96 11.5.4 Continuing Obligation............................................................................................................................. 96 11.5.5 Failure of Mediation................................................................................................................................. 96 11.6 ASSURANCE OF PERFORMANCE........................................................................................................................ 96 ARTICLE12.............................................................................................................................................98 OTHER AGREEMENTS OF THE PARTIES.................................................................................................................... 98 February 16, 2017 V City of Diamond Bar - Commercial Packet Pg. 447 8.3.a 12.1 RELATIONSHIP OF PARTIES............................................................................................................................... 98 12.2 COMPLIANCE WITH LAW.................................................................................................................................. 98 12.3 GOVERNING LAW.............................................................................................................................................. 98 12.4 ]URISDICTION.....................................................................................................................................................98 12.5 ASSIGNMENT..................................................................................................................................................... 99 12.6 CONTRACTING OR SUBCONTRACTING............................................................................................................ 101 12.7 BINDING ON ASSIGNS...................................................................................................................................... 101 12.8 COOPERATION IN PREPARATION FOR TERMINATION OR EXPIRATION OF CONTRACT ................................. 101 12.9 PARTIES IN INTEREST....................................................................................................................................... 102 12.10 WAIVER........................................................................................................................................................... 102 12.11 CONTRACTOR'S INVESTIGATION..................................................................................................................... 102 12.12 SECTION DELETED........................................................................................................................................... 102 12.13 NOTICE............................................................................................................................................................ 103 12.14 REPRESENTATIVES OF THE PARTIES................................................................................................................ 103 12.15 CITY FREE TO NEGOTIATE WITH THIRD PARTIES........................................................................................... 104 12.16 COMPLIANCE WITH MUNICIPAL CODE.......................................................................................................... 104 12.17 PRIVACY...........................................................................................................................................................104 12.18 PROPRIETARY INFORMATION, PUBLIC RECORDS............................................................................................ 105 ARTICLE13...........................................................................................................................................106 MISCELLANEOUS PROVISIONS..................................................................................................................................106 13.1 ENTIRE AGREEMENT....................................................................................................................................... 106 13.2 SECTION HEADINGS........................................................................................................................................ 106 13.3 REFERENCES TO LAWS AND OTHER AGREEMENTS........................................................................................ 106 13.4 INTERPRETATION............................................................................................................................................. 106 13.5 AGREEMENT.................................................................................................................................................... 106 13.6 SEVERABILITY.................................................................................................................................................. 107 13.7 EXHIBITS.......................................................................................................................................................... 107 13.8 ATTORNEYS' FEES............................................................................................................................................ 107 Exhibits 1. Public Education Plan 2. Initial Maximum Rates 3. Example Rate Adjustment Formula: 3A: Bin, Temporary Service and Other Service Rates 313: Permanent Roll -Off Box Rates 3C: Calculation of Annual Change in a Published Index 4. Corporate Guarantee 5. Faithful Performance Bond 6 Notary Certification 7 Example Monthly Report Format February 16, 2017 vi City of Diamond Bar - Commercial Packet Pg. 448 8.3.a AGREEMENT This Amended and Restated Agreement for Integrated Solid Waste Management Services (hereinafter the "Agreement") is entered into this day of , 20, by and between the City of Diamond Bar, California, ("City") and Valley Vista Services, Inc. ("Contractor"), for the collection, transportation, recycling, processing, and disposal of commercial solid waste and other services related to meeting the goals and requirements of the California Integrated Waste Management Act. RECITALS WHEREAS, the Legislature of the State of California, by enactment of the California Integrated Waste Management Act of 1989 (AB 939) (California Public Resources Code Sections 49100 et seq.), has declared that it is in the public interest to authorize and require local agencies to make adequate provisions for solid waste handling within their jurisdictions; and, WHEREAS, pursuant to California Public Resources Code Section 49300 and 49500-49524, the City of Diamond Bar has determined that the public health, safety, and well-being require that an exclusive franchise for commercial solid waste collection services, be awarded to a qualified company for the collection, transfer and transportation, recycling, processing, and disposal of solid waste and other services related to meeting the diversion goals required by AB 939, and other requirements of the California Integrated Waste Management Act; and, WHEREAS, City desires to maintain reasonable rates and quality service related to the collection, transfer and transportation, recycling, processing, and disposal of solid waste and other services; and, WHEREAS, Contractor is the current commercial solid waste hauler for the City and the term of the Initial Agreement, as defined below is set to expire on August 15, 2018; and, WHEREAS, City and Contractor ("Parties") have negotiated, and desire to enter into this Agreement in order that Contractor continue to serves the City's exclusive bin and roll- off customer solid waste hauler for the term hereof; and, WHEREAS, City and Contractor are mindful of the provisions of the laws governing the safe collection, transport, recycling, processing and disposal of solid waste, including February 16, 2017 -1- City of Diamond Bar - Commercial Packet Pg. 449 8.3.a AB 939, the Resource Conservation and Recovery Act ("RCRA"), and the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"). City and Contractor desire to leave no doubt as to their respective roles and to memorialize that by entering into this Agreement, City is not thereby becoming an "arranger" or a "generator" as those terms are used in CERCLA, and that it is Contractor, not City, that is "arranging for" the collection from premises in the City, transport for disposal, composting or other processing, and recycling of municipal solid waste which may contain hazardous substances; and further to confirm that as a material inducement to City entering into this Agreement, Contractor has agreed to fully indemnify City in connection with any claims, losses, liabilities, lawsuits or actions relating to the inadvertent or intentional collection, transportation and/or disposal of hazardous materials that may occur in connection with Contractor's performance under this Agreement; and, WHEREAS, Contractor has agreed, as part of this Agreement, acting as an independent contractor to provide such personnel, equipment and supplies as are necessary to ensure City complies with the requirements of Public Resources Code Section 49100, et seq. WHEREAS, the Parties entered in that certain agreement for Solid Waste Management Services on August 16, 2010 ("Initial Agreement"), which term expires on August 15, 2018. The Parties intend that in entering into this Agreement that this Agreement shall replace in its entirety the Initial Agreement and all amendments thereto upon the Effective Date as defined herein. NOW, THEREFORE, in consideration of the recitals above stated, which recitals are a material part of this Agreement, and the terms, conditions, covenants and agreements contained herein, the Parties do hereby agree as follows: February 16, 2017 -2- City of Diamond Bar - Commercial Packet Pg. 450 1.1 1.2 8.3.a ARTICLE 1 DEFINITIONS The terms used in this Agreement shall have the meaning set forth in this Article 1. In the event a term is not defined in this Article 1, then it shall have the meaning set forth in the Diamond Bar Municipal Code or in Division 30, Part 1, Chapter 2 of the California Public Resources Code (with precedence given to definitions in the Diamond Bar Municipal Code over conflicting definitions contained in the Public Resources Code). Except as provided in Article 1, words beginning with lower case letters are being used with their common ordinary meanings, not as defined terms. Otherwise, the following capitalized words and terms shall have the following meanings: = "AB 939" means the California Integrated Waste Management Act of 1989 (California Public Resources Code Section 40000 et seq.), as it may be amended from time to time Affiliate "Affiliate" means all businesses (including corporations, limited and general partnerships and sole proprietorships) which are directly or indirectly related to Contractor by virtue of direct or indirect ownership interest or common management. These shall be deemed to be "Affiliated with" Contractor and included within the term "Affiliates" as used herein. An Affiliate shall include a business in which Contractor owns a direct or indirect ownership interest, a business which has a direct or indirect ownership interest in Contractor and/or a business which is also owned, controlled or managed by any business or individual which has a direct or indirect ownership interest in Contractor. For purposes of determining whether an indirect ownership interest exists, the constructive ownership provisions of Section 318(a) of the Internal Revenue Code of 1986, as in effect on the date of this Agreement, shall apply; provided, however, that (i) "ten percent (10%)" shall be substituted for "fifty percent (50%)" in Section 318(a)(2)(C) and in Section 318(a)(3)(C) thereof; and (ii) Section 318(a)(5)(C) shall be disregarded. For purposes of determining ownership under this paragraph and constructive or indirect ownership under Section 318(a), ownership interest of less than ten percent (10%) shall be disregarded and percentage interests shall be determined on the basis of the percentage of voting interest or value which the ownership interest represents, whichever is greater. February 16, 2017 -3- City of Diamond Bar - Commercial Packet Pg. 451 1.3 1.4 1.5 1.6 1.7 Billings 8.3.a "Billings" or "Billing" or "Bill" means the statements of charges provided to Customers for services rendered by Contractor. Bin "Bin" means a rectangular metal or plastic Container with hinged lids and wheels with a capacity of at least 1.5 cubic yards, and less than ten (10) cubic yards. Bin Service "Bin Service" means Solid Waste Collection Services in which a Bin is used for the Collection of Solid Waste. Bulky Items "Bulky Items" means Solid Waste that cannot and/or would not typically be accommodated within the Solid Waste Container at the Premises including specifically: furniture (including chairs, sofas, mattresses, and rugs); appliances (including refrigerators, ranges, washers, dryers, water heaters, dishwashers, plumbing, small household appliances and other similar items, commonly known as "white goods"); unusually large amounts of yard debris and Green Waste and small pieces of wood limited to one cubic yard of contained material; electronic equipment (including stereos, televisions, computers and monitors, VCRs, microwaves and other similar items commonly known as "brown goods" and "e -waste"); and clothing. Bulky Items do not include car bodies, Construction and Demolition Debris or items requiring more than two persons to remove. Other items not specifically included or excluded above will be Collected provided that they are not more than eight feet in length, four feet in width, or more than 150 pounds. In the event a question ever arises as to whether a specific item or category of items meets the definition of Bulky Items, City shall be responsible to determine whether said definition shall apply, which determination shall be final and binding on the Parties. Cart "Cart" means a plastic Container with a hinged lid and wheels serviced by an automated or semi -automated truck with a capacity of no less than 32- and no greater than 101 -gallons. February 16, 2017 -4- City of Diamond Bar - Commercial Packet Pg. 452 8.3.a 1.8 City "City" means City of Diamond Bar, California, a municipal corporation, and all the territory lying within the municipal boundaries of City as presently existing or as such boundaries may be modified during the term of this Agreement. 1.9 Collect/Collection "Collect" or "Collection" means to take physical possession, transport, and remove Solid Waste within and from City. 1.10 Commercial Services "Commercial Services" refer to Solid Waste Collection Services performed at or for Commercial Premises. 1.11 Commercial Premises "Commercial Premises" means Premises upon which business activity is conducted, including but not limited to retail sales, services, wholesale operations, manufacturing and industrial operations, but excluding Residential Premises upon which business activities are conducted when such activities are permitted under applicable zoning regulations and are not the primary use of the property. Notwithstanding any provision to the contrary herein, in the Diamond Bar Municipal Code, or otherwise, for purposes of this Agreement, Premises upon which the following uses (as defined in the Diamond Bar Municipal Code) are occurring shall be deemed to be Commercial Premises: Assisted Living Facilities, Convalescent Homes, Dormitories, Extended Stay Motels, Hotels, and Motels. 1.12 Contractor "Contractor" means Valley Vista Services, a corporation organized and operating under the laws of the State of California and its officers, directors, employees, agents, companies and subcontractors. 1.13 Contractor Compensation "Contractor Compensation" means the revenue received by the Contractor from Customers in return for providing services in accordance with this Agreement. February 16, 2017 -5- City of Diamond Bar - Commercial Packet Pg. 453 1.14 Construction and Demolition Debris 8.3.a "Construction and Demolition Debris" means Solid Waste generated at a Premises that is directly related to construction or demolition activities occurring thereon. 1.15 Container "Container" means any and all types of Solid Waste receptacles, including Carts, Bins and Roll -off Boxes. 1.16 CPI "CPI" means the Consumer Price Index for All Urban Consumers (CPI -U), all items index less food and energy - Los Angeles -Riverside -Orange County, CA, CUURA421SAOLIE. 1.17 Customer "Customer" means a Person receiving Solid Waste Collection Services from Contractor pursuant to the terms of this Agreement. 1.18 Disposal "Disposal" means the ultimate disposition of Solid Waste Collected by Contractor at a landfill or otherwise in full regulatory compliance. 1.19 Disposal Site(s) "Disposal Site(s)" means the Solid Waste handling Facility or Facilities utilized for the ultimate Disposal of Solid Waste Collected by Contractor. 1.20 Diversion "Diversion" means any combination of waste prevention (source reduction), recycling, reuse, composting and Transformation activities that reduces waste disposed at landfills, provided such activities are recognized by CalRecycle as Diversion in its determination of the City's Diversion rate and compliance with AB 939. Transformation tonnage that will be considered toward the 25% Diversion goal under this Agreement is limited to 10% of Solid Waste Collected by Contractor each calendar year under this Agreement. February 16, 2017 -6- City of Diamond Bar - Commercial Packet Pg. 454 8.3.a 1.21 Environmental Laws "Environmental Laws" means all federal and state statutes, county, local and City ordinances concerning public health, safety and the environment including, by way of example and not limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 USC §9601 et seq.; the Resource Conservation and Recovery Act, 42 USC §6902 et seq.; the Federal Clean Water Act, 33 USC §1251 et seq.; the Toxic Substances Control Act, 15 USC §1601 et seq.; the California Hazardous Waste Control Act, California Health and Safety Code §25100 et seq.; the California Hazardous Substance Account Act, California Health and Safety Code §25300 et seq.; the Porter -Cologne Water Quality Control Act, California Water Code §13000 et seq.; the Safe Drinking Water and Toxic Enforcement Act, California Health and Safety Code §25249.5 et seq.; as currently in force or as hereafter amended, and all rules and regulations promulgated thereunder. 1.22 Facility "Facility" means any plant or site, owned or leased and maintained, operated or used by Contractor for purposes of performing under this Agreement. 1.23 Food Waste "Food Waste" means: • All food (including fruits, vegetables, meat, poultry, seafood, shellfish, bones, rice, beans, pasta, bread, cheese and eggshells); • Food -soiled paper that is mixed in with food waste (including waxed cardboard, waxed paper, napkins, paper towels, paper plates, paper milk cartons); • Tea bags; and, • Coffee grounds and filters. Food Waste is a subset of Organic Waste. 1.24 Green Waste "Green Waste" means tree trimmings, small pieces of wood, grass cuttings, dead plants, leaves, branches, flowers, plant stocks, and dead trees (not more than four (4) inches in February 16, 2017 -7- City of Diamond Bar - Commercial Packet Pg. 455 8.3.a diameter or 48 inches in length) and similar materials. Green Waste is a subset of Organic Waste. 1.25 Green Waste Processing Facility "Green Waste Processing Facility" means a permitted Facility where Green Waste is sorted, mulched or separated for the purposes of Recycling, reuse or composting. 1.26 Gross Receipts "Gross Receipts" means any and all revenue received from Billings, and compensation in any form, of Contractor or subsidiaries, parent companies or other Affiliates of Contractor, for the Collection and transportation of Solid Waste pursuant to this Agreement, in accordance with Generally Accepted Accounting Principles, including, but not limited to, Customer fees for Collection of Solid Waste, without subtracting Disposal fees, City fees or other fees or any other cost of doing business. Gross Receipts does not include revenue from the sale of Recyclables. 1.27 Hazardous Substance "Hazardous Substance" shall mean any of the following: (a) any substances defined, regulated or listed (directly or by reference) as "Hazardous Substances", "hazardous materials", "Hazardous Waste", "toxic waste", "pollutants" or "toxic substances" or similarly identified as hazardous to human health or the environment, in or pursuant to (i) the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 USC §9601 et seq. (CERCLA); (ii) the Hazardous Materials Transportation Act, 49 USC §1802, et seq.; (iii) the Resource Conservation and Recovery Act, 42 USC §6901 et seq.; (iv) the Clean Water Act, 33 USC §1251 et seq.,; (v) California Health and Safety Code §§25115-25117, 25249.8, 25281, 25316, 25501 and 25501.1; (vi) the Clean Air Act, 42 USC §7901 et seq.; and (vii) California Water Code §13050; (b) any amendments, rules or regulations promulgated thereunder to such enumerated statutes or acts currently existing or hereafter enacted; and (c) any other hazardous or toxic substance, material, chemical, waste or pollutant identified as hazardous or toxic or regulated under any other applicable federal, state or local Environmental Laws currently existing or hereinafter enacted, including, without limitation, friable asbestos, polychlorinated biphenyl's ("PCBs"), petroleum, natural gas and synthetic fuel products, and by- products. February 16, 2017 -8- City of Diamond Bar - Commercial Packet Pg. 456 8.3.a 1.28 Hazardous Waste "Hazardous Waste" means all substances defined as Hazardous Waste, acutely Hazardous Waste, or extremely Hazardous Waste by the State of California in Health and Safety Code §25110.02, §25115, and §25117 or in the future amendments to or recodifications of such statutes or identified and listed as Hazardous Waste by the US Environmental Protection Agency (EPA), pursuant to the Federal Resource Conservation and Recovery Act (42 USC §6901 et seq.), all future amendments thereto, and all rules and regulations promulgated thereunder. 1.29 Household Hazardous Waste ("HHW") "Household Hazardous Waste" means Hazardous Waste generated at Residential Premises. 1.30 Materials Recovery Facility ("MRF") "Materials Recovery Facility" means a permitted Solid Waste Facility where Solid Wastes or Recyclable Materials are sorted or separated for the purposes of Recycling, processing or composting. 1.31 Multi -Family Dwelling "Multi -Family Dwelling" means any building or lot containing two or more dwelling units. Multi -Family Dwelling units generally receive Refuse Collection service through the use of shared Bins, but may use Carts. Multi -Family Dwelling Units receiving Bin Refuse Collection are included in this Agreement. 1.32 Organic Waste "Organic Waste" means Food Waste and Green Waste, and other compostables, collectively or individually. 1.33 Organic Waste Processing Facility "Organic Waste Processing Facility" means a permitted Facility where Organic Waste is sorted, mulched or separated for the purposes of Recycling, reuse or composting. February 16, 2017 -9- City of Diamond Bar - Commercial Packet Pg. 457 8.3.a 1.34 Person "Person" means any individual, firm, association, organization, partnership, limited liability company, corporation, business trust, joint venture, the United States, the State of California, the County of Los Angeles, cities, and special purpose districts. 1.35 Premises "Premises" means any land, or building in City where Solid Waste is generated or accumulated. 1.36 Rate Year "Rate Year" means the period July 1 to June 30, for each year during the Term of this Agreement. For the first year of this Agreement, the Rate Year is August 16 to June 30. 1.37 Recycling "Recycling" means the processing of Recyclable Materials for the purpose of returning them to the economy in the form of raw materials for new, reused, or reconstituted products. The Collection, transportation or Disposal of Solid Waste not intended for, or capable of, reuse is not Recycling. Recycling does not include use of Solid Waste for conversion to energy. 1.38 Recyclable Materials "Recyclable Materials" means Solid Waste that is Source Separated, has some potential economic value, and is set aside, handled, packaged, or offered for Collection in a manner different from Refuse in order to allow it to be processed for Recycling. 1.39 Refuse "Refuse" means putrescible and non-putrescible Solid Waste. 1.40 Residential Services "Residential Services" refer to Solid Waste Collection Services performed at and for Residential Premises included under this Agreement. February 16, 2017 -10- City of Diamond Bar - Commercial Packet Pg. 458 8.3.a 1.41 Residential Customers "Residential Customer" means all Customers on Residential Premises that are included under this Agreement. 1.42 Residential Premises "Residential Premises" means Premises upon which dwelling units exist, including, without limitation, Single Family and Multi -Family Dwellings, apartments, boarding or rooming houses, condominiums, mobile homes, efficiency apartments, second units, and Group Residential Facilities, Group Care Facilities,. Notwithstanding any provision to the contrary herein, in the Diamond Bar Municipal Code, or otherwise, for purposes of this Agreement, Premises upon which the following uses are occurring shall not be deemed to be Residential Premises, and rather shall be deemed to be Commercial Premises: Assisted Living Facilities, Convalescent Homes, Dormitories, Extended Stay Motels, Hotels, Motels, and any other businesses not specifically listed at which residency is transient in nature and hence should be classified as Commercial Premises as determined by City on a case by case basis. 1.43 Roll -off Box "Roll -off Box" means Solid Waste Collection Containers of 10 cubic yards or larger. 1.44 Single Family Dwelling "Single Family Dwelling" means a Residential Premises that includes only one dwelling unit. Single Family Dwellings may receive either Cart or Bin Service. 1.45 Solid Waste "Solid Waste" means all discarded putrescible and non-putrescible solid, semisolid, and liquid wastes, including Refuse, Construction and Demolition Debris, Bulky Items, Recyclable Materials, and Organic Waste, or any combination thereof which are permitted to be disposed of in a Class III landfill, and which are included in the definition of "Non -hazardous Solid Waste" set forth in the California Code of Regulations. February 16, 2017 -11- City of Diamond Bar - Commercial Packet Pg. 459 8.3.a 1.46 Solid Waste Collection Services "Solid Waste Collection Services" means the Collection, transfer, transport, Recycling, processing, and Disposal of Solid Waste placed for Collection pursuant to this Agreement. 1.47 Source Separated "Source Separated" means the segregation by the Waste Generator of individual components of Solid Waste, which otherwise would become Refuse (such as glass bottles, metal cans, newspapers, plastic containers, etc.) into separate Container(s) for the purpose of allowing the Recycling of such materials. 1.48 State "State" means the State of California. 1.49 Temporary Service "Temporary Service" means Solid Waste Collection Services provided to a Premises on a temporary, as needed basis to any Premises within the City in conjunction with construction, demolition, cleanup or other projects, and by use of temporarily placed Bins or Roll -off Boxes 1.50 Transformation "Transformation" means incineration, pyrolysis, distillation, gasification, or biological conversion other than composting. 1.51 Transfer Station "Transfer Station" means a Facility that received Solid Waste from collection vehicles and transfers the material to larger vehicles for transport to landfills and other facilities. Transfer Stations may or may not also include MRFs, transferring residual Refuse (Refuse left after the sorting of Recyclable Materials) to landfills and Recyclable Materials (including, for example, Organic Waste and/or Construction and Demolition debris), to processors, brokers or end-users. February 16, 2017 -12- City of Diamond Bar - Commercial Packet Pg. 460 8.3.a 1.52 Waste Generator "Waste Generator" means any Person whose act or process produced Solid Waste as defined in the Public Resources Code, or whose act first causes Solid Waste to become subject to regulation. February 16, 2017 -13- City of Diamond Bar - Commercial Packet Pg. 461 8.3.a ARTICLE 2 GRANT AND ACCEPTANCE OF FRANCHISE 2.1 Grant and Acceptance of Franchise, Indemnity of Award Subject to the terms and conditions of this Agreement (including but not limited to the exclusions set forth in Section 2.9 hereof) and applicable State laws, and to the rights of State, county and school district facilities to use a Solid Waste enterprise other than Contractor, City hereby grants to Contractor and Contractor hereby accepts from City, for the Term hereof, the exclusive franchise, right and privilege to provide Solid Waste Collection Services at all Commercial Premises, and all Residential Premises that receive Commercial style Bin Refuse service (the "Franchise"). Contractor agrees to and shall timely take all actions that are reasonably necessary to defend the validity and enforceability of this Agreement and shall pay all costs related to such defense. Contractor shall defend, indemnify, protect and hold harmless, the City, its officers, agents and employees from any and all claims, actions or proceedings to attack, set aside, void, annul or seek monetary damages resulting from an approval by the City of this Agreement. The City shall promptly notify Contractor of any such claim, action, or proceeding. The City and Contractor shall meet in good faith in an effort to come to a mutual agreement for a joint defense; provided that the City shall be entitled to select legal counsel of its choice to conduct the defense if an agreement cannot be reached. Contractor's obligations to pay all costs, defend, indemnify, protect and hold harmless under this section shall not be altered in the event City retains separate counsel. 2.2 Section Deleted 2.3 Effective Date The "Effective Date" of this Agreement shall be the date on which the City Council approves this Agreement. 2.4 Term of Agreement The term of this Agreement (the "Term") shall be thirteen (13) years, and fifteen (15) days, commencing on August 16, 2010, and expiring August 31, 2023, subject to February 16, 2017 -14- City of Diamond Bar - Commercial Packet Pg. 462 2.5 M 8.3.a extension as provided herein. Notwithstanding the foregoing, the unexcused failure or refusal of Collector to perform any material term, covenant, obligation or condition contained in this Agreement shall give rise to the right, in favor of City, for earlier termination of this Agreement for cause in accordance with the procedures elsewhere contained herein. City's Option to Extend Term City shall have the sole option to extend the Term for up to twenty-four (24) months following expiration of the Term under Section 2.4. The City may, upon at least ninety days (90 -days) advance written notice to the Contractor prior to the expiration of the Term, exercise this extension option. If City provides this extension notice, the Agreement will automatically renew up to a 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. Representations and Warranties of Contractor Contractor hereby covenants, represents, and warrants the following to City for the purpose of inducing City to enter into this Agreement and to consummate the transaction contemplated hereby, all of which shall be true as of the date of this Agreement and as of the Effective Date: a) Contractor is validly existing as a corporation under the laws of the State of California. b) Neither the execution of this Agreement nor the delivery by Contractor of services nor the performance by Contractor of its obligations hereunder: (1) conflicts with, violates or results in a breach of any applicable law; (2) conflicts with, violates or results in a breach of any term or condition of any judgment, decree, agreement (including, without limitation, the certificate of incorporation of Contractor) or instrument to which Contractor is a party or by which Contractor or any of its properties or assets are bound, or constitutes a default under any such judgment, decree, agreement or instrument; or (3) will result in the creation or imposition of any encumbrance of any nature whatsoever upon any of the properties or assets of Contractor. February 16, 2017 -15- City of Diamond Bar - Commercial Packet Pg. 463 8.3.a c) There is no action, suit or other proceeding as of the date of this Agreement, at law or in equity, or to the best of Contractor's knowledge, any investigation, before or by any court or governmental authority, pending or threatened against Contractor that is likely to result in an unfavorable decision, ruling or finding that would materially and adversely affect the validity or enforceability of this Agreement or any such agreement or instrument entered into by Contractor in connection with the transactions contemplated hereby, or that could materially and adversely affect the ability of Contractor to perform its obligations hereunder or that would have a material adverse effect on the financial condition of Contractor. d) Contractor has no knowledge of any applicable law in effect as of the date of this Agreement that would prohibit the performance by Contractor of this Agreement and the transactions contemplated hereby. e) Contractor has made an independent investigation, satisfactory to it, of the conditions and circumstances surrounding this Agreement and the work to be performed by it, and is satisfied that those conditions and circumstances will not impair its ability to perform the work and provide the Collection services required by this Agreement. f) The information supplied by Contractor in all submittals made in connection with negotiation and execution of this Agreement, including all materials in Exhibits to this Agreement, and all representations and warranties made by Contractor throughout this Agreement are true, accurate, correct and complete in all material respects on and as of the Effective Date of this Agreement. g) Contractor's representative, designated in Section 5.2.5, shall have authority in all daily operational matters related to this Agreement. City may rely upon action taken by such designated representative as action of Contractor unless the actions taken are not within the scope of this Agreement. h) Contractor is duly organized, validly existing and in good standing under applicable laws. It is qualified to transact business in the State of California and has the power to own its properties and to carry on its business as now owned and operated and as required by this Agreement. February 16, 2017 -16- City of Diamond Bar - Commercial Packet Pg. 464 8.3.a i) Contractor has the authority to enter into and perform its obligations under this Agreement. The Board of Directors or partners of Contractor (or the shareholders, if necessary) have taken all actions required by law, its articles of incorporation, its bylaws or otherwise to authorize the execution of this Agreement. The Persons signing this Agreement on behalf of Contractor have authority to do so. Contractor shall authorize one employee for the City as a single point of contact for issues arising under this Agreement, and Contractor acknowledges and agrees that City may expect and assume that this employee's actions are taken on behalf of and with the full approval of the Contractor. 2.7 Conditions to Effectiveness of Agreement The satisfaction of each and all of the conditions set out below, each of which may be waived in whole or in part by City in writing, is a condition precedent to the effectiveness of this Agreement, and a condition of Contractor's continued right to the benefits conveyed herein: a) Accuracy of Representations. All representations and warranties made by Contractor and set forth in this Agreement shall be accurate, true and correct on and as of the Effective Date. b) Absence of Litigation. There shall be no litigation pending in any court challenging the award of this Agreement to Contractor or the execution of this Agreement or seeking to restrain or enjoin its performance. c) Furnishing of Insurance, Bond, and Letter of Credit. Contractor shall have furnished evidence of the insurance, bonds, deposit and letter of credit as required by Article 9, and shall comply with all ongoing requirements relating thereto. d) Contractor shall have paid the contracting fee to City, as provided in Section 3.1. 2.8 Delegation of Authority The administration of this Agreement by City shall be under the supervision and direction of City Manager's office and the actions specified in this Agreement, unless otherwise stated, shall be taken by the City Manager, or his or her designee. February 16, 2017 -17- City of Diamond Bar - Commercial Packet Pg. 465 2.9 Limitations to Scope 8.3.a Notwithstanding any provision to the contrary contained herein, the exclusive franchise, right and privilege to provide Solid Waste Collection Services at Premises within City granted to Contractor by this Agreement (Commercial and Residential Premises that receive weekly Refuse Collection using Bins) specifically excludes the following services, which services may be provided by Persons other than Contractor and which may be the subject of other permits, licenses, franchises or agreements issued or entered by City: a) The sale or donation of source -separated Recyclable Material and/or Organic Waste by the Waste Generator to any Person or entity other than Contractor; provided, however, if the Generator is required to pay any monetary or non - monetary consideration, directly or indirectly, for the Collection, transportation, transfer, or processing of Recyclable Material, it shall not be considered a sale or donation and shall not be exempt; b) Solid Waste, including Recyclable and/or Organic Materials, that is removed from any Premises by the Waste Generator by means of "self -hauling' (as described in the Diamond Bar Municipal Code), and that is transported personally by such Generator (or by his or her full-time employees) to a processing or Disposal Facility in a manner consistent with all applicable laws and regulations; c) Green Waste removed from a Premises by a gardening, landscaping, or tree trimming Contractor, utilizing its own equipment, as an incidental part of a total service offered by that Contractor rather than as a hauling service; d) The Collection, transfer, transport, Recycling, processing, and disposal of animal remains from slaughterhouse or butcher shops for use as tallow; e) The Collection, transfer, transport, Recycling, processing, and disposal of by- products of sewage treatment, including sludge, sludge ash, grit and screenings; f) The Collection, transfer, transport, Recycling, processing, and disposal of Hazardous Substances, Hazardous Waste, Household Hazardous Waste and radioactive waste regardless of its source; February 16, 2017 -18- City of Diamond Bar - Commercial Packet Pg. 466 8.3.a g) Construction and Demolition Debris which is removed by a duly -licensed construction or demolition company or as part of a total service offered by said licensed company or by the City, where the licensed company utilizes its own equipment in compliance with Construction and Demolition Debris requirements of the Diamond Bar Municipal Code; h) Collection services provided exclusively by City's Residential Franchisee under its Cart Customer Solid Waste Management Services Agreement. Contractor shall service, under this Agreement, Single Family Dwelling Units that received Bin service, and the City's Residential contractor shall provide service to Single Family Customers that request regularly scheduled Cart Refuse service; i) The Collection, transfer, transport, Recycling, processing, and Disposal of Solid Waste by City through City officers or employees in the normal course of their City employment; j) Solid Waste Collection Services for governmental agencies other than City, which may have facilities in City, but over which City has no jurisdiction in connection with the regulation of Solid Waste, such as State, county and school district facilities; k) The Collection, transfer, transport, Recycling, and processing of Organic Waste for use as animal feed; and, 1) Food that is donated or otherwise provided to charitable organizations or food banks for use as food for human consumption. The exclusive franchise, right and privilege to provide Solid Waste Collection Services within City granted to Contractor by this Agreement shall be interpreted to be consistent with all applicable state and federal laws, now in effect and adopted during the term of this Agreement, and the scope of this Agreement shall be limited by all applicable current and developing laws and regulations. In the event that future interpretations of current law, future enactments or developing legal trends limit the ability of City to lawfully grant Contractor the scope of services as specifically set forth herein, Contractor agrees that the scope of this Agreement will be limited to those services and materials which may be lawfully provided, and that City shall not be responsible for any lost profits claimed by Contractor as a result thereof. February 16, 2017 -19- City of Diamond Bar - Commercial Packet Pg. 467 8.3.a 2.10 City's Right to Direct Changes 2.10.1 General City may direct Contractor to perform additional services (including new Diversion programs, etc.) or modify the manner in which it performs existing services or Bills for services. Pilot programs and innovative services which may entail new Collection methods, and different kinds of services and/or new requirements for Waste Generators are included among the kinds of changes which City may direct. Contractor acknowledges that State law may increase the Diversion requirement during the term of this Agreement and Contractor agrees to propose services to meet such Diversion requirements. If City directs Contractor to perform additional services, Contractor shall be entitled to an adjustment in its Contractor Compensation for providing such additional or modified services, including a profit factor equal to ten percent (10%) of the incremental cost of such additional or modified services, unless the Parties otherwise agree. City may utilize cost components included in the Contractor's Proposal in calculating equitable rate adjustments. Agreed upon rates and service enhancements require approval of the City Council. If City does not direct Contractor to perform additional services and Contractor cannot agree on compensation for new or additional services, then City may contract with other parties for such services, which shall be considered exempt from the exclusivity provisions of Section 2.1. Contractor shall not receive a rate increase to provide additional services implemented to bring Contractor into compliance with contractually -required minimum diversion rates per Section 4.2.5 or as a remedy for failure to perform under Section 7.1. Additional or modified services shall be included in written amendment and shall require approval of the City Council. 2.10.2 New Diversion Programs Contractor shall present, within thirty (30) business days of a request to do so by City, a proposal to provide additional or expanded Diversion services. The proposal shall contain a complete description of the following: • Collection methodology to be employed (equipment, manpower, etc.). • Equipment to be utilized (vehicle number, types, capacity, age, etc.). February 16, 2017 -20- City of Diamond Bar - Commercial Packet Pg. 468 8.3.a • Labor requirements (number of employees by classification). • Type(s) of Containers to be utilized. • Type(s) of material to be Collected. • Provision for program publicity/education/marketing. • Annual projection of the financial results of the program's operations in an operating statement format including documentation of the key assumptions underlying the projections and the support for those assumptions. 2.11 Ownership of Solid Waste City and Contractor understand and agree that it is Contractor, and not City, who will arrange to Collect Solid Waste; that City has not, and, by this Agreement does not, instruct Contractor on its Collection methods, nor supervise the Collection process; nor do the Parties intend to place title to Solid Waste Collected by Contractor in City. Rather, the Parties intend that whatever, if any, title in and to the Solid Waste that is Collected by Contractor which otherwise might exist in or with City in the absence of this Agreement is hereby transferred to Contractor; and further that if Contractor gains title to such Solid Waste it is by operation of law and agreement with its Customers and is not the result of this Agreement. Subject to the provisions of this Agreement, and unless City exercises its rights to direct the location for Disposal and processing of Solid Waste, Contractor shall have the right to retain, Recycle, process, dispose of, and otherwise use Solid Waste Collected pursuant to the terms hereof in any lawful fashion or for any lawful purpose; and, further, shall have the right to retain any benefit resulting from its right to retain, Recycle, process, dispose of, or reuse the Solid Waste which it Collects. Ownership of Solid Waste properly placed for Collection shall transfer to Contractor when Customer places it at point of Collection. 2.12 Permits and Licenses Contractor shall acquire and maintain all necessary permits and licenses for the Collecting, transporting, processing, and storing of Solid Waste and Recyclables, disposing of Solid Waste, and the Recycling of Recyclables as required under this Agreement. Failure to maintain all required permits shall be deemed a material breach of contract for which City may terminate this Agreement as provided in Section 11.2. February 16, 2017 -21- City of Diamond Bar - Commercial Packet Pg. 469 8.3.a Contractor must follow requirements of the Diamond Bar Municipal Code, including, but not limited to, obtaining a City of Diamond Bar business license. February 16, 2017 -22- City of Diamond Bar - Commercial Packet Pg. 470 3.1 3.2 8.3.a ARTICLE 3 FEES PAID TO THE CITY In addition to any other consideration set forth herein, as part of its consideration for entering into this Agreement, and for the exclusive franchise, right and privilege to provide Solid Waste Collection Services as specified herein, Contractor shall provide the following: Contracting Fee Contractor paid to City a Contracting Fee in a one-time lump sum payment of seventy five thousand dollars ($75,000) within seven days of execution of the Initial Agreement to reimburse the City for costs it incurred in connection with entering the Initial Agreement. A contract extension fee of $75,000 shall be paid to the City within seven (7) days of execution of this Agreement to reimburse the City for costs it incurred in connection with entering into this Agreement. Other City Fees 3.2.1 Franchise Fee In consideration of the exclusive right to Collect provided in Section 2.1 of this Agreement, throughout the Term Contractor shall pay to City a Franchise Fee in an amount equal to five percent (5%) of the Gross Receipts received by Contractor for all services provided in City pursuant to the terms of this Agreement. Payments shall be made quarterly. The initial payment shall be due by October 30, 2010, covering the period August 16 to September 30, and each subsequent payment shall be due within 30 days of the end of the calendar quarter (January 30, April 30, July 30, October 30), for the prior calendar quarter. 3.2.2 AB 939 Fee In support of the City's outreach and administration of various Solid Waste programs and public education efforts, Contractor shall pay an amount equal to thirteen percent (13%) of the Gross Receipts received by Contractor for all services provided in City pursuant to the terms of this Agreement. February 16, 2017 -23- City of Diamond Bar - Commercial Packet Pg. 471 8.3.a Payments shall be made quarterly. The initial payment shall be due by October 30, 2010, covering the period August 16 to September 30, and each subsequent payment shall be due within 30 days of the end of the calendar quarter (January 30, April 30, July 30, October 30), for the prior calendar quarter. 3.2.3 Environmental Education Fee Pursuant to the terms of this Agreement, Contractor shall pay an annual Environmental Education Fee in the amount of Six Thousand, Five Hundred Dollars ($6,500). The first such payment shall be due and payable to the City on July 1, 2017, and subsequent payments shall be due and payable to the City on or before July 1 of each subsequent year. The amount of the Environmental Education Fee shall be adjusted annually for the average annual change in the CPI between the calendar year ended the December preceding the fee payment due date and the prior calendar year. For example, for the fee payment due July 1, 2018, the percentage adjustment to the $6,500 payment amount from the prior year would be equal to the average annual change in the CPI comparing calendar year 2017 to calendar year 2016. 3.2.4 Section Deleted 3.2.5 Late Payment of Fees If any of the fees provided for in this Section 3.2 are not paid on or before the due date, Contractor shall pay to City a penalty in an amount equal to ten percent (10%) of the amount owing for that month, plus interest at a rate of one and one-half (1.5%) per month for each month the payment is late thereafter. 3.3 Future Fees In the event that City implements a new fee not included in Section 3.2, or increases the amount of an existing fee, Contractor shall be entitled to a rate adjustment in an amount sufficient to recover the fee from Customers. City may elect to have Contractor pay in accordance with the requirements of fee payments made in Section 3.2, or on another schedule as City identifies with associated deadlines and late fees. February 16, 2017 -24- City of Diamond Bar - Commercial Packet Pg. 472 8.3.a ARTICLE 4 DIRECT SERVICES 4.1 Refuse 4.1.1 General The work to be done by Contractor pursuant to this Agreement shall include, but not be limited to, the furnishing of all labor, supervision, equipment, materials, supplies, and all other items necessary to perform the services required. The enumeration of, and specification of requirements for, particular items of labor or equipment shall not relieve Contractor of the duty to furnish all others, as may be required, whether enumerated elsewhere in this Agreement or not. The work to be done by Contractor pursuant to this Agreement shall be accomplished in a thorough and professional manner so that all Customers are provided reliable, courteous and high-quality Solid Waste Collection Services at all times. The enumeration of, and specification of requirements for, particular aspects of service quality shall not relieve Contractor of the duty of accomplishing all other aspects in the manner provided in this section, whether such other aspects are enumerated elsewhere in this Agreement or not. 4.1.2 Section Deleted 4.1.3 Section Deleted 4.1.4 Section Deleted 4.1.5 Section Deleted 4.1.6 Bin Refuse Collection Contractor shall provide Bins and Bin Service to its Customers that request such service. Contractor shall Collect and remove all Refuse that is placed in Bins from the property of Customers receiving Bin Service, at least once per week and more frequently if required to handle the waste generated at the Premises where the Bins are located. To resolve a dispute between Contractor and Customers, or if the City has health or safety concerns, City shall make final determination as to the number and size of Containers, February 16, 2017 -25- City of Diamond Bar - Commercial Packet Pg. 473 8.3.a and frequency of Collection to be provided to Customers. Special consideration shall be given when determining the pickup areas to ensure that the flow of traffic is not impeded. Contractor shall provide 1.5, 2, 3, 4 and 6 cubic yard Bins upon request. Contractor will service Bins equipped with compaction devices (known as compactors) that attach to the Bins if requested by Customer. The provision, sale or lease of the compaction device itself is outside this Agreement. Contractor is not required to provide the compaction device. 4.1.7 Determination of Service Type Contractor may not transition a Customer from Bin to Cart service or visa versa without prior advance written approval of the City. If Contractor and Customer have a disagreement as to whether a Refuse Bin is appropriate, or if City determines the Collection in a Refuse Bin causes health and safety or other concerns, or if the City determines Cart service is more appropriate, City shall make the final determination as to whether Refuse Collection shall be from a Bin, or from a Cart. In all cases, City retains absolute discretion in the determination of which type of service a Customer shall receive, and therefore which with hauler will provide service. 4.1.8 Overflowing Containers Customers that regularly produce more Solid Waste than their current level of service can accommodate may have their service level increased in accordance with the following procedure: First Incident in Three Month Period - If more material is placed for Collection than fits in a Container, Contractor shall photograph the overflowing Container, Collect the Solid Waste, and send to the Customer (at both the service and billing addresses) the picture and a letter instructing that further instances of an overflowing Container may result in an increase in the level of service. Second Incident in Three Month Period - Upon the second event of an overfilled Container in a three-month period, Contractor shall photograph the overflowing Container, Collect the Solid Waste, and send to the Customer the picture and a letter requesting that Customer increase its service level. If the Customer declines, Contractor February 16, 2017 -26- City of Diamond Bar - Commercial Packet Pg. 474 8.3.a may petition City to permit Contractor to increase the service level to accommodate the higher demand for service. Contractor shall send City via e-mail or U.S. mail a copy of each letter and picture sent to a Customer under this Section 4.1.8. 4.1.9 Permanent Roll -off Box Service Contractor shall provide exclusive (as limited by Section 2.9) permanent Roll -off Box Collection service upon request. Contractor will provide standard Roll -off Boxes. Rates shall be charged as "pull plus dump," a set rate for the service component plus the per ton charge based on actual tonnage Collected. The provision, sale or lease of compactor Roll -Off Boxes, which are enclosed Containers attached to a compaction devise, is not included in this Agreement; however, providing service to such compactor Roll -Off Boxes is included. Rates for permanent Roll -Off Box services are included in the approved rate schedule attached as Exhibit 2. 4.1.10 Temporary Bin and Temporary Roll -Off Box Service Contractor shall provide exclusive (as limited by Section 2.9) temporary Bin and temporary Roll -Off Box Service to Customers upon request, with the exclusion of providing such service to existing Residential Cart Refuse Customers. Customers receiving Cart Refuse services under the City's residential Cart franchise agreement, and construction contractors providing services to such a Customer's premises, shall receive temporary Bin and Roll -Off Box services from their Refuse Collection service provider or other hauler authorized to Collect in the City. Services requested for all new construction and instances not limited by Section 2.9 shall be exclusively provided under this Agreement. In the event Temporary Services are required for a project involving multiple Customers that receive service under both the City's Residential and Commercial franchisees, this service shall be provided under this Commercial Agreement. Contractor must deliver a temporary Bin or Roll -Off Box to a Customer within forty-eight (48) hours of request (Saturdays and Sundays excluded). Rates for Temporary Services are listed separately in the approved rate schedule, attached as Exhibit 2. Contractor will provide Roll -off Boxes and Bins for Temporary Services. There will be no charges other than the specific charges identified in the approved rate schedule. February 16, 2017 -27- City of Diamond Bar - Commercial Packet Pg. 475 8.3.a Contractor shall confirm that Customer has obtained an encroachment permit from the City prior to Contractor placing a Container in the public right-of-way. 4.1.11 Bin Pushout Service Contractor may not charge a fee for pushing or rolling Bins to point of Collection. 4.1.12 Scout Service Upon request, Contractor shall provide scout service, whereby Contractor will access Containers using a small vehicle either to move Containers to street or other public right-of-way for Collection, or Collecting Solid Waste directly from Container storage location. Under no circumstance shall Containers remain in the public right-of-way or outside of Container storage location for a period exceeding two (2) hours. In the event of a dispute between Contractor and Customer as to whether scout service will be used, City will make the final determination. Contractor is responsible for verifying that an encroachment permit has been obtained from the City prior to placing a Container in the public right-of-way. If the Customer has not obtained an encroachment permit, the Contractor shall inform the Customer that the Container shall not be placed in the public right-of-way until the Customer provides Contractor with verification of an encroachment permit, instructing the Customer as to how to obtain the permit. A copy of the encroachment permit shall be affixed to the Container. 4.1.13 Locking Bins Contractor shall provide locking Bin Service (providing the hasp and lock and servicing the lock) to Customers that request such service in accordance with the approved rate schedule, based upon a monthly fee per locking Bin. 4.1.14 Redelivery/Return Trip Fee Contractor may charge a fee, per the approved rate schedule, in the event that Contractor arrives on time for a scheduled Collection of Bins or Roll -Off Boxes, is impeded from Collection due to Container being blocked or otherwise unable to be Collected due to issues within the Customer's control, and Contractor must return a second time for Collection. Charge may be assessed for the trip, not per Bin, in the event of a Customer with multiple Bins. February 16, 2017 -28- City of Diamond Bar - Commercial Packet Pg. 476 4.1.15 On -Call Bulky Item Pickup 8.3.a Contractor shall provide Bulky Item pickup service to all Residential Customers. Each Residential Dwelling Unit shall be entitled to four Bulky Item pickups per calendar year at no additional charge. The above mentioned Customers may put out up to four (4) Bulky Items at each pickup. Contractor may instruct Customers to provide Contractor with a minimum of one business days' notice for the items, which shall be Collected on the Customer's regular Collection day. Contractor shall Collect all Bulky Items as defined in Section 1.6 including items referred to as electronic waste or "e -waste." The following provisions shall apply to this program: • No single item that cannot be handled by two workers will be accepted. • The following items will not be picked up: Hazardous Substances, Hazardous Waste, including waste oil or anti -freeze, with the exception of Bulky Items per Section 1.6 (including without limitation, universal wastes such as fluorescent bulbs, household batteries, and televisions, monitors and other items commonly referred to as "e -waste" that will be Collected by and disposed of by Contractor in accordance with this section as well as Sections 4.1.16 and 4.1.17.) • Contractor shall record by class and weight (in tons) the Solid Waste Collected from Bulky Item pickups. Contractor shall record the kinds and weights (in tons) of this Solid Waste that is diverted from the landfill through Recycling, reuse, Transformation or other means of Diversion. Contractor shall include this information in its monthly reporting per Section 8.3.2(a). Residential Customers that exceed the number of free pickups and Commercial Customers may receive Bulky Item Collection under the same terms for a fee, in accordance with the approved rate schedule in Exhibit 2. 4.1.16 Bulky Item Diversion Bulky Items Collected by Contractor in accordance with Section 4.1.15, or otherwise Collected under this Agreement, may not be landfilled or disposed of until the following hierarchy of Diversion efforts has been followed by Contractor: 1) Reuse as is February 16, 2017 -29- City of Diamond Bar - Commercial Packet Pg. 477 8.3.a 2) Disassemble for reuse or Recycling 3) Recycle 4) Disposal This hierarchy is intended to preclude the use of front or rear loading packer vehicles for Bulky Items unless the compaction mechanism is not used to compact the Bulky Items. An exception maybe made for items that have been designated for Disposal. N 4.1.17 Disposal of Electronic and Other Special Wastes L U. Contractor shall divert waste requiring special handling, such as universal or electronic N waste, or "e -waste," Collected in accordance with Sections 4.1.15, 4.1.16 or 4.5.4, or by other means under this Agreement, by taking these goods to a properly permitted Facility, and not by landfilling. 4.1.18 Door -to -Door HHW Collection Contractor shall provide Residential Customers with door-to-door call-in HHW Collection service at no additional cost. Items to be Collected include, at a minimum: syringes and other Sharps; paint and paint products including but not limited to thinners, glues, caulking, stains, wood preservatives and strippers; household cleaners; automotive wastes; swimming pool chemicals; garden chemicals; fluorescent tubes; thermometers; household batteries; and electronic wastes. Contractor may direct Residential Customers to use the Bulky Item pickup option for televisions, computers and other HHW that may safely and legally be Collected as Bulky Items. 4.1.19 Section Deleted 4.1.20 Service Exceptions; Hazardous Waste Notifications A. Failure to Collect. When Solid Waste is not Collected from any Customer, Contractor shall notify Customer in writing, at the time Collection is not made, through the use of a "red tag' or otherwise, of the reasons why the Collection was not made, such as the placement of Hazardous Waste in the Container. February 16, 2017 -30- City of Diamond Bar - Commercial Packet Pg. 478 4.2 8.3.a B. Hazardous Waste Inspection and Reporting. Contractor reserves the right to inspect Solid Waste put out for Collection and to reject Solid Waste observed to be contaminated with Hazardous Waste and the right not to Collect Hazardous Waste put out with Solid Waste. Contractor shall notify all agencies with jurisdiction, if appropriate, including the California Department of Toxic Substances Control and Local Emergency Response Providers and the National Response Center of reportable quantities of Hazardous Waste, found or observed in Solid Waste anywhere within City. In addition to other required notifications, if Contractor observes any substances which it or its employees reasonably believe or suspect to contain Hazardous Wastes unlawfully disposed of or released on any City property, including storm drains, streets or other public rights of way, Contractor will immediately notify City Manager or City Manager's designee. Contractor shall implement and maintain a training program that will assist its employees in identifying and properly disposing of any Hazardous Waste that may come into their possession. C. Hazardous Waste Diversion Records. Contractor shall maintain records showing the types and quantities, if any, of Hazardous Waste found in Solid Waste and which was inadvertently Collected from Customers within City, but diverted from landfilling. Recycling 4.2.1 Recyclables Collection Contractor agrees to provide, in accordance with the approved rate schedule in Exhibit 2, Recycling Collection service to Customers requesting it from the Contractor. Contractor may purchase Recyclable Materials from its Customers as well. The Contractor agrees to provide Recycling Bins or Carts to such Customers in sufficient quantities to meet the Recycling needs of each Customer. Contractor shall take whatever actions may be appropriate, lawful and effective to discourage the unauthorized removal of Recyclable Materials from the Solid Waste stream, commonly referred to as scavenging. February 16, 2017 -31- City of Diamond Bar - Commercial Packet Pg. 479 8.3.a 4.2.2 Processing of Solid Waste Contractor shall process all mixed Solid Waste Collected at a materials recovery facility in order to maximize recovery of Recyclables. Contractor will deliver all mixed Solid Waste to the Grand Central Recycling and Transfer Station for processing. 4.2.3 Section Deleted 4.2.4 Marketing and Sale of Recyclable Materials Contractor shall be responsible for marketing and sale of all Recyclable Materials Collected pursuant to this Agreement. Contractor may retain revenue from the sale of Recyclable Materials, and shall report the amount of such revenues to City upon request. 4.2.5 Minimum Diversion Requirements For each calendar year, beginning calendar year 2010 through calendar year 2017, Contractor shall divert from landfilling a minimum of 25% of all Solid Waste Contractor Collects under this Agreement. Contractor shall divert from landfilling a minimum of 25% of all Roll -Off Box loads, excluding Construction and Demolition Debris loads, that Contractor Collects under this Agreement. And Contractor shall divert from landfilling a minimum of 75% of all Construction and Demolition Debris loads it Collects under this Agreement. Construction and Demolition Debris tonnage shall be included in the overall 25 % diversion calculation. For each calendar year, beginning January 1, 2018, Contractor shall divert from landfilling a minimum of 25% of all Solid Waste Contractor Collects under this Agreement, excluding Construction and Demolition Debris Loads. Additionally, Contractor shall divert from landfilling a minimum of 75% or the State -mandated Construction and Demolition diversion percentage, whichever is greater, of all Construction and Demolition Debris loads it Collects under this Agreement. Compliance with each of these minimums will be measured, initially, for the first period from August 16, 2010 to December 31, 2010, and subsequently on a calendar year basis. Recycling of materials not Collected by the Contractor is not to be counted towards meeting this requirement. If Contractor fails to comply with these diversion rate requirements, Contractor must submit a plan for compliance, including without February 16, 2017 -32- City of Diamond Bar - Commercial Packet Pg. 480 8.3.a limitation implementation of applicable portions of City's Source Reduction and Recycling Element, within sixty (60) days of the end of the calendar year. Contractor's plan is subject to approval by the City Manager, and to be approved must constitute a good faith plan to implement applicable portions of City's Source Reduction and Recycling Element and be reasonably likely to achieve compliance with the above requirement. Costs for providing the services in the compliance plan to meet this existing obligation will be borne by Contractor and shall not be the subject of a rate adjustment. If, following implementation of the plan for compliance, Contractor does not achieve compliance with the above requirement for the calendar year in which the plan was submitted, liquidated damages shall be assessed under Section 11.3 for failure to meet this requirement. In the event the State increases diversion rate goals, City may require Contractor to implement programs to meet the goal, and parties shall negotiate a rate adjustment. Should parties fail to reach a mutually acceptable agreement, City may hire a third party to provide those services or terminate the Agreement. 4.2.6 Construction and Demolition Debris Diversion Contractor will bring all loads of mixed Construction and Demolition Debris to a C&D processing facility designated per Section 4.8 for separation and recovery of this material. Contractor may deliver separated loads of Construction and Demolition Debris, such as clean dirt, concrete or rebar, to facilities specializing in the reuse of such materials, provided this material is diverted from landfilling. Contractor shall divert from landfilling a minimum of 75% or the State -mandated Construction and Demolition diversion percentage, whichever is greater, of all Construction and Demolition Debris Collected. 4.2.7 Organic Waste Collection Services Contractor shall make arrangements to provide Organic Waste Collection services to Multi -Family and Commercial accounts to comply with State requirements for mandatory Commercial Organics Recycling under AB 1826. Organic Waste Collection may be done utilizing Bins or Carts, depending on the amount of material generated or space constraints. Contractor agrees to assist City to identify Multi -Family and Commercial Premises required to arrange for Organic Material Collection services February 16, 2017 -33- City of Diamond Bar - Commercial Packet Pg. 481 8.3.a under State law, offer Organic Waste Collection to such Premises, and notify the City in the event of refusal to subscribe for Organic Waste Collection. Collection of Organic Waste in Bins shall be charged at the same rate as Refuse Bins included in Exhibit 2. Collection of Organic Waste in Carts shall be in accordance with the approved rates included in Exhibit 2. 4.2.8 Section Deleted 4.3 Green Waste Program 4.3.1 Holiday Tree Collection Program Contractor shall operate an annual holiday tree Collection program from December 26 through the second Sunday in January. During this period all holiday trees placed out for Collection by Residential Customers shall be Collected by Contractor. After this period, trees will be Collected as Bulky Items under Section 1.6. Trees up to seven (7) feet in length will be Collected and diverted without Customers needing to cut them. Contractor may request that Customers with larger trees cut the trees to pieces no longer than seven (7) feet. Contractor will divert all holiday trees from landfilling. 4.3.2 Roll -Off Green Waste Contractor shall provide Roll -Off Box Green Waste service at rates no more than comparable Refuse pull rates, and per ton Disposal at no more than the actual Green Waste processing fee. 4.3.3 End Uses for Green Waste Contractor shall divert Green Waste materials Collected through holiday tree Collection, Roll -off Box Collection and mixed waste processing from Disposal. Contractor must provide end uses for Green Waste that maximize Diversion credit for City according to regulations established by CalRecycle. Green Waste may be used as alternative daily cover ("ADC') only to the extent that the City will get full Diversion credit for its use. Diversion credit for ADC is not allowed after January 1, 2020 per Assembly Bill 1594. Contractor is responsible for monitoring how the Green Waste will be diverted at selected facilities and for selecting alternative facilities if necessary to ensure full Diversion credit. Failure to do so places the Contractor in default. City has the option, but not obligation, to direct Contractor where to deliver the material. February 16, 2017 -34- City of Diamond Bar - Commercial Packet Pg. 482 4.4 Section Deleted 4.5 City Services 4.5.1 City Facilities Collection 8.3.a Contractor shall Collect and dispose of all Refuse, Recyclable Material, and Organic Waste put in Containers for Collection at Premises owned and/or operated by the City now and in the future at no charge. Service levels and number of facilities serviced may increase during the Term without any additional compensation paid to the Contractor. Such Premises include, but are not limited to, City Hall, City offices, parks, City yard and street maintenance operations. Solid Waste at City yard will include Solid Waste Collected from street litter Containers. Collections shall be scheduled at a time mutually agreed upon by Contractor and City. 4.5.2 City Sponsored Events Contractor shall provide Solid Waste and Recycling Collection and Disposal/ processing service for City -sponsored events. This shall include providing Containers (Bins, Roll- off Boxes, clearly labeled Recycling Containers and cardboard waste boxes with liners) to Collect and dispose of, or process, all Solid Waste and Recyclable Materials. The Contractor shall provide these services at City -sponsored events upon City request, at no cost to City or ratepayers. The City's intent will be to alternate events assigned to Contractor with those events it assigns to the City's residential cart services franchisee; however, City does not guarantee that events will be evenly distributed based upon either level of effort or number of events. City -sponsored events include, but are not limited to: • Concerts in the Park • City Birthday Celebration • Fourth of July • Fun Fall Festival • Winter Snow Fest • Arbor Day • Easter Egg Hunt February 16, 2017 -35- City of Diamond Bar - Commercial Packet Pg. 483 8.3.a 4.5.3 Emergency Collection and Disposal Service Contractor will assist City at the City's request with emergency Collection and Disposal service (in the event of major disaster, such as an earthquake, storm, riot or civil disturbance), or as otherwise determined necessary by the City, by providing Collection equipment and drivers normally assigned to City. Contractor may charge City for actual Disposal costs plus service rates per the approved rate schedule. 4.5.4 Abandoned Item Collection from City Right -of -Way or Other Public Property Contractor will Collect and dispose of, at no additional charge, within one business day of notification from City, all items left in the City's right-of-way, such as sidewalks, alleys, streets, and parkways. Contractor will not be required to Collect Hazardous Waste (with the exclusion of electronic waste and universal wastes as provided in this Agreement), liquid wastes, or automobile parts that are individually too large for Collection by two people, but will be required to Collect any items defined as Bulky Items. Contractor will properly divert from landfilling or Dispose of such items in accordance with Sections 4.1.16 and 4.1.17. City will contact either the residential or commercial franchisee to provide this service, depending on the location of the abandoned item. 4.5.5 Community Development Review Services Upon City request and at no additional charge, Contractor will review building permit applicants' plans and advise regarding adequacy of Container storage space and access, particularly to accommodate Recycling containers. 4.5.6 Large Venue Event Assistance, Event Recycling Contractor will assist planners of large venue events with reporting and planning needs as may be useful in meeting the requirements of AB 2176, found at California Public Resources Code 42648, et seq. at no additional charge. Contractor shall provide Recycling services upon request to special event planners. 4.5.7 Confiscation of Unauthorized Containers City authorizes Contractor to confiscate illegal Collection Containers located within the City's pubic rights-of-way. Upon notification from City, or Contractor's locating of an illegally placed Container, Contractor shall begin the following procedure within 24 hours: February 16, 2017 -36- City of Diamond Bar - Commercial Packet Pg. 484 8.3.a 1. Contractor shall first place a notice on Container, directing the illegal hauler or its Customer to remove the Container within 24 -hours of notice, citing relevant sections of the City's municipal code, indicating where the Container may be retrieved, impound and storage costs, and warning that, should the Container not be removed by the hauler that Container may be removed without warning. If the company can be identified and its address ascertained, Contractor shall mail the warning as well. 2. Notify City of the notice and request authorization to impound the Container. 3. With written City approval, impound the Container if it has not yet been removed by the illegal hauler. 4. For subsequent violations by the same company after the initial notice has been posted, and after Contractor has mailed a warning to the company, Contractor may request written approval from City to remove company's Containers immediately, mailing a notice if address is known as to where the Container may be retrieved and impound and storage costs. If address is unknown, Contractor shall place the notice as close as feasible to where the Container was located. Written approval from City under this section will include, but is not limited to, approval sent by e-mail or facsimile. 4.5.8 Provision of Storage Containers Contractor will provide the City with eleven 40 -cubic -yard portable storage containers to be used for storage at City facilities and schools for the duration of the Agreement, and will maintain them in a condition satisfactory to the City. Contractor may transfer ownership of these storage containers to City, provided Contractor will remove and Dispose of these containers when requested to by City. 4.6 Operations 4.6.1 Schedules; Missed Pickups To preserve peace and quiet, Solid Waste shall only be Collected between 6:00 a.m. and 6:30 p.m. Collection is only permitted Monday through Saturday. Contractor may not make exceptions to these Collection days and times without advance written approval from the City. If the regularly scheduled Collection day falls on New Year's Day, Memorial Day, Fourth of July, Labor Day, Thanksgiving Day, or Christmas Day, February 16, 2017 -37- City of Diamond Bar - Commercial Packet Pg. 485 8.3.a Collection days for the remainder of that week shall all be postponed one Collection day. Collection on Saturday holidays shall be made up on the prior Friday or the following Monday. Contractor shall review its operations plan outlining the Collection routes, intervals of Collection and Collection times for all materials Collected under this Agreement with City upon thirty (30) days written notice requesting said review. Contractor shall submit a copy of its schedule and route map within seven (7) business days if requested by City. If the plan is determined to be inadequate by City, Contractor shall revise it incorporating any changes reasonably necessary to make it satisfactory to City within thirty (30) days. Change in schedules and routing shall not be implemented without City approval and not until at least fifteen (15) business days following notification to Customers. The City may restrict the timing and frequency of any route changes based upon the City's Municipal Code or any other applicable law or requirement. When notified of a missed pickup (which was not justified under the provisions of this Agreement) prior to 12:00 p.m., Contractor shall Collect the Refuse, Recyclable Materials, and/or Organic Waste that was not Collected the same day. If notified after 12:00 p.m., Collection must take place no later than the next business day. If Contractor determined that the missed pickup was justified under this Agreement, Contractor will notify Customer as to the reason within this same time period. 4.6.2 Vehicles A. General. Contractor is responsible for providing all vehicles that may be required for the Collection of Solid Waste that are sufficient in number and capacity to efficiently perform the work required by this Agreement in strict accordance with its terms. Contractor is expressly obligated to provide such Collection Vehicles and routes as are required to meet the service standards set forth herein. Contractor shall have available on Collection days sufficient back-up vehicles for each type of Collection Vehicle used to respond to complaints and emergencies. All equipment of Contractor used to provide the services set forth in this Agreement shall be subject to inspection by City upon request. B. Specifications. Within twelve months of the start of service under this Agreement, all Collection vehicles used to provide service under this Agreement, including spares, shall use exclusively liquefied natural gas or compressed natural gas. February 16, 2017 -38- City of Diamond Bar - Commercial Packet Pg. 486 8.3.a No Collection vehicle, including spares, used in the City shall be more than 10 years old at any time during the Agreement Term. Such vehicles must be registered with the California Department of Motor Vehicles and shall have water -tight bodies designed to prevent leakage, spillage or overflow. At all times during the term of this Agreement, Contractor's Collection vehicles shall comply with South Coast Air Quality Management District Requirements and the California Air Resource Board requirements as they are currently in force and as they may be approved for Refuse removal vehicles, as well as other Federal, State and local laws and regulations that may be enacted during the term of this Agreement. C. Vehicle Identification and Labeling. Each Collection vehicle shall be marked with Contractor's name, toll free phone number, and a vehicle identification number designated by Contractor for each Collection Vehicle which shall be prominently displayed on all such Vehicles, in lettering at least six inches in height. City must approve truck labeling. D. Cleaning and Maintenance 1) Contractor shall maintain all vehicles and equipment used in providing service under this Agreement in a good, safe, neat, clean and operable condition at all times. 2) Collection Vehicles shall be painted, thoroughly washed, and thoroughly steam cleaned on a regular basis so as to present a clean appearance. Contractor shall make all Collection Vehicles available to the County of Los Angeles for inspection regarding health concerns and requirements at any frequency it requests. Contractor agrees to replace or repair to the City's satisfaction, any Collection Vehicle which City determines to be of unsightly appearance, leaking, or in unsatisfactory operating condition. 3) Contractor shall repaint any or all Collection Vehicles within thirty (30) days' notice from City, if City reasonably determines that their appearance warrants painting. 4) Contractor shall inspect each Collection Vehicle daily to ensure that all equipment is operating properly. Collection Vehicles which are not operating properly shall be removed from service until repaired and operating properly. Contractor shall perform all scheduled maintenance functions upon Collection February 16, 2017 -39- City of Diamond Bar - Commercial Packet Pg. 487 8.3.a Vehicles in accordance with the manufacturer's specifications and schedule. Contractor shall keep accurate records of all Collection Vehicle maintenance, recorded according to date and shall make such records available to City upon request. 5) Contractor shall repair, or arrange for the repair of, all of its vehicles and equipment for which repairs are needed because of accident, breakdown or any other cause so as to maintain all equipment in a safe and operable condition. Contractor shall maintain accurate records of repair, which shall include the date, nature of repair and the verification by signature of a maintenance supervisor that the repair has been properly performed. 6) Upon request, Contractor shall furnish City a written inventory of all equipment, including Collection Vehicles, used in providing service pursuant to this Agreement. This inventory shall list all equipment by manufacturer, year of production, ID number, date of acquisition, type, capacity, and whether the vehicle is a spare. 7) All vehicles used to provide services under this Agreement shall at all times have in the cab the registration of the truck, evidence of insurance meeting the requirements of this Agreement and an identification card with the name of whom to telephone in case of an accident or emergency. Each truck shall be equipped with a minimum of a 20 -pound fire extinguisher that has been certified by the state fire marshal. This fire extinguisher shall be recharged as needed, but not less than once annually. Vehicles shall be equipped with a shovel and broom to clean up any spillage. 8) All trucks used to provide services under this Agreement in the City shall be required to be completely enclosed with a nonabsorbent cover while transporting refuse, recyclables or compostable materials or other solid waste materials in or through the city. "Completely enclosed with a nonabsorbent cover" means that refuse, trash, recyclable or compostable materials shall not be visible from the public highway, nor shall any of the substances be permitted to leak, spill or become deposited along any public highway. E. Operation. Vehicles shall be operated in compliance with the California Vehicle Code, and all applicable safety and local ordinances. Contractor shall not load vehicles February 16, 2017 -40- City of Diamond Bar - Commercial Packet Pg. 488 8.3.a in excess of the manufacturer's recommendations or limitations imposed by state or local weight restrictions on vehicles. Contractor's equipment shall comply with US EPA noise emission regulations, currently codified at 40 CFR Part 205 and other applicable noise control regulations, and such noise control features shall be incorporated throughout the entire fleet of Collection Vehicles. Noise levels of equipment used for Collection shall comply with Diamond Bar Municipal Code Chapter 8.16 and in no event shall the noise level exceed 75 dba when measured at a distance of 25 feet from the vehicle, five feet from the ground. Contractor shall store all equipment in safe and secure locations in accordance with City's applicable zoning regulations. Contractor shall be responsible for any damage, normal wear and tear excepted, resulting from or directly attributable to any of its operations, and which it causes to: City's driving surfaces, whether or not paved, public or private; associated curbs, gutters and traffic control devices; and all other public and private improvements. F. City Inspection Per Code. City may cause any vehicle used in performance of this Agreement to be inspected and tested at any commercially reasonable time and in such manner as may be appropriate to determine that the vehicle is being maintained in compliance with the provisions of the State Vehicle Code, including, but not limited to, California Vehicle Code Sections 27000(b), 23114, 23115, 42030, 42032, and all Vehicle Code Sections regarding smog equipment requirements. City may direct the removal of any vehicle from service if that vehicle is found not to be in conformance with applicable codes. No vehicle directed to be removed from service shall be returned to service until it conforms with, and its return to service has been approved by City. G. Vehicle Inspections. Upon City request, Contractor shall submit the Safety Compliance Report/ Terminal Record Update from its Biennial Inspection of Terminal, or BIT. If Contractor receives a terminal rating below satisfactory, Contractor shall notify the City, and Contractor is in violation of this Agreement. Contractor has the time allowed by the Department of California Highway Patrol ("CHP") to cure violations and bring the terminal rating up to satisfactory. If the CHP does not adjust the rating to satisfactory or better within six (6) months, then the Contractor shall be considered in default of the contract and the City may terminate this Agreement. February 16, 2017 -41- City of Diamond Bar - Commercial Packet Pg. 489 8.3.a H. Correction of Defects. Following any inspection, the City Manager shall have the right to cause Contractor, at its sole cost and expense, to recondition or replace any vehicle or equipment found to be unsafe, unsanitary or unsightly. The City Manager's decision shall be final. 4.6.3 Containers Contractor will provide Containers to be used under this Agreement. On or before December 31, 2017, Contractor shall ensure that all Containers comply with requirements included in Sections 4.6.3.1 through 4.6.3.4, and provide City with a written Container inspection report. 4.6.3.1 Carts A. Cart Design Requirements Carts and Cart lids must meet color, size, uniformity and quality requirements of the City. The City will not permit Carts and Cart lids with inconsistent colors or in poor condition to be used in the City at any time during the term of this Agreement, and may require Contractor to replace such Carts. All Carts provided by Contractor utilized in the performance of this Agreement shall be manufactured by injection or rotational molding and meet the Cart design and performance requirements as specified below. All Carts selected shall be subject to City's approval. B. Section Deleted C. Cart Color and Appearance The Recycling and Organic Waste Carts will be differentiated by color. The colors shall be colorfast and resistant to fading as a result of weathering or ultraviolet degradation. Color must be approved in advance by the City. Cart and Cart lid colors shall be consistent throughout the City. D. Cart Labeling and Hot Stamping Labels used on Carts shall be placed on the inside of the Cart lid, and hot stamps shall be on the top of the lid and/or on the body of the Cart. Each Cart shall be hot stamped February 16, 2017 -42- City of Diamond Bar - Commercial Packet Pg. 490 8.3.a with the material type (e.g., trash, Recycling, Organics) in English, Mandarin and Korean. Design for both the labels and the hot stamps must be approved by City prior to ordering labels or Carts. City shall approve what information is included on the label and in the hot stamp, as well as approve design and quality. Labels shall be replaced when worn, and when information on the label is in need of updating, but no later than 90 days of request from City. Information on the Carts shall include the telephone number to call for Contractor, Bulky Item pickups and HHW disposal information, and shall include an anti -scavenging warning. 4.6.3.2 Cart Maintenance and Replacement Responsibilities Contractor shall be responsible for Cart repair and maintenance, graffiti removal and replacing lost, stolen or damaged Carts within three (3) business days, at no additional charge to the Customer or to City, unless Contractor can demonstrate to the City Manager beyond a reasonable doubt that the damage or loss was due exclusively to Customer's intentional or negligent behavior. City Manager shall make the final determination. If City permits a repair or replacement charge to be assessed against a Customer, charge shall be no more than the actual cost of repair or the Contractor's purchase price for a new Cart, whichever is lower. All repairs must restore the Cart to its full functionality. Unsightly/worn-out Carts shall be replaced by Contractor upon Customer request at no additional charge. 4.6.3.3 Bins A. Cleaning. Contractor shall maintain Bins in a clean, sound condition free from putrescible residue. All Bins in use shall be constructed of heavy metal, or other suitable, durable material, and shall be watertight and well painted. Wheels, forklift slots, and other apparatuses, which were designed for movement, loading, or unloading of the Bin shall be maintained in good repair. Upon Customer or City request, or if required to maintain the Containers in a clean condition, Contractor shall clean all Bins once per year at no additional charge. Contractor shall perform cleaning or replacement of Bins more frequently if necessary to prevent a nuisance caused by odors or vector harborage, or if requested by Customer or City, for an additional fee in accordance with the approved rate schedule. When a Bin is removed for cleaning, Contractor shall replace the Bin, either temporarily or as a change -out, with another Container. Contractor shall remove graffiti from any February 16, 2017 -43- City of Diamond Bar - Commercial Packet Pg. 491 8.3.a Container within three (3) business days of request by City or Customer. Contractor is required to proactively look for graffiti when Collecting Bins, with all graffiti removed from Containers in no later than three (3) business days after any Collection without notification. B. Bin Identification and Color. Each Bin placed in City by Contractor shall be clearly labeled on the front of the Bin with the Bin type (Refuse, Recycling, Cardboard, Organic Waste) and the name of Contractor and phone number in letters not less than three (3) inches high on the exterior of the Bin so as to be visible when the Bin is placed for use. Alternatively, the Bin type (Refuse, Recycling, Cardboard, Organic Waste) may be identified with an affixed sign. Labels shall also be placed on the inside of the Bin lid. Labels shall include English, Korean, Mandarin and graphic instruction on what materials should and should not be placed in each Bin, and shall include an anti - scavenging warning. Contractor shall have labels approved by City prior to ordering and placement on Bins. Labels shall be replaced when worn, and when information on the label is in need of updating, but no later than 90 days of request from City. Contractor shall repaint Bins upon City's request if the City deems it necessary to maintain a neat appearance. 4.6.3.4 Roll -off Boxes Contractor shall provide sufficient Roll -off Boxes to meet Customer demand throughout the Term of the Agreement, and will keep all Roll -off Boxes clean, free from graffiti, equipped with reflectors, and with the name and phone number of Contractor in letters not less than three (3) inches high on the exterior of the Roll -off Box so as to be visible when the Roll -off Box is placed for use. Contractor shall properly cover all open Roll -off Boxes during transport as required by the State Vehicle Code. 4.6.4 Litter Abatement A. Minimization of Spills. Contractor shall use due care to prevent Solid Waste or fluids from leaking, being spilled and/or scattered during the Collection or transporta- tion process and shall clean up any leaks or spills from its vehicles per the National Pollutant Discharge Elimination System (NPDES) permit in effect at the time. No fluids shall be washed into storm drains at any time. All NPDES dry-cleaning measures shall be complied with. All Collection Vehicles must be equipped with absorbent for such February 16, 2017 -44- City of Diamond Bar - Commercial Packet Pg. 492 8.3.a cleanup efforts and shall carry a broom, shovel, absorbent, and containment materials at all times for this purpose. Contractor shall not transfer loads from one vehicle to another on any public street, unless it is necessary to do so because of mechanical failure, accidental damage to a vehicle, or a pre -approved method of Solid Waste transfer between vehicles, without prior written approval by City. See Section 11.3.B.2.d. B. Clean Up. During the Collection or transportation process, Contractor shall clean up all litter spilled during Collection or otherwise caused by Contractor. Contractor shall leave a "red tag' notice for Customer if litter not caused by Contractor is found in Container enclosure or around Containers. Contractor may charge Customers in accordance with the approved rate schedule for the cleaning of Container enclosures or around the Container if it is littered due to overflowing Containers. Contractor may address habitual offenders in accordance with Section 4.1.8. In the event of a spill of materials (vehicle fluids, Organic Waste leachate, etc.), Contractor shall provide a cleanup of the spill to the satisfaction of City and other governing agencies. Cleanup methods may include pressure washing (Contractor must capture and reclaim water) or other similar clean-up methods. C. Covering of Loads. Contractor shall properly cover all open debris boxes during transport to the Disposal Site or processing facility. 4.6.5 Personnel A. Qualified Personnel. Contractor shall furnish such qualified drivers, mechanical, supervisory, clerical, management and other personnel as may be necessary to provide the services required by this Agreement in a satisfactory, safe, economical and efficient manner. All drivers shall be trained and qualified in the operation of vehicles they operate and must possess a valid license, of the appropriate class, issued by the California Department of Motor Vehicles. B. Hazardous Waste Employee Training. Contractor shall establish and vigorously enforce an educational program which will train Contractor's employees in the identification of Hazardous Waste. Contractor's employees shall not knowingly place such Hazardous Waste in the Collection Vehicles, nor knowingly dispose of such Hazardous Wastes at the processing Facility or Disposal Site. February 16, 2017 -45- City of Diamond Bar - Commercial Packet Pg. 493 8.3.a C. Unauthorized Material Removal. Contractor shall dismiss or discipline employees who remove documents or any other material from Containers, other than specifically for the purposes of Disposal and Diversion as described in this Agreement. D. Training. Contractor shall provide suitable operations, health and safety training for all of its employees who use or operate equipment or who are otherwise directly involved in Collection or other related operations. 4.6.6 Identification Required Contractor shall provide its employees, companies and subcontractors with identification for all individuals who may make personal contact with residents or businesses in City. City may require Contractor to notify Customers yearly of the form of said identification. Contractor shall provide a list of current employees, companies, and subcontractors to City upon request. City reserves the right to perform a security and identification check through the City's Police Department on the Contractor and all their present and future employees employed by Contractor to work in the City, in accordance with accepted procedures established by City, or for probable cause. 4.6.7 Unauthorized Fees and Gratuities Contractor shall not, nor shall it permit any agent, employee, or subcontractors employed by it to request, solicit or demand, either directly or indirectly, any compensation or gratuity for services authorized to be performed under this Agreement except as described in this Agreement, in accordance with Exhibit 2 as updated and approved by City throughout the Term of the Agreement. 4.6.8 Non -Discrimination Contractor shall not discriminate in the provision of service or the employment of persons engaged in performance of this Agreement on account of race, color, religion, sex, sexual orientation, age, physical handicap or medical condition in violation of any applicable federal or State law. February 16, 2017 -46- City of Diamond Bar - Commercial Packet Pg. 494 4.7 M 8.3.a 4.6.9 Report of Accumulation of Solid Waste; Unauthorized Dumping Contractor shall direct its drivers to note (1) the addresses of any Premises serviced under this Agreement at which they observe that Solid Waste is accumulating and which is not being place out for Collection; and (2) the address, or other location description, at which Solid Waste has been dumped in an apparently unauthorized manner. Contractor shall deliver the address or description to City within one (1) working day of such observation. Transportation of Solid Waste Contractor shall transport all Refuse Collected to a City -approved Facility (e.g. Transfer Station, Waste -to -Energy Facility, Organic Waste Processing Facility, MRF, Disposal Site). Contractor agrees to make all reasonable efforts to separate Recyclable Materials from Refuse for Diversion from landfill Disposal. Contractor shall maintain accurate records of the quantities of Solid Waste transported to all Facilities utilized and will cooperate with City in any audits or investigations of such quantities. Contractor shall cooperate with the operator of any Facility it uses with regard to operations therein, including, for example, complying with directions from the operator to unload Collection vehicles in designated areas, accommodating to maintenance operations and construction of new facilities, cooperating with its Hazardous Waste exclusion program, and so forth. Approved Facilities The Contractor shall dispose of Refuse Collected that is not required to be processed at the approved Disposal Site. Contractor must receive written advance approval from City to use each transfer station, transformation facility, processing facility or other Facility used by Contractor in the fulfillment of this Agreement. Contractor is responsible for ensuring that each Facility it uses is properly permitted prior to requesting City approval to use such Facility. Unless and until the City instructs otherwise, the designated Disposal Site and other Facilities are: Grand Central Recycling and Transfer Station. February 16, 2017 -47- City of Diamond Bar - Commercial Packet Pg. 495 8.3.a 4.9 Status of Disposal Site Any Disposal Site utilized by Contractor, shall be designed and constructed in accordance with 23 California Code of Regulations Section 2510 et seq. ("Subchapter 15") Any landfill Disposal Site shall have been issued all permits from federal, state, regional, county and city agencies necessary for it to operate as a Class III Sanitary Landfill and is in full regulatory compliance with all such permits. 4.10 Dedicated Routes Solid Waste Collected in the City shall not be commingled in Collection vehicles with Solid Waste from other jurisdictions. All routes approved under this Agreement shall be dedicated exclusively to Solid Waste Collected in the City of Diamond Bar, with the exception of Commercial Organics routes. 4.11 Route Audit Once during the first year, and subsequently upon request by the City, but in no event more than once per year, Contractor shall conduct an audit of its Collection routes in the City. In setting these audit dates, City will establish due dates for Contractor providing routing and account information, and later, the report, to City. The route audit, at minimum, shall consist of an independent physical observation by person(s) other than the route driver of each Customer in City. This person(s) is to be approved in advance by City. The route audit information shall include, as a minimum, the following information for each account: • Route Number; • Truck Number; • Account Name; • Account Number; • Account Service Address; • Account Type (Residential, Commercial, Roll -Off); • Service Level per Contractor Billing system (Quantity, Size, Frequency); • Observed Containers (Quantity and Size); • Container condition; • Proper signage; February 16, 2017 -48- City of Diamond Bar - Commercial Packet Pg. 496 8.3.a • Graffiti. Within forty-five (45) days after the completion of the route audit, Contractor shall submit to City a report summarizing the results of the audit. This summary shall include: • Identification of the routes; • Route map; • Truck numbers; • Number of accounts, by route and in total; • Confirmation that all routes are dedicated exclusively to City Customers; • Number and type of exceptions observed; • Total monthly service charge (Residential, Commercial and Roll -Off Box), pre -audit; • Total monthly service charge (Residential, Commercial and Roll -Off Box), post -audit (subsequent to corrections of identified exceptions). The report shall include a description of the procedures followed to complete the route audit. This description shall include the names and titles of those supervising the route audits and the name and titles of those performing the observations. The report shall also include a description of the changes and Contractor's plans to resolve the exceptions. The results of the audit, and supporting back-up data, shall be available for review by City or its representative. February 16, 2017 -49- City of Diamond Bar - Commercial Packet Pg. 497 8.3.a ARTICLE 5 OTHER SERVICES 5.1 Customer Billing and Contractor Compensation 5.1.1 Billing Contractor shall Bill Customers in accordance with the approved rate schedule attached as Exhibit 2. Contractor Compensation is exclusively derived from revenue received as a result of the Billings for services listed on the approved rate schedule, and Contractor shall charge no additional fees unless approved in advance by the City. Contractor will accept major credit cards for payment from Customers who request temporary Roll -off Box or temporary Bin service that do not have an account with Contractor. Customers without such an account who do not use credit cards may be required by the Contractor to post a security deposit or to pay on a "Cash on Delivery' (C.O.D.) basis. Any unused portion of a security deposit will be refunded to the Customer within fifteen business days of the termination of service. Contractor shall be responsible for bad debt. 5.1.2 Contractor's Invoices Bills must be itemized by Container size, frequency of service and period billed for. City must approve the format of Contractor billing invoices. All bills must carry a due date, not "due upon receipt." Bills will not carry an itemization of fees remitted to the City. 5.1.3 Section Deleted 5.1.4 Section Deleted 5.1.5 Section Deleted 5.1.6 Non -Payment; Collections; Suspension of Service In the event of non-payment by a Commercial Customer Billed by Contractor, Contractor must follow these steps before suspending service: February 16, 2017 -50- City of Diamond Bar - Commercial Packet Pg. 498 8.3.a First Notice - If payment is not received by 15 days after due date, Contractor shall notify Customer in writing of the non -receipt of payment and that non-payment can result in suspension of service. Second Notice - If payment is not received within 15 days of the mailing of the first notice of non -receipt of payment, Contractor shall mail a second notice of non -receipt of payment, warning that 1) service will be suspended in 15 days if payment is not received and that City will undertake code enforcement against the delinquent Customer, and 2) Contractor may assess a penalty of up to 10% on balances outstanding for sixty (60) days after the invoice date. Contractor shall not suspend service without prior approval from City. Notwithstanding the above, in the event of a Billing dispute or to avoid a negative impact on public health or safety, Contractor shall continue to provide service to all Customers unless permitted otherwise by City, without regard to the status of said Customer account. Billing disputes between Contractor and Customer may be resolved by City, and City's decision shall be final and binding. Contractor may be required to continue Residential service despite lack of payment due to health and safety concerns. 5.2 Customer Service 5.2.1 Local Office Contractor shall maintain a local office. Said office shall be open ("Office Hours"), at a minimum, from 7:00 A.M. to 5:00 P.M., Monday through Friday, exclusive of holidays. A responsible and qualified representative of Contractor shall be available during Office Hours for personal communication with the public at the local office. Contractor shall have either a representative, a message machine, or an answering service available outside of Office Hours. Calls received outside of Office Hours shall be responded to on the next business day. Contractor shall provide City with a twenty-four (24) hour emergency number to a live person, not voice -mail. 5.2.2 Complaint Documentation Service complaints received by City will be directed to Contractor. Contractor shall keep daily logs of complaints forwarded to it for a minimum of three (3) years. February 16, 2017 -51- City of Diamond Bar - Commercial Packet Pg. 499 8.3.a Contractor shall log all complaints received and said log shall include the date and time the complaint was received, the name, address and telephone number of the caller/ complainant, a description of the complaint, the name of the employee recording the complaint and the action taken by Contractor to respond to and remedy the complaint. The log shall also include each instance that Solid Waste and/or Recyclables are not Collected and the form of notification used to inform the participants of the reasons for non -Collection and the end result or means of resolution of the incident. All written Customer complaints and inquiries shall be date-stamped when received All complaints shall be initially responded to within one (1) business day of receipt. Contractor shall use best efforts to resolve complaints within two (2) business days. Contractor shall log action taken by Contractor to respond to and remedy the complaint. All Customer service records and logs kept by Contractor shall be available to City upon request. City shall, at any time during regular Office Hours, have access to Contractor's Customer service department for purposes that may include monitoring the quality of Customer service or researching Customer complaints. Contractor shall record Customer complaints regarding Customer service personnel in accordance with this Section 5.2.2. Customer service representatives receiving multiple complaints are to be transferred from Customer service duties or, with City approval, disciplined and appropriately trained. 5.2.3 Customer Service Standards Customer care is among the most important aspects of the services to be required of the Contractor. Contractor shall perform customer service at a level that can be measured by the following two standards: 1. The number of complaints in any one month period totaling no more that 2.5% of the number of residential customers served. In Diamond Bar, there are an estimated 300 accounts, meaning that in any given month, there must not be more than 8 complaints. Any compliant level in excess of this measure will be considered a separate violation of this Agreement. 2. Sufficient telephone line capacity during normal office hours to ensure that all calls will be answered in less than an average of thirty (30) seconds. February 16, 2017 -52- City of Diamond Bar - Commercial Packet Pg. 500 8.3.a Contractor shall insure that all incoming calls are answered courteously and promptly during the office hours stated above. Calls will be answered in less than an average of thirty (30) seconds, and thereafter will not be placed on hold longer than an average of one (1) minute before talking to a customer service representative of the Contractor. This standard must be measured quarterly, and the Contractor shall not exceed this standard or it will be considered a separate violation of this Agreement. Contractor shall track complaints and call ringing and hold requirements, and include results in its quarterly report to the City. In any 12 -month period, accumulation by the Contractor of four or more separate customer service violations shall be deemed a material breach of this Agreement and shall subject Contractor to all remedies which are available to the City under this Agreement or otherwise. A violation is one month in which the number of complaints exceeds the maximum permitted under Section 5.2.3(A) or one calendar quarter in which fewer than 90% of calls placed by the City and its Customers to Contractor are answered by a live customer service representative before the fourth ring under Section 5.2.3(B). Contractor shall train its employees in Customer courtesy, shall prohibit the use of loud or profane language, and shall instruct Collection crews to perform the work quietly. Contractor shall use its best efforts to assure that all employees present a neat appearance and conduct themselves in a courteous manner. If any employee is found to be discourteous or not to be performing services in the manner required by this Agreement, Contractor shall take all necessary corrective measures including, but not limited to, transfer, discipline or termination. If City has notified Contractor of a complaint related to discourteous or improper behavior, Contractor will consider reassigning the employee to duties not entailing contact with the public while Contractor is pursuing its investigation and corrective action process. 5.2.4 Resolution of Customer Complaints Disputes between Contractor and Customers regarding the services provided in accordance with this Agreement may be resolved by City. City's decision shall be final and binding. February 16, 2017 -53- City of Diamond Bar - Commercial Packet Pg. 501 8.3.a Intervention by City is not a condition precedent to any rights or remedies third parties might otherwise have in any dispute with Contractor. Nothing in this section is intended to affect the remedies of third parties against Contractor. 5.2.5 Contract Liaison Contractor shall designate in writing a "Contract Liaison" who shall be responsible for working with City and/or City's designated representatives) to resolve Agreement - related issues. City shall have the right to approve the Contractor's choice for a liaison. City shall be notified in advance of any change in Contract Liaison. 5.2.6 Service Liaison Contractor shall designate in writing a field supervisor as "Service Liaison" who shall be responsible for working with City and/or City's designated representative (s) to resolve Customer service related complaints. City shall have the right to approve the Contractor's choice for a liaison. City shall be notified in advance of any change in Service Liaison. 5.3 Education and Public Awareness 5.3.1 General Contractor acknowledges and agrees that education and public awareness are critical elements of efforts to achieve the requirements of AB 939. Accordingly, Contractor agrees to take direction from City to exploit opportunities to expand public and Customer knowledge concerning needs and methods to reduce, reuse and Recycle Solid Waste and to cooperate fully with City in this regard. Contractor shall maintain its own program of providing information relevant to needs and methods to reduce, reuse and recycle Solid Waste to be distributed, when appropriate, along with its Bills. All public education materials shall be subject to approval in advance by City and shall be printed in English, Mandarin and Korean. 5.3.2 Implementation and On-going Education Requirements In order to promote public education, in addition to any other materials it develops, Contractor shall create the following public education materials and programs at its expense, which will be distributed as indicated below. All of these materials and February 16, 2017 -54- City of Diamond Bar - Commercial Packet Pg. 502 8.3.a programs shall be produced and/or available in English, Mandarin and Korean languages, including pictures wherever applicable. All brochures, mailings, and other educational materials are subject to approval by City in advance of distribution. A Public Education Plan shall be submitted to City for review within sixty (60) days of the execution of this Agreement. The plan shall address the items described in this section. The approved plan shall be attached to this Agreement as Exhibit 1. • Instructional "How-to" Packets - An information packet shall be provided to each new Customer throughout the Agreement term. This packet shall: describe available services, including available Recycling and Diversion programs; provide instructions for proper use of the Containers (such as the types of materials to be placed in each type of Container and other similar information); detailed holiday Collection schedules; and provide billing and Customer service telephone numbers; identify who to contact with service or Billing questions; and who to contact for Bulky Item pickups. All customers shall be promptly notified of any changes to such information. The packet should also clearly indicate what materials, such as syringes and other Household Hazardous Wastes (HHW), should not be disposed of in the Containers. The packet shall include instructions on how Customers should dispose of HHW. • Container Labels and Hot Stamps -Containers shall carry stickers/labels and hot stamps as described in Sections 4.6.3.1.D and 4.6.3.3.B. • Billing Inserts - City may require Contractor to insert notices in Contractor's Billings up to four (4) times per year. City may instruct Contractor to prepare such notices at Contractor's expense, or may choose to provide such notices for insertion. Additionally, City may periodically request that Contractor include informative language directly on the invoices it sends. Annual Brochures/Mailings - Not less than once per year during each Rate Year, Contractor shall prepare and distribute to each Customer a mailing to update Customers regarding program basics, program changes, holiday schedules and other service related information. Mailings should promote and explain: all Solid Waste programs offered by City and Contractor (such as Recycling, Organic Waste, Holiday Tree and Bulky Item Collections) described in detail; the environmental, regulatory, and other benefits of participating in Recycling; how to properly dispose February 16, 2017 -55- City of Diamond Bar - Commercial Packet Pg. 503 8.3.a of Household Hazardous Waste such as syringes, paint, etc.; Collection schedules, including holiday schedules; Customers service numbers; and the procedures to begin and terminate services (if moving from Premises). This brochure shall be at least four (4) pages, and printed in full color. Contractor is responsible for all associated costs. Second Annual Mailer- Not less than once per year during each Rate Year, Contractor shall prepare and distribute to each Customer a one (1) page, double - sided mailer printed in full color. City and Contractor shall meet and confer to determine the subject matter of mailer. Contractor is responsible for all associated costs. The method of delivery to Customers is at the City's discretion. • Corrective Action Notice - Contractor shall develop a corrective action notification form for use in instances where a Customer sets out inappropriate materials for Collection, that explains the appropriate manner for Disposal of such items. • Website - Contractor shall develop and maintain a website to display holiday schedules, explain proper HHW disposal procedures, describe which materials are to be placed in Recyclables Containers and other useful information, as well as informing Customers how to contact Contractor. 5.3.3 Contractor Representative Contractor shall retain on its staff an individual who shall, as part of his or her job function, routinely visit civic groups, school assemblies, homeowners' associations, Multi -Family complexes and businesses, to promote and explain the Recycling programs Contractor offers, and participate in demonstrations, and civic events, and coordinate those visits with the City. 5.3.4 Community Events At the direction of City, Contractor shall participate in and promote Recycling and other Diversion techniques at community events and local activities. Such participation would normally include providing, without cost, educational and publicity information promoting the goals of City's Solid Waste program. February 16, 2017 -56- City of Diamond Bar - Commercial Packet Pg. 504 8.3.a 5.4 Waste Generation/Characterization Studies Contractor acknowledges that City must perform Solid Waste generation and Disposal characterization studies periodically to comply with the requirements of AB 939. Contractor agrees to participate and cooperate with City and its agents and to accomplish studies and data collection and prepare reports, as needed and directed by City, to determine weights and volumes of Solid Waste Collected and characterize Solid Waste generated, disposed, transformed, diverted or otherwise handled/ processed, by Customer type, to satisfy the requirements of AB 939. Upon request of City, Contractor will at its sole expense conduct a waste generation and characterization study relating only to the Solid Waste Contractor Collects, but not more than once every three years. February 16, 2017 -57- City of Diamond Bar - Commercial Packet Pg. 505 8.3.a ARTICLE 6 COMPANY COMPENSATION AND RATES 6.1 General The maximum rates set forth in Exhibit 2, and as more fully defined as Contractor Compensation in this Article, shall be the maximum amount Contractor may charge Customers as full, entire and complete compensation due pursuant to this Agreement for all labor, equipment, materials and supplies, taxes, insurance, bonds, letters of credit, overhead, Disposal, transfer, profit and all other things necessary to perform all the services required by this Agreement in the manner and at the times prescribed. Contractor shall impose no other charges for services (including but not limited to surcharges for weekend or priority service) provided to Customers unless approved by the City Manager. 6.2 Initial Rates The maximum rates that Contractor may charge Customers through the Rate Year ending June 30, 2018, shall not exceed the maximum rates set forth in Exhibit 2. 6.3 Schedule of Future Adjustments Beginning with the Rate Year starting July 1, 2011 and ending on June 30, 2012 and for all subsequent Rate Years, Contractor may request an annual adjustment to the maximum rates shown in Exhibit 2. The Contractor agrees to waive the annual rate adjustment that would be due July 1, 2017. The Contractor shall submit its request in writing, to be received by City in Person or via certified mail, by the preceding March 31, and shall be based on the method of adjustment described in Section 6.4. The City shall consider a failure to submit a written request by March 31 as Contractor's determination not to seek an adjustment and shall constitute a waiver by Contractor of its right to request such an increase for the subsequent Rate Year. However, the City reserves the right to initiate a rate adjustment in instances where the Contractor fails to submit a written rate adjustment request Adjustment to the maximum rates is subject to the approval of the City Manager. If an annual adjustment that would have resulted in a rate decrease is not implemented for any reason, the next rate adjustment will be measured based on the change in February 16, 2017 -58- City of Diamond Bar - Commercial Packet Pg. 506 8.3.a indices from the last implemented rate adjustment; the intent is to ensure subsequent rate increases shall be offset with any decrease not previously implemented. 6.4 Method of Adjustments 6.4.1 General Pursuant to Section 6.3, the Contractor may request an adjustment to the maximum rates according to the method described below and the formula shown in Exhibits 3A, 3B, and 3C, subject to review and approval of City. All future adjustments are to be effective July 1 of the same calendar year, following the March 31 submission deadline 6.4.2 Cost Components for Rate Adjustment Indices The approved rates consist of the following cost component categories. Each cost component may be adjusted by the change in the corresponding index below. See Section 6.4.3 and Section 6.4.4 for detailed rate adjustment procedures. (1) For example, under the agreement terminating September 30, 2019, these rates are: February 16, 2017 -59- City of Diamond Bar - Commercial Packet Pg. 507 Weightings for 7/1/18 Adjustment Cost Category Cate Rate Adjustment Factor Section Section 6.4.3 6.4.4 Change in the "Driver" Classification to be in effect as of the date the new rates go into effect (July 1) under the Agreement between Waste Management of San Gabriel/Pomona Valley, Inc. and Teamsters Automotive Industrial and Allied Workers Local Labor 27.0% 34.2% No. 495(l) Producer Price Index WPU05522101, Fuels and Fuel 6.1% 7.6% related products and power Producer Price Index, PCU336120336120, Heavy Equipment 20.0 % 25.0% duty truck manufacturing Consumer Price Index for All Urban Consumers (CUURA421SAOLIE), all items less food and energy Disposal 17.0% n/ a - Los Angeles -Riverside -Orange County, CA Consumer Price Index for All Urban Consumers (CUURA421SAOLIE), all items less food and energy All Other 29.9% 33.2% - Los Angeles -Riverside -Orange County, CA Total 100.0% 100.0% (1) For example, under the agreement terminating September 30, 2019, these rates are: February 16, 2017 -59- City of Diamond Bar - Commercial Packet Pg. 507 8.3.a Contract Date 10/01/16 10/01/17 10/01/18 Hourly Rate $21.85 $22.25 $22.65 Rate Adjustment Date n/a 7/01/18 7/01/19 Change to Labor Component n/ a 1.8% 1.8% Comparable rates from subsequent labor agreements will similarly apply. If a subsequent labor contract has not been executed prior to a rate adjustment calculation, the percentage change in the labor cost component used in the prior year's adjustment calculation will be used. In the event that the estimated labor component change is higher or lower than the actual change after a new labor contract is executed, no compensation adjustment shall be provided for prior periods. 6.4.3 Rate Adjustment Steps for Bin, Temporary and Other Services All rates, except for those specifically adjusted under Section 6.4.4, will be adjusted using the same methodology and cost component weightings. See Exhibit 3A. Step One - Calculate the percentage increase or decrease in the index for each category listed in Section 6.4.2. The increase or decrease in the published indices for fuel, equipment, disposal and all other (CPI) will be for the change in the average annual published index between the calendars ended the December prior to the Rate Year anniversary date and prior calendar year. (See Exhibit 3C for an example average annual change in published index year over year.) Step Two - The weightings of the cost components for the first rate adjustment are identified in the table in Section 6.4.2. Components to be used in subsequent years shall be calculated in Step Four of the rate adjustment. For Step Two of each subsequent rate adjustment, use the cost components recalculated in Step Four during the previous rate adjustment. The Contractor may elect to apply for a one-time reset of cost component weightings prior to the first rate adjustment based upon actual costs from August 16, 2010 through February 28, 2011. This request and supporting data shall be submitted to the City by March 30, 2011. The revision of the cost component weightings is subject to approval by the City Manager, which will review the request and supporting data for reasonableness. February 16, 2017 -60- City of Diamond Bar - Commercial Packet Pg. 508 8.3.a Multiply the percentage changes for each rate adjustment component by that component's weighting and add these resulting percentages together to get the total weighted change to the rates. Step Three - Multiply the total weighted percent change from Step Two by the existing Customer rates to calculate the increase or decrease to the maximum rates. Add the rate increase or decrease to the existing rates to derive the newly adjusted rates. Step Four - Recalculate weightings for the following year based upon these changes 6.4.4 Rate Adjustment Steps for Pull Plus Dump Roll -Off Rates This section shall apply exclusively to the adjustment of permanent Roll -Off Box rates that consist of a pull rate, or service component, plus a per ton Disposal/ processing cost. See Exhibit 3B for an example rate adjustment procedure. Service or "Pull" Component Step One - Calculate the percentage increase or decrease in the index for each cost category listed in Section 6.4.2, with the exclusion of the Disposal index. The increase or decrease in the published indices for fuel, equipment and all other (CPI) will be for the change in the average annual published index between the calendar year ended the December prior to the Rate Year anniversary date and prior calendar year. (See Exhibit 3C for an example average annual change in published index year over year.) Step Two - The cost components for the first rate adjustment shall be calculated as a percentage of total costs, based upon actual Contractor costs for the twelve-month period ended December 31, 2010, with subsequent components calculated in Step Four of the rate adjustment. For Step Two of each subsequent rate adjustment, use the cost components recalculated in Step Four during the previous rate adjustment. Multiply the percentage changes for each rate adjustment component by that component's weighting and add these resulting percentages together to get the total weighted change to the rates. Step Three - Multiply the total weighted percent change from Step Two by the existing Customer rates to calculate the increase or decrease to the maximum rates. Add the rate increase or decrease to the existing rates to derive the newly adjusted rates. February 16, 2017 -61- City of Diamond Bar - Commercial Packet Pg. 509 8.3.a Step Four - Recalculate weightings for the following year based upon these changes. Disposal/ Processing Component - The Disposal/ processing component of these rates will be adjusted based upon the increase or decrease in the average annual CPI index between the calendar year ended the December prior to the Rate Year anniversary date and prior calendar year. 6.5 Extraordinary Adjustments Contractor may request an adjustment to maximum rates in the event of extraordinary changes in the cost of providing service under this Agreement, including changes in a direct per ton surcharge assessed at the Disposal Site by federal, state or local regulatory agencies after the Effective Date. These requests, with the exception of changes in a direct per ton surcharge assessed at the Disposal Site by federal, state or local regulatory agencies after the Effective Date, if approved, shall only be granted at the time of the annual July 1 increase per Section 6.3, must be submitted no later than March 31 of each year, and should be submitted as early as feasible to provide City with sufficient time to review the request prior to granting the annual July 1 increase. Changes in Disposal surcharges may be requested at other times. Such changes shall not include changes in Recyclable Material processing costs, changes in the market value of Recyclables, inaccurate estimates by the Contractor of its proposed cost of operations, or unionization of Contractor's work force. Extraordinary rate adjustments shall only be effective after approval by City Council and may not be applied retroactively. For each request for an adjustment to the maximum rates that Contractor may charge Customers brought pursuant to this section, Contractor shall prepare a schedule documenting the extraordinary costs. Such request shall be prepared in a form acceptable to City with support for assumptions made by Contractor in preparing the estimate. Contractor shall also submit a schedule showing how its total costs and total revenues have changed over the past three years for the services provided under this Agreement. City may request a copy of the Contractor's annual financial statements in connection with the City's review of Contractor's extraordinary rate adjustment request. City shall review the Contractor's request and, in City's sole judgment and absolute, unfettered discretion, make the final determination as to whether an adjustment to the maximum rates will be made, and, if an adjustment is permitted, the appropriate amount of the February 16, 2017 -62- City of Diamond Bar - Commercial Packet Pg. 510 6.6 8.3.a adjustment. City will confirm receipt of a request for an extraordinary rate adjustment within sixty (60) days of receipt of Contractor's request and will promptly coordinate with Contractor to assess the request. City may consider, among other things, increases or decreases in the Contractor's total revenues and total cost of services when reviewing an extraordinary rate adjustment request. Effect of Rate Challenge If a rate adjustment approved by the City Manager or City Council is prevented from implementation due to a legal challenge by third parties, and City does not otherwise compensate Contractor for the amount of the adjustment due, Contractor is permitted to terminate this Agreement upon one-year notice. February 16, 2017 -63- City of Diamond Bar - Commercial Packet Pg. 511 8.3.a ARTICLE 7 REVIEW OF SERVICES AND PERFORMANCE 7.1 Performance Review Meeting City may hold a meeting annually to review Contractor's Solid Waste Collection efforts, source reduction, processing and other Diversion services and overall performance under this Agreement (the "Solid Waste Services and Performance Review Meeting'). The purpose of the Solid Waste Services and Performance Review Meeting is to provide for a discussion and review of technological, economic, and regulatory changes in Collection, source reduction, Recycling, processing and Disposal to achieve a continuing, advanced Solid Waste Collection, source reduction and Recycling and Disposal system; and to ensure services are being provided by Contractor with adequate quality, effectiveness and economy, and in full compliance with the terms of this Agreement. Topics for discussion and review at the Solid Waste Services and Performance Review Meeting shall include, but shall not be limited to, services provided, feasibility of providing new services, application of new technologies, Customer complaints, amendments to this Agreement, developments in the law, new initiatives for meeting or exceeding AB 939's goals, regulatory constraints, results of route audits, and Contractor performance. City and Contractor may each select additional topics for discussion at any Solid Waste Services and Performance Review Meeting. City shall notify Contractor of its intent to hold a Solid Waste Services and Performance Review Meeting at least sixty (60) days in advance thereof. Thirty (30) days after receiving notice from City of a Solid Waste Services and Performance Review Meeting, Contractor shall submit a report to City which may contain such information as it wishes to have considered, and shall contain the following: a) Current Diversion rates and a report on Contractor's outreach activities for the past year. b) Recommended changes and/or new services to improve City's ability to meet the goals of AB 939 and to contain costs and minimize impacts on rates. A specific plan for AB 939 compliance shall be included. c) Any specific plans for provision for new or changed services by Contractor. February 16, 2017 -64- City of Diamond Bar - Commercial Packet Pg. 512 7.2 8.3.a The reports required by this Agreement regarding Customer complaints shall be used as one basis for review of Contractor's performance, and Contractor may submit other relevant performance information and reports for consideration at the Solid Waste Services and Performance Review Meeting. In addition to the above, City may request Contractor to submit any other specific information relating to its performance for consideration at the Solid Waste Services and Performance Review Meeting, and any Customer may submit comments or complaints during or before the Meeting, either orally or in writing. Contractor shall be present at and participate in the Solid Waste Services and Performance Review Meeting. As a result of its findings following any Solid Waste Services and Performance Review Meeting, City may require Contractor to provide expanded or new services within a reasonable time and City may direct or take corrective actions for any performance inadequacies (although nothing contained in this provision should be construed as requiring City to hold a Solid Waste Services and Performance Review Meeting in order to enforce any rights or remedies it has pursuant to the terms hereof.) Should City require expanded or new services as a remedy for Contractor's failure to perform its obligations hereunder, no additional compensation shall be due for such services. Otherwise, any new or expanded services required of Contractor shall be subject to the provisions of Section 2.10. Performance Satisfaction Survey If requested by the City, Contractor will create and conduct a survey at Contractor's expense. If City would like to present results at a Solid Waste Services and Performance Review Meeting, City shall notify Contractor of its desire for such a survey at least 90 days in advance of the Solid Waste Services and Performance Review Meeting. The purpose of the survey is to determine Customer satisfaction with current Collection services and Customer service provided by Contractor. The Survey will be distributed to one hundred percent (100%) of the Customers. Contractor shall obtain City's approval of the survey's content, format, and mailing list prior to its distribution. City may require that Contractor have Customer responses to the survey returned directly to City. The survey results shall be made available to the City thirty (30) days prior to the Solid Waste Services and Performance Review Meeting. February 16, 2017 -65- City of Diamond Bar - Commercial Packet Pg. 513 8.3.a ARTICLE 8 RECORDS, REPORTS AND INFORMATION REQUIREMENTS 8.1 General Contractor shall maintain such accounting, statistical and other records related to its performance under this Agreement as shall be necessary to develop the financial statements and other reports required by this Agreement. Also, Contractor agrees to conduct data collection, information and record keeping, and reporting activities needed to comply with applicable laws and regulations and to meet the reporting and Solid Waste program management needs of City. To this extent, such requirements set out in this and other Articles of this Agreement shall not be considered limiting or necessarily complete. In particular, this Article is intended to only highlight the general nature of records and reports and is not meant to define exactly what the records and reports are to be and their content. Further, with the written direction or approval of City, the records and reports to be maintained and provided by Contractor in accordance with this and other Articles of this Agreement shall be adjusted in number, format, or frequency. 8.2 Records 8.2.1 General Contractor shall maintain records required to conduct its operations, to support requests it may make to City, and to respond to requests from City in the conduct of City business. Adequate record security shall be maintained to preserve records from events that can be reasonably anticipated such as a fire, theft and earthquake. Electronically maintained data/records shall be protected and backed up. All records, with the exception of records to be maintained under Section 8.2.4, shall be maintained for five (5) years, and shall continue to be available for five (5) years after the expiration of this Agreement. After minimum holding periods are met, Contractor will notify City Manager and City Attorney ninety (90) days before destroying records and offer records to the City. City shall have the right to inspect or review the specific documents or records required expressly or by inference pursuant to this Agreement, or any other similar records or reports of Contractor or its Affiliates that City shall deem, in its sole discretion, February 16, 2017 -66- City of Diamond Bar - Commercial Packet Pg. 514 8.3.a necessary to evaluate annual reports, and Contractor's performance provided for in this Agreement. Contractor agrees that the records of any and all companies conducting operations addressed in the Agreement shall be provided or made available to City and its official representatives. Account histories shall be accessible to the City by computer for a minimum of five (5) years after termination of the Agreement. Contractor shall make all records and documents to be reviewed and inspected by City as a part of any audit or other record review conducted by City, available for City's review, inspection and copying within five (5) days of receiving written notice from City requesting the same. Additionally, City may review records at Contractor's local facility during normal business hours, within five (5) days of request during normal business hours. Such records include, but are not limited to, financial, Solid Waste, CERCLA and Disposal records. 8.2.2 Financial Records Contractor shall maintain financial records relating to its operations pursuant to this Agreement separate and segregated from such records relating to its other operations. Contractor shall maintain at least the following records: • Audited financial statements for Contractor or, if a guarantee was provided, for the parent company guarantor as a whole; • Financial statements (compiled, reviewed or audited) of revenue and expense for this Agreement segregated from the other operations of Contractor (including without limitation those operations of Contractor in City and surrounding jurisdictions which are not covered by this Agreement), including a description of segregation methodology; and • Complete descriptions of related party transactions (corporate and/or regional management fees, inter -company profits from transfer, processing or Disposal operations). 8.2.3 Solid Waste Records Contractor shall maintain and make available to the City upon request the following records relating to its operations pursuant to this Agreement: a) Customer services and Billing/ City payment records; February 16, 2017 -67- City of Diamond Bar - Commercial Packet Pg. 515 b) C) d) 8.3.a Records of tons Collected, processed, diverted and disposed by waste stream (Refuse, Recycling, Organic Waste), by Customer type (Cart, Bin, Roll -Off Box), and the Facilities (Transfer Station, MRF, or landfill) where such material was taken; Quantity of Recyclable Materials recovered by material type, as well as quantity of material diverted from landfills in compliance with AB 939; Bulky Item results and Special Event tonnages, including tons disposed and diverted; Routes; Facilities, equipment and personnel used; Facilities and equipment operations, maintenance and repair; Number and type of Refuse, Recycling, and Organic Waste Containers in service; Complaints; and Missed pickups. 8.2.4 CERCLA Defense Records City views the ability to defend against the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and related litigation as a matter of great importance. For this reason, City regards the ability to prove where Solid Waste Collected in the City was taken for Disposal, as well as where it was not taken, to be matters of concern. Contractor shall maintain data retention and preservation systems which can establish where Solid Waste Collected in the City was landfilled (and therefore establish where it was not landfilled) for not less than twenty-five (25) years following the termination of this Agreement, and agrees to notify City Manager and City Attorney before destroying such records thereafter. At any time, including after the expiration of the Term hereof, Contractor shall provide copies of such records to City upon request. The requirements of this section shall survive the expiration of the Term. February 16, 2017 -68- City of Diamond Bar - Commercial Packet Pg. 516 8.3.a 8.2.5 Section Deleted 8.2.6 Other Programs' Records Records for other programs shall be tailored to specific needs. In general, they shall include: a) Plans, tasks, and milestones; and, b) Accomplishments in terms such as dates, activities conducted, quantities of products used, produced or distributed, and numbers of participants and responses. 8.2.7 Audit City may conduct an audit of Contractor at any time. The scope of the audit, and auditing party, will be determined by City and the scope may include, but is not limited to, compliance with terms of this Agreement, Customer service levels and Billing, fee payments, Gross Receipts, tonnage, and verification of Diversion rate. The first audit, to be performed during calendar year 2012, will be based on the Contractor's reports and records from the start of the Agreement through calendar year 2011. Audits may be performed every third year thereafter. Contractor will pay to the City the cost of such audits (including audits conducted by City staff) up to $50,000 for the first audit, and $35,000 for each subsequent audit in 2012 dollars. After 2012, the $35,000 amount shall be increased annually by the change in CPI using the formula for the change in the "all other" component of the rates in Section 6.4. Audit payments from the Contractor to the City are due January 1 of year the audit is being performed. Should an audit conducted or authorized by the City disclose that fees payable by Company were underpaid by two percent (2%) or more, that tonnage was mis-reported by 2% or more, or that more than two percent (2%) of the Customers were inaccurately billed based on the auditor's sampling, for the period under review, City may expand the scope of the audit and recover all additional audit costs from the Contractor. 8.2.8 Payments and Refunds Should an audit disclose that fees payable by the Contractor were underpaid to City or that Customers were overcharged for the period under review, Contractor shall pay to City any underpayment of fees and/or refund to Contractor's Customers, as directed by February 16, 2017 -69- City of Diamond Bar - Commercial Packet Pg. 517 8.3.a City, any overcharges within thirty (60 days following the date of the audit. Contractor shall pay interest to the City for any underpayment or overcharges at an annual rate of 6%. Undercharges shall not be billed in arrears for more than ninety (90) days of service, with any remaining undercharges absorbed by Contractor. Should an audit disclose that fees were overpaid, City shall credit such amounts against future fees payable by Contractor with interest. 8.3 Reports 8.3.1 Report Formats and Schedule Records shall be maintained in forms and by methods that facilitate flexible use of data contained in them to structure reports, as needed. Contractor shall utilize the Monthly Report template included in Exhibit 7, which may be adjusted by the City at any time. Contractor may propose the format for the Annual Report that is responsive to the objectives and audiences for report. The format of the Annual Report shall be approved by City, which may require changes and/or additions to the format. Reports shall be submitted within thirty (30) calendar days after the end of the reporting period. Annual reports shall be submitted within thirty (30) calendar days after the end of the calendar year. If requested, Contractor's complaint summary, described in Section 5.2.2, shall be sent to the City within five (5) business days of request. All reports shall be submitted in electronic format compatible with City's software/ computers, at no additional charge, to the City Manager and/or other City staff designated by the City Manager at e-mail addresses to be provided by City. City may additionally request hard copies, which would be delivered to: City Manager City of Diamond Bar 21810 Copley Drive Diamond Bar, CA 91765 8.3.2 Monthly/Quarterly Reports The information listed below shall be the minimum reported monthly: a) Solid Waste Collected by Contractor, sorted by type of Solid Waste Collected and diverted (Refuse, Recycling, Organic Waste) in tons, including contamination February 16, 2017 -70- City of Diamond Bar - Commercial Packet Pg. 518 8.3.a and Diversion rates for each wastestream and Customer type (Cart, Bin, Roll -Off Box) and the Facilities where the tons were processed or disposed. Bulky Item tons Collected and diverted shall also be reported as a separate line item. The information listed below shall be the minimum reported quarterly: a) Solid Waste Collected by Contractor, sorted by type of Solid Waste Collected and diverted (Refuse, Recycling, Organic Waste) in tons (including contamination and Diversion rates for each wastestream and Customer type (Cart, Bin, Roll -Off Box) and the Facilities where the tons were processed or disposed. Bulky Item tons Collected and diverted shall also be reported as a separate line item. b) Number of warning notices issued for contaminated Recyclable Materials, Green Waste, and Organic Waste Containers, and HHW improperly placed for Disposal. c) Narrative summary of problems encountered and actions taken with recommendations for City, as appropriate. d) Quantity of Recyclable Materials recovered by material type, as well as quantity of material diverted from landfills in compliance with AB 939. e) Description of Contractor outreach activities and copies of promotional and public education materials sent during the month. f) Other information or reports that City may reasonably request or require. 8.3.3 Annual Report The Annual Report is to be essentially in the form and content of the monthly report, but shall also include: a) A summary of the number of Containers in service as of December 31 by size (number of gallons/yards), service frequency, and type of service (Refuse, Recycling, Organic Waste). b) Records of tons Collected, processed, diverted and disposed by waste stream (Refuse, Recycling, Organic Waste Waste), by Customer type (Cart Bin, Roll -Off Box), and the Facilities (Transfer Station, MRF, processing or composting facility, or landfill) where such material was taken. c) Gross Receipts by sector (Cart, Bin, Roll -Off Box)]. February 16, 2017 -71- City of Diamond Bar - Commercial Packet Pg. 519 8.3.a d) A complete inventory of vehicles used to provide all services, including make, year, type, fuel used, use, California license number and whether or not it is used as a spare. e) A complete listing of accounts receiving scout service, including service address, billing name and address, telephone number, and proof of encroachment permit. f) Number of routes and route hours per day by type of service as of December 31. g) General information about the Contractor and its most recent annual report. h) Other information or reports that City may reasonably request or require. 8.3.4 Financial Report The City may, at City's option, request and be provided with Contractor's financial reports/ statements for the most recently completed fiscal year in connection with any audit, extraordinary rate adjustment request, or verification of other information required under, but only as they pertain to this Agreement. Financial statements shall include a supplemental combining schedule showing Contractor's results of operations, including the specific revenues and expenses in connection with the operations provided for in this Agreement, separated from others included in such financial statements. The financial statements and footnotes shall be prepared in accordance with Generally Accepted Accounting Principles (GAAP) and audited, in accordance with Generally Accepted Auditing Standards (GARS) by a certified public accountant (CPA) licensed (in good standing) to practice public accounting in the State of California as determined by the State of California Department of Consumer Affairs Board of Accountancy. The cost for preparation of the financial statements shall be borne by Contractor as a direct cost of service. In addition, Contractor shall provide to City the supplemental schedule on a compiled basis. 8.4 Reporting Adverse Information Contractor shall provide City two copies (one to the City Manager, one to the City Attorney) of all reports, pleadings, applications, notifications, Notices of Violation, communications or other material relating in any way to Contractor's performance of services pursuant to this Agreement, submitted by Contractor to, or received by Contractor from, the United States or California Environmental Protection Agency, CalRecycle, the Securities and Exchange Commission or any other federal, state or local February 16, 2017 -72- City of Diamond Bar - Commercial Packet Pg. 520 8.3.a agency, including any federal or state court. Copies shall be submitted to City within thirty (30) days of receipt by Contractor, or sooner if reasonably apparent that to do so is time critical, and any responses by Contractor shall be submitted to City simultaneously with Contractor's filing or submission of such matters with said agencies. Contractor's routine correspondence to said agencies need not be routinely submitted to City, but shall be made available to City promptly upon City's written request. Failure to Report The refusal or failure of Contractor to file any required reports, or to provide required information to City, or the inclusion of any materially false or misleading statement or representation by Contractor in such report shall be deemed a material breach of this Agreement as described in Section 11.1 and shall subject Contractor to all remedies which are available to the City under this Agreement, the Diamond Bar Municipal Code or otherwise. February 16, 2017 -73- City of Diamond Bar - Commercial Packet Pg. 521 8.3.a ARTICLE 9 INDEMNIFICATION, INSURANCE, BOND AND LETTER OF CREDIT 9.1 Indemnification Contractor hereby agrees to and shall indemnify and hold harmless City, its elected and appointed boards, commissions, officers, employees, consultants and agents (collectively, "Indemnitees") from and against any and all loss, liability, penalty, forfeiture, claim, demand, action, proceeding or suit in law or equity of any and every kind and description (including, but not limited to, injury to and death of any Person and damage to property, or for contribution or indemnity claimed by third parties) arising or resulting from and in any way connected with (1) the omissions, negligence or willful misconduct of Contractor, its officers, employees, agents, contractors and/or subcontractors in performing services under this Agreement; (2) the failure of Contractor, its officers, employees, agents, contractors and/or subcontractors to comply in all respects with the provisions of this Agreement, applicable laws (including, without limitation, the Environmental Laws), ordinances and regulations, and/or applicable permits and licenses; and (3) the acts of Contractor, its officers, employees, agents, contractors and/or subcontractors in performing services under this Agreement for which strict liability is imposed by law (including, without limitation, the Environmental Laws). The foregoing indemnity shall apply regardless of whether such loss, liability, penalty, forfeiture, claim, demand, action, proceeding, suit, injury, death or damage is also caused in part by any of the Indemnitees' negligence, but shall not extend to matters resulting from the Indemnitees' sole negligence, or willful misconduct. Contractor further agrees to and shall, upon demand of City, at Contractor's sole cost and expense, defend (with attorneys acceptable to City, acceptance of which shall not be unreasonably withheld) the Indemnitees against any claims, actions, suits in law or equity or other proceedings, whether judicial, quasi- judicial or administrative in nature, arising or resulting from any of the aforementioned events, and to reimburse City for any and all costs and expenses City incurs in providing any such defense, either before, during or after the time Contractor elects to provide such defense, including any and all costs incurred in overseeing any defense to be provided herein by Contractor. Contractor, upon demand of City, made by and through the City Attorney, shall protect City and appear in and defend the Indemnitees in any claims or actions by third parties, February 16, 2017 -74- City of Diamond Bar - Commercial Packet Pg. 522 9.2 8.3.a whether judicial, administrative or otherwise, including, but not limited to disputes and litigation over the definitions of "Solid Waste" or "Recyclable Material," the scope of the rights granted herein, conflicts between the rights granted herein and rights asserted by other Persons, or the limits of City's authority with respect to the grant of licenses, or agreements, exclusive or otherwise, or asserting rights under the United States or California Constitutions or any federal or state law to provide Solid Waste Collection Services in the City. THE PROVISIONS OF THIS SECTION SHALL NOT TERMINATE OR EXPIRE, SHALL BE GIVEN THE BROADEST POSSIBLE INTERPRETATION AND SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT. Hazardous Substances Indemnification A. Without regard to any insurance coverage or requirements, and without limiting the above general indemnification obligation in any way, Contractor specifically agrees to and shall, to the maximum extent permitted by law, defend (with counsel acceptable to City, which acceptance shall not be unreasonably withheld), reimburse, indemnify, and hold harmless Indemnities from and against any and all claims, actions, liabilities, damages, demands, judgments, losses, costs, liens, expenses, suits, actions, attorneys' fees, consultant fees, penalties and any and all other losses, damages, fees and expenses of whatever kind or nature ("Claims") (including but not limited to response costs, investigative costs, assessment costs, monitoring costs, treatment costs, cleanup costs, removal costs, remediation costs, and similar costs, damages and expenses) that arise out of or are alleged to arise out of or in any way relate to any action, inaction or omission of Contractor that: 1. results in any demand, claim, notice, order, or lawsuit, asserting that any Indemnitee is liable, responsible or in any way obligated to investigate, assess, monitor, study, test, treat, remove, remediate, or otherwise cleanup, any Hazardous Contaminant (as defined herein); or 2. relates to material Collected, transported, recycled, processed, treated or disposed of by Contractor. February 16, 2017 -75- City of Diamond Bar - Commercial Packet Pg. 523 8.3.a B. Contractor's obligations pursuant to this section shall apply, without limitation, to: 1. any Claims brought pursuant to or based on the provisions of any Environmental Law; 2. any Claims based on or arising out of or alleged to be arising out of the ownership, use, lease, sale, design, construction, maintenance or operation of Contractor of any Facility; 3. any Claims based on or arising out of or alleged to be arising out of the marketing, sale, distribution, storage, transportation, Disposal, processing or use of any materials recovered by Contractor; 4. any Claims based on or arising out of or alleged to be arising out of any breach of any express or implied warranty, representation or covenant arising out of or in connection with this Agreement. C. The foregoing indemnity and defense obligations shall apply irrespective of the negligence or willful misconduct of Contractor or any Affiliate of Contractor. D. The foregoing indemnity shall apply regardless of whether such loss, liability, penalty, forfeiture, claim, demand, action, proceeding, suit, injury, death or damage is also caused in part by any of the Indemnitees' negligence, but shall not extend to matters resulting from the Indemnitees' sole negligence, or willful misconduct. E. For purposes of this section, the term "Hazardous Contaminant" shall mean any Hazardous Substance, any Hazardous Waste, any crude oil or refined or unrefined petroleum product or any fraction or derivative thereof; and any asbestos or asbestos - containing material. The term "Hazardous Contaminant" shall also include any and all amendments to any referenced statutory or regulatory provisions made before or after the date of execution of this Agreement. F. In the event that the City exercises its right under Sections 2.11 and 4.8 to direct Contractor to use a facility other than a site approved in this Agreement, and such facility is not owned and operated by Contractor or any parent, affiliate or guarantor of the Contractor, this indemnification shall only apply to Claims arising out of Contractor's collection and transportation to such facility. February 16, 2017 -76- City of Diamond Bar - Commercial Packet Pg. 524 9.3 9.4 8.3.a G. THE PROVISIONS OF THIS SECTION SHALL NOT TERMINATE OR EXPIRE, SHALL BE GIVEN THE BROADEST POSSIBLE INTERPRETATION AND SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT. AB 939 Indemnification and Guarantee A. To the extent authorized by law, Contractor agrees to indemnify and hold harmless City from and against all fines and/or penalties imposed by CalRecycle in the event the source reduction and Recycling goals or any other requirement of AB 939 are not met by City with respect to the waste Collected under this Agreement. B. Contractor warrants and represents that it is familiar with City's waste characterization study as set forth in City's Source Recovery and Recycling Element (SRRE), and that it has the ability to and will provide sufficient programs and services to ensure City will meet or exceed the Diversion requirements (including, without limitation, amounts of Solid Waste to be diverted, time frames for Diversion, and any other requirements) set forth in AB 939, with respect to that portion of the Solid Waste generated in City that is the subject of this Agreement. Insurance Contractor shall procure and maintain during the entire Term the following types of insurance, and shall maintain the following minimum levels of coverage, which shall apply to any claims which may arise from or in connection with Contractor's performance 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 February 16, 2017 covering Automobile Liability, code 1 "any auto" and endorsement CA 00 25. -77- City of Diamond Bar - Commercial Packet Pg. 525 8.3.a 3. Workers' Compensation insurance as required by the Labor Code of the State of California and Employers Liability insurance. B. Minimum Limits of Insurance. Contractor shall maintain in force for the term of this Agreement limits no less than: 1. Comprehensive General Liability: Ten Million Dollars ($10,000,000) limit aggregate and Ten Million Dollars ($10,000,000) limit per occurrence for bodily injury, Personal injury and property damage. 2. Automobile Liability: Five Million Dollars ($5,000,000) single limit per accident for bodily injury and property damage. 3. Workers' Compensation and Employers Liability: Workers' compensation limits as required by the Labor Code of the State of California or provide evidence of State approval to be self-insured. Employers Liability in the minimum amount of $1,000,000. C. Deductibles and Self -Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either: the insurer shall reduce or eliminate such deductibles or self-insured 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 February 16, 2017 a) The Indemnitees shall be named as additional insureds as respects: liability arising out of activities performed by or on behalf of Contractor; products and completed operations of Contractor; Premises owned, leased or used by Contractor; or vehicles owned, leased, hired or borrowed by Contractor. The coverage shall contain no special limitations on the scope of protection afforded to the Indemnitees. -78- City of Diamond Bar - Commercial Packet Pg. 526 8.3.a b) Contractor's insurance coverage shall be primary insurance as respects the Indemnitees. Any insurance or self-insurance maintained by the Indemnitees shall be excess of Contractor's insurance and shall not contribute with it. c) Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the Indemnitees. d) Coverage shall state that Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability 2. Workers' Compensation and Employers Liability Coverage - The insurer shall agree to waive all rights of subrogation against the Indemnitees for losses arising from work performed by Contractor for City. 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. February 16, 2017 -79- City of Diamond Bar - Commercial Packet Pg. 527 G 1-:I Required Endorsements 1 2. 91 8.3.a Insurance policies shall contain an endorsement in substantially the following form: "Thirty (30) days prior written notice (ten (10) days written notice in the event of cancellation for non-payment) by certified mail, return receipt requested, shall be given to City in the event of cancellation, reduction in coverage, or non -renewal of this policy. Such notice shall be sent to: City Manager City of Diamond Bar 21810 Copley Drive Diamond Bar, CA 91765 "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." "Inclusion of City as an insured shall not affect City's rights as respects any claim, demand, suit or judgment brought or recovered against Contractor. This policy shall protect Contractor and City in the same manner as though a separate policy had been issued to each, but this shall not operate to increase Contractor's liability as set forth in the policy beyond the amount shown or to which Contractor would have been liable if only one party had been named as an insured." Other Insurance Requirements 1 February 16, 2017 In the event any services are delegated to another company or subcontractor, Contractor shall require such Contractor or subcontractor to provide statutory workers' compensation insurance and employer's liability insurance for all of the Contractor or subcontractor's employees engaged in the work in accordance with this Section 9.4. The liability insurance required by this Section 9.4 shall cover all Contractor or subcontractors or the Contractor or subcontractor must furnish evidence -80- City of Diamond Bar - Commercial Packet Pg. 528 8.3.a of insurance provided by it meeting all of the requirements of this Section 9.4. 2. Contractor shall comply with all requirements of the insurers issuing policies. The carrying of insurance shall not relieve Contractor from any obligation under this Agreement. If any claim exceeding the amount of any deductibles or self-insured reserves is made by any third Person against Contractor or any Contractor or subcontractor on account of any occurrence related to this Agreement, Contractor shall promptly report the facts in writing to the insurance carrier and to City. If Contractor fails to procure and maintain any insurance required by this Agreement, City may take out and maintain, at Contractor's expense, such insurance as it may deem proper and recover costs from the Contractor's Letter of Credit and/or Performance Bond provided under Sections 9.5 and 9.6. 9.5 Faithful Performance Bond Concurrently with execution of this Agreement, Contractor shall deliver to City a performance bond in the sum of the amount of One Hundred Twenty-five Thousand Dollars ($125,000), similar to the form provided in Exhibit 5, which secures the faithful performance of this Agreement, including, without limitation, payment of any penalty and the funding of any work to cure a breach of this Agreement, unless such requirement is waived by the City Manager. The bond shall contain the original notarized signature of an authorized officer of the surety and affixed thereto shall be a certified and current copy of his power of attorney. The bond shall be unconditional and remain in force during the entire term of the Agreement and shall be released only upon written release from City per Section 9.9. 9.6 Faithful Performance Letter of Credit A. In addition to a corporate surety bond as noted in Section 9.5 above, Contractor shall furnish an irrevocable letter of credit in the amount of One Hundred Twenty-five Thousand Dollars ($125,000), from a financial institution acceptable to the City and in a form acceptable to the City Attorney as security for the performance of this Agreement (the "LOC"). The LOC shall be the sole responsibility of Contractor, shall be February 16, 2017 -81- City of Diamond Bar - Commercial Packet Pg. 529 9.7 8.3.a unconditional and remain in force during the entire Term of the Agreement and shall be released only upon written release from City per Section 9.9. B. As an alternative to providing the performance bond and letter of credit required under 9.5 and 9.6.A, Contractor may provide a letter of credit in the amount of $250,000. The letter of credit shall be from a financial institution acceptable to the City in a form acceptable to the City Attorney as security for the performance of this Agreement. The LOC shall be the sole responsibility of Contractor, shall be unconditional and remain in force during the entire Term of the Agreement and shall be released only upon written release from City per Section 9.9. C. As an alternative to providing the performance bond and letter of credit required under 9.5 and 9.6.A, Contractor may deposit funds, on terms satisfactory to City, in an interest-bearing account at an institution satisfactory to both City and Contractor. Contractor may replace any required amount of the performance bond requirement, or the LOC requirement with an equivalent deposit. The deposit shall be accessible to the City immediately without action required by Contractor. The deposit shall be accessible to the City immediately without penalty, unless the funds on deposit are increased in excess of the total $250,000 required under Sections 9.5 and 9.6 by the maximum amount of the total potential penalty. The funds on deposit shall be the sole responsibility of the Contractor, shall be unconditional and remain on deposit during the entire Term of the Agreement and shall be withdrawn to Contractor's custody only upon written release from City per Section 9.9. Forfeiture of Performance Bond In the event Contractor shall for any reason become unable to, or fail in any way to, perform as required by this Agreement, City may declare a portion or all of the performance bond forfeited to the City up to an amount which is necessary to recompense and make whole the City. Upon partial or full forfeiture of the performance bond, Contractor shall restore the performance bond to its face amount within 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. February 16, 2017 -82- City of Diamond Bar - Commercial Packet Pg. 530 G: 9.9 8.3.a Forfeiture of Letter Of Credit or Deposit Thirty (30) days following City providing Contractor with written notice of its failure to pay City any amount owing under this Agreement, the LOC or deposit may be drawn upon by City for purposes including, but not limited to: a. Payment of sums due under the terms of this Agreement which Contractor has failed to timely pay to City b. Reimbursement of costs borne by City to correct violations of this Agreement not corrected by Contractor, including but not limited to the liquidated damages described in Section 11.3. City may draw upon the entire LOC and convert it to a cash deposit, or draw upon the entire deposit, if Contractor fails to cause it to be extended or replaced with another satisfactory LOC or deposit no later than 60 days prior to its expiration during the term hereof. If City partially draws down LOC or deposit, Contractor must restore it to full amount within 30 days of City's draw. Failure to restore the LOC or deposit to its full amount within thirty (30) days shall be a material breach of the Agreement. Performance Security Beyond Service Term Some Agreement requirements extend beyond the Term and other requirements, such as minimum Diversion rates per Section 4.2.5, will not be substantiated until after the final service date. Therefore, the Contractor shall not terminate the performance bond, 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 annual anniversary of the end of the Term. Permission from the City to discontinue holding these performance securities does not relieve Contractor of payments to the City that may be due, or may become due. February 16, 2017 -83- City of Diamond Bar - Commercial Packet Pg. 531 8.3.a ARTICLE 10 CITY'S RIGHT TO CONTRACT WITH THIRD PARTIES TO PERFORM FRANCHISED SERVICES City may contract with another Solid Waste enterprise to Collect and transport Solid Waste in the event Contractor for any reason refuses or is unable to Collect Solid Waste for a period of more than forty-eight (48) hours. City must provide twenty-four (24) hours prior written notice to Contractor during such time before contracting with another solid waste enterprise. In such event Contractor must identify sources from which such substitute solid waste services are immediately available and reimburse City for all of its expenses for such substitute services during period in which Contractor does not provide Collection and transportation services required by this Agreement. February 16, 2017 -84- City of Diamond Bar - Commercial Packet Pg. 532 8.3.a ARTICLE 11 DEFAULT, REMEDIES AND LIQUIDATED DAMAGES 11.1 Events of Default Each of the following provisions, without limitation, are considered material and shall constitute an event of default by the Contractor. A. Fraud or Deceit or Misrepresentation. If the Contractor engages in, or attempts to practice, any fraud or deceit upon City or makes a misrepresentation regarding material information to City. B. Insolvency or Bankruptcy or Financial Irresponsibility. If Contractor becomes insolvent, unable, or unwilling to pay its debts, files a bankruptcy petition or takes steps to liquidate its assets. C. Failure to Maintain Coverage. If Contractor fails to provide or maintain or cause its subcontractors to provide or maintain, in full force and effect the Workers' Compensation, liability, or indemnification coverage as required by this Agreement. D. Violations of Regulations. If Contractor violates any orders or filings of any regulatory body having jurisdiction over Contractor relative to this Agreement, provided that Contractor may contest any such orders or filings by appropriate proceedings conducted in good faith, in which case no breach of the Franchise and this Agreement shall be deemed to have occurred until a final decision adverse to the Contractor is entered. E. Failure to Perform. If Contractor ceases to provide all or a portion of the Collection, processing or Recycling services, or any other Solid Waste Collection Services as required under this Agreement for a period of seven (7) consecutive days or more, unless, and only to the extent, performance is excused pursuant to Section 11.4. F. Failure to Pay. If Contractor fails to make any payments required under this Agreement and/or refuses to provide City, within ten (10) days of the demand, with required information, reports, and/or records in a timely manner as provided for in the Agreement. February 16, 2017 -85- City of Diamond Bar - Commercial Packet Pg. 533 8.3.a G. Failure to Cooperate with Audits. Failure to complete, perform or cooperate with any audit as described by this Agreement. H. Failure to Submit Reports or Documentation. Failure to complete or to provide required reports or documents to City as required by this Agreement. I. Acts or Omissions. 1. Any act or omission by Contractor relative to the services provided under this Agreement which violates the terms, conditions, or requirements of this Agreement, or AB 939, or any law, statute, ordinance, order, directive, rule, or regulation issued pursuant to AB 939 not corrected or remedied within the time set in the written notice of the violation from the issuing entity or, if Contractor cannot reasonably correct or remedy the breach within the time set forth in such notice, if Contractor should fail to commence to correct or remedy such violation within the time set forth in such notice and diligently effect such correction or remedy. 2. Any situation in which Contractor or any of its officers, directors or employees are found guilty of any crime related to the performance of this Agreement, or of any crime related to anti-trust activities, illegal transport or Disposal of hazardous or toxic materials, or bribery of public officials. The term "found guilty" shall be deemed to include any judicial determination that Contractor or any of Contractor's officers, directors or employees is guilty as well as any admission of guilt by Contractor or any of Contractor's officers, directors or employees including, but not limited to, the plea of "guilty", "nolo contendere", "no contest", and "guilty to a lesser charge." J. False or Misleading Statements. Any representation or disclosure made to City by Contractor in connection with or as an inducement to entering into this Agreement, or any future amendment to this Agreement, which proves to be false or misleading in any material respect as of the time such representation or disclosure is made, whether or not any such representation or disclosure appears as part of this Agreement. K. Attachment. The seizure of, attachment of, or levy on, the operating equipment of Contractor, including, without limits, its equipment, maintenance or office facilities, or any part thereof. February 16, 2017 -86- City of Diamond Bar - Commercial Packet Pg. 534 8.3.a L. Suspension or Termination of Service. Any termination or suspension of the transaction of business by Contractor, including, without limitation, due to labor unrest including strike, work stoppage or slowdown, sick-out, picketing, or other concerted job action lasting more than seven (7) consecutive days, unless, and only to the extent, performance is excused pursuant to Section 11.4, or Section 5.1.6. M. Failure to Provide Assurance of Performance. If Contractor fails to provide reasonable assurances of performance as required under Section 11.6. N. Commingling of Recyclables With Refuse/Landfilling of Recyclables. If Contractor empties a Container of properly set out Recyclable Materials or Organic Waste into a Refuse load, or transports Recyclable Materials or Organic Waste to a landfill or other location at which the material will not be diverted from landfilling (with the exception of Green Waste used as alternative daily cover provided full Diversion credit is received). O. Failure to Meet Diversion Goals. Contractor fails to achieve diversion goals specified in Section 4.2.5, for two consecutive calendar years, beginning with calendar year 2011. P. Lapse of Performance Bond and/or Letter of Credit and/or Deposit. Contractor fails to restore the full balance of the Performance Bond and/or Letter of Credit and/or deposit required under Sections 9.5 and 9.6 to the full required value within 30 days of being depleted due to payment to City under Sections 9.7 or 9.8, or Contractor allows any of the securities at any time for any other reason to lapse or fall below required minimums for any period of time. Contractor shall have forty-eight (48) hours from the time it is given notification by City to cure any default arising under subsections E, F, G, H, K, L, M, N, and P provided, however, that City shall not be obligated to provide Contractor with a notice and cure opportunity if Contractor has committed the same or similar breach within a twenty- four (24) month period. It is expressly understood that Contractor is not entitled to receive notice of default, or to cure such default, with respect to those matters listed in subsections A, B, C, D, 1, J and O above. February 16, 2017 -87- City of Diamond Bar - Commercial Packet Pg. 535 8.3.a 11.2 Right to Terminate Upon Default and Right to Specific Performance If Contractor commits a material breach, including specifically any of the matters listed in subsections A through P of Section 11.1 above (and, if permitted to cure, does not cure it within the forty-eight (48) hours), City shall be entitled to unilaterally terminate this Agreement or impose other such sanctions (which may include financial sanctions, temporary suspensions or any other conditions it deems appropriate short of termination) as it shall deem proper pursuant to the provisions in this Agreement or the Diamond Bar Municipal Code. Should City decide to terminate this Agreement upon a default by Contractor, City shall have the right to do so upon giving ten (10) days notice to Contractor, and shall not be required by this Agreement to take any further action (such as holding any hearing, bringing any suit or taking any other action.) City's rights to terminate this Agreement and City's termination of this Agreement shall not constitute an election of remedies. Instead, such remedies shall be in addition to any and all other legal and equitable rights and remedies which City may have. By virtue of the nature of this Agreement, the urgency of timely continuous and high- quality service for preservation of the public health, safety and welfare, the time required to effect alternative service, and the rights granted by City to Contractor, the remedy of damages for a breach hereof by Contractor is inadequate and City shall be entitled to seek injunctive relief and/or specific performance of any breach of this Agreement. 11.3 Liquidated Damages A. General. City finds, and Contractor agrees, that as of the time of the execution of this Agreement, it is impractical, if not impossible, to reasonably ascertain the extent of damages which shall be incurred by City as a result of a breach by Contractor of certain specific obligations under this Agreement. The factors relating to the impracticability of ascertaining damages include, but are not limited to, the fact that: (i) substantial damage results to members of the public who are denied services or denied quality or reliable service; (ii) such breaches cause inconvenience, anxiety, frustration, and deprivation of the benefits of the Agreement to individual members of the general public for whose benefit this Agreement exists, in subjective ways and in varying degrees of intensity which are incapable of measurement in precise monetary terms; (iii) that the services that are the subject of this Agreement might be available at February 16, 2017 -88- City of Diamond Bar - Commercial Packet Pg. 536 8.3.a substantially lower costs than alternative services and the monetary loss resulting from denial of services or denial of quality or reliable services is impossible to calculate in precise monetary terms; and (iv) the termination of this Agreement for such specific breaches, and other remedies are, at best, a means of future correction and not remedies which make the public whole for past breaches. B. Service Performance Standards; Liquidated Damages for Failure to Meet Standards. The parties further acknowledge that consistent, reliable Solid Waste Collection Service is of utmost importance to City and the public health, safety and welfare and that City has considered and relied on Contractor's representations as to its quality of service commitment in entering this Agreement with it. The Parties further recognize that some quantified standards of performance are necessary and appropriate to ensure consistent and reliable service and performance. The Parties further recognize that if Contractor fails to achieve the performance standards, or fails to submit required documents in a timely manner, City and its residents will suffer damages and that it is and will be impractical and extremely difficult to ascertain and determine the exact amount of damages which City will suffer. Therefore, without prejudice to City's right to treat such breaches as an event of default under this Article 11, the Parties agree that the following liquidated damage amounts represent a reasonable estimate of the amount of such damages for such specific breaches, considering all of the circumstances existing on the date of this Agreement, including the relationship of the sums to the range of harm to City that reasonably could be anticipated and the anticipation that proof of actual damages would be costly or impractical. In placing their initials at the places provided, each party specifically confirms the accuracy of the statements made above and the fact that each party has had ample opportunity to consult with legal counsel and obtain an explanation of the liquidated damage provisions at the time that the Agreement was made. Contractor Initial Here Contractor agrees to pay (as liquidated damages and not as a penalty) the amounts set forth below: 1. Collection Reliability February 16, 2017 -89- City of Diamond Bar - Commercial Packet Pg. 537 a) For each failure to commence service to a new Customer account within seven (7) days after order, which exceeds five (5) such failures annually: $100.00 b) For each failure, which exceeds ten (10) such failures annually, to Collect Solid Waste from any established Customer account on the scheduled Collection day and not make up the Collection within the time allotted per Section 4.6.1: 2. Collection Quality $100.00 a) For each occurrence of failure to properly return empty Containers to avoid pedestrian or vehicular traffic impediments or to place Containers upright which exceeds ten (10) such occurrences annually: $100.00 b) For each occurrence of excessive noise or discourteous behavior which exceed ten (10) annually: $250.00 c) For each occurrence of Collecting Solid Waste during unauthorized hours which exceeds five (5) such occurrences annually: $250.00 d) For each failure to clean up Solid Waste spilled from Solid Waste Containers within ninety (90) minutes that exceeds ten (10) such failures annually: $150.00 e) For each complaint that exceeds the maximum permitted number of complaints per month in Section 5.2.3: $150.00 f) For each occurrence of failure to verify that Customer has obtained an encroachment permit from the City prior to Contractor placing a Container in the public right-of-way which exceeds ten (10) such occurrences annually: $100.00 g) For each occurrence of failure to return a Container to Container storage locations, as described in Section 4.1.12 "Scout Service' of this Agreement, within two (2) hours of set out which exceeds ten (10) such occurrences annually: $100.00 8.3.a c r a� CU M February 16, 2017 -90- City of Diamond Bar - Commercial Packet Pg. 538 3 f 8.3.a Customer Responsiveness a) For each failure to initially respond to a Customer complaint within one (1) business day, and for each additional day in which the complaint is not addressed, which exceed five (5) annually: $150.00 b) For each failure to process Customer complaints as required by Article 5, which exceed five (5) annually: $150.00 y c) For each failure to remove graffiti from Containers, or to replace with i Containers bearing no graffiti, within three (3) business days of request from a City or Customer: $ 50.00 per day > a� d) For each failure to repair or replace a damaged or missing Container within > two (2) business days of request from City or Customer: $ 50.00 per day r e) For each failure to process a claim for damages within thirty (30) days from the date submitted to Contractor: $100.00 f) For each additional thirty (30) day increment of time in which Contractor has failed to resolve a claim for damages within thirty (30) days from the claim date: $100.00 g) For each violation under Section 5.2.3 (one month of excessive complaints or one quarter of excessive delays in answering customer service calls): $500.00 h) For each occurrence of inaccurate information being provided to Customers by Contractor's customer service department which exceeds five (5) such occurrences annually: $100.00 Diversion Efforts a) For each calendar year, beginning calendar year 2010 through calendar year 2017, in which Contractor fails to provide support to the City within thirty (30) days of year-end, documenting that it diverted at least 25% of the Solid Waste Contractor Collected under this Agreement: February 16, 2017 -91- City of Diamond Bar - Commercial Packet Pg. 539 8.3.a $25 for each ton below tonnage level necessary to meet 25% Diversion goal b) For each calendar year, beginning January 1, 2018, in which Contractor fails to provide documentation to the City within thirty (30) days of year-end, supporting that it diverted at least 25% of the Solid Waste Contractor Collected under this Agreement, excluding Construction and Demolition Debris loads: $25 for each ton below tonnage level necessary to meet 25% Diversion goal c) For each calendar year, beginning calendar year 2018, in which Contractor fails to provide documentation to the City within thirty (30) days of year- end, supporting that it diverted at least 75%, or the State -mandated Construction and Demolition diversion percentage, whichever is greater, of all Construction and Demolition Debris loads it Collects under this Agreement: $25 for each ton below tonnage level necessary to meet 75%, or State -mandated Construction and Demolition Diversion goal, whichever is greater. 5. Timeliness of Submissions to City Any report shall be considered late until such time as a correct and complete report is received by City. For each calendar day a report is late, the daily liquidated damage amount shall be: i) Monthly Reports: $25 per day ii) Annual Reports: $50 per day 6. Accuracy of Billing Each Customer invoice that is not prepared in accordance with the City's approved rate schedule, in excess of ten (10) annually: $25.00 7. Cooperation with Service Provider Transition a) For each day routing information requested by City in accordance with Section 12.8 is received after City -established due dates, both for February 16, 2017 -92- City of Diamond Bar - Commercial Packet Pg. 540 8.3.a preparation of a request for proposals and for new service provider's implementation of service: $1,000.00/day b) For each day delivery of keys, access codes, remote controls, or other means of access to Solid Waste Containers is delayed beyond one (1) day prior to new service provider servicing Customers with access issues, as described in Section 12.8: $1,000.00/ day c) For delay in not meeting the requirements contained in Sections 4.11 and 12.8 in a timely manner, in addition to the daily liquidated damages for breach under 7(a) and 7(b) above, liquidated damages of: $35,000.00 8. General Contract Adherence For each day that Franchisee fails to provide services required under the Agreement, or comply with terms of the Agreement, five (5) business days after receipt of written notification from City that such services are not being provided or terms are not being met: $300.00/ day City may determine the occurrence of events giving rise to liquidated damages through the observation of its own employees or representatives or through investigation of Customer complaints by such Persons. If any failure is permitted or excused by another section of this Agreement, such a failure shall not count towards assessment of liquidated damages (such as a failure to Collect would not apply if it were due to the presence of contamination, provided Contractor left a warning notice). Prior to assessing liquidated damages, the City Manager shall give Contractor notice of its intention to do so. The notice will include a brief description of the incident(s)/non- performance. Contractor may review (and make copies at its own expense) all information in the possession of City relating to incident(s)/non-performance. Contractor may, within ten (10) days after receiving the notice, request a meeting with City Manager. Contractor may present evidence in writing and through testimony at the meeting of its employees and others relevant to the incident(s)/non-performance. City Manager will provide Contractor with a written explanation of its determination on each incident(s)/non-performance prior to authorizing the assessment of liquidated damages. The decision of City Manager shall be final. February 16, 2017 -93- City of Diamond Bar - Commercial Packet Pg. 541 11.4 8.3.a C. Amount. City may assess liquidated damages for each calendar day or event, as appropriate, that Contractor is determined to be liable in accordance with this Agreement. D. Timing of Payment. Contractor shall pay any liquidated damages assessed by City within ten 60 days after receipt of notice that liquidated damages are being assessed. If they are not paid within the ten (10) day period, City may proceed against the performance bond, letter of credit, or deposit required by the Agreement or find Contractor in default and terminate this Agreement pursuant to Section 11.2, or both. Suspension of Performance 11.4.1 Force Majeure The Parties shall be excused from performing their respective obligations hereunder in the event they are prevented from so performing by reason of floods, earthquakes, other natural disasters, war, civil insurrection, riots, acts of any government (including judicial action), and other similar catastrophic events which are beyond the control of and not the fault of the party claiming excuse from performance hereunder. The interruption or discontinuance of Contractor's services caused by one (1) or more of the events excused shall not constitute a default by Contractor under this Agreement provided that other services delivered to properties in Diamond Bar (such as and without limitation electricity, gas, water, or residential solid waste collection services) have been similarly disrupted as a direct result of the catastrophic event. Notwithstanding the foregoing, however, if Contractor is excused from performing its obligations hereunder for any of the causes listed in this section, City may contract with another provider to perform all or part of this Agreement until such time Contractor is able to perform. If Contractor is unable to renew its performance of this Agreement for a period of thirty (30) days or more, where the City is not significantly impacted by the catastrophic event, City shall nevertheless have the right, in its sole discretion, to ter- minate this Agreement by giving ten (10) days' notice. 11.4.2 Labor Unrest Labor unrest, including work stoppage or slowdown or sick-out conducted by Contractor's employees or directed at Contractor is excused from performance only to the extent that the following requirements are met: February 16, 2017 -94- City of Diamond Bar - Commercial Packet Pg. 542 8.3.a • Contractor provides a contingency plan to the City prior to the execution of this Agreement demonstrating how services will be provided. Plan is subject to City Manager approval and Contractor shall amend plan until it meets City requirements, including reasonably demonstrating how City's basic Collection and sanitary needs will be met to the City's satisfaction. • Contractor shall meet all requirements of this plan; if Contractor does not meet all requirements, City may choose to revoke this excuse from performance offered under this Agreement and may choose to use enforcement provisions under this Agreement, including Sections 11.1. 11.2 and 11.3. The party claiming excuse from performance shall, within two (2) days after such party has notice of such cause, give the other party notice of the facts constituting such cause and asserting its claim to excuse under this section. The interruption or discontinuance of Contractor's services caused by labor -related events excused under this Section 11.4.2 shall not constitute a default by Contractor under this Agreement. Notwithstanding the foregoing, however, if Contractor is excused from performing its obligations hereunder for any of the causes listed in this section for a period of thirty (30) days or more, City shall nevertheless have the right, in its sole discretion, to terminate this Agreement by giving ten (10) days' notice, and may contract with another party for Solid Waste Collection Services. 11.5 Dispute Resolution Except as may otherwise be set forth expressly herein, all disputes arising under this Agreement shall be resolved as set forth in this section. 11.5.1 Negotiation and Mediation The Parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiations between the Parties' authorized representatives. The disputing Party shall give the other Parties written notice of any dispute. Within five (5) days after delivery of such notice, the authorized representatives shall meet at a mutually acceptable time and place, and thereafter as often as they 2h U c U_ r a� CU M r 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 February 16, 2017 -95- City of Diamond Bar - Commercial Packet Pg. 543 8.3.a mediator that is acceptable to all Parties and shall conclude within thirty (30) days of its commencement, unless the Parties agree to extend the mediation process beyond such deadline. Upon agreeing on a mediator, the Parties shall enter into a written agreement for the mediation services with each Party paying a pro rata share of the mediator's fee, if any. The mediation shall be conducted in accordance with the Commercial Mediation Rules of the American Arbitration Association; provided, however, that no consequential damages shall be awarded in any such proceeding and each Party shall bear its own legal fees and expenses. 11.5.2 Confidentiality All negotiations and any mediation conducted pursuant to this section shall be confidential and shall be treated as compromise and settlement negotiations, to which Section 1152 of the California Evidence Code shall apply, which Section is incorporated in this Agreement by reference. 11.5.3 Injunctive Relief Notwithstanding the foregoing provisions, a Party may seek a preliminary injunction or other provisional judicial remedy if in its judgment such action is necessary to avoid irreparable damage or to preserve the status quo. 11.5.4 Continuing Obligation Each Party shall continue to perform its obligations under this Agreement pending final resolution of any dispute arising out of or relating to this Agreement. 11.5.5 Failure of Mediation If after good faith efforts to mediate a dispute under the terms of this Agreement the parties cannot agree to a resolution of the dispute, any party may pursue whatever legal remedies may be available to it at law or in equity before a court of competent jurisdiction and with venue in Los Angeles County. 11.6 Assurance of Performance City may, at its option and in addition to all other remedies it may have, demand from Q Lh c cc U- r CU a� Cl) r 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 February 16, 2017 -96- City of Diamond Bar - Commercial Packet Pg. 544 8.3.a provide satisfactory assurances of timely and proper performance in the form and by the date required by City, such failure or refusal shall be an event of default. February 16, 2017 -97- City of Diamond Bar - Commercial Packet Pg. 545 12.1 12.2 12.3 12.4 8.3.a ARTICLE 12 OTHER AGREEMENTS OF THE PARTIES Relationship of Parties The Parties intend that Contractor shall perform the services required by this Agreement as an independent contractor engaged by City and not as an officer or employee of City nor as a partner of or joint venture with City. No employee or agent or Contractor shall be or shall be deemed to be an employee or agent of City. Except as expressly provided herein, Contractor shall have the exclusive control over the manner and means of conducting the Solid Waste Collection Services performed under this Agreement, and all Persons performing such services. Contractor shall be solely responsible for the acts and omissions of its officers, employees, Affiliates, contractors, subcontractors and agents. Neither Contractor nor its officers, employees, Affiliates, contractors, subcontractors and agents shall obtain any rights to retirement benefits, workers' compensation benefits, or any other benefits which accrue to City employees by virtue of their employment with City. Compliance with Law In providing the services required under this Agreement, Contractor shall at all times, at its sole cost, comply with all applicable laws and regulations of the United States, the State of California, and any federal, state, regional or local administrative and regulatory agencies, now in force and as they may be enacted, issued or amended. Governing Law This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California. Jurisdiction Except for those matters where Federal Courts have exclusive jurisdiction, any lawsuits between the Parties arising out of this Agreement shall be brought and concluded in the courts of the State of California, which shall have exclusive jurisdiction over such lawsuits. February 16, 2017 -98- City of Diamond Bar - Commercial Packet Pg. 546 8.3.a With respect to venue, the Parties agree that this Agreement is made in and will be performed in Los Angeles County. 12.5 Assignment Contractor shall not assign its rights, nor delegate, subcontract or otherwise transfer its obligations under this Agreement (collectively referred to as an "assignment") to any other Person without the prior written consent of City. Any such assignment made without the consent of City shall be void and the attempted assignment shall constitute a material breach of this Agreement. For purposes of this section the term "assignment" shall be given the broadest possible interpretation, and shall include, but not be limited to (i) a sale, exchange or other transfer of substantially all of Contractor's assets dedicated to service under this Agreement to a third party; (ii) a sale, exchange or other transfer of outstanding common stock of Contractor to a third party provided said sale, exchange or transfer may result in a change of control of Contractor; (iii) any dissolution, reorganization, consolidation, merger, re -capitalization, stock issuance or re -issuance, voting trust, pooling agreement, escrow arrangement, liquidation or other transaction which results in a change of ownership or control of Contractor; (iv) any assignment by operation of law, including those resulting from mergers or acquisitions by or of Contractor of any of its Affiliates, insolvency or bankruptcy, making assignment for the benefit of creditors, writ of attachment for an execution being levied against this Agreement, appointment of a receiver taking possession of Contractor's property, or transfer occurring in the event of a probate proceeding; and (v) any combination of the foregoing (whether or not in related or contemporaneous transactions) which has the effect of any such transfer or change of ownership, or change of control of Contractor. Contractor acknowledges that this Agreement involved rendering a vital service to City's residents and businesses, and that City has selected Contractor to perform the services specified herein based on (1) Contractor's experience, skill and reputation for conducting its Solid Waste Collection Services in a safe, effective and responsible fashion, at all times in keeping with applicable Environmental Laws, regulations and best Solid Waste management practices, and (2) Contractor's financial resources to maintain the required equipment and to support its indemnity obligations to City under this Agreement. City has relied on each of these factors, among others, in choosing Contractor to perform the services to be rendered by Contractor under this Agreement. February 16, 2017 -99- City of Diamond Bar - Commercial Packet Pg. 547 8.3.a If Contractor requests City's consideration of and consent to an assignment, City may deny or approve such request in its sole discretion. Any request for an assignment must be approved by the City Manager in writing, and no request by Contractor for consent to an assignment need be considered by City unless and until Contractor has met (or with respect to matters that would only occur upon completion of the assignment if approved, made reasonable assurances that it will meet) the following requirements: a) Contractor shall pay City its reasonable expenses for attorney's fees and investigation costs necessary to investigate the suitability of any proposed assignee, and to review and finalize any documentation required as a condition for approving any such assignment. An advance payment towards expenses may be requested by City prior to City consideration of any assignment request and Contractor shall be responsible to pay all costs incurred by City in considering a request for assignment, including those in excess of the aforesaid deposit amount, regardless of whether City consents to the assignment. b) Contractor shall pay the City a transfer fee equal to one percent (1 %) of the Gross Receipts it, or its assignee, will receive during the remaining term of the Agreement at rates and service levels in effect at the time of the assignment, as estimated by City. c) Contractor shall furnish City with audited financial statements for itself, and the proposed assignee's operations for the immediately preceding three (3) operating years. d) A proforma financial statement (income statement and balance sheet) for the proposed assignee with the projected results of operations assuming that the assignment is completed. Such proforma financial statement shall reflect any debt to be incurred by the assignee as part of the acquisition of Contractor's operations. e) Contractor shall furnish City with satisfactory proof: (i) that the proposed assignee has at least ten (10) years of Solid Waste management experience on a scale equal to or exceeding the scale of operations conducted by Contractor under 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 February 16, 2017 -100- City of Diamond Bar - Commercial Packet Pg. 548 8.3.a or local agency having jurisdiction over its Solid Waste management operations due to any significant failure to comply with state, federal or local Environmental Laws and that the assignee has provided City with a complete list of any such citations and censures; (iii) that the proposed assignee has at all times conducted its operations in an environmentally safe and conscientious fashion; (iv) that the proposed assignee conducts its Solid Waste management practices in accordance with sound Solid Waste management practices in full compliance with all federal, state and local laws regulating the Collection and Disposal of Solid Waste including Hazardous Substances; and, (v) of any other information required by City to ensure the proposed assignee can fulfill the terms of this Agreement in a timely, safe and effective manner. Under no circumstances shall City be obliged to consider any proposed assignment by City if Contractor is in default at any time during the period of consideration. Should City consent to any assignment request, such assignment shall not take effect until all conditions relating to City's approval have been met in accordance with Chapter 8.16 of the Diamond Bar Municipal Code, as amended from time to time. 12.6 Contracting or Subcontracting Contractor shall not engage any contractors or subcontractors for the Collection of Solid Waste. 12.7 Binding on Assigns The provisions of this Agreement shall inure to the benefit to and be binding on the permitted assigns (if any) of the Parties. 12.8 Cooperation in Preparation for Termination or Expiration of Contract Prior to, and at the end of the Term or in the event this Agreement is terminated for cause prior to the end of the Term, Contractor shall cooperate fully with City and any subsequent Solid Waste enterprise it designates to assure a smooth transition of Solid Waste Collection Services. Contractor's cooperation shall include, but not be limited to, providing route lists, Billing information and other operating records needed to service all Premises covered by this Agreement. The failure to cooperate with City following termination shall be conclusively presumed to be grounds for specific performance of this covenant and/or other equitable relief necessary to enforce this covenant. February 16, 2017 -101- City of Diamond Bar - Commercial Packet Pg. 549 8.3.a Contractor shall provide a new service provider with all keys, security codes and remote controls used to access garages and Bin enclosures. Contractor shall be responsible for coordinating transfer immediately after Contractor's final pickups, so as not to disrupt service. Contractor shall provide City with detailed route sheets containing service names and addresses, Billing names and addresses, monthly rate and service levels (number and size of Containers and pickup days) at least 90 days prior to the transition date, and provide an updated list two weeks before the transition and a final list of changes the day before the transition. Contractor shall provide means of access to the new service provider at least one full business day prior to the first day of Collection by another party, and always within sufficient time so as not to impede in any way the new service provider from easily servicing all Containers. 12.9 Parties in Interest Nothing in this Agreement, whether express or implied, is intended to confer any rights on any Persons other than the Parties to it and their representatives, successors and permitted assigns. 12.10 Waiver The waiver by either party of any breach or violation of any provisions of this Agreement shall not be deemed to be a waiver of any breach or violation of any other provision nor of any subsequent breach of violation of the same or any other provision. The subsequent acceptance by either Party of any moneys which become due hereunder shall not be deemed to be a waiver of any pre-existing or concurrent breach or violation by the other Party of any provision of this Agreement. 12.11 Contractor's Investigation Contractor has made an independent investigation (satisfactory to Contractor) of the conditions and circumstances surrounding the Agreement and the work to be performed by it. 12.12 Section Deleted February 16, 2017 -102- City of Diamond Bar - Commercial Packet Pg. 550 8.3.a 12.13 Notice All notices, demands, requests, proposals, approvals, consents and other communications which this Agreement requires, authorizes or contemplates, unless otherwise specified in this Agreement, shall be in writing and shall either be personally delivered to a representative of the Parties at the address below or be deposited in the United States mail, first class postage prepaid, addressed as follows: If to City: City Manager City of Diamond Bar 21810 Copley Drive Diamond Bar, CA 91765 If to Contractor: David Perez V.P. Operations Valley Vista Services 17445 E. Railroad St. City of Industry, CA 91748 The address to which communications may be delivered may be changed from time to time by a written notice given in accordance with this section. Notice shall be deemed given on the day it is personally delivered or, if mailed, three days from the date it is deposited in the mail. This notice shall also be sent by e-mail to the City Manager. 12.14 Representatives of the Parties All actions to be taken by City shall be taken by the City Council except as expressly provided herein. The City Council may delegate authority to the City Manager, and/or to other City employees and may permit such employees, in turn, to delegate some or all of such authority to subordinate employees. Contractor may rely upon actions taken by such delegates if they are within the scope of the authority so delegated to them. Contractor shall, by the Effective Date, designate in writing a responsible officer who shall serve as the representative of Contractor in all matters related to the Agreement and shall inform City in writing of such designation and of any limitations upon his or February 16, 2017 -103- City of Diamond Bar - Commercial Packet Pg. 551 8.3.a her authority to bind Contractor. City may rely upon action taken by such designated representative as actions of Contractor unless they are outside the scope of the authority expressly delegated to him/her by Contractor as communicated to City. 12.15 City Free to Negotiate with Third Parties City may investigate all options for the Collection, transporting, Recycling, processing and Disposal of Solid Waste for periods during which this Agreement has expired or been terminated. Without limiting the generality of the foregoing, City may solicit proposals from Contractor and from third parties for the provision of Solid Waste Collection Services which are the subject of this Agreement, including without limitation Collection services, Disposal services, Recycling services, Green Waste, Organic Waste services and processing, and any combination thereof, and may negotiate and execute agreements for such services which will take effect upon the expiration or earlier termination of this Agreement pursuant to Section 11.2 or otherwise. 12.16 Compliance with Municipal Code Contractor shall comply with those provisions of the municipal code of City which are applicable, and with any and all amendments to such applicable provisions during the term of this Agreement. 12.17 Privacy Contractor shall strictly observe and protect the rights of privacy of Customers. Information identifying individual Customers or the composition or contents of a Customer's waste stream shall not be revealed to any Person, governmental unit, private agency, or company, unless upon the authority of a court of law, by statute, or upon valid authorization of the Customer. This provision shall not be construed to preclude Contractor from preparing, participating in, or assisting in the preparation of waste characterization studies or waste stream analyses which may be required by AB 939. This provision shall not apply to reports or records provided to City pursuant to this Agreement. February 16, 2017 -104- City of Diamond Bar - Commercial Packet Pg. 552 8.3.a 12.18 Proprietary Information, Public Records The City acknowledges that a number of the records and reports of Contractor are proprietary and confidential. Contractor is obligated to permit City inspection of its records on demand and to provide copies to City where requested. City will endeavor to maintain the confidentiality of all proprietary information provided by Contractor. Notwithstanding the foregoing, any documents provided by Contractor to City that are public records may be disclosed pursuant to the California Public Records Act. February 16, 2017 -105- City of Diamond Bar - Commercial Packet Pg. 553 13.1 13.2 13.3 13.4 13.5 8.3.a ARTICLE 13 MISCELLANEOUS PROVISIONS Entire Agreement This Agreement contains the entire integrated agreement and understanding concerning the subject matter herein and supersedes and replaces any prior negotiations, promises, proposals (including Contractor's Proposal), and agreements between the Parties, whether written or oral. The Parties acknowledges this document has been executed with the consent and upon the advice of counsel. Each of the Parties acknowledges that no Party or agent or attorney of any other party has made any promise, representation, or warranty, express or implied, not contained in this Agreement, to induce the other Party to execute this instrument. Section Headings The article headings and section headings in this Agreement are for convenience of reference only and are not intended to be used in the construction of this Agreement nor to alter or affect any of its provisions. References to Laws and Other Agreements All references in this Agreement to laws shall be understood to include such laws as they may be subsequently amended or recodified, unless otherwise specifically provided. Interpretation This Agreement, including the Exhibits attached hereto, shall be interpreted and construed reasonably and neither for nor against either Party, regardless of the degree to which either Party participated in its drafting. Agreement This Agreement may not be modified or amended in any respect except by a writing signed by the Parties. February 16, 2017 -106- City of Diamond Bar - Commercial Packet Pg. 554 8.3.a 13.6 Severability Invalidation of any of the provisions contained in this Agreement, or of the application thereof to any person, by judgment or court order, shall in no way affect any of the other provisions hereof or the application thereof to any other person or circumstance, and that same shall remain in full force and effect, unless enforcement of this Agreement, as so invalidated, would be unreasonable or inequitable under all the circumstances or would frustrate the purposes of this Agreement and/or the rights and obligations of the parties hereto. 13.7 Exhibits Each of Exhibits identified as Exhibit "1" through "6" is attached hereto and incorporated herein and made a part hereof by this reference. 13.8 Attorneys' Fees If either Party to this Agreement is required to initiate or defend or made a party to any action or proceeding between the Parties in any way connected with this Agreement, the prevailing Party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to recover its reasonable attorney's fees and costs from the opposing Party. Attorneys' fees shall include attorney's fees on any appeal. A Party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery, expert fees, and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action. 13.9 Effective Date This Agreement shall be effective upon the date it has been executed by both Parties. Once so executed, the City's City Clerk shall insert the later date thereof in the opening paragraph of this Agreement. February 16, 2017 -107- City of Diamond Bar - Commercial Packet Pg. 555 8.3.a IN WITNESS WHEREOF, City and Contractor have executed this Agreement as of the day and year first above written. CITY OF DIAMOND BAR (11Cityll) roy.'U D CITY OF DIAMOND BAR an James DeStefano City Manager Approved as to form: an David DeBerry City Attorney ATTEST: Tommye Cribbins City Clerk February 16, 2017 DATED: CONTRACTOR By: NAME TITLE Valley Vista Services, Inc. NAME OF COMPANY 17445 Railroad Street, Industry, CA ADDRESS (626)961-6291 TELEPHONE -108- City of Diamond Bar - Commercial Packet Pg. 556 8.3.a EXHIBIT 1 PUBLIC EDUCATION PLAN (to be attached after City approval per Section 5.3.2) February 16, 2017 1 City of Diamond Bar - Commercial Packet Pg. 557 8.3.a EXHIBIT 2 INITIAL MAXIMUM RATES M Following are the rates through June 30, 2018: Monthly Collection Rates Container Size Pickups per week 1 2 3 4 5 6 Extra Empty Refuse and Organics Bins 1.5 Cubic Yard $93.78 $154.13 extra bin (2) $84.41 $138.71 2 Cubic Yard $107.41 $186.22 $254.58 $329.44 $408.29 $476.65 $41.00 extra bin (2) $96.66 $167.59 $229.12 $296.50 $367.46 $428.97 3 Cubic Yard $132.98 $220.46 $309.55 $401.88 $492.60 $601.21 $47.48 extra bin (2) $119.68 $198.40 $278.60 $361.70 $443.35 $541.09 4 Cubic Yard $168.35 $270.95 $375.89 $535.36 $640.29 $777.75 $53.99 extra bin (2) $151.51 $243.84 $338.29 $481.82 $576.27 $699.99 6 Cubic Yard $200.96 $331.97 $464.66 $675.35 $806.37 $974.12 $62.71 extra bin (2) $180.86 $298.78 $418.19 $607.82 $725.74 $876.71 Organics Cart- 65 gal. $40.00 $80.00 $120.00 $160.00 $200.00 $240.00 Recycling - 96 gal. $17.56 Recycling -1.5 yd. $39.90 $63.55 Recycling - 2 yd. $45.81 $76.82 $101.95 $131.51 $162.57 $189.13 Recycling - 3 yd. $66.50 $102.51 $143.09 $185.29 $226.72 $277.14 Scout Service (3) $67.22 $160.16 $240.25 $320.32 $400.41 $480.48 (1) Including all fees retained by, or paid to, City. (2) Customers with more than one bin are charged a lower rate for additional bins. (3) Scout service rates may be charged in addition to collection rates, in accordance with Section 4.1.12 of the collection agreement, on a per container basis. February 16, 2017 2-1 City of Diamond Bar - Commercial Packet Pg. 558 8.3.a �:�W:��4 INITIAL MAXIMUM RATES(') (continued) Following are the rates through June 30, 2018: Bin Charges Rate Temporary Bin - 3 cubic yard $133.75/pull Temporary Bin - 6 cubic yard $165.17/pull Bin Cleaning (over one per year) $53.86 Locking Bin, per bin per month $11.67 Redelivery/ Return Trip Fee $104.21 Roll -off Box Charges Rate Standard Roll -Off Box - Rate per pull (including container rental) 12 to 16 yard $221.48 25 to 30 yard $212.90 40 to 45 yard $206.10 Compactor Roll -Off Box - Rate per pull (excluding compactor rental) 30 yard $329.16 40 yard $367.59 Container Rental Fee - for use in Excess of 7 days without being serviced $26.32/day Processing Per Ton $71.77 Temporary Roll -Off Box, 40 yard - rate includes container rental, pull and disposal up to 6 tons $592.94 Temporary Roll -Off Box, Low Boy - rate includes container rental, pull, and disposal up to 6 tons $628.94 Roll -Off Box Cleaning (above one per year) $119.55 Redelivery/ Return Trip Fee/Dry runs - roll -off box $154.79 Additional Service Charges Rate Per Service Multi -Family Bulky Item Pickup - each pickup above four per year of up to four items $32.40/ item Emergency Service Rates - one crew and one collection truck $91.81/hour (1) Including all fees retained by, or paid to, City. February 16, 2017 2-2 City of Diamond Bar - Commercial Packet Pg. 559 8.3.a EXAMPLE RATE ADJUSTMENT FORMULA Bin, Temporary Service and Other Service Rates Step One: Calculate percentage change in indices Step Two: Determine components B C Row Adjustment Factor Index Old Index Value New Index Value Percent Change in Index ((Column B = Column A) -1) 1 Labor (1) $ 21.85 $ 22.25 1.8% 2 Fuel (2) 200.8 176.6 -12.1% 3 JEquipment (3) 139.3 142.0 1.9% 4 IDisposal (4) 240.9 245.4 1.9% 5 1 All Other (4) 240.9 245.4 1.9% Step Two: Determine components Step Three: Apply percentage change to rates Row Adjustment Factor Index Cost Component Weighted as a O/o of Component Total (5) Percent Change in Index Total Weighted Change (from Column C) (Column D x Column E) 6 Labor (1) 27.0% 1.8% 0.5% 7 Fuel (2) 6.1% -12.1% -0.7% 8 Equipment (3) 20.0% 1.9% 0.4% 9 Disposal (4) 17.0% 1 1.9% 0.3 10 All Other 4) 29.9% 1 1.9% 0.6% 11 Total 36.68 100.0% $ 0.40 1.1 % Step Three: Apply percentage change to rates Step Four: Re -weight cost components Row Rate Category (6) Total Weighted Existing Customer Rate Percentage Change (Row 11, Column F) Rate Increase or Decrease (Column G x Column H) Adjusted Rate (Column G + Column I) 12 3 Yd Bin, 1x week $ 94.68 1.1% $ 1.04 $ 95.72 13 3 Yd Bin, 2x week $ 153.62 1.1% $ 1.69 $ 155.31 14 Temp. 45 -yd roll -off $ 485.00 1.1% $ 5.34 $ 490.34 15 Temp. 3 -yd bin $ 110.10 1.1% $ 1.21 $ 111.31 16 Extra Empty, 3 -yd $ 36.68 1.1% $ 0.40 $ 37.08 17 Bin Cleaning $ 92.28 1.1% $ 1.02 $ 93.30 Step Four: Re -weight cost components (1) Rate increased for a "Driver" as described in the Articles of Agreement between Waste Management of San Gabriel/Pomona Valley, Inc. and Teamsters Automotive Industrial and Allied Workers Local No. 495. (2) Producer Price Index, WPU05522101 Fuels and related products and power. (3) Producer Price Index, PCU336120336120, Heavy duty truck manufacturing - average annual change. (4) Consumer Price Index for All Urban Consumers (CUURA421SAOLIE), all items less food and energy index - Los Angeles -Riverside -Orange County - average annual change. (5) July 1, 2018 rate adjustment weightings come from Article 6.4.2. Subsequent years' weightings will come from Column O of the previous year. (6) Example rates listed below. Adjustment applies to all applicable rate categories. February 16, 2017 3-1 City of Diamond Bar - Commercial Packet Pg. 560 Row Adjustment Factor Index Cost Component Weighting (Column D) Percent Change as Applied to Rate Adjustment (Column E) Increase in Cost Components (Column K z Column L) Cost Component Increased (Column K + Column M) Cost Components Re - weighted to Equal 1001/o 18 Labor (1) 27.0% 1.8% 0.5% 27.5% 27.2% 19 Fuel (2) 6.1% -12.1% -0.7% 5.4% 5.3% 20 Equipment (3) 20.0% 1.9% 0.4% 20.4% 20.2% 21 Disposal (4) 17.0% 1.9% 0.3% 17.3% 17.1% 22 All Other (4) 29.9% 1.9% 0.6% 30.5% 30.2% 23 Total 100.0% 101.1% 100.0% (1) Rate increased for a "Driver" as described in the Articles of Agreement between Waste Management of San Gabriel/Pomona Valley, Inc. and Teamsters Automotive Industrial and Allied Workers Local No. 495. (2) Producer Price Index, WPU05522101 Fuels and related products and power. (3) Producer Price Index, PCU336120336120, Heavy duty truck manufacturing - average annual change. (4) Consumer Price Index for All Urban Consumers (CUURA421SAOLIE), all items less food and energy index - Los Angeles -Riverside -Orange County - average annual change. (5) July 1, 2018 rate adjustment weightings come from Article 6.4.2. Subsequent years' weightings will come from Column O of the previous year. (6) Example rates listed below. Adjustment applies to all applicable rate categories. February 16, 2017 3-1 City of Diamond Bar - Commercial Packet Pg. 560 8.3.a EXHIBIT 3B EXAMPLE RATE ADJUSTMENT FORMULA Permanent Roll -Off Box Rates Step One: Calculate percentage change in indices Step Two: Determine components A B C Row Adjustment Factor Index Old Index Value New Index Value Percent Change in Index ((Colum B _ Colum A) -1) I Service Component (Pull Rate) 16 -yd Rolloff Box $ 219.55 0.8% 2 Labor (1) $ 21.85 S 22.25 1.8% 3 Fuel (2) 200.8 176.6 -12.1% 4 Equipment (3) 139.3 142.0 1.9% 5 All Other (4) 240.9 245.4 1.9% 6 Disposal/Processing 1 (4) 1 240.9 1 245.4 1 1.9% Step Two: Determine components Step Three: Apply percentage change to rates D E I Row Adjustment Factor Index Cost Factor Category Weighted as a % of Component Total (5) Percent Change in Index (Colum C) Total Weighted Change (Column D x Column E) 7 Service Component (Pull Rate) 16 -yd Rolloff Box $ 219.55 0.8% 8 Labor (1) 34.2% 1.8% 0.6% 9 Fuel (2) 7.6% -12.1% -0.9% 10 Equipment (3) 25.0% 1.9% 0.5% 11 All Other (4) 33.2% 1.9% 0.6% 12 Service Component Total 364.38 100.0% $ 2.92 0.8% 13 IDisposaVProcessing 1 (4) 1 100.0% 1 1.9% 1 1.9% Step Three: Apply percentage change to rates Step Four: Re -weight cost components G H I J Row Rate Category (6) Current Customer Rate Total Weighted Percentage Change (Column F) Rate Increase or Decrease (Colum G x Colum H) Adjusted Rate (Colum G+ Colum I) 14 16 -yd Rolloff Box $ 219.55 0.8% $ 1.76 $ 221.31 15 30 -yd Rolloff Box $ 211.04 0.8% $ 1.69 $ 212.73 16 45 -yd Rolloff Box $ 204.30 0.8% $ 1.63 $ 205.93 17 30 -yd Compactor Rolloff $ 326.29 0.8% $ 2.61 $ 328.90 1 g 40 -yd Compactor Rolloff S 364.38 0.8% 1 $ 2.92 1 $ 367.30 19 1 Per Ton Disposal/Processing $ 71.77 1.9% 1 $ 1.36 1 $ 73.13 Step Four: Re -weight cost components (1) Rate increased for a "Driver" as described in the Articles of Agreement between Waste Management of San Gabriel/Pomona Valley, Inc. and Teamsters Automotive Industrial and Allied Workers Local No. 495. (2) Producer Price Index, WPU05522101 Fuels and related products and power. (3) Producer Price Index, PCU336120336120, Heavy duty truck manufacturing - average annual change. (4) Consumer Price Index for All Urban Consumers (CUURA421SAOLIE), all items less food and energy index - Los Angeles -Riverside -Orange County - average annual change. (5) July 1, 2018 rate adjustment weightings come from Article 6.4.2. Subsequent years' weightings will come from Column O of the previous year. (6) Example rates listed below. Adjustment applies to all applicable rate categories. (7) Rounded down by 0.1 % to allow the Total in Line 25 to equal 100.0%. February 16, 2017 3-2 City of Diamond Bar - Commercial Packet Pg. 561 K L M N O Row Adjustment Factor Index Cost Component (Column D) Percent Change as Applied to Rate Adjustment (Column E) Increase in Cost Components (Column K x Column L) Cost Component Increased (Column K+ Column M) Cost Components Re - weighted to Equal 100 20 Labor (1) 34.2% 1.8% 0.6% 34.8% 34.5% 21 Fuel (2) 7.6% -12.1% -0.9% 6.7% 6.6% 22 Equipment (3) 25.0% 1.9% 0.5% 25.5% 25.3% 23 All Other (4) 33.2% 1.9% 0.6% 33.8% 33.6% (7) 24 ITotal 100.0% 1 1 100.8% 100.0% (1) Rate increased for a "Driver" as described in the Articles of Agreement between Waste Management of San Gabriel/Pomona Valley, Inc. and Teamsters Automotive Industrial and Allied Workers Local No. 495. (2) Producer Price Index, WPU05522101 Fuels and related products and power. (3) Producer Price Index, PCU336120336120, Heavy duty truck manufacturing - average annual change. (4) Consumer Price Index for All Urban Consumers (CUURA421SAOLIE), all items less food and energy index - Los Angeles -Riverside -Orange County - average annual change. (5) July 1, 2018 rate adjustment weightings come from Article 6.4.2. Subsequent years' weightings will come from Column O of the previous year. (6) Example rates listed below. Adjustment applies to all applicable rate categories. (7) Rounded down by 0.1 % to allow the Total in Line 25 to equal 100.0%. February 16, 2017 3-2 City of Diamond Bar - Commercial Packet Pg. 561 8.3.a EXHIBIT 3C EXAMPLE RATE ADJUSTMENT FORMULA Example Calculation of an Annual Change in a Published Index Consumer Price Index - All Urban Consumers, Los Angeles -Riverside -Orange County, CA All items less food and energy, CUUSA421SAOLlE Year I Jan I Feb I March I April I May I June I July I August I Sept I Oct I Nov I Dec I Average 2014 239.084 239.908 240.322 240.507 240.366 240.460 240.981 241.574 242.016 242.360 241.842 241.491 240.909 2015 242.003 242.806 243.957 244.138 244.800 245.236 245.394 245.896 246.488 247.539 248.120 248.140 245.376 Average Change: 1.9% a� L c L LL cv An m M M to February 16, 2017 3-3 City of Diamond Bar - Commercial Packet Pg. 562 8.3.a EXHIBIT 4 [Section Deleted] February 16, 2017 4-1 City of Diamond ear - Commercial Packet Pg. 563 8.3.a EXHIBIT 5 Contractor's Faithful Performance Bond KNOW ALL MEN BY THESE PRESENTS: That , a California , as PRINCIPAL, and a Corporation organized and doing business by virtue of the laws of the State of California, and duly licensed for the purpose of making, guaranteeing, or becoming sole surety upon bonds or undertakings required or authorized by the laws of the State of California, as SURETY, are held and firmly bound to City, hereinafter called OBLIGEE, in the penal sum of one hundred twenty five thousand dollars ($125,000) lawful money of the United States, for the payment of which, well and truly to be made, we and each of us hereby bind ourselves, and our and each of our heirs, executors, administrators, successors, and assigns, jointly and severally, firmly by these presents. NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH THAT WHEREAS, the above bounden PRINCIPAL has entered into a contract, entitled "RESIDENTIAL SOLID WASTE MANAGEMENT SERVICES" with City, to do and perform the following work, to wit: Collect, Process and dispose of Solid Waste generated within City, in accordance with the contract. NOW, THEREFORE, if the above bounden PRINCIPAL shall well and truly perform, or cause to be performed each and all of the requirements and obligations of said contract to be performed by said PRINCIPAL, as in said contract set forth, then this BOND shall be null and void; otherwise it will remain in full force and effect. And the said Surety, for value received hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the contract or to the work to be performed thereunder or the specifications accompanying the same shall in any wise affect its obligations on this BOND, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the contract or to the work or to the specifications. February 16, 2017 5-1 City of Diamond ear - Commercial Packet Pg. 564 8.3.a In the event suit is brought by OBLIGEE to enforce the provisions of this bond, said Surety will pay to OBLIGEE a reasonable attorney's fee, plus costs of suit, in an amount to be fixed by the court. IN WITNESS WHEREOF, said PRINCIPAL and said SURETY have caused these presents to be duly signed and sealed this DAY OF , 200— a California Corporation (PRINCIPAL) (SEAL) February 16, 2017 By: SURETY (ATTORNEY IN FACT) (SEAL) 5 - 2 City of Diamond Bar - Commercial Packet Pg. 565 8.3.a EXHIBIT 6 NOTARY CERTIFICATION ACKNOWLEDGMENT State of California County of ) On before me, (insert name and title of the officer) personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) February 16, 2017 City of Diamond Bar - Commercial Packet Pg. 566 8.3.b AMENDED AND RESTATED AGREEMENT BETWEEN CITY OF DIAMOND BAR AND VALLEY VISTA SERVICES FOR BIN AND ROLL -OFF BOX CUSTOMER SOLID WASTE MANAGEMENT SERVICES February 7, 2017 1194874.1 Packet Pg. 567 8.3.b AGREEMENT BETWEEN CITY OF DIAMOND BAR AND VALLEY VISTA SERVICES FOR BIN AND ROLL -OFF BOX SOLID WASTE MANAGEMENT SERVICES TABLE OF CONTENTS Pale RECITALS 1 ARTICLE1.................................................................................................................................................30 DEFINITIONS.......................................................................................................................................................................... 31M LIIAB 939......................................................................................................................................................................3M 1.2M AFFILIATE................................................................................................................................................................. 3M 1.30 BILLINGS................................................................................................................................................................... 40 1.41N BIN............................................................................................................................................................................ 4M 1.5M BIN SERVICE.............................................................................................................................................................4M 1.61N BULKY ITEMS............................................................................................................................................................ 4M 1.70 CART.........................................................................................................................................................................4M 1.81M CITY.......................................................................................................................................................................... 5M 1.90 COLLECT/ COLLECTION ...........................................................................................................................................50 1.10M COMMERCIAL SERVICES...................................................................................................................................... 5M 1.110 COMMERCIAL PREMISES...................................................................................................................................... 50 1.12M CONTRACTOR...................................................................................................................................................... 5M 1.13M CONTRACTOR COMPENSATION.......................................................................................................................... 5M 1.14M CONSTRUCTION AND DEMOLITION DEBRIS....................................................................................................... 6M 1.15M CONTAINER......................................................................................................................................................... 6M 1.16M CPI.......................................................................................................................................................................6M 1.17M CUSTOMER...........................................................................................................................................................61a 1.181a DISPOSAL............................................................................................................................................................. 6M 1.191N DISPOSAL SITE(S)................................................................................................................................................. 6M 1.200 DIVERSION...........................................................................................................................................................60 1.211a ENVIRONMENTAL LAWS..................................................................................................................................... 71a 1.220 FACILITY.............................................................................................................................................................. 7M 1.23M FOOD WASTE........................................................................................................................................................70 1.240 GREEN WASTE..................................................................................................................................................... 7M 1.25M GREEN WASTE PROCESSING FACILITY................................................................................................................ 8M 1.260 GROSS RECEIPTS.................................................................................................................................................. 8M 1.27M HAZARDOUS SUBSTANCE.................................................................................................................................... 80 1.28M HAZARDOUS WASTE........................................................................................................................................... 9M 1.29M HOUSEHOLD HAZARDOUS WASTE("HHW")...................................................................................................91N 1.30M MATERIALS RECOVERY FACILITY ("MRF")....................................................................................................... 9M 1.311a MULTI -FAMILY DWELLING................................................................................................................................. 91N February 7, 2017 i City of Diamond Bar - Commercial Packet Pg. 568 8.3.b 1.32M ORGANIC WASTE................................................................................................................................................ 9M 1.33M ORGANIC WASTE PROCESSING FACILITY........................................................................................................... 91M 1.34M PERSON..............................................................................................................................................................100 1.351N PREMISES........................................................................................................................................................... 10M 1.360 RATE YEAR........................................................................................................................................................100 1.37M RECYCLING........................................................................................................................................................ 10M 1.380 RECYCLABLE MATERIALS.................................................................................................................................. 10M 1.390 REFUSE............................................................................................................................................................... 10M 1.40M RESIDENTIAL SERVICES..................................................................................................................................... 101N 1.411N RESIDENTIAL CUSTOMERS................................................................................................................................. 1 1 m 1.421a RESIDENTIAL PREMISES..................................................................................................................................... 11la 1.43M ROLL -OFF Box................................................................................................................................................... E HE 1.440 SINGLE FAMILY DWELLING............................................................................................................................... 1 IIN 1.45M SOLID WASTE.................................................................................................................................................... 1 l Pj 1.460 SOLID WASTE COLLECTION SERVICES.............................................................................................................. 12M 1.47M SOURCE SEPARATED.......................................................................................................................................... 12r 1.481a STATE................................................................................................................................................................. 121a 1.491N TEMPORARY SERVICE........................................................................................................................................ 12M 1.50M TRANSFORMATION............................................................................................................................................ 120 1.511a TRANSFER STATION........................................................................................................................................... 122 1.520 WASTE GENERATOR.......................................................................................................................................... 13M ARTICLE2...............................................................................................................................................14M GRANT AND ACCEPTANCE OF FRANCHISE.............................................................................................................141a 2.10 GRANT AND ACCEPTANCE OF FRANCHISE, INDEMNITY OF AWARD................................................................... 142 2.2M SECTION DELETED.................................................................................................................................................. 141a 2.30 EFFECTIVE DATE.................................................................................................................................................... 14M 2.4M TERM OF AGREEMENT............................................................................................................................................ 14M 2.5M CITY'S OPTION TO EXTEND TERM.......................................................................................................................... 150 2.61M REPRESENTATIONS AND WARRANTIES OF CONTRACTOR.................................................................................... 151a 2.7M CONDITIONS TO EFFECTIVENESS OF AGREEMENT................................................................................................. 17M 2.8M DELEGATION OF AUTHORITY................................................................................................................................ 171N 2.9M LIMITATIONS TO SCOPE.......................................................................................................................................... 18M 2.101a CITY'S RIGHT To DIRECT CHANGES................................................................................................................. 202 2.10.1M General.....................................................................................................................................................200 2.10.20 New Diversion Programs......................................................................................................................... 200 2.111a OWNERSHIP OF SOLID WASTE.......................................................................................................................... 211a 2.120 PERMITS AND LICENSES.................................................................................................................................... 21M ARTICLE3...............................................................................................................................................230 FEESPAID TO THE CITY................................................................................................................................................... 231M 3.11M CONTRACTING FEE................................................................................................................................................ 231a 3.2M OTHER CITY FEES................................................................................................................................................... 23M 3.2.1M Franchise Fee................................................................................................................................................. 23M 3.2.20 AB 939 Fee.................................................................................................................................................... 23M 3.2.3M Environmental Education Fee....................................................................................................................... 24M 3.2.4M Section Deleted.............................................................................................................................................. 240 3.2.5M Late Payment of Fees..................................................................................................................................... 242 3.30 FUTURE FEES.......................................................................................................................................................... 240 ARTICLE4...............................................................................................................................................250 DIRECTSERVICES..............................................................................................................................................................25M February 7, 2017 ii City of Diamond Bar - Commercial Packet Pg. 569 8.3.b 4.10 REFUSE....................................................................................................................................................................250 300 4.1.10 General..........................................................................................................................................................250 300 4.1.20 Section Deleted.............................................................................................................................................. 250 4.1.30 Section Deleted.............................................................................................................................................. 250 4.1.40 Section Deleted.............................................................................................................................................. 250 4.1.50 Section Deleted.............................................................................................................................................. 250 4.1.60 Bin Refuse Collection.................................................................................................................................... 250 4.1.7[7 Determination of Service Type...................................................................................................................... 260 4.1.80 Overflowing Containers................................................................................................................................ 260 4.1.90 Permanent Roll -off Box Service.................................................................................................................... 270 4.1.100 Temporary Bin and Temporary Roll -Off Box Service.............................................................................. 270 4.1.110 Bin Pushout Service................................................................................................................................. 280 4.1.120 Scout Service............................................................................................................................................280 4.3.20 4.1.130 Locking Bins............................................................................................................................................. 280 4.1.140 Redelivery/Return Trip Fee...................................................................................................................... 280 4.1.150 On -Call Bulky Item Pickup...................................................................................................................... 290 4.1.160 Bulky Item Diversion...............................................................................................................................290 4.1.170 Disposal of Electronic and Other Special Wastes..................................................................................... 300 4.1.180 Door -to -Door HHW Collection................................................................................................................ 300 4.1.190 SECTION DELETED............................................................................................................................................. 300 4.1.200 Service Exceptions, Hazardous Waste Notifications................................................................................ 300 4.20 RECYCLING .............................................................................................................................................................310 4.2.10 Recyclables Collection................................................................................................................................... 310 4.2.20 Processing of Solid Waste............................................................................................................................. 320 4.2.30 Section Deleted.............................................................................................................................................. 320 4.2.40 Marketing and Sale of Recyclable Materials................................................................................................. 320 4.2.50 Minimum Diversion Requirements.............................................................................................................. 320 4.2.60 Construction and Demolition Debris Diversion........................................................................................... 330 4.2.70 Organic Waste Collection Services............................................................................................................... 340 4.2.80 Section Deleted............................................................................................................................................. 340 4.30 GREEN WASTE PROGRAM...................................................................................................................................... 340 4.3.10 Holiday Tree Collection Program................................................................................................................. 350 4.3.20 Roll -Off Green Waste.................................................................................................................................... 350 4.3.30 End Uses for Green Waste............................................................................................................................ 350 4.40 SECTION DELETED.................................................................................................................................................. 360 4.50 CITY SERVICES........................................................................................................................................................360 4.5.10 City Facilities Collection............................................................................................................................... 360 4.5.20 City Sponsored Events.................................................................................................................................. 360 4.5.30 Emergency Collection and Disposal Service................................................................................................. 370 4.5.40 Abandoned Item Collection from City Right -of -Way or Other Public Property .......................................... 370 4.5.50 Community Development Review Services.................................................................................................. 370 4.5.60 Large Venue Event Assistance, Event Recycling......................................................................................... 370 4.5. 77M Confiscation of Unauthorized Containers..................................................................................................... 370 4.5.80 Provision of Storage Containers................................................................................................................... 380 4.60 OPERATIONS ...........................................................................................................................................................380 4.6.10 Schedules; Missed Pickups............................................................................................................................ 380 4.6.20 Vehicles......................................................................................................................................................... 390 4.6.30 Containers.....................................................................................................................................................430 4.6.3.10 Carts.........................................................................................................................................................430 4.6.3.20 Cart Maintenance and Replacement Responsibilities.............................................................................. 440 4.6.3.30 Bins.......................................................................................................................................................... 440 4.6.3.40 Roll -off Boxes............................................................................................................................................ 450 4.6.40 Litter Abatement........................................................................................................................................... 450 February 7, 2017 iii City of Diamond Bar - Commercial Packet Pg. 570 8.3.b 4.6.5M Personnel.......................................................................................................................................................460 4.6.60 Identification Required.................................................................................................................................. 470 4.6. 70 Unauthorized Fees and Gratuities................................................................................................................47M 591M 4.6.8M Non-Discrimination......................................................................................................................................47M 591M 4.6.9M Report of Accumulation of Solid Waste, Unauthorized Dumping............................................................... 48M 4.7M TRANSPORTATION OF SOLID WASTE..................................................................................................................... 48M 4.8M APPROVED FACILITIES........................................................................................................................................... 48M 4.9M STATUS OF DISPOSAL SITE..................................................................................................................................... 49M 4.10M DEDICATED ROUTES.......................................................................................................................................... 49M 4.11M ROUTE AUDIT....................................................................................................................................................49M 62M ARTICLE5...............................................................................................................................................51M 63M OTHERSERVICES...............................................................................................................................................................51M 64M 5.1M CUSTOMER BILLING AND CONTRACTOR COMPENSATION................................................................................... 51 M 5.1.1M Billing...........................................................................................................................................................51M 5.1.2M Contractor's Invoices....................................................................................................................................51M 65M 5.1.3M Section Deleted.............................................................................................................................................. 51M 5.1.4M Section Deleted.............................................................................................................................................. 51M 5.1.5M Section Deleted.............................................................................................................................................. 51M 5.1.6M Non -Payment, Collections; Suspension of Service.......................................................................................51M 5.2M CUSTOMER SERVICE............................................................................................................................................... 52M 5.2.1M Local Office....................................................................................................................................................52M 5.2.2M Complaint Documentation............................................................................................................................ 52M 5.2.3M Customer Service Standards......................................................................................................................... 53M 5.2.4M Resolution of Customer Complaints............................................................................................................. 54M 5.2.5M Contract Liaison............................................................................................................................................ 55M 5.2.6M Service Liaison.............................................................................................................................................. 551a 5.3M EDUCATION AND PUBLIC AWARENESS................................................................................................................. 55M 5.3.1M General..........................................................................................................................................................55M 5.3.2M Implementation and On-going Education Requirements.............................................................................55M 5.3.3M Contractor Representative............................................................................................................................ 570 5.3.4M Community Events....................................................................................................................................... 57M 5AM WASTE GENERATION/ CHARACTERIZATION STUDIES.......................................................................................... 580 ARTICLE6...............................................................................................................................................59M COMPANY COMPENSATION AND RATES.................................................................................................................59M 6.11M GENERAL................................................................................................................................................................ 591M 6.20 INITIAL RATES........................................................................................................................................................ 591M 6.3M SCHEDULE OF FUTURE ADJUSTMENTS................................................................................................................... 59M 6AMMETHOD OF ADJUSTMENTS................................................................................................................................... 60M 6.4.1M General..........................................................................................................................................................60M 6.4.2M Cost Components for Rate Adjustment Indices............................................................................................ 60M 6.4.3M Rate Adjustment Steps for Bin, Temporary and Other Services.................................................................. 61M 6.4.4M Rate Adjustment Steps for Pull Plus Dump Roll -Off Rates......................................................................... 62M 6.5M EXTRAORDINARY ADJUSTMENTS........................................................................................................................... 63M 6.6 M EFFECT OF RATE CHALLENGE................................................................................................................................ 64M ARTICLE7..............................................................................................................................................................................65M REVIEW OF SERVICES AND PERFORMANCE............................................................................................................65M TIM PERFORMANCE REVIEW MEETING......................................................................................................................... 65M 7.20 PERFORMANCE SATISFACTION SURVEY................................................................................................................ 66M ARTICLE8...............................................................................................................................................67M February 7, 2017 iv City of Diamond Bar - Commercial Packet Pg. 571 8.3.b RECORDS, REPORTS AND INFORMATION REQUIREMENTS .............................................................................670 8.10 GENERAL................................................................................................................................................................ 670 8.20 RECORDS................................................................................................................................................................ 670 8.2.10 General..........................................................................................................................................................670 HAZARDOUS SUBSTANCES INDEMNIFICATION..................................................................................................... 8.2.20 Financial Records.......................................................................................................................................... 680 8.2.30 Solid Waste Records...................................................................................................................................... 680 8.2.40 CERCLA Defense Records............................................................................................................................ 690 8.2.50 Section Deleted.............................................................................................................................................. 700 8.2.60 Other Programs' Records............................................................................................................................. 700 8.2.70 Audit.............................................................................................................................................................700 FAITHFUL PERFORMANCE LETTER OF CREDIT...................................................................................................... 8.2.80 Payments and Refunds................................................................................................................................. 700 8.30 REPORTS................................................................................................................................................................. 710 8.3.10 Report Formats and Schedule....................................................................................................................... 710 8.3.20 Monthly/Quarterly Reports.......................................................................................................................... 710 8.3.30 Annual Report.............................................................................................................................................. 720 8.3.40 Financial Report............................................................................................................................................ 730 8.40 REPORTING ADVERSE INFORMATION.................................................................................................................... 740 8.50 FAILURE To REPORT............................................................................................................................................... 740 ARTICLE9...............................................................................................................................................750 INDEMNIFICATION, INSURANCE, BOND AND LETTER OF CREDIT ...............................................................750 9.10 INDEMNIFICATION................................................................................................................................................. 750 9.20 HAZARDOUS SUBSTANCES INDEMNIFICATION..................................................................................................... 760 9.30 AB 939 INDEMNIFICATION AND GUARANTEE...................................................................................................... 780 9.40 INSURANCE............................................................................................................................................................. 780 9.50 FAITHFUL PERFORMANCE BOND........................................................................................................................... 820 9.60 FAITHFUL PERFORMANCE LETTER OF CREDIT...................................................................................................... 830 9.70 FORFEITURE OF PERFORMANCE BOND.................................................................................................................. 840 9.80 FORFEITURE OF LETTER OF CREDIT OR DEPOSIT................................................................................................... 840 9.90 PERFORMANCE SECURITY BEYOND SERVICE TERM.............................................................................................. 840 ARTICLE10.............................................................................................................................................860 CITY'S RIGHT TO CONTRACT WITH THIRD PARTIES TO PERFORM FRANCHISED SERVICES.............86M ARTICLE11.............................................................................................................................................870 DEFAULT, REMEDIES AND LIQUIDATED DAMAGES............................................................................................870 11.10 EVENTS OF DEFAULT......................................................................................................................................... 870 11.20 RIGHT TO TERMINATE UPON DEFAULT AND RIGHT TO SPECIFIC PERFORMANCE ......................................... 900 11.30 LIQUIDATED DAMAGES..................................................................................................................................... 900 11.40 SUSPENSION OF PERFORMANCE........................................................................................................................ 960 11.4.10 Force Majeure........................................................................................................................................... 960 11.4.20 Labor Unrest............................................................................................................................................ 970 11.50 DISPUTE RESOLUTION....................................................................................................................................... 970 11.5.10 Negotiation and Mediation...................................................................................................................... 970 11.5.20 Confidentiality......................................................................................................................................... 980 11.5.30 Injunctive Relief....................................................................................................................................... 980 11.5.40 Continuing Obligation............................................................................................................................. 980 11.5.50 Failure of Mediation................................................................................................................................. 980 11.60 ASSURANCE OF PERFORMANCE........................................................................................................................ 990 ARTICLE12...........................................................................................................................................1000 OTHER AGREEMENTS OF THE PARTIES..................................................................................................................1000 February 7, 2017 V City of Diamond Bar - Commercial Packet Pg. 572 8.3.b 12.10 RELATIONSHIP OF PARTIES............................................................................................................................. loom 12.2M COMPLIANCE WITH LAW................................................................................................................................ 1001a 12.3M GOVERNING LAW............................................................................................................................................ loom 12.4m ]URISDICTION...................................................................................................................................................loom 12.5M ASSIGNMENT................................................................................................................................................... 101M 12.6M CONTRACTING OR SUBCONTRACTING............................................................................................................ 103M 12.7M BINDING ON ASSIGNS...................................................................................................................................... 1030 12.80 COOPERATION IN PREPARATION FOR TERMINATION OR EXPIRATION OF CONTRACT ................................. 1031a 12.9M PARTIES IN INTEREST....................................................................................................................................... 1040 12.10M WAIVER...........................................................................................................................................................104M 12.111a CONTRACTOR'S INVESTIGATION..................................................................................................................... 1041a 12.120 SECTION DELETED........................................................................................................................................... 104m 12.130 NOTICE............................................................................................................................................................1050 12.14M REPRESENTATIVES OF THE PARTIES................................................................................................................ 105Ri 12.15M CITY FREE TO NEGOTIATE WITH THIRD PARTIES........................................................................................... 1060 12.16M COMPLIANCE WITH MUNICIPAL CODE.......................................................................................................... 106Ld 12.17m PRIVACY...........................................................................................................................................................1060 12.180 PROPRIETARY INFORMATION, PUBLIC RECORDS............................................................................................ 107M ARTICLE13 ...........................................................................................................................................1080 MISCELLANEOUS PROVISIONS..................................................................................................................................108M 13.11N ENTIRE AGREEMENT....................................................................................................................................... 108M 13.2M SECTION HEADINGS........................................................................................................................................ 108M 13.30 REFERENCES TO LAWS AND OTHER AGREEMENTS........................................................................................ 1080 13.41a INTERPRETATION.............................................................................................................................................1080 13.5m AGREEMENT.................................................................................................................................................... 1081a 13.61a SEVERABILITY..................................................................................................................................................109M 13.7M EXHIBITS.......................................................................................................................................................... 1090 13.8M ATTORNEYS' FEES............................................................................................................................................ 1090 Exhibits 1. Public Education Plan 2. Initial Maximum Rates 3. Example Rate Adjustment Formula: 3A: Bin. Temnorary Service and Other Service Rates 313: Permanent Roll -Off Box Rates 3C: Calculation of Annual Change in a Published Index 4. Corporate Guarantee 5. Faithful Performance Bond 6 Notary Certification 7 Example Monthly Report Format N N .0 c ca L LL R N d R M w r r February 7, 2017 vi City of Diamond Bar - Commercial Packet Pg. 573 8.3.b AGREEMENT This Amended and Restated Agreement for Integrated Solid Waste Management Services (hereinafter the "Agreement") is entered into this day of , 2099, by and between the City of Diamond Bar, California, ("City") and Valley Vista Services, Inc. ("Contractor"), for the collection, transportation, recycling, processing, and disposal of commercial solid waste and other services related to meeting the goals and requirements of the California Integrated Waste Management Act. RECITALS WHEREAS, the Legislature of the State of California, by enactment of the California Integrated Waste Management Act of 1989 (AB 939) (California Public Resources Code Sections 49100 et seq.), has declared that it is in the public interest to authorize and require local agencies to make adequate provisions for solid waste handling within their jurisdictions; and, WHEREAS, pursuant to California Public Resources Code Section 49300 and 49500-49524, the City of Diamond Bar has determined that the public health, safety, and well-being require that an exclusive franchise for commercial solid waste collection services, be awarded to a qualified company for the collection, transfer and transportation, recycling, processing, and disposal of solid waste and other services related to meeting the diversion goals required by AB 939, and other requirements of the California Integrated Waste Management Act; and, WHEREAS, City desires to maintain reasonable rates and quality service related to the collection, transfer and transportation, recycling, processing, and disposal of solid waste and other services; and, WHEREAS, Contractor is the current commercial solid waste hauler for the City and the term of the Initial Agreement, as defined below is set to expire on f date Au ug st 15, 2018 - --- - -- - --a- - --- -- under - --it operates the City will -- -r on - - - g---- WHEREAS, City and Contractor ("Parties") have negotiated, and desire to enter into this Agreement in order that Contractor continue to serve -s the City's exclusive bin and roll- off customer solid waste hauler for the term hereof; and, February 7, 2017 -1- City of Diamond Bar - Commercial Packet Pg. 574 8.3.b WHEREAS, City and Contractor are mindful of the provisions of the laws governing the safe collection, transport, recycling, processing and disposal of solid waste, including AB 939, the Resource Conservation and Recovery Act ("RCRA"), and the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"). City and Contractor desire to leave no doubt as to their respective roles and to memorialize that by entering into this Agreement, City is not thereby becoming an "arranger" or a "generator" as those terms are used in CERCLA, and that it is Contractor, not City, that is "arranging for" the collection from premises in the City, transport for disposal, composting or other processing, and recycling of municipal solid waste which may contain hazardous substances; and further to confirm that as a material inducement to City entering into this Agreement, Contractor has agreed to fully indemnify City in connection with any claims, losses, liabilities, lawsuits or actions relating to the inadvertent or intentional collection, transportation and/or disposal of hazardous materials that may occur in connection with Contractor's performance under this Agreement; and, WHEREAS, Contractor has agreed, as part of this Agreement, acting as an independent contractor to provide such personnel, equipment and supplies as are necessary to ensure City complies with the requirements of Public Resources Code Section 49100, et seq. WHEREAS, the Parties entered in that certain aLreement for Solid Waste Mana Services on August 16, 2010 ("Initial Agreement"), which term expires on August 15, 2018f d -ate}. The Parties intend that in entering into this Agreement that this Agreement shall replace in its entirety the Initial Agreement and all amendments thereto upon the Effective Date as defined herein. NOW, THEREFORE, in consideration of the recitals premises above stated, which. recitals are a material part of this Agreement, and the terms, conditions, covenants and agreements contained herein, the Parties do hereby agree as follows: February 7, 2017 -2- City of Diamond Bar - Commercial Packet Pg. 575 1.1 1.2 8.3.b ARTICLE 1 DEFINITIONS The terms used in this Agreement shall have the meaning set forth in this Article 1. In the event a term is not defined in this Article 1, then it shall have the meaning set forth in the Diamond Bar Municipal Code or in Division 30, Part 1, Chapter 2 of the California Public Resources Code (with precedence given to definitions in the Diamond Bar Municipal Code over conflicting definitions contained in the Public Resources Code). Except as provided in Article 1, words beginning with lower case letters are being used with their common ordinary meanings, not as defined terms. Otherwise, the following capitalized words and terms shall have the following meanings: "AB 939" means the California Integrated Waste Management Act of 1989 (California Public Resources Code Section 40000 et seq.), as it may be amended from time to time Affiliate "Affiliate" means all businesses (including corporations, limited and general partnerships and sole proprietorships) which are directly or indirectly related to Contractor by virtue of direct or indirect ownership interest or common management. These shall be deemed to be "Affiliated with" Contractor and included within the term "Affiliates" as used herein. An Affiliate shall include a business in which Contractor owns a direct or indirect ownership interest, a business which has a direct or indirect ownership interest in Contractor and/or a business which is also owned, controlled or managed by any business or individual which has a direct or indirect ownership interest in Contractor. For purposes of determining whether an indirect ownership interest exists, the constructive ownership provisions of Section 318(a) of the Internal Revenue Code of 1986, as in effect on the date of this Agreement, shall apply; provided, however, that (i) "ten percent (10%)" shall be substituted for "fifty percent (50%)" in Section 318(a) (2) (C) and in Section 318 (a) (3) (C) thereof; and (ii) Section 318(a) (5) (C) shall be disregarded. For purposes of determining ownership under this paragraph and constructive or indirect ownership under Section 318(a), ownership interest of less than ten percent (10%) shall be disregarded and percentage interests shall be determined on the basis of the percentage of voting interest or value which the ownership interest represents, whichever is greater. February 7, 2017 -3- City of Diamond Bar - Commercial Packet Pg. 576 1.3 1.4 1.5 1.6 1.7 Billings 8.3.b "Billings" or "Billing' or "Bill" means the statements of charges provided to Customers for services rendered by Contractor. Bin "Bin" means a rectangular metal or plastic Container with hinged lids and wheels with a capacity of at least 1.5 cubic yards, and less than ten (10) cubic yards. Bin Service "Bin Service" means Solid Waste Collection Services in which a Bin is used for the Collection of Solid Waste. Bulky Items "Bulky Items" means Solid Waste that cannot and/or would not typically be accommodated within the Solid Waste Container at the Premises including specifically: furniture (including chairs, sofas, mattresses, and rugs); appliances (including refrigerators, ranges, washers, dryers, water heaters, dishwashers, plumbing, small household appliances and other similar items, commonly known as "white goods"); unusually large amounts of yard debris and Green Waste and small pieces of wood limited to one cubic yard of contained material; electronic equipment (including stereos, televisions, computers and monitors, VCRs, microwaves and other similar items commonly known as "brown goods" and "e -waste"); and clothing. Bulky Items do not include car bodies, Construction and Demolition Debris or items requiring more than two persons to remove. Other items not specifically included or excluded above will be Collected provided that they are not more than eight feet in length, four feet in width, or more than 150 pounds. In the event a question ever arises as to whether a specific item or category of items meets the definition of Bulky Items, City shall be responsible to determine whether said definition shall apply, which determination shall be final and binding on the Parties. Cart "Cart" means a plastic Container with a hinged lid and wheels serviced by an automated or semi -automated truck with a capacity of no less than 32- and no greater than 101 -gallons. February 7, 2017 -4- City of Diamond Bar - Commercial Packet Pg. 577 8.3.b 1.8 City "City" means City of Diamond Bar, California, a municipal corporation, and all the territory lying within the municipal boundaries of City as presently existing or as such boundaries may be modified during the term of this Agreement. 1.9 Collect/Collection "Collect" or "Collection" means to take physical possession, transport, and remove Solid Waste within and from City. 1.10 Commercial Services "Commercial Services" refer to Solid Waste Collection Services performed at or for Commercial Premises. 1.11 Commercial Premises "Commercial Premises" means Premises upon which business activity is conducted, including but not limited to retail sales, services, wholesale operations, manufacturing and industrial operations, but excluding Residential Premises upon which business activities are conducted when such activities are permitted under applicable zoning regulations and are not the primary use of the property. Notwithstanding any provision to the contrary herein, in the Diamond Bar Municipal Code, or otherwise, for purposes of this Agreement, Premises upon which the following uses (as defined in the Diamond Bar Municipal Code) are occurring shall be deemed to be Commercial Premises: Assisted Living Facilities, Convalescent Homes, Dormitories, Extended Stay Motels, Hotels, and Motels. 1.12 Contractor "Contractor" means Valley Vista Services, a corporation organized and operating under the laws of the State of California and its officers, directors, employees, agents, companies and subcontractors. 1.13 Contractor Compensation "Contractor Compensation" means the revenue received by the Contractor from Customers in return for providing services in accordance with this Agreement. February 7, 2017 -5- City of Diamond Bar - Commercial Packet Pg. 578 8.3.b 1.14 Construction and Demolition Debris "Construction and Demolition Debris" means Solid Waste generated at a Premises that is directly related to construction or demolition activities occurring thereon. 1.15 Container "Container" means any and all types of Solid Waste receptacles, including Carts, Bins and Roll -off Boxes. 1.16 CPI "CPI" means the Consumer Price Index for All Urban Consumers (CPI -U), all items index less food and energy - Los Angeles -Riverside -Orange County, CA, CUURA421SAOLIE. 1.17 Customer "Customer" means a Person receiving Solid Waste Collection Services from Contractor pursuant to the terms of this Agreement. 1.18 Disposal "Disposal" means the ultimate disposition of Solid Waste Collected by Contractor at a landfill or otherwise in full regulatory compliance. 1.19 Disposal Site(s) "Disposal Site(s)" means the Solid Waste handling Facility or Facilities utilized for the ultimate Disposal of Solid Waste Collected by Contractor. 1.20 Diversion "Diversion" means any combination of waste prevention (source reduction), recycling, reuse, composting and Transformation activities that reduces waste disposed at landfills, provided such activities are recognized by the California integrated Waste Management BoardCalRecycle as Diversion in its determination of the City's Diversion rate and compliance with AB 939. Transformation tonnage that will be considered toward the 25% Diversion goal under this Agreement is limited to 10% of Solid Waste Collected by Contractor each calendar year under this Agreement. February 7, 2017 -6- City of Diamond Bar - Commercial Packet Pg. 579 8.3.b 1.21 Environmental Laws "Environmental Laws" means all federal and state statutes, county, local and City ordinances concerning public health, safety and the environment including, by way of example and not limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 USC §9601 et seq.; the Resource Conservation and Recovery Act, 42 USC §6902 et seq.; the Federal Clean Water Act, 33 USC §1251 et seq.; the Toxic Substances Control Act, 15 USC §1601 et seq.; the California Hazardous Waste Control Act, California Health and Safety Code §25100 et seq.; the California Hazardous Substance Account Act, California Health and Safety Code §25300 et seq.; the Porter -Cologne Water Quality Control Act, California Water Code §13000 et seq.; the Safe Drinking Water and Toxic Enforcement Act, California Health and Safety Code §25249.5 et seq.; as currently in force or as hereafter amended, and all rules and regulations promulgated thereunder. 1.22 Facility "Facility" means any plant or site, owned or leased and maintained, operated or used by Contractor for purposes of performing under this Agreement. 1.23 Food Waste "Food Waste" means: • All food (including fruits, vegetables, meat, poultry, seafood, shellfish, bones, rice, beans, pasta, bread, cheese and eggshells); • Food -soiled paper that is mixed in with food waste (including waxed cardboard, waxed paper, napkins, paper towels, paper plates, paper milk cartons); • Tea bags; and, • Coffee grounds and filters. Food Waste is a subset of Organic Waste. 1.2-324 Green Waste "Green Waste" means tree trimmings, small pieces of wood, grass cuttings, dead plants, leaves, branches, flowers, plant stocks, and dead trees (not more than four (4) inches in February 7, 2017 -7- City of Diamond Bar - Commercial Packet Pg. 580 8.3.b diameter or 48 inches in length) and similar materials. Green Waste is a subset of Organic Waste. 1.2425 Green Waste Processing Facility "Green Waste Processing Facility" means a permitted Facility where Green Waste is sorted, mulched or separated for the purposes of Recycling, reuse or composting. 1.2-526 Gross Receipts "Gross Receipts" means any and all revenue received from Billings, and compensation in any form, of Contractor or subsidiaries, parent companies or other Affiliates of Contractor, for the Collection and transportation of Solid Waste pursuant to this Agreement, in accordance with Generally Accepted Accounting Principles, including, but not limited to, Customer fees for Collection of Solid Waste, without subtracting Disposal fees, City fees or other fees or any other cost of doing business. Gross Receipts does not include revenue from the sale of Recyclables. 1.2627 Hazardous Substance "Hazardous Substance" shall mean any of the following: (a) any substances defined, regulated or listed (directly or by reference) as "Hazardous Substances", "hazardous materials", "Hazardous Waste", "toxic waste", "pollutants" or "toxic substances" or similarly identified as hazardous to human health or the environment, in or pursuant to (i) the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 USC §9601 et seq. (CERCLA); (ii) the Hazardous Materials Transportation Act, 49 USC §1802, et seq.; (iii) the Resource Conservation and Recovery Act, 42 USC §6901 et seq.; (iv) the Clean Water Act, 33 USC §1251 et seq.; (v) California Health and Safety Code §§25115-25117, 25249.8, 25281, 25316, 25501 and 25501.1; (vi) the Clean Air Act, 42 USC §7901 et seq.; and (vii) California Water Code §13050; (b) any amendments, rules or regulations promulgated thereunder to such enumerated statutes or acts currently existing or hereafter enacted; and (c) any other hazardous or toxic substance, material, chemical, waste or pollutant identified as hazardous or toxic or regulated under any other applicable federal, state or local Environmental Laws currently existing or hereinafter enacted, including, without limitation, friable asbestos, polychlorinated biphenyl's ("PCBs"), petroleum, natural gas and synthetic fuel products, and by- products. February 7, 2017 -8- City of Diamond Bar - Commercial Packet Pg. 581 8.3.b 1.2228 Hazardous Waste "Hazardous Waste" means all substances defined as Hazardous Waste, acutely Hazardous Waste, or extremely Hazardous Waste by the State of California in Health and Safety Code §25110.02, §25115, and §25117 or in the future amendments to or recodifications of such statutes or identified and listed as Hazardous Waste by the US Environmental Protection Agency (EPA), pursuant to the Federal Resource Conservation and Recovery Act (42 USC §6901 et seq.), all future amendments thereto, and all rules and regulations promulgated thereunder. 1.2829 Household Hazardous Waste ("HHW") "Household Hazardous Waste" means Hazardous Waste generated at Residential Premises. 1.2930 Materials Recovery Facility ("MRF") "Materials Recovery Facility" means a permitted Solid Waste Facility where Solid Wastes or Recyclable Materials are sorted or separated for the purposes of Recycling, processing or composting. 1.30:.. Multi -Family Dwelling "Multi -Family Dwelling" means any building or lot containing two or more dwelling units. Multi -Family Dwelling units generally receive Refuse Collection service through the use of shared Bins, but may use Carts. Multi -Family Dwelling Units receiving Bin Refuse Collection are included in this Agreement. 1.32 Organic Waste "Organic Waste" means Food Waste and Green Waste, and other compostables, collectively or individually. 1.33 Organic Waste Processing Facility "Organic Waste ProcessingFacility" acility" means a permitted Facility where Organic Waste is sorted, mulched or separated for the purposes of Recycling, reuse or composting February 7, 2017 -9- City of Diamond Bar - Commercial Packet Pg. 582 8.3.6 1.34 Person "Person" means any individual, firm, association, organization, partnership, limited liability company, corporation, business trust, joint venture, the United States, the State of California, the County of Los Angeles, cities, and special purpose districts. 1.3235 Premises "Premises" means any land, or building in City where Solid Waste is generated or accumulated. 1.33:x;; Rate Year "Rate Year" means the period July 1 to June 30, for each year during the Term of this Agreement. For the first year of this Agreement, the Rate Year is August 16 to June 30. 1.3437 Recycling "Recycling" means the processing of Recyclable Materials for the purpose of returning them to the economy in the form of raw materials for new, reused, or reconstituted products. The Collection, transportation or Disposal of Solid Waste not intended for, or capable of, reuse is not Recycling. Recycling does not include use of Solid Waste for conversion to energy. 1.357 Recyclable Materials "Recyclable Materials" means Solid Waste that is Source Separated, has some potential economic value, and is set aside, handled, packaged, or offered for Collection in a manner different from Refuse in order to allow it to be processed for Recycling. 1.3639 Refuse "Refuse" means putrescible and non-putrescible Solid Waste. 1.3740 Residential Services "Residential Services" refer to Solid Waste Collection Services performed at and for Residential Premises included under this Agreement. February 7, 2017 -10- City of Diamond Bar - Commercial Packet Pg. 583 8.3.b 1.38L, Residential Customers "Residential Customer" means all Customers on Residential Premises that are included under this Agreement. 1.5-94 Residential Premises "Residential Premises" means Premises upon which dwelling units exist, including, without limitation, Single Family and Multi -Family Dwellings, apartments, boarding or rooming houses, condominiums, mobile homes, efficiency apartments, second units, and Group Residential Facilities, Group Care Facilities,. Notwithstanding any provision to the contrary herein, in the Diamond Bar Municipal Code, or otherwise, for purposes of this Agreement, Premises upon which the following uses are occurring shall not be deemed to be Residential Premises, and rather shall be deemed to be Commercial Premises: Assisted Living Facilities, Convalescent Homes, Dormitories, Extended Stay Motels, Hotels, Motels, and any other businesses not specifically listed at which residency is transient in nature and hence should be classified as Commercial Premises as determined by City on a case by case basis. 1.4843 Roll -off Box "Roll -off Box" means Solid Waste Collection Containers of 10 cubic yards or larger 1.4144 Single Family Dwelling "Single Family Dwelling" means a Residential Premises that includes only one dwelling unit. Single Family Dwellings may receive either Cart or Bin Service. 1.42-45 Solid Waste "Solid Waste" means all discarded putrescible and non-putrescible solid, semisolid, and liquid wastes, including Refuse, Construction and Demolition Debris, Bulky Items, Recyclable Materials, and Green -Organic Waste, or any combination thereof which are permitted to be disposed of in a Class III landfill, and which are included in the definition of "Non -hazardous Solid Waste" set forth in the California Code of Regulations. February 7, 2017 -11- City of Diamond Bar - Commercial Packet Pg. 584 8.3.b 1.4346 Solid Waste Collection Services "Solid Waste Collection Services" means the Collection, transfer, transport, Recycling, processing, and Disposal of Solid Waste placed for Collection pursuant to this Agreement. 1.4447 Source Separated "Source Separated" means the segregation by the Waste Generator of individual components of Solid Waste, which otherwise would become Refuse (such as glass bottles, metal cans, newspapers, plastic containers, etc.) into separate Container(s) for the purpose of allowing the Recycling of such materials. 1.4548 State "State" means the State of California. 1.4649 Temporary Service "Temporary Service" means Solid Waste Collection Services provided to a Premises on a temporary, as needed basis to any Premises within the City in conjunction with construction, demolition, cleanup or other projects, and by use of temporarily placed Bins or Roll -off Boxes 1.4750 Transformation "Transformation" means incineration, pyrolysis, distillation, gasification, or biological conversion other than composting. 1.4851 Transfer Station "Transfer Station" means a Facility that received Solid Waste from collection vehicles and transfers the material to larger vehicles for transport to landfills and other facilities Transfer Stations may or may not also include MRFs, transferring residual Refuse (Refuse left after the sorting of Recyclable Materials) to landfills and Recyclable Materials (including, for example, Greeri-Organic Waste and/or Construction and Demolition debris), to processors, brokers or end-users. February 7, 2017 -12- City of Diamond Bar - Commercial Packet Pg. 585 8.3.b 1.4-932 Waste Generator "Waste Generator" means any Person whose act or process produced Solid Waste as defined in the Public Resources Code, or whose act first causes Solid Waste to become subject to regulation. February 7, 2017 -13- City of Diamond Bar - Commercial Packet Pg. 586 8.3.b ARTICLE 2 GRANT AND ACCEPTANCE OF FRANCHISE 2.1 Grant and Acceptance of Franchise, Indemnity of Award Subject to the terms and conditions of this Agreement (including but not limited to the exclusions set forth in Section 2.9 hereof) and applicable State laws, and to the rights of State, county and school district facilities to use a Solid Waste enterprise other than Contractor, City hereby grants to Contractor and Contractor hereby accepts from City, for the Term hereof, the exclusive franchise, right and privilege to provide Solid Waste Collection Services at all Commercial Premises, and all Residential Premises that receive Commercial style Bin Refuse service (the "Franchise"). Contractor agrees to and shall timely take all actions that are reasonably necessary to defend the validity and enforceability of this Agreement and shall pay all costs related to such defense. Contractor shall defend, indemnify, protect and hold harmless, the City, its officers, agents and employees from any and all claims, actions or proceedings to attack, set aside, void, annul or seek monetary damages resulting from an approval by the City of this Agreement. The City shall promptly notify Contractor of any such claim, action, or proceeding. The City and Contractor shall meet in good faith in an effort to come to a mutual agreement for a joint defense; provided that the City shall be entitled to select legal counsel of its choice to conduct the defense if an agreement cannot be reached. Contractor's obligations to pay all costs, defend, indemnify, protect and hold harmless under this section shall not be altered in the event City retains separate counsel. 2.2 Section Deleted 2.3 Effective Date The "Effective Date" of this Agreement shall be the date on which the City Council approves this Agreement. 2.4 Term of Agreement The term of this Agreement (the "Term") shall be eight !hirteen (313) years, and fifteen 15 da s commencing on August 16, 2010, and expiring August 1531 241-82023 subject February 7, 2017 -14- City of Diamond Bar - Commercial Packet Pg. 587 2.5 2.6 8.3.b to extension as provided herein. Notwithstanding the foregoing, the unexcused failure or refusal of Collector to perform any material term, covenant, obligation or condition contained in this Agreement shall give rise to the right, in favor of City, for earlier termination of this Agreement for cause in accordance with the procedures elsewhere contained herein. City's Option to Extend Term City shall have the sole option to extend the Term of th �m^rt for up to #ivelve twenty-four(1224) months following expiration of the initial ^„r+, , ^+ Term under Section 2.4. The City may, upon at least ninety --days (90 -days) advance written notice to the Contractor prior to the expiration of the Term of �aN^^m , exercise this extension option. If City provides this extension notice, the Agreement will automatically renew up to a maximum of tivelve twenty -four( -1224) months. This extension period shall terminate, upon the earlier of: (i) the expiration of the aforementioned tivelve twenty-four(1-224) months, or (ii) ninety (90) days following the date upon which City gives Contractor written notice of final termination. Representations and Warranties of Contractor Contractor hereby covenants, represents, and warrants the following to City for the purpose of inducing City to enter into this Agreement and to consummate the transaction contemplated hereby, all of which shall be true as of the date of this Agreement and as of the Effective Date: a) Contractor is validly existing as a corporation under the laws of the State of California. b) Neither the execution of this Agreement nor the delivery by Contractor of services nor the performance by Contractor of its obligations hereunder: (1) conflicts with, violates or results in a breach of any applicable law; (2) conflicts with, violates or results in a breach of any term or condition of any judgment, decree, agreement (including, without limitation, the certificate of incorporation of Contractor) or instrument to which Contractor is a party or by which Contractor or any of its properties or assets are bound, or constitutes a default under any such judgment, decree, agreement or instrument; or (3) will result in the creation or imposition of any encumbrance of any nature whatsoever upon any of the properties or assets of Contractor. February 7, 2017 -15- City of Diamond Bar - Commercial Packet Pg. 588 8.3.b c) There is no action, suit or other proceeding as of the date of this Agreement, at law or in equity, or to the best of Contractor's knowledge, any investigation, before or by any court or governmental authority, pending or threatened against Contractor that is likely to result in an unfavorable decision, ruling or finding that would materially and adversely affect the validity or enforceability of this Agreement or any such agreement or instrument entered into by Contractor in connection with the transactions contemplated hereby, or that could materially and adversely affect the ability of Contractor to perform its obligations hereunder or that would have a material adverse effect on the financial condition of Contractor. d) Contractor has no knowledge of any applicable law in effect as of the date of this Agreement that would prohibit the performance by Contractor of this Agreement and the transactions contemplated hereby. e) Contractor has made an independent investigation, satisfactory to it, of the conditions and circumstances surrounding this Agreement and the work to be performed by it, and is satisfied that those conditions and circumstances will not impair its ability to perform the work and provide the Collection services required by this Agreement. f) The information supplied by Contractor in all submittals made in connection with negotiation and execution of this Agreement, including all materials in Exhibits to this Agreement, and all representations and warranties made by Contractor throughout this Agreement are true, accurate, correct and complete in all material respects on and as of the Effective Date of this Agreement. g) Contractor's representative, designated in Section 5.2.5, shall have authority in all daily operational matters related to this Agreement. City may rely upon action taken by such designated representative as action of Contractor unless the actions taken are not within the scope of this Agreement. h) Contractor is duly organized, validly existing and in good standing under applicable laws. It is qualified to transact business in the State of California and has the power to own its properties and to carry on its business as now owned and operated and as required by this Agreement. February 7, 2017 -16- City of Diamond Bar - Commercial Packet Pg. 589 8.3.b i) Contractor has the authority to enter into and perform its obligations under this Agreement. The Board of Directors or partners of Contractor (or the shareholders, if necessary) have taken all actions required by law, its articles of incorporation, its bylaws or otherwise to authorize the execution of this Agreement. The Persons signing this Agreement on behalf of Contractor have authority to do so. Contractor shall authorize one employee for the City as a single point of contact for issues arising under this Agreement, and Contractor acknowledges and agrees that City may expect and assume that this employee's actions are taken on behalf of and with the full approval of the Contractor. 2.7 Conditions to Effectiveness of Agreement The satisfaction of each and all of the conditions set out below, each of which may be waived in whole or in part by City in writing, is a condition precedent to the effectiveness of this Agreement, and a condition of Contractor's continued right to the benefits conveyed herein: a) Accuracy of Representations. All representations and warranties made by Contractor and set forth in this Agreement shall be accurate, true and correct on and as of the Effective Date. b) Absence of Litigation. There shall be no litigation pending in any court challenging the award of this AgreementFranebi, to Contractor or the execution of this Agreement or seeking to restrain or enjoin its performance. c) Furnishing of Insurance, Bond, and Letter of Credit. Contractor shall have furnished evidence of the insurance, bonds, deposit and letter of credit as required by Article 9, and shall comply with all ongoing requirements relating thereto. d) Contractor shall have paid the contracting fee to City, as provided in Section 3.1. 2.8 Delegation of Authority The administration of this Agreement by City shall be under the supervision and direction of City Manager's office and the actions specified in this Agreement, unless otherwise stated, shall be taken by the City Manager, or his or her designee. February 7, 2017 -17- City of Diamond Bar - Commercial Packet Pg. 590 2.9 Limitations to Scope 8.3.b Notwithstanding any provision to the contrary contained herein, the exclusive franchise, right and privilege to provide Solid Waste Collection Services at Premises within City granted to Contractor by this Agreement (Commercial and Residential Premises that receive weekly Refuse Collection using Bins) specifically excludes the following services, which services may be provided by Persons other than Contractor and which may be the subject of other permits, licenses, franchises or agreements issued or entered by City: a) The sale or donation of source -separated Recyclable Material and/or Organic Material Waste by the Waste Generator to any Person or entity other than Contractor; provided, however, if the Generator is required to pay any monetary or non -monetary consideration, directly or indirectly, for the Collection, transportation, transfer, or processing of Recyclable Material, it shall not be considered a sale or donation and shall not be exempt; b) Solid Waste, including Recyclable Materials andor Green Wast^Organic Materials, that is removed from any Premises by the Waste Generator by means of "self -hauling' (as described in the Diamond Bar Municipal Code), and that is transported personally by such Generator (or by his or her full-time employees) to a processing or Disposal Facility in a manner consistent with all applicable laws and regulations; c) Green Waste removed from a Premises by a gardening, landscaping, or tree trimming Contractor, utilizing its own equipment, as an incidental part of a total service offered by that Contractor rather than as a hauling service; d) The Collection, transfer, transport, Recycling, processing, and disposal of animal remains from slaughterhouse or butcher shops for use as tallow; e) The Collection, transfer, transport, Recycling, processing, and disposal of by- products of sewage treatment, including sludge, sludge ash, grit and screenings; f) The Collection, transfer, transport, Recycling, processing, and disposal of Hazardous Substances, Hazardous Waste, Household Hazardous Waste and radioactive waste regardless of its source; February 7, 2017 -18- City of Diamond Bar - Commercial Packet Pg. 591 8.3.b g) Construction and Demolition Debris which is removed by a duly -licensed construction or demolition company or as part of a total service offered by said licensed company or by the City, where the licensed company utilizes its own equipment in compliance with Construction and Demolition Debris requirements of the Diamond Bar Municipal Code; h) Collection services provided exclusively by City's Residential Franchisee under its Cart Customer Solid Waste Management Services Agreement. Contractor shall service, under this Agreement, Single Family Dwelling Units that received Bin service, and the City's Residential contractor shall provide service to Single Family Customers that request regularly scheduled Cart Refuse service; i) The Collection, transfer, transport, Recycling, processing, and Disposal of Solid Waste by City through City officers or employees in the normal course of their City employment; aiid-, j) Solid Waste Collection Services for governmental agencies other than City, which may have facilities in City, but over which City has no jurisdiction in connection with the regulation of Solid Waste, such as State, county and school district facilities k) The Collection, transfer, transport, Recycling and processingof f Organic Waste for use as animal feed; and, 1) Food that is donated or otherwise provided to charitable organizations or food banks for use as food for human consumption. The exclusive franchise, right and privilege to provide Solid Waste Collection Services within City granted to Contractor by this Agreement shall be interpreted to be consistent with all applicable state and federal laws, now in effect and adopted during the term of this Agreement, and the scope of this Agreement shall be limited by all applicable current and developing laws and regulations. In the event that future interpretations of current law, future enactments or developing legal trends limit the ability of City to lawfully grant Contractor the scope of services as specifically set forth herein, Contractor agrees that the scope of this Agreement will be limited to those services and materials which may be lawfully provided, and that City shall not be responsible for any lost profits claimed by Contractor as a result thereof. February 7, 2017 -19- City of Diamond Bar - Commercial Packet Pg. 592 8.3.b 2.10 City's Right to Direct Changes 2.10.1 General City may direct Contractor to perform additional services (including new Diversion programs, etc.) or modify the manner in which it performs existing services or Bills for services. Pilot programs and innovative services which may entail new Collection methods, and different kinds of services and/or new requirements for Waste Generators are included among the kinds of changes which City may direct. Contractor acknowledges that State law may increase the Diversion requirement during the term of this aAgreement and Contractor agrees to propose services to meet such Diversion requirements. If City directs Contractor to perform additional services, Contractor shall be entitled to an adjustment in its Contractor Compensation for providing such additional or modified services, including a profit factor equal to ten percent (10%) of the incremental cost of such additional or modified services, unless the Parties otherwise agree. City may utilize cost components included in the Contractor's Proposal in calculating equitable rate adjustments. Agreed upon rates and service enhancements require approval of the City Council. _If City does not direct Contractor to perform additional services and Contractor cannot agree on compensation for new or additional services, then City may contract with other parties for such services, which shall be considered exempt from the exclusivity provisions of Section 2.1. Contractor shall not receive a rate increase to provide additional services implemented to bring Contractor into compliance with contractually -required minimum diversion rates per Section 4.2.5 or as a remedy for failure to perform under Section 7.1. Additional or modified services shall be included in written amendment and shall require approval of the City Council. 2.10.2 New Diversion Programs Contractor shall present, within thirty (30) business days of a request to do so by City, a proposal to provide additional or expanded Diversion services. The proposal shall contain a complete description of the following: • Collection methodology to be employed (equipment, manpower, etc.). • Equipment to be utilized (vehicle number, types, capacity, age, etc.). February 7, 2017 -20- City of Diamond Bar - Commercial Packet Pg. 593 8.3.b • Labor requirements (number of employees by classification). • Type(s) of Containers to be utilized. • Type(s) of material to be Collected. • Provision for program publicity/education/marketing. • Annual projection of the financial results of the program's operations in an operating statement format including documentation of the key assumptions underlying the projections and the support for those assumptions. 2.11 Ownership of Solid Waste City and Contractor understand and agree that it is Contractor, and not City, who will arrange to Collect Solid Waste; that City has not, and, by this Agreement does not, instruct Contractor on its Collection methods, nor supervise the Collection process; nor do the Parties intend to place title to Solid Waste Collected by Contractor in City. Rather, the Parties intend that whatever, if any, title in and to the Solid Waste that is Collected by Contractor which otherwise might exist in or with City in the absence of this Agreement is hereby transferred to Contractor; and further that if Contractor gains title to such Solid Waste it is by operation of law and agreement with its Customers and is not the result of this Agreement. Subject to the provisions of this Agreement, and unless City exercises its rights to direct the location for Disposal and processing of Solid Waste, Contractor shall have the right to retain, Recycle, process, dispose of, and otherwise use Solid Waste Collected pursuant to the terms hereof in any lawful fashion or for any lawful purpose; and, further, shall have the right to retain any benefit resulting from its right to retain, Recycle, process, dispose of, or reuse the Solid Waste which it Collects. Ownership of Solid Waste properly placed for Collection shall transfer to Contractor when Customer places it at point of Collection. 2.12 Permits and Licenses Contractor shall acquire and maintain all necessary permits and licenses for the Collecting, transporting, processing, and storing of Solid Waste and Recyclables, disposing of Solid Waste, and the Recycling of Recyclables as required under this Agreement. Failure to maintain all required permits shall be deemed a material breach of contract for which City may terminate this Agreement as provided in Section 11.2. February 7, 2017 -21- City of Diamond Bar - Commercial Packet Pg. 594 8.3.b Contractor must follow requirements of the Diamond Bar Municipal Code, including, but not limited to, obtaining a City of Diamond Bar business license. February 7, 2017 -22- City of Diamond Bar - Commercial Packet Pg. 595 3.1 3.2 8.3.b ARTICLE 3 FEES PAID TO THE CITY In addition to any other consideration set forth herein, as part of its consideration for entering into this Agreement, and for the exclusive franchise, right and privilege to provide Solid Waste Collection Services as specified herein, Contractor shall provide the following: Contracting Fee Contractor pqidsha4fay to City a Contracting Fee in a one-time lump sum payment of seventy five thousand dollars ($75,000) within seven days of execution of thess Initial Agreement to reimburse the City for costs it incurred in connection with entering theis Initial Agreement. -A contract extension fee of $75,000 shall be paid to the City 201 -7 -within seven (7) days of execution of this Restated and Amend ALreement to reimburse the City for costs it incurred in connection with entering into this Agreement. Other City Fees 3.2.1 Franchise Fee In consideration of the exclusive right to Collect provided in Section 2.1 of this Agreement, throughout the Term 4this _^_ar^^� Contractor shall pay to City a Franchise Fee in an amount equal to five percent (5%) of the Gross Receipts received by Contractor for all services provided in City pursuant to the terms of this Agreement. Payments shall be made quarterly. The initial payment shall be due by October 30, 2010, covering the period August 16 to September 30, and each subsequent payment shall be due within 30 days of the end of the calendar quarter (January 30, April 30, July 30, October 30), for the prior calendar quarter. 3.2.2 AB 939 Fee In support of the City's outreach and administration of various Solid Waste programs and public education efforts, Contractor shall pay an amount equal to thirteen percent (13%) of the Gross Receipts received by Contractor for all services provided in City pursuant to the terms of this Agreement. February 7, 2017 -23- City of Diamond Bar - Commercial Packet Pg. 596 8.3.b Payments shall be made quarterly. The initial payment shall be due by October 30, 2010, covering the period August 16 to September 30, and each subsequent payment shall be due within 30 days of the end of the calendar quarter (January 30, April 30, July 30, October 30), for the prior calendar quarter. 3.2.3 Sectio" Delete dEnvironmental Education Fee Pursuant to the terms of this Agreement, Contractor shall pav an annual Environmental Education Fee in the amount of Six Thousand, Five Hundred Dollars ($6,500). The first such payment shall be due and payable to the City on Tuly 1, 2017, and subsequent payments shall be due and payable to the City on or before July 1 of each subsequent The amount of the Environmental Education Fee shall be adiusted annuallv for the average annual change in the CPI between the calendar year ended the December preceding the fee payment due date and the prior calendar year. For example, for the fee payment due July 1, 2018, the percentage adjustment to the $6,500 payment amount from the prior year would be equal to the average annual change in the CPI comparing calendar year 2017 to calendar year 2016. 3.2.4 Section Deleted 3.2.5 Late Payment of Fees If any of the fees provided for in this Section 3.2 are not paid on or before the due date, Contractor shall pay to City a penalty in an amount equal to ten percent (10%) of the amount owing for that month, plus interest at a rate of one and one-half (1.5%) per month for each month the payment is late thereafter. 3.3 Future Fees In the event that City implements a new fee not included in Section 3.2, or increases the amount of an existing fee, Contractor shall be entitled to a rate adjustment in an amount sufficient to recover the fee from Customers. City may elect to have Contractor pay in accordance with the requirements of fee payments made in Section 3.2, or on another schedule as City identifies with associated deadlines and late fees. February 7, 2017 -24- City of Diamond Bar - Commercial Packet Pg. 597 8.3.b ARTICLE 4 DIRECT SERVICES 4.1 Refuse 4.1.1 General The work to be done by Contractor pursuant to this Agreement shall include, but not be limited to, the furnishing of all labor, supervision, equipment, materials, supplies, and all other items necessary to perform the services required. The enumeration of, and specification of requirements for, particular items of labor or equipment shall not relieve Contractor of the duty to furnish all others, as may be required, whether enumerated elsewhere in this Agreement or not. The work to be done by Contractor pursuant to this Agreement shall be accomplished in a thorough and professional manner so that all Customers are provided reliable, courteous and high-quality Solid Waste Collection Services at all times. The enumeration of, and specification of requirements for, particular aspects of service quality shall not relieve Contractor of the duty of accomplishing all other aspects in the manner provided in this section, whether such other aspects are enumerated elsewhere in this Agreement or not. 4.1.2 Section Deleted 4.1.3 Section Deleted 4.1.4 Section Deleted 4.1.5 Section Deleted 4.1.6 Bin Refuse Collection Contractor shall provide Bins and Bin Service to its Customers that request such service Contractor shall Collect and remove all Refuse that is placed in Bins from the property of Customers receiving Bin Service, at least once per week and more frequently if required to handle the waste generated at the Premises where the Bins are located. To resolve a dispute between Contractor and Customers, or if the City has health or safety concerns, City shall make final determination as to the number and size of Containers, February 7, 2017 -25- City of Diamond Bar - Commercial Packet Pg. 598 8.3.b and frequency of Collection to be provided to Customers. Special consideration shall be given when determining the pickup areas to ensure that the flow of traffic is not impeded. Contractor shall provide 1.5, 2, 3, 4 and 6 cubic yard Bins upon request. Contractor will service Bins equipped with compaction devices (known as compactors) that attach to the Bins if requested by Customer. The provision, sale or lease of the compaction device itself is outside this Agreement. Contractor is not required to provide the compaction device. 4.1.7 Determination of Service Type Contractor may not transition a Customer from Bin to Cart service or visa versa without prior advance written approval of the City. If Contractor and Customer have a disagreement as to whether a Refuse Bin is appropriate, or if City determines the Collection in a Refuse Bin causes health and safety or other concerns, or if the City determines Cart service is more appropriate, City shall make the final determination as to whether Refuse Collection shall be from a Bin, or from a Cart. In all cases, City retains absolute discretion in the determination of which type of service a Customer shall receive, and therefore which with hauler will provide service. 4.1.8 Overflowing Containers Customers that regularly produce more Solid Waste than their current level of service can accommodate may have their service level increased in accordance with the following procedure: First Incident in Three Month Period - If more material is placed for Collection than fits in a Container, Contractor shall photograph the overflowing Container, Collect the Solid Waste, and send to the Customer (at both the service and billing addresses) the picture and a letter instructing that further instances of an overflowing Container may result in an increase in the level of service. Second Incident in Three Month Period - Upon the second event of an overfilled Container in a three-month period, Contractor shall photograph the overflowing Container, Collect the Solid Waste, and send to the Customer the picture and a letter requesting that Customer increase its service level. If the Customer declines, Contractor February 7, 2017 -26- City of Diamond Bar - Commercial Packet Pg. 599 8.3.b may petition City to permit Contractor to increase the service level to accommodate the higher demand for service. Contractor shall send City via e-mail or U.S. mail a copy of each letter and picture sent to a Customer under this Section 4.1.8. 4.1.9 Permanent Roll -off Box Service Contractor shall provide exclusive (as limited by Section 2.9) permanent Roll -off Box Collection service upon request. Contractor will provide standard Roll -off Boxes. Rates shall be charged as "pull plus dump," a set rate for the service component plus the per ton charge based on actual tonnage Collected. The provision, sale or lease of compactor Roll -Off Boxes, which are enclosed Containers attached to a compaction devise, is not included in this Agreement; however, providing service to such compactor Roll -Off Boxes is included. Rates for permanent Roll -Off Box services are included in the approved rate schedule attached as Exhibit 2. 4.1.10 Temporary Bin and Temporary Roll -Off Box Service Contractor shall provide exclusive (as limited by Section 2.9) temporary Bin and temporary Roll -Off Box Service to Customers upon request, with the exclusion of providing such service to existing Residential Cart Refuse Customers. Customers receiving Cart Refuse services under the City's residential Cart franchise agreement, and construction contractors providing services to such a Customer's premises, shall receive temporary Bin and Roll -Off Box services from their Refuse Collection service provider or other hauler authorized to Collect in the City. Services requested for all new construction and instances not limited by Section 2.9 shall be exclusively provided under this Agreement. In the event Temporary Services are required for a project involving multiple Customers that receive service under both the City's Residential and Commercial franchisees, this service shall be provided under this Commercial Agreement. Contractor must deliver a temporary Bin or Roll -Off Box to a Customer within forty-eight (48) hours of request (Saturdays and Sundays excluded). Rates for Temporary Services are listed separately in the approved rate schedule, attached as Exhibit 2. Contractor will provide Roll -off Boxes and Bins for Temporary Services. There will be no charges other than the specific charges identified in the approved rate schedule. February 7, 2017 -27- City of Diamond Bar - Commercial Packet Pg. 600 8.3.b Contractor shall confirm that Customer has obtained an encroachment permit from the City prior to Contractor placing a Container in the public right-of-way. 4.1.11 Bin Pushout Service Contractor may not charge a fee for pushing or rolling Bins to point of Collection. 4.1.12 Scout Service Upon request, Contractor shall provide scout service, whereby Contractor will access Containers using a small vehicle either to move Containers to street or other public right-of-way for Collection, or Collecting Solid Waste directly from Container storage location. Under no circumstance shall Containers remain in the public right-of-wav or outside of Container storage location for a period exceeding two (2) hours. In the event of a dispute between Contractor and Customer as to whether scout service will be used, City will make the final determination. Contractor is responsible for verifying that an encroachment permit has been obtained from the City prior to placing a Container in the public right-of-way. If the Customer has not obtained an encroachment permit, the Contractor shall inform the Customer that the Container shall not be placed in the public right-of-way until the Customer provides Contractor with verification of an encroachment permit, instructing the Customer as to how to obtain the permit. A copy of the encroachment permit shall be affixed to the Container. 4.1.13 Locking Bins Contractor shall provide locking Bin Service (providing the hasp and lock and servicing the lock) to Customers that request such service in accordance with the approved rate schedule, based upon a monthly fee per locking Bin. 4.1.14 Redelivery/Return Trip Fee Contractor may charge a fee, per the approved rate schedule, in the event that Contractor arrives on time for a scheduled Collection of Bins or Roll -Off Boxes, is impeded from Collection due to Container being blocked or otherwise unable to be Collected due to issues within the Customer's control, and Contractor must return a second time for Collection. Charge may be assessed for the trip, not per Bin, in the event of a Customer with multiple Bins. February 7, 2017 -28- City of Diamond Bar - Commercial Packet Pg. 601 8.3.b 4.1.15 On -Call Bulky Item Pickup Contractor shall provide Bulky Item pickup service to all Residential Customers. Each Residential Dwelling Unit shall be entitled to four Bulky Item pickups per calendar year at no additional charge. The above mentioned Customers may put out up to four (4) Bulky Items at each pickup Contractor may instruct Customers to provide Contractor with a minimum of one business days' notice for the items, which shall be Collected on the Customer's regular Collection day. Contractor shall Collect all Bulky Items as defined in Section 1.6 including items referred to as electronic waste or "e -waste." The following provisions shall apply to this program: • No single item that cannot be handled by two workers will be accepted. • The following items will not be picked up: Hazardous Substances, Hazardous Waste, including waste oil or anti -freeze, with the exception of Bulky Items per Section 1.6 (including without limitation, universal wastes such as fluorescent bulbs, household batteries, and televisions, monitors and other items commonly referred to as "e -waste" that will be Collected by and disposed of by Contractor in accordance with this section as well as Sections 4.1.16 and 4.1.17.) • Contractor shall record by class and weight (in tons) the Solid Waste Collected from Bulky Item pickups. Contractor shall record the kinds and weights (in tons) of this Solid Waste that is diverted from the landfill through Recycling, reuse, Transformation or other means of Diversion. Contractor shall include this information in its monthly reporting per Section 8.3.2(a). Residential Customers that exceed the number of free pickups and Commercial Customers may receive Bulky Item Collection under the same terms for a fee, in accordance with the approved rate schedule in Exhibit 2. 4.1.16 Bulky Item Diversion Bulky Items Collected by Contractor in accordance with Section 4.1.15, or otherwise Collected under this Agreement, may not be landfilled or disposed of until the following hierarchy of Diversion efforts has been followed by Contractor: 1) Reuse as is February 7, 2017 -29- City of Diamond Bar - Commercial Packet Pg. 602 8.3.b 2) Disassemble for reuse or Recycling 3) Recycle 4) Disposal This hierarchy is intended to preclude the use of front or rear loading packer vehicles for Bulky Items unless the compaction mechanism is not used to compact the Bulky N Items. An exception maybe made for items that have been designated for Disposal. L U_ 4.1.17 Disposal of Electronic and Other Special Wastes N Contractor shall divert waste requiring special handling, such as universal or electronic 2 M waste, or "e -waste," Collected in accordance with Sections 4.1.15, 4.1.16 or 4.5.4, or by > other means under this Agreement, by taking these goods to a properly permitted r Facility, and not by landfilling. 4.1.18 Door -to -Door HHW Collection Contractor shall provide Residential Customers with door-to-door call-in HHW Collection service at no additional cost. Items to be Collected include, at a minimum: syringes and other Sharps; paint and paint products including but not limited to thinners, glues, caulking, stains, wood preservatives and strippers; household cleaners; automotive wastes; swimming pool chemicals; garden chemicals; fluorescent tubes; thermometers; household batteries; and electronic wastes. Contractor may direct Residential Customers to use the Bulky Item pickup option for televisions, computers and other HHW that may safely and legally be Collected as Bulky Items. 4.1.19 Section Deleted 4.1.20 Service Exceptions; Hazardous Waste Notifications A. Failure to Collect. When Solid Waste is not Collected from any CustomerSelid Waste sefvice ,-ecipient Contractor shall notify Customer' in writing, at the time Collection is not made, through the use of a "red tag" or otherwise, of the reasons why the Collection was not made, such as the placement of Hazardous Waste in the Container. February 7, 2017 -30- City of Diamond Bar - Commercial Packet Pg. 603 4.2 8.3.b B. Hazardous Waste Inspection and Reporting. Contractor reserves the right to inspect Solid Waste put out for Collection and to reject Solid Waste observed to be contaminated with Hazardous Waste and the right not to Collect Hazardous Waste put out with Solid Waste. Contractor shall notify all agencies with jurisdiction, if appropriate, including the California Department of Toxic Substances Control and Local Emergency Response Providers and the National Response Center of reportable quantities of Hazardous Waste, found or observed in Solid Waste anywhere within City. In addition to other required notifications, if Contractor observes any substances which it or its employees reasonably believe or suspect to contain Hazardous Wastes unlawfully disposed of or released on any City property, including storm drains, streets or other public rights of way, Contractor will immediately notify City Manager or City Manager's designee. Contractor shall implement and maintain a training program that will assist its employees in identifying and properly disposing of any Hazardous Waste that may come into their possession. C. Hazardous Waste Diversion Records. Contractor shall maintain records showing the types and quantities, if any, of Hazardous Waste found in Solid Waste and which was inadvertently Collected from Customers within City, but diverted from landfilling. Recycling 4.2.1 Recyclables Collection Contractor agrees to provide, in accordance with the approved rate schedule in Exhibit 2, Recycling Collection service to Customers requesting it from the Contractor. Contractor may purchase Recyclable Materials from its Customers as well. The Contractor agrees to provide Recycling Bins or Carts to such Customers in sufficient quantities to meet the Recycling needs of each Customer. Contractor shall continue to servicemake Recyelables Collection service available to Customers receiving such as othe execution of this Agreement (approximately 25 Bins CelleEted iveekly-)-iR accordance with the approved rate schedule. f shall take whatever actions may be appropriate, lawful and effective to discourage the unauthorized removal of Recyclable Materials from the Solid Waste stream, commonly referred to as scavenging. February 7, 2017 -31- City of Diamond Bar - Commercial Packet Pg. 604 8.3.b 4.2.2 Processing of Solid Waste Contractor shall process all mixed Solid Waste Collected at a materials recovery facility in order to maximize recovery of Recyclables. Contractor will deliver all mixed Solid Waste to the Grand Central Recycling and Transfer Station for processing. The only exeeptionto this is that Contr-aetor may elect to Colleet Refuse from food serviee establishments on a sepaFate route, and the mixed Nvaste from fo buildings that waste generating 4.2.3 Section Deleted 4.2.4 Marketing and Sale of Recyclable Materials Contractor shall be responsible for marketing and sale of all Recyclable Materials Collected pursuant to this Agreement. Contractor may retain revenue from the sale of Recyclable Materials, and shall report the amount of such revenues to City upon request. 4.2.5 Minimum Rig Diversion Requirements For each calendar year, beginning calendar year 2010 through calendar year 2017, Contractor shall divert from landfilling a minimum of 25% of all Solid Waste Contractor Collects under this Agreement. Contractor shall divert from landfilling a minimum of 25% of all Roll -Off Box loads, excluding Construction and Demolition Debris loads, that Contractor Collects under this Agreement. And Contractor shall divert from landfilling a minimum of 75% of all Construction and Demolition Debris loads it Collects under this Agreement. Construction and Demolition Debris tonnage shall be included in the overall 25 % diversion calculation. For each calendar year, beginning Tanuary 1, 2018, Contractor shall divert from landfillinLy a minimum of 25% of all Solid Waste Contractor Collects under this Agreement, excluding Construction and Demolition Debris Loads. Additionally, Contractor shall divert from landfilling a minimum of 75 % or the State -mandated Construction and Demolition diversion percentage, whichever is greater, of all Construction and Demolition Debris loads it Collects under this Agreement. February 7, 2017 -32- City of Diamond Bar - Commercial Packet Pg. 605 8.3.b Compliance with each of these minimums will be measured, initially, for the first period from August 16, 2010 to December 31, 2010, and subsequently on a calendar year basis. Recycling of materials not Collected by the Contractor is not to be counted towards meeting this requirement. If Contractor fails to comply with these diversion rate requirements, Contractor must submit a plan for compliance, including without limitation implementation of applicable portions of City's Source Reduction and Recycling Element, within sixty (60) days of the end of the calendar year. Contractor's plan is subject to approval by the City Manager, and to be approved must constitute a good faith plan to implement applicable portions of City's Source Reduction and Recycling Element and be reasonably likely to achieve compliance with the above requirement. Costs for providing the services in the compliance plan to meet this existing obligation will be borne by Contractor and shall not be the subject of a rate adjustment. If, following implementation of the plan for compliance, Contractor does not achieve compliance with the above requirement for the calendar year in which the plan was submitted, liquidated damages shall be assessed under Section 11.3 for failure to meet this requirement. In the event the State increases diversion rate goals, City may require Contractor to implement programs to meet the goal, and parties shall negotiate a rate adjustment Should parties fail to reach a mutually acceptable agreement, City may hire a third party to provide those services or terminate the Agreement. 4.2.6 Construction and Demolition Debris Diversion Contractor will bring all loads of mixed Construction and Demolition Debris to a C&D processing facility designated per Section 4.8 for separation and recovery of this material. Contractor may deliver separated loads of Construction and Demolition Debris, such as clean dirt, concrete or rebar, to facilities specializing in the reuse of such materials, provided this material is diverted from landfilling. Contractor shall divert from landfilling a minimum of 75% or the State -mandated Construction and Demolition diversion percentage, whichever is greater, of all Construction and Demolition Debris Collected. February 7, 2017 -33- City of Diamond Bar - Commercial Packet Pg. 606 8.3.b 4.2.8 4.2.7 Organic Waste Collection Services Contractor shall make arrangements to Provide Organic Waste Collection services to Multi -Family and Commercial accounts to comply with State requirements for mandatory Commercial Organics Recycling under AB 1826. Organic Waste Collection may be done utilizing Bins or Carts, depending on the amount of material generated or space constraints. Contractor agrees to assist City to identify Multi -Family Commercial Premises required to arrange for Organic Material Collection services under State law, offer Organic Waste Collection to such Premises, and notify the City in the event of refusal to subscribe for Organic Waste Collection. Collection of Organic Waste in Bins shall be char -zed at the same rate as Refuse Bins included in Exhibit 2. Collection of Organic Waste in Carts shall be in accordance with the approved rates included in Exhibit 2. Section Deleted -Optional Residential Food Waste Diversion Program 4.3 Green Waste Program / r �R�/llRJ. Upon Customer request-, Contractor shall provide Residential Customers with a sufficient number of Carts or Bins f or Collection of Green Waste ("Green Waste /1 ). Contraetor shall Collect all Green Waste placed in Green Waste Carts 0'r Bins Collection as well a all !',.ee Waste bundled by Customers not less than once a et fo -Fh below and per week. Contractor- put ou shall have a Green February 7, 2017 -34- City of Diamond Bar - Commercial Packet Pg. 607 8.3.b Waste Recycling program whereby it-, at a minimum, Collects the types of Green Waste defined in Section 121X 4.3.21 Holiday Tree Collection Program Contractor shall operate an annual holiday tree Collection program from December 26 through the second Sunday in January. During this period all holiday trees placed out for Collection by Residential Customers shall be Collected by Contractor. After this period, trees will be Collected as Bulky Items under Section 1.6. Trees up to seven (7) feet in length will be Collected and diverted without Customers needing to cut them. Contractor may request that Customers with larger trees cut the trees to pieces no longer than seven (7) feet. Contractor will divert all holiday trees from landfilling. 4.3.32 Roll -Off Green Waste Contractor shall provide Roll -Off Box Green Waste service at rates no more than comparable Refuse pull rates, and per ton Disposal at no more than the actual Green Waste processing fee. 4.3.43 End Uses for Green Waste Contractor shall divert Green Waste materials Collected through weekly bundle Collection -, -holiday tree Collection, Roll -off Box Collection and mixed waste processing from Disposal. Contractor must provide end uses for Green Waste that maximize Diversion credit for City according to regulations established by the California integrated Waste Management Boar- CalRecycle. Green Waste may be used as alternative daily cover ("ADC') only to the extent that the City will get full Diversion credit for its use. Diversion credit for ADC is not allowed after January 1, 2020 per Assembly Bill 1594. Contractor is responsible for monitoring how the Green Waste will be diverted at selected facilities and for selecting alternative facilities if necessary to ensure full Diversion credit. Failure to do so places the Contractor in default. City has the option, but not obligation, to direct Contractor where to deliver the material. February 7, 2017 -35- City of Diamond Bar - Commercial Packet Pg. 608 4.4 Section Deleted 4.5 City Services 4.5.1 City Facilities Collection 8.3.b Contractor shall Collect and dispose of all Refuse, Recyclable Material, and Gree Organic Waste put in Containers for Collection at Premises owned and/or operated by the City now and in the future at no charge. Service levels and number of facilities serviced may increase during the Term of-��without any additional compensation paid to the Contractor. Such Premises include, but are not limited to, City Hall, City offices, parks, City yard and street maintenance operations. Solid Waste at City yard will include Solid Waste Collected from street litter Containers. Collections shall be scheduled at a time mutually agreed upon by Contractor and City. 4.5.2 City Sponsored Events Contractor shall provide Solid Waste and Recycling Collection and Disposal/ processing service for City -sponsored events. This shall include providing Containers (Bins, Roll- off Boxes, clearly labeled Recycling Containers and cardboard waste boxes with liners) to Collect and dispose of, or process, all Solid Waste and Recyclable Materials. The Contractor shall provide these services at City -sponsored events upon City request, at no cost to City or ratepayers. The City's intent will be to alternate events assigned to Contractor with those events it assigns to the City's residential cart services franchisee; however, City does not guarantee that events will be evenly distributed based upon either level of effort or number of events. City -sponsored events include, but are not limited to: • Concerts in the Park • City Birthday Celebration • Fourth of July • Fun Fall Festival • Winter Snow Fest • Arbor Day • Easter Egg Hunt February 7, 2017 -36- City of Diamond Bar - Commercial Packet Pg. 609 8.3.b 4.5.3 Emergency Collection and Disposal Service Contractor will assist City at the City's request with emergency Collection and Disposal service (in the event of major disaster, such as an earthquake, storm, riot or civil disturbance), or as otherwise determined necessary by the City, by providing Collection equipment and drivers normally assigned to City. Contractor may charge City for actual Disposal costs plus service rates per the approved rate schedule. 4.5.4 Abandoned Item Collection from City Right -of -Way or Other Public Property Contractor will Collect and dispose of, at no additional charge, within one business day of notification from City, all items left in the City's right-of-way, such as sidewalks, alleys, streets, and parkways. Contractor will not be required to Collect Hazardous Waste (with the exclusion of electronic waste and universal wastes as provided in this Agreement), liquid wastes, or automobile parts that are individually too large for Collection by two people, but will be required to Collect any items defined as Bulky Items. Contractor will properly divert from landfilling or Dispose of such items in accordance with Sections 4.1.16 and 4.1.17. City will contact either the residential or commercial franchisee to provide this service, depending on the location of the abandoned item. 4.5.5 Community Development Review Services Upon City request and at no additional charge, Contractor will review building permit applicants' plans and advise regarding adequacy of Container storage space and access, particularly to accommodate Recycling containers. 4.5.6 Large Venue Event Assistance, Event Recycling Contractor will assist planners of large venue events with reporting and planning needs as may be useful in meeting the requirements of AB 2176, found at California Public Resources Code 42648, et seq. at no additional charge. Contractor shall provide Recycling services upon request to special event planners. 4.5.7 Confiscation of Unauthorized Containers City authorizes Contractor to confiscate illegal Collection Containers located within the City's pubic rights-of-way. Upon notification from City, or Contractor's locating of an illegally placed Container, Contractor shall begin the following procedure within 24 hours: February 7, 2017 -37- City of Diamond Bar - Commercial Packet Pg. 610 8.3.b 1. Contractor shall first place a notice on Container, directing the illegal hauler or its Customer to remove the Container within 24 -hours of notice, citing relevant sections of the City's municipal code, indicating where the Container may be retrieved, impound and storage costs, and warning that, should the Container not be removed by the hauler that Container may be removed without warning. If the company can be identified and its address ascertained, Contractor shall mail the warning as well. 2. Notify City of the notice and request authorization to impound the Container. 3. With written City approval, impound the Container if it has not yet been removed by the illegal hauler. 4. For subsequent violations by the same company after the initial notice has been posted, and after Contractor has mailed a warning to the company, Contractor may request written approval from City to remove company's Containers immediately, mailing a notice if address is known as to where the Container may be retrieved and impound and storage costs. If address is unknown, Contractor shall place the notice as close as feasible to where the Container was located. Written approval from City under this section will include, but is not limited to, approval sent by e-mail or facsimile. 4.5.8 Provision of Storage Containers Contractor will provide the City with eleven 40 -cubic -yard portable storage containers to be used for storage at City facilities and schools for the duration of the Agreement, and will maintain them in a condition satisfactory to the City. Contractor may transfer ownership of these storage containers to City, provided Contractor will remove and Dispose of these containers when requested to by City. 4.6 Operations 4.6.1 Schedules; Missed Pickups To preserve peace and quiet, Solid Waste shall only be Collected between &306:00 a.m. and 6:30 p.m. Collection is only permitted Monday through Saturday. Contractor may not make exceptions to these Collection days and times without advance written approval from the City. If the regularly scheduled Collection day falls on New Year's Day, Memorial Day, Fourth of July, Labor Day, Thanksgiving Day, or Christmas Day, February 7, 2017 -38- City of Diamond Bar - Commercial Packet Pg. 611 8.3.b Collection days for the remainder of that week shall all be postponed one Collection day. Collection on Saturday holidays shall be made up on the prior Friday or the following Monday. Contractor shall review its operations plan outlining the Collection routes, intervals of Collection and Collection times for all materials Collected under this Agreement with City upon thirty (30) days written notice requesting said review. Contractor shall submit a copy of its schedule and route map within seven (7) business days if requested by City. If the plan is determined to be inadequate by City, Contractor shall revise it incorporating any changes reasonably necessary to make it satisfactory to City within thirty (30) days. Change in schedules and routing shall not be implemented without City approval and not until at least fifteen (15) business days following notification to Customers. The City may restrict the timing and frequency of any route changes based upon the City's Municipal Code or any other applicable law or requirement. When notified of a missed pickup (which was not justified under the provisions of this Agreement) prior to 12:00 p.m., Contractor shall Collect the Refuse, Recyclable Materials, and/or Gree i -Q ga�Waste that was not Collected the same day. If notified after 12:00 p.m., Collection must take place no later than the next business day. If Contractor determined that the missed pickup was justified under this Agreement, Contractor will notify Customer as to the reason within this same time period. 4.6.2 Vehicles A. General. Contractor is responsible for providing all vehicles that may be required for the Collection of Solid Waste that are sufficient in number and capacity to efficiently perform the work required by this Agreement in strict accordance with its terms. Contractor is expressly obligated to provide such Collection Vehicles and routes as are required to meet the service standards set forth herein. Contractor shall have available on Collection days sufficient back-up vehicles for each type of Collection Vehicle used to respond to complaints and emergencies. All equipment of Contractor used to provide the services set forth in this Agreement shall be subject to inspection by City upon request. B. Specifications. Within twelve months of the start of service under this Agreement, all Collection vehicles used to provide service under this aAgreement, including spares, shall use exclusively liquefied natural gas or compressed natural gas. February 7, 2017 -39- City of Diamond Bar - Commercial Packet Pg. 612 8.3.b No Collection vehicle, including spares, used in the City shall be more than 10 years old at any time during the Agreement Term. Such vehicles must be registered with the California Department of Motor Vehicles and shall have water -tight bodies designed to prevent leakage, spillage or overflow. At all times during the term of this Agreement, Contractor's Collection vehicles shall comply with South Coast Air Quality Management District Requirements and the California Air Resource Board requirements as they are currently in force and as they may be approved for Refuse removal vehicles, as well as other Federal, State and local laws and regulations that may be enacted during the term of this Agreement. C. Vehicle Identification and Labeling. Each Collection vehicle shall be marked with Contractor's name, toll free phone number, and a vehicle identification number designated by Contractor for each Collection Vehicle which shall be prominently displayed on all such Vehicles, in lettering at least six inches in height. City must approve truck labeling. D. Cleaning and Maintenance 1) Contractor shall maintain all vehicles and equipment used in providing service under this Agreement in a good, safe, neat, clean and operable condition at all times. 2) Collection Vehicles shall be painted, thoroughly washed, and thoroughly steam cleaned on a regular basis so as to present a clean appearance. Contractor shall make all Collection Vehicles available to the County of Los Angeles for inspection regarding health concerns and requirements at any frequency it requests. Contractor agrees to replace or repair to the City's satisfaction, any Collection Vehicle which City determines to be of unsightly appearance, leaking, or in unsatisfactory operating condition. 3) Contractor shall repaint any or all Collection Vehicles within thirty (30) days' notice from City, if City reasonably determines that their appearance warrants painting. City may not requife a vehicle to be repainted if it has been repaint within the previous thirty (36) months. 4) Contractor shall inspect each Collection Vehicle daily to ensure that all equipment is operating properly. Collection Vehicles which are not operating properly shall be removed from service until repaired and operating properly. February 7, 2017 -40- City of Diamond Bar - Commercial Packet Pg. 613 8.3.b Contractor shall perform all scheduled maintenance functions upon Collection Vehicles in accordance with the manufacturer's specifications and schedule. Contractor shall keep accurate records of all Collection Vehicle maintenance, recorded according to date and shall make such records available to City upon request. 5) Contractor shall repair, or arrange for the repair of, all of its vehicles and equipment for which repairs are needed because of accident, breakdown or any other cause so as to maintain all equipment in a safe and operable condition. Contractor shall maintain accurate records of repair, which shall include the date, nature of repair and the verification by signature of a maintenance supervisor that the repair has been properly performed. 6) Upon request, Contractor shall furnish City a written inventory of all equipment, including Collection Vehicles, used in providing service pursuant to this Agreement. This inventory shall list all equipment by manufacturer, year of production, ID number, date of acquisition, type, capacity, and whether the vehicle is a spare. 7) All vehicles used to provide services under this Agreement shall at all times have in the cab the registration of the truck, evidence ofaeerfifie e of insurance meetingthe he requirements of this Agreement and an identification card with the name of whom to telephone in case of an accident or emergency. Each truck shall be equipped with a minimum of a 20 -pound fire extinguisher that has been certified by the state fire marshal. This fire extinguisher shall be recharged as needed, but not less than once annually. Vehicles shall be equipped with a shovel and broom to clean up any spillage. 8) All trucks used to provide services under this Agreement in the City shall be required to be completely enclosed with a nonabsorbent cover while transporting refuse, recyclables or compostable materials or other solid waste materials in or through the city. "Completely enclosed with a nonabsorbent cover" means that refuse, trash, recyclable or compostable materials shall not be visible from the public highway, nor shall any of the substances be permitted to leak, spill or become deposited along any public highway. February 7, 2017 -41- City of Diamond Bar - Commercial Packet Pg. 614 8.3.b E. Operation. Vehicles shall be operated in compliance with the California Vehicle Code, and all applicable safety and local ordinances. Contractor shall not load vehicles in excess of the manufacturer's recommendations or limitations imposed by state or local weight restrictions on vehicles. Contractor's equipment shall comply with US EPA noise emission regulations, currently codified at 40 CFR Part 205 and other applicable noise control regulations, and such noise control features shall be incorporated throughout the entire fleet of Collection Vehicles. Noise levels of equipment used for Collection shall comply with Diamond Bar Municipal Code Chapter 8.16 and in no event shall the noise level exceed 75 dba when measured at a distance of 25 feet from the vehicle, five feet from the ground. Contractor shall store all equipment in safe and secure locations in accordance with City's applicable zoning regulations. Contractor shall be responsible for any damage, normal wear and tear excepted, resulting from or directly attributable to any of its operations, and which it causes to City's driving surfaces, whether or not paved, public or private; associated curbs, gutters and traffic control devices; and all other public and private improvements. F. City Inspection Per Code. City may cause any vehicle used in performance of this Agreement to be inspected and tested at any commercially reasonable time and in such manner as may be appropriate to determine that the vehicle is being maintained in compliance with the provisions of the State Vehicle Code, including, but not limited to, California Vehicle Code Sections 27000(b), 23114, 23115, 42030, 42032, and all Vehicle Code Sections regarding smog equipment requirements. City may direct the removal of any vehicle from service if that vehicle is found not to be in conformance with applicable codes. No vehicle directed to be removed from service shall be returned to service until it conforms with, and its return to service has been approved by City. G. Vehicle Inspections. Upon City request, Contractor shall submit the Safety Compliance Report/ Terminal Record Update from its Biennial Inspection of Terminal, or BIT. If Contractor receives a terminal rating below satisfactory, Contractor shall notify the City, and Contractor is in violation of this Agreement. Contractor has the time allowed by the Department of California Highway Patrol ("CHP") to cure violations and bring the terminal rating up to satisfactory. If the CHP does not adjust the rating to satisfactory or better within six (6) months, then the Contractor shall be considered in default of the contract and the City may terminate this Agreement. February 7, 2017 -42- City of Diamond Bar - Commercial Packet Pg. 615 8.3.b H. Correction of Defects. Following any inspection, the City Manager shall have the right to cause Contractor, at its sole cost and expense, to recondition or replace any vehicle or equipment found to be unsafe, unsanitary or unsightly. The City Manager's determination may be appealed to the City Couneil, decision shall be final. 4.6.3 Containers Contractor will provide Containers to be used under this Agreement. On or before December 31, 2017, Contractor shall ensure that all Containers comply with requirements included in Sections 4.6.3.1 through 4.6.3.4, and provide City with a written Container inspection report. 4.6.3.1 Carts A. Cart Design Requirements Carts and Cart lids must meet color, size, uniformity and quality requirements of the City. The City will not permit Carts and Cart lids with inconsistent colors or in poor condition to be used in the City at any time during the term of this Agreement, and may require Contractor to replace such Carts. All Carts provided by Contractor utilized in the performance of this Agreement shall be manufactured by injection or rotational molding and meet the Cart design and performance requirements as specified below. All Carts selected shall be subject to City's approval. B. Section Deleted C. Cart Color and Appearance The Recycling and GreerrOrganic Waste Carts will be differentiated by color. The colors shall be colorfast and resistant to fading as a result of weathering or ultraviolet degradation. Color must be approved in advance by the City. Cart and Cart lid colors shall be consistent throughout the City. D. Cart Labeling and Hot Stamping Labels used on Carts shall be placed on the inside of the Cart lid, and hot stamps shall be on the top of the lid and/or on the body of the Cart. Each Cart shall be hot stamped February 7, 2017 -43- City of Diamond Bar - Commercial Packet Pg. 616 8.3.b eec-llng' or- GreeWas twith the material type (e.g., trash, Recycling, Or ag Hies) in English, Mandarin and Korean. Design for both the labels and the hot stamps must be approved by City prior to ordering labels or Carts. City shall approve what information is included on the label and in the hot stamp, as well as approve design and quality. Labels shall be replaced when worn, and when information on the label is in need of updating, but no later than 90 days of request from City. Information on the Carts shall include the telephone number to call for Contractor, Bulky Item pickups and HHW disposal information, and shall include an anti -scavenging warning. 4.6.3.2 Cart Maintenance and Replacement Responsibilities Contractor shall be responsible for Cart repair and maintenance, graffiti removal and replacing lost, stolen or damaged Carts within three (3) business days, at no additional charge to the Customer or to City, unless Contractor can demonstrate to the City Manager beyond a reasonable doubt that the damage or loss was due exclusively to Customer's intentional or negligent behavior. City Manager shall make the final determination. If City permits a repair or replacement charge to be assessed against a Customer, charge shall be no more than the actual cost of repair or the Contractor's purchase price for a new Cart, whichever is lower. All repairs must restore the Cart to its full functionality. Unsightly/worn-out Carts shall be replaced by Contractor upon Customer request at no additional charge. 4.6.3.3 Bins A. Cleaning. Contractor shall maintain Bins in a clean, sound condition free from putrescible residue. All Bins in use shall be constructed of heavy metal, or other suitable, durable material, and shall be watertight and well painted. Wheels, forklift slots, and other apparatuses, which were designed for movement, loading, or unloading of the Bin shall be maintained in good repair. Upon Customer or City request, or if required to maintain the Containers in a clean condition, Contractor shall clean all Bins once per year at no additional charge. Contractor shall perform cleaning or replacement of Bins more frequently if necessary to prevent a nuisance caused by odors or vector harborage, or if requested by Customer or City, for an additional fee in accordance with the approved rate schedule. When a Bin is removed for cleaning, Contractor shall replace the Bin, either temporarily or as a change -out, with another Container. Contractor shall remove graffiti from any February 7, 2017 -44- City of Diamond Bar - Commercial Packet Pg. 617 8.3.b Container within three (3) business days of request by City or Customer. Contractor is required to proactively look for graffiti when Collecting Bins, with all graffiti removed from Containers in no later than three (3) business days after any Collection without notification. B. Bin Identification and Color. Each Bin placed in City by Contractor shall be clearly labeled on the front of the Bin with the Bin type (Refuse, Recycling, Cardboard, Green -Organic Waste) and the name of Contractor and phone number in letters not less than three (3) inches high on the exterior of the Bin so as to be visible when the Bin is placed for use. Alternatively, the Bin type (Refuse, Recycling, Cardboard, Gree Organic Waste) may be identified with an affixed sign. Labels shall also be placed on the inside of the Bin lid. Labels shall include English, Korean, Mandarin and graphic instruction on what materials should and should not be placed in each Bin, and shall include an anti -scavenging warning. Contractor shall have labels approved by City prior to ordering and placement on Bins. Labels shall be replaced when worn, and when information on the label is in need of updating, but no later than 90 days of request from City. Contractor shall repaint Bins upon City's request if the City deems it necessary to maintain a neat appearance. 4.6.3.4 Roll -off Boxes Contractor shall provide sufficient Roll -off Boxes to meet Customer demand throughout the Term of the Agreement, and will keep all Roll -off Boxes clean, free from graffiti, equipped with reflectors, and with the name and phone number of Contractor in letters not less than three (3) inches high on the exterior of the Roll -off Box so as to be visible when the Roll -off Box is placed for use. Contractor shall properly cover all open Roll -off Boxes during transport as required by the State Vehicle Code. 4.6.4 Litter Abatement A. Minimization of Spills. Contractor shall use due care to prevent Solid Waste or fluids from leaking, being spilled and/or scattered during the Collection or transporta- tion process and shall clean up any leaks or spills from its vehicles per the National Pollutant Discharge Elimination System (NPDES) permit in effect at the time. No fluids shall be washed into storm drains at any time. All NPDES dry-cleaning measures shall be complied with. All Collection Vehicles must be equipped with absorbent for such February 7, 2017 -45- City of Diamond Bar - Commercial Packet Pg. 618 8.3.b cleanup efforts and shall carry a broom, shovel, absorbent, and containment materials at all times for this purpose. Contractor shall not transfer loads from one vehicle to another on any public street, unless it is necessary to do so because of mechanical failure, accidental damage to a vehicle, or a pre -approved method of Solid Waste transfer between vehicles, without prior written approval by City. See Section 11.3.B.2.d. B. Clean Up. During the Collection or transportation process, Contractor shall clean up all litter spilled during Collection or otherwise caused by Contractor. Contractor shall leave a "red tag' notice for Customer if litter not caused by Contractor is found in Container enclosure or around Containers. Contractor may charge Customers in accordance with the approved rate schedule for the cleaning of Container enclosures or around the Container if it is littered due to overflowing Containers. Contractor may address habitual offenders in accordance with Section 4.1.8. In the event of a spill of materials (vehicle fluids, Gree�:,,Organic Waste leachate, etc.), Contractor shall provide a cleanup of the spill to the satisfaction of City and other governing agencies. Cleanup methods may include pressure washing (Contractor must capture and reclaim water) or other similar clean-up methods. C. Covering of Loads. Contractor shall properly cover all open debris boxes during transport to the Disposal Site or processing facility. 4.6.5 Personnel A. Qualified Personnel. Contractor shall furnish such qualified drivers, mechanical, supervisory, clerical, management and other personnel as may be necessary to provide the services required by this Agreement in a satisfactory, safe, economical and efficient manner. All drivers shall be trained and qualified in the operation of vehicles they operate and must possess a valid license, of the appropriate class, issued by the California Department of Motor Vehicles. B. Hazardous Waste Employee Training. Contractor shall establish and vigorously enforce an educational program which will train Contractor's employees in the identification of Hazardous Waste. Contractor's employees shall not knowingly place such Hazardous Waste in the Collection Vehicles, nor knowingly dispose of such Hazardous Wastes at the processing Facility or Disposal Site. February 7, 2017 -46- City of Diamond Bar - Commercial Packet Pg. 619 8.3.b C. Unauthorized Material Removal. Contractor shall dismiss or discipline employees who remove documents or any other material from Containers, other than specifically for the purposes of Disposal and Diversion as described in this Agreement. D. Training. Contractor shall provide suitable operations, health and safety training for all of its employees who use or operate equipment or who are otherwise directly involved in Collection or other related operations. 4.6.6 Identification Required Contractor shall provide its employees, companies and subcontractors with identification for all individuals who may make personal contact with residents or businesses in City. City may require Contractor to notify Customers yearly of the form of said identification. Contractor shall provide a list of current employees, companies, and subcontractors to City upon request. City reserves the right to perform a security and identification check through the City's Police Department on the Contractor and all their present and future employees employed by Contractor to work in the City, in accordance with accepted procedures established by City, or for probable cause. 4.6.7 Unauthorized Fees and Gratuities Contractor shall not, nor shall it permit any agent, employee, or subcontractors employed by it to request, solicit or demand, either directly or indirectly, any compensation or gratuity for services authorized to be performed under this Agreement except as described in this Agreement, in accordance with Exhibit 2 as updated and approved by City throughout the Term of the Agreement. 4.6.8 Non -Discrimination Contractor shall not discriminate in the provision of service or the employment of persons engaged in performance of this Agreement on account of race, color, religion, sex, sexual orientation, age, physical handicap or medical condition in violation of any applicable federal or State law. February 7, 2017 -47- City of Diamond Bar - Commercial Packet Pg. 620 4.7 URI 8.3.b 4.6.9 Report of Accumulation of Solid Waste; Unauthorized Dumping Contractor shall direct its drivers to note (1) the addresses of any Premises serviced under this Agreement at which they observe that Solid Waste is accumulating and which is not being place out for Collection; and (2) the address, or other location description, at which Solid Waste has been dumped in an apparently unauthorized manner. Contractor shall deliver the address or description to City within one (1) working day of such observation. Transportation of Solid Waste Contractor shall transport all Refuse Collected to a City -approved Facility (e.g. Transfer Station, Waste -to -Energy Facility, Gree„ Was Organic Waste Processing Facility, MRF, Disposal Site). Contractor agrees to make all reasonable efforts to separate Recyclable Materials from Refuse for Diversion from landfill Disposal. Contractor shall maintain accurate records of the quantities of Solid Waste transported to all Facilities utilized and will cooperate with City in any audits or investigations of such quantities. Contractor shall cooperate with the operator of any Facility it uses with regard to operations therein, including, for example, complying with directions from the operator to unload Collection vehicles in designated areas, accommodating to maintenance operations and construction of new facilities, cooperating with its Hazardous Waste exclusion program, and so forth. Approved Facilities The Contractor shall dispose of Refuse Collected that is not required to be processed at the approved Disposal Site. Contractor must receive written advance approval from City to use each transfer station, transformation facility, processing facility or other Facility used by Contractor in the fulfillment of this Agreement. Contractor is responsible for ensuring that each Facility it uses is properly permitted prior to requesting City approval to use such Facility. Unless and until the City instructs otherwise, the designated Disposal Site and other Facilities are: Grand Central Recycling and Transfer Station. February 7, 2017 -48- City of Diamond Bar - Commercial Packet Pg. 621 8.3.b 4.9 Status of Disposal Site Any Disposal Site utilized by Contractor, shall be designed and constructed in accordance with 23 California Code of Regulations Section 2510 et seq. ("Subchapter 15"). Any—,u-eh landfill Disposal Site shall have been issued all permits from federal, state, regional, county and city agencies necessary for it to operate as a Class III Sanitary Landfill and is in full regulatory compliance with all such permits. 4.10 Dedicated Routes Solid Waste Collected in the City shall not be commingled in Collection vehicles with Solid Waste from other jurisdictions. All routes approved under this Agreement shall be dedicated exclusively to Solid Waste Collected in the City of Diamond Bar -of Diamond Bar Sol d TA rite. with the exception of Commercial Organics routes. 4.11 Route Audit Once during the first year, and subsequently upon request by the City, but in no event more than once per year, Contractor shall conduct an audit of its Collection routes in the City. In setting these audit dates, City will establish due dates for Contractor providing routing and account information, and later, the report, to City. The route audit, at minimum, shall consist of an independent physical observation by person(s) other than the route driver of each Customer in City. This person(s) is to be approved in advance by City. The route audit information shall include, as a minimum, the following information for each account: • Route Number; • Truck Number; • Account Name; • Account Number; • Account Service Address; • Account Type (Residential, Commercial, Roll -Off); • Service Level per Contractor Billing system (Quantity, Size, Frequency); • Observed Containers (Quantity and Size); • Container condition; • Proper signage; February 7, 2017 -49- City of Diamond Bar - Commercial Packet Pg. 622 8.3.b • Graffiti. Within forty-five (45) days after the completion of the route audit, Contractor shall submit to City a report summarizing the results of the audit. This summary shall include: • Identification of the routes; • Route map; • Truck numbers; • Number of accounts, by route and in total; • Confirmation that all routes are dedicated exclusively to City Customers; • Number and type of exceptions observed; • Total monthly service charge (Residential, Commercial and Roll -Off Box), pre -audit; • Total monthly service charge (Residential, Commercial and Roll -Off Box), post -audit (subsequent to corrections of identified exceptions). The report shall include a description of the procedures followed to complete the route audit. This description shall include the names and titles of those supervising the route audits and the name and titles of those performing the observations. The report shall also include a description of the changes and Contractor's plans to resolve the exceptions. The results of the audit, and supporting back-up data, shall be available for review by City or its representative. February 7, 2017 -50- City of Diamond Bar - Commercial Packet Pg. 623 8.3.b ARTICLE 5 OTHER SERVICES 5.1 Customer Billing and Contractor Compensation 5.1.1 Billing Contractor shall Bill Customers in accordance with the approved rate schedule attached as Exhibit 2. Contractor Compensation is exclusively derived from revenue received as a result of the Billings for services listed on the approved rate schedule, and Contractor shall charge no additional fees unless approved in advance by the City. Contractor will accept major credit cards for payment from Customers who request temporary Roll -off Box or temporary Bin service that do not have an account with Contractor. Customers without such an account who do not use credit cards may be required by the Contractor to post a security deposit or to pay on a "Cash on Delivery" (C.O.D.) basis. Any unused portion of a security deposit will be refunded to the Customer within five -fifteen business days of the termination of service. Contractor shall be responsible for bad debt. 5.1.2 Contractor's Invoices Bills must be itemized by Container size, frequency of service and period billed for. City must approve the format of Contractor billing invoices. All bills must carry a due date, not "due upon receipt." Bills will not carry an itemization of fees remitted to the City. 5.1.3 Section Deleted 5.1.4 Section Deleted 5.1.5 Section Deleted 5.1.6 Non -Payment; Collections; Suspension of Service In the event of non-payment by a Commercial Customer Billed by Contractor, Contractor must follow these steps before suspending service: February 7, 2017 -51- City of Diamond Bar - Commercial Packet Pg. 624 8.3.b First Notice - If payment is not received by 15 days after due date, Contractor shall notify Customer in writing of the non -receipt of payment and that non-payment can result in suspension of service. Second Notice - If payment is not received within 15 days of the mailing of the first notice of non -receipt of payment, Contractor shall mail a second notice of non -receipt of payment, warning that 1) service will be suspended in 15 days if payment is not received and that City will undertake code enforcement against the delinquent Customer, and 2) Contractor may assess a penalty of up to 10% on balances outstanding for sixty (60) days after the invoice date. Contractor shall not suspend service without prior approval from City. Notwithstanding the above, in the event of a Billing dispute or to avoid a negative impact on public health or safety, Contractor shall continue to provide service to all Customers unless permitted otherwise by City, without regard to the status of said Customer account. Billing disputes between Contractor and Customer may be resolved by City, and City's decision shall be final and binding. Contractor may be required to continue Residential service despite lack of payment due to health and safety concerns. 5.2 Customer Service 5.2.1 Local Office Contractor shall maintain a local office. Said office shall be open ("Office Hours"), at a minimum, from 7:00 A.M. to 5:00 P.M., Monday through Friday, exclusive of holidays. A responsible and qualified representative of Contractor shall be available during Office Hours for personal communication with the public at the local office. Contractor shall have either a representative, a message machine, or an answering service available outside of Office Hours. Calls received outside of Office Hours shall be responded to on the next business day. Contractor shall provide City with a twenty-four (24) hour emergency number to a live person, not voice -mail. 5.2.2 Complaint Documentation Service complaints received by City will be directed to Contractor. Contractor shall keep daily logs of complaints forwarded to it for a minimum of three (3) years. February 7, 2017 -52- City of Diamond Bar - Commercial Packet Pg. 625 8.3.b Contractor shall log all complaints received and said log shall include the date and time the complaint was received, the name, address and telephone number of the caller/ complainant, a description of the complaint, the name of the employee recording the complaint and the action taken by Contractor to respond to and remedy the complaint. The log shall also include each instance that Solid Waste and/or Recyclables are not Collected and the form of notification used to inform the participants of the reasons for non -Collection and the end result or means of resolution of the incident. All written Customer complaints and inquiries shall be date-stamped when received All complaints shall be initially responded to within one (1) business day of receipt. Contractor shall use best efforts to resolve complaints within two (2) business days. Contractor shall log action taken by Contractor to respond to and remedy the complaint. All Customer service records and logs kept by Contractor shall be available to City upon request. City shall, at any time during regular Office Hours, have access to Contractor's Customer service department for purposes that may include monitoring the quality of Customer service or researching Customer complaints. Contractor shall record Customer complaints regarding Customer service personnel in accordance with this Section 5.2.2. Customer service representatives receiving multiple complaints are to be transferred from Customer service duties or, with City approval, disciplined and appropriately trained. 5.2.3 Customer Service Standards Customer care is among the most important aspects of the services to be required of the Contractor. Contractor shall perform customer service at a level that can be measured by the following two standards: 1. The number of complaints in any one month period totaling no more that 2.5% of the number of residential customers served. In Diamond Bar, there are an estimated 300 accounts, meaning that in any given month, there must not be more than 8 complaints. Any compliant level in excess of this measure will be considered a separate violation of thise aAgreement. 2. Sufficient telephone line capacity during normal office hours to ensure that all calls will be answered in less than an average of thirty (30) seconds. February 7, 2017 -53- City of Diamond Bar - Commercial Packet Pg. 626 8.3.b Contractor shall insure that all incoming calls are answered courteously and promptly during the office hours stated above. Calls will be answered in less than an average of thirty (30) seconds, and thereafter will not be placed on hold longer than an average of one (1) minute before talking to a customer service representative of the Contractor. This standard must be measured quarterly, and the Contractor shall not exceed this standard or it will be considered a separate violation of this Agreements Contractor shall track complaints and call ringing and hold requirements, and include results in its quarterly report to the City. In any 12 -month period, accumulation by the Contractor of four or more separate customer service violations shall be deemed a material breach of this Agreement and shall subject Contractor to all remedies which are available to the City under this Agreement or otherwise. A violation is one month in which the number of complaints exceeds the maximum permitted under Section 5.2.3(A) or one calendar quarter in which fewer than 90% of calls placed by the City and its Customers to Contractor are answered by a live customer service representative before the fourth ring under Section 5.2.3(B). Contractor shall train its employees in Customer courtesy, shall prohibit the use of loud or profane language, and shall instruct Collection crews to perform the work quietly. Contractor shall use its best efforts to assure that all employees present a neat appearance and conduct themselves in a courteous manner. If any employee is found to be discourteous or not to be performing services in the manner required by this Agreement, Contractor shall take all necessary corrective measures including, but not limited to, transfer, discipline or termination. If City has notified Contractor of a complaint related to discourteous or improper behavior, Contractor will consider reassigning the employee to duties not entailing contact with the public while Contractor is pursuing its investigation and corrective action process. 5.2.4 Resolution of Customer Complaints Disputes between Contractor and Customers regarding the services provided in accordance with this Agreement may be resolved by City. City's decision shall be final and binding. February 7, 2017 -54- City of Diamond Bar - Commercial Packet Pg. 627 8.3.b Intervention by City is not a condition precedent to any rights or remedies third parties might otherwise have in any dispute with Contractor. Nothing in this section is intended to affect the remedies of third parties against Contractor. 5.2.5 Contract Liaison Contractor shall designate in writing a "Contract Liaison" who shall be responsible for working with City and/or City's designated representatives) to resolve Agreement - related issues. City shall have the right to approve the Contractor's choice for a liaison. City shall be notified in advance of any change in Contract Liaison. 5.2.6 Service Liaison Contractor shall designate in writing a field supervisor as "Service Liaison" who shall be responsible for working with City and/or City's designated representatives) to resolve Customer service related complaints. City shall have the right to approve the Contractor's choice for a liaison. City shall be notified in advance of any change in Service Liaison. 5.3 Education and Public Awareness 5.3.1 General Contractor acknowledges and agrees that education and public awareness are critical elements of efforts to achieve the requirements of AB 939. Accordingly, Contractor agrees to take direction from City to exploit opportunities to expand public and Customer knowledge concerning needs and methods to reduce, reuse and Recycle Solid Waste and to cooperate fully with City in this regard. Contractor shall maintain its own program of providing information relevant to needs and methods to reduce, reuse and recycle Solid Waste to be distributed, when appropriate, along with its Bills. All public education materials shall be subject to approval in advance by City and shall be printed in English, Mandarin and Korean. 5.3.2 Implementation and On-going Education Requirements In order to promote public education, in addition to any other materials it develops, Contractor shall create the following public education materials and programs at its expense, which will be distributed as indicated below. All of these materials and February 7, 2017 -55- City of Diamond Bar - Commercial Packet Pg. 628 8.3.b programs shall be produced and/or available in English, Mandarin and Korean languages, including pictures wherever applicable. All brochures, mailings, and other educational materials are subject to approval by City in advance of distribution. A Public Education Plan shall be submitted to City for review within sixty (60) days of the execution of this Agreement. The plan shall address the items described in this section. The approved plan shall be attached to this Agreement as Exhibit 1. • Instructional "How-to" Packets - An information packet shall be provided to eaeh each new Customer throughout the Agreement term. This packet shall: describe available services, including available Recycling and Diversion programs; provide instructions for proper use of the Containers (such as the types of materials to be placed in each type of Container and other similar information); detailed holiday Collection schedules; and provide billing and Customer service telephone numbers; identify who to contact with service or Billing questions; and who to contact for Bulky Item pickups. All customers shall be promptly notified of any changes to such information. The packet should also clearly indicate what materials, such as syringes and other Household Hazardous Wastes (HHW), should not be disposed of in the Containers. The packet shall include instructions on how Customers should dispose of HHW. • Container Labels and Hot Stamps - Reeyelables and Green Waste Containers shall carry stickers/ labels and hot stamps as described in Sections 4.6.3.1.D and 4.6.3.3.B. • Billing Inserts - City may require Contractor to insert notices in Contractor's Billings up to four (4) times per year. City may instruct Contractor to prepare such notices at Contractor's expense, or may choose to provide such notices for insertion. Additionally, City may periodically request that Contractor include informative language directly on the invoices it sends. Annual Brochures/Mailings - Not less than once per year during each Rate Year, Contractor shall prepare and distribute to each Customer a mailing to update Customers regarding program basics, program changes, holiday schedules and other service related information. Mailings should promote and explain: all Solid Waste programs offered by City and Contractor (such as Recycling, Greea-Organic Waste, Holiday Tree and Bulky Item Collections) described in detail; the environmental, regulatory, and other benefits of participating in Recycling; how to February 7, 2017 -56- City of Diamond Bar - Commercial Packet Pg. 629 8.3.b properly dispose of Household Hazardous Waste such as syringes, paint, etc.; Collection schedules, including holiday schedules; Customers service numbers; and the procedures to begin and terminate services (if moving from Premises). This brochure shall be at least four (4) pages, and printed in full color. Contractor is responsible for all associated costs. • Second Annual Mailer- Not less than once per vear 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 Citv's discretion. • Corrective Action Notice - Contractor shall develop a corrective action notification form for use in instances where a Customer sets out inappropriate materials for Collection, that explains the appropriate manner for Disposal of such items. • Website - Contractor shall develop and maintain a website to display holiday schedules, explain proper HHW disposal procedures, describe which materials are to be placed in Recyclables Containers and other useful information, as well as informing Customers how to contact Contractor. 5.3.3 Contractor Representative Contractor shall retain on its staff an individual who shall, as part of his or her job function, routinely visit civic groups, school assemblies, homeowners' associations, Multi -Family complexes and businesses, to promote and explain the Recycling programs Contractor offers, and participate in demonstrations, and civic events, and coordinate those visits with the City. 5.3.4 Community Events At the direction of City, Contractor shall participate in and promote Recycling and other Diversion techniques at community events and local activities. Such participation would normally include providing, without cost, educational and publicity information promoting the goals of City's Solid Waste program. February 7, 2017 -57- City of Diamond Bar - Commercial Packet Pg. 630 8.3.b 5.4 Waste Generation/Characterization Studies Contractor acknowledges that City must perform Solid Waste generation and Disposal characterization studies periodically to comply with the requirements of AB 939. Contractor agrees to participate and cooperate with City and its agents and to accomplish studies and data collection and prepare reports, as needed and directed by City, to determine weights and volumes of Solid Waste Collected and characterize Solid Waste generated, disposed, transformed, diverted or otherwise handled/ processed, by Customer type, to satisfy the requirements of AB 939. Upon request of City, Contractor will at its sole expense conduct a waste generation and characterization study relating only to the Solid Waste Contractor Collects, but not more than once every three years. February 7, 2017 -58- City of Diamond Bar - Commercial Packet Pg. 631 8.3.b ARTICLE 6 COMPANY COMPENSATION AND RATES 6.1 General The maximum rates set forth in Exhibit 2, and as more fully defined as Contractor Compensation in this Article, shall be the maximum amount Contractor may charge Customers as full, entire and complete compensation due pursuant to this Agreement for all labor, equipment, materials and supplies, taxes, insurance, bonds, letters of credit, overhead, Disposal, transfer, profit and all other things necessary to perform all the services required by this Agreement in the manner and at the times prescribed. Contractor shall impose no other charges for services (including but not limited to surcharges for weekend or priority service) provided to Customers unless approved by the City Manager. 6.2 Initial Rates The maximum rates that Contractor may charge Customers through the Rate Year ending June 30, 2012018, shall not exceed the maximum rates set forth in Exhibit 2 6.3 Schedule of Future Adjustments Beginning with the Rate Year starting July 1, 2011 and ending on June 30, 2012 and for all subsequent Rate Years, Contractor may request an annual adjustment to the maximum rates shown in Exhibit 2. The Contractor aLyrees to waive the annual rate adjustment that would be due Tuly 1, 2017. -The Contractor shall submit its request in writing, to be received by City in Person or via certified mail, by the preceding March 3031, and shall be based on the method of adjustment described in Section 6.4. The City shall consider a Ffailure to submit a written request by March 30-31 as Contractor's determination not to seek an adjustment and shall constitute a waiver by Contractor of its right to request such an increase for the subsequent Rate Year. However, the City reserves the right to initiate a rate adjustment in instances where the Contractor fails to submit a written rate adjustment request, —Adjustment to the maximum rates is subject to the approval of the City Manager. If an annual adiustment that would have resulted in a rate decrease is not implemented for any reason, the next rate adjustment will be measured based on the change in February 7, 2017 -59- City of Diamond Bar - Commercial Packet Pg. 632 6.4 8.3.b indices from the last implemented rate adjustment; the intent is to ensure subsequent rate increases shall be offset with any decrease not previously implemented. Method of Adjustments 6.4.1 General Pursuant to Section 6.3, the Contractor may request an adjustment to the maximum rates according to the method described below and the formula shown in Exhibits 3A 3B, and 3C, subject to review and approval of City. All future adjustments are to be effective July 1 of the same calendar year, following the March 3-0-31 submission deadline. 6.4.2 Cost Components for Rate Adjustment Indices The approved rates consist of the following cost component categories. Each cost component may be adjusted by the change in the corresponding index below. See Section 6.4.3 and Section 6.4.4 for detailed rate adjustment procedures. February 7, 2017 -60- City of Diamond Bar - Commercial Packet Pg. 633 Weightings for 7/1/18 Adjustment Cost Category rX o Rate Adjustment Factor Section Section 6.4.3 6.4.4 Change in the "Driver" Classification to be in effect as of the date the new rates go into effect (July 1) under the Agreement between Waste Management of San Gabriel/Pomona Valley, Inc. and Teamsters Automotive Industrial and Allied Workers Local Labor 25-.727.0% 32-.534.2% No. 495(1) Producer Price Index WPU05522101, Fuels and related products and powern,,,,a,,cer Price index Fuel X66.1 % 8-.47.6% power,WPU 0531, Fuels and related products and Producer Price Index, PCU336120336120, Heavy Equipment 20.40 % 25.80 % truck manufacturing _duty Consumer Price Index for All Urban Consumers (CUURA421SAOLIE), all items less food and energy - Los Angeles -Riverside -Orange County, CAT -he actual ,.h.,,,ge i landfill gate fee per ton at Disposal 2017.0% n/a approved landfill, inelusive of taxes and fe included in gate fe February 7, 2017 -60- City of Diamond Bar - Commercial Packet Pg. 633 8.3.b Consumer Price Index for All Urban Consumers (CUURA421SAOLIE), all items less food and energy I All Other 124.-329.9% 133-.333.2% 1 - Los Angeles -Riverside -Orange County, CA Total 1 100.0% 1 100.0 (1) For example, under the agreement terminating Octeb�29September 30, 201909, these rates are: Contract Date � n�0610/01/16 10144-0710/01/17 1014110810/01/18 Hourly -Rate $42521.85 $4522.25 $4022.65 Rate Adjustment n a 7/01/0818 7/01/0-919 Date Change to Labor n a 5,21.8% 3-.61.8% Component Comparable rates from subsequent labor agreements will similarly apply. If a subsequent labor contract has not been executed prior to a rate adjustment calculation, the percentage change in the labor cost component used in the prior year's adjustment calculation will be used. In the event that the estimated labor component change is higher or lower than the actual change after a new labor contract is executed, no compensation adjustment shall be provided for prior periods. 6.4.3 Rate Adjustment Steps for Bin, Temporary and Other Services All rates, except for those specifically adjusted under Section 6.4.4, will be adjusted using the same methodology and cost component weightings. See Exhibit 3A. Step One - Calculate the percentage increase or decrease in the index for each category listed in Section 6.4.2. The increase or decrease in the published indices for fuel, equipment, disposal and all other (CPI) will be for the change in the average annual published index between the calendar .year ended the December prior to the Rate Year anniversary date and prior calendar year. (See Exhibit 3C for an example average annual change in published index year over year.) Step Two - The weightings of the cost components for the first rate adjustment are identified in the table in Section 6.4.2. Components to be used in subsequent years shall be calculated in Step Four of the rate adjustment. For Step Two of each subsequent rate adjustment, use the cost components recalculated in Step Four during the previous rate adjustment. February 7, 2017 -61- City of Diamond Bar - Commercial Packet Pg. 634 8.3.b The Contractorh-auler may elect to apply for a one-time reset of cost component weightings prior to the first rate adjustment based upon actual costs from August 16, 2010 through February 28, 2011. This request and supporting data shall be submitted to the City by March 30, 2011. The revision of the cost component weightings is subject to approval by the City Manager, which will review the request and supporting data for reasonableness. Multiply the percentage changes for each rate adjustment component by that component's weighting and add these resulting percentages together to get the total weighted change to the rates. Step Three - Multiply the total weighted percent change from Step Two by the existing Customer rates to calculate the increase or decrease to the maximum rates. Add the rate increase or decrease to the existing rates to derive the newly adjusted rates. Step Four - Recalculate weightings for the following year based upon these changes. 6.4.4 Rate Adjustment Steps for Pull Plus Dump Roll -Off Rates This section shall apply exclusively to the adjustment of permanent Roll -Off Box rates that consist of a pull rate, or service component, plus a per ton Disposal/ processing cost. See Exhibit 3B for an example rate adjustment procedure. Service or "Pull" Component Step One - Calculate the percentage increase or decrease in the index for each cost category listed in Section 6.4.2, with the exclusion of the Disposal index. The increase or decrease in the published indices for fuel, equipment and all other (CPI) will be for the change in the average annual published index between the calendar year ended the December prior to the Rate Year anniversary date and prior calendar year. (See Exhibit 3C for an example average annual change in published index year over Step Two - The cost components for the first rate adjustment shall be calculated as a percentage of total costs, based upon actual Contractor costs for the twelve-month period ended December 31, 2010, with subsequent components calculated in Step Four of the rate adjustment. For Step Two of each subsequent rate adjustment, use the cost components recalculated in Step Four during the previous rate adjustment. February 7, 2017 -62- City of Diamond Bar - Commercial Packet Pg. 635 8.3.b Multiply the percentage changes for each rate adjustment component by that component's weighting and add these resulting percentages together to get the total weighted change to the rates. Step Three - Multiply the total weighted percent change from Step Two by the existing Customer rates to calculate the increase or decrease to the maximum rates. Add the rate increase or decrease to the existing rates to derive the newly adjusted rates. Step Four - Recalculate weightings for the following year based upon these changes. Disposal/ Processing Component - The Disposal/ processing component of these rates will be adjusted based upon the increase or decrease in the average annual CPI index between the calendar year ended the December prior to the Rate Year anniversary date and prior calendar year. 6.5 Extraordinary Adjustments Contractor may request an adjustment to maximum rates in the event of extraordinary changes in the cost of providing service under this Agreement, including changes in a direct per ton surcharge assessed at the Disposal Site by federal, state or local regulatory agencies after the Effective Date. These requests, with the exception of changes in a direct per ton surcharge assessed at the Disposal Site by federal, state or local regulatory agencies after the Effective Date, if approved, shall only be granted at the time of the annual July 1 increase per Section 6.3, must be submitted no later than March 30-31 of each year, and should be submitted as early as feasible to provide City with sufficient time to review the request prior to granting the annual July 1 increase. Changes in Disposal surcharges may be requested at other times. Such changes shall not include changes in Recyclable Material processing costs, changes in the market value of Recyclables, inaccurate estimates by the Contractor of its proposed cost of operations, or unionization of Contractor's work force. Extraordinary rate adjustments shall only be effective after approval by City Council and may not be applied retroactively. For each request for an adjustment to the maximum rates that Contractor may charge Customers brought pursuant to this section, Contractor shall prepare a schedule documenting the extraordinary costs. Such request shall be prepared in a form acceptable to City with support for assumptions made by Contractor in preparing the estimate. Contractor shall also submit a schedule showing how its total costs and total February 7, 2017 -63- City of Diamond Bar - Commercial Packet Pg. 636 8.3.b revenues have changed over the past three years for the services provided under this Agreement. City may request a copy of the Contractor's annual financial statements in connection with the City's review of Contractor's extraordinary rate adjustment request. City shall review the Contractor's request and, in City's sole judgment and absolute, unfettered discretion, make the final determination as to whether an adjustment to the maximum rates will be made, and, if an adjustment is permitted, the appropriate amount of the adjustment. City will confirm receipt of a request for an extraordinary rate adjustment within sixty (60) days of receipt of Contractor's request and will promptly coordinate with Contractor to assess the request. City may consider, among other things, increases or decreases in the Contractor's total revenues and total cost of services when reviewing an extraordinary rate adjustment request. 6.6 Effect of Rate ChnallengeProposition 218 If a rate adjustment approved by the City Manager or City Council is prevented from implementation due to a legal challenge by third partiespr-otest under n,,,,,- esitio 218, and City does not otherwise compensate Contractor for the amount of the adjustment due, Contractor is permitted to terminate this Agreement upon one-year notice. Fades do not believe and do not intend to imply that Pr-oposition 218 applies to Contr-aetor�s eharges-. February 7, 2017 -64- City of Diamond Bar - Commercial Packet Pg. 637 8.3.b ARTICLE 7 REVIEW OF SERVICES AND PERFORMANCE 7.1 Performance Review Meeting City may hold a meeting annually to review Contractor's Solid Waste Collection efforts, source reduction, processing and other Diversion services and overall performance under this Agreement (the "Solid Waste Services and Performance Review Meeting'). The purpose of the Solid Waste Services and Performance Review Meeting is to provide for a discussion and review of technological, economic, and regulatory changes in Collection, source reduction, Recycling, processing and Disposal to achieve a continuing, advanced Solid Waste Collection, source reduction and Recycling and Disposal system; and to ensure services are being provided by Contractor with adequate quality, effectiveness and economy, and in full compliance with the terms of this Agreement. Topics for discussion and review at the Solid Waste Services and Performance Review Meeting shall include, but shall not be limited to, services provided, feasibility of providing new services, application of new technologies, Customer complaints, amendments to this Agreement, developments in the law, new initiatives for meeting or exceeding AB 939's goals, regulatory constraints, results of route audits, and Contractor performance. City and Contractor may each select additional topics for discussion at any Solid Waste Services and Performance Review Meeting. City shall notify Contractor of its intent to hold a Solid Waste Services and Performance Review Meeting at least sixty (60) days in advance thereof. Thirty (30) days after receiving notice from City of a Solid Waste Services and Performance Review Meeting, Contractor shall submit a report to City which may contain such information as it wishes to have considered, and shall contain the following: a) Current Diversion rates and a report on Contractor's outreach activities for the past year. b) Recommended changes and/or new services to improve City's ability to meet the goals of AB 939 and to contain costs and minimize impacts on rates. A specific plan for AB 939 compliance shall be included. c) Any specific plans for provision for new or changed services by Contractor. February 7, 2017 -65- City of Diamond Bar - Commercial Packet Pg. 638 8.3.b The reports required by this Agreement regarding Customer complaints shall be used as one basis for review of Contractor's performance, and Contractor may submit other relevant performance information and reports for consideration at the Solid Waste Services and Performance Review Meeting. In addition to the above, City may request Contractor to submit any other specific information relating to its performance for consideration at the Solid Waste Services and Performance Review Meeting, and any Customer may submit comments or complaints during or before the Meeting, either orally or in writing. Contractor shall be present at and participate in the Solid Waste Services and Performance Review Meeting. As a result of its findings following any Solid Waste Services and Performance Review Meeting, City may require Contractor to provide expanded or new services within a reasonable time and City may direct or take corrective actions for any performance inadequacies (although nothing contained in this provision should be construed as requiring City to hold a Solid Waste Services and Performance Review Meeting in order to enforce any rights or remedies it has pursuant to the terms hereof.) Should City require expanded or new services as a remedy for Contractor's failure to perform its obligations hereunder, no additional compensation shall be due for such services. Otherwise, any new or expanded services required of Contractor shall be subject to the provisions of Section 2.10. 7.2 Performance Satisfaction Survey If requested by the City, Contractor will create and conduct a survey at Contractor's expense. If City would like to present results at a Solid Waste Services and Performance Review Meeting, City shall notify Contractor of its desire for such a survey at least 90 days in advance of the Solid Waste Services and Performance Review Meeting. The purpose of the survey is to determine Customer satisfaction with current Collection services and Customer service provided by Contractor. The Survey will be distributed to one hundred percent (100%) of the Customers. Contractor shall obtain City's approval of the survey's content, format, and mailing list prior to its distribution. City may require that Contractor have Customer responses to the survey returned directly to City. The survey results shall be made available to the City thirty (30) days prior to the Solid Waste Services and Performance Review Meeting. February 7, 2017 -66- City of Diamond Bar - Commercial Packet Pg. 639 8.3.b ARTICLE 8 RECORDS, REPORTS AND INFORMATION REQUIREMENTS 8.1 General Contractor shall maintain such accounting, statistical and other records related to its performance under this Agreement as shall be necessary to develop the financial statements and other reports required by this Agreement. Also, Contractor agrees to conduct data collection, information and record keeping, and reporting activities needed to comply with applicable laws and regulations and to meet the reporting and Solid Waste program management needs of City. To this extent, such requirements set out in this and other Articles of this Agreement shall not be considered limiting or necessarily complete. In particular, this Article is intended to only highlight the general nature of records and reports and is not meant to define exactly what the records and reports are to be and their content. Further, with the written direction or approval of City, the records and reports to be maintained and provided by Contractor in accordance with this and other Articles of this Agreement shall be adjusted in number, format, or frequency. 8.2 Records 8.2.1 General Contractor shall maintain records required to conduct its operations, to support requests it may make to City, and to respond to requests from City in the conduct of City business. Adequate record security shall be maintained to preserve records from events that can be reasonably anticipated such as a fire, theft and earthquake. Electronically maintained data/records shall be protected and backed up. All records, with the exception of records to be maintained under Section 8.2.4, shall be maintained for five (5) years, and shall continue to be available for five (5) years after the expiration of this Agreement. After minimum holding periods are met, Contractor will notify City Manager and City Attorney ninety (90) days before destroying records and offer records to the City. City shall have the right to inspect or review the specific documents or records required expressly or by inference pursuant to this Agreement, or any other similar records or reports of Contractor or its Affiliates that City shall deem, in its sole discretion, February 7, 2017 -67- City of Diamond Bar - Commercial Packet Pg. 640 8.3.b necessary to evaluate annual reports, and Contractor's performance provided for in this Agreement. Contractor agrees that the records of any and all companies conducting operations addressed in the Agreement shall be provided or made available to City and its official representatives. Account histories shall be accessible to the City by computer for a minimum of five (5) years after termination of the Agreement. Contractor shall make all records and documents to be reviewed and inspected by City as a part of any audit or other record review conducted by City, available for City's review, inspection and copying within five (5) days of receiving written notice from City requesting the same. Additionally, City may review records at Contractor's local facility during normal business hours, within five (5) days of request during normal business hours. Such records include, but are not limited to, financial, Solid Waste, CERCLA and Disposal records. 8.2.2 Financial Records Contractor shall maintain financial records relating to its operations pursuant to this Agreement separate and segregated from such records relating to its other operations. Contractor shall maintain at least the following records: • Audited financial statements for Contractor or, if a guarantee was provided, for the parent company guarantor as a whole; • Financial statements (compiled, reviewed or audited) of revenue and expense for this Agreement segregated from the other operations of Contractor (including without limitation those operations of Contractor in City and surrounding jurisdictions which are not covered by this Agreement), including a description of segregation methodology; and • Complete descriptions of related party transactions (corporate and/or regional management fees, inter -company profits from transfer, processing or Disposal operations). 8.2.3 Solid Waste Records Contractor shall maintain and make available to the City upon request the following records relating to its operations pursuant to this Agreement: a) Customer services and Billing/ City payment records; February 7, 2017 -68- City of Diamond Bar - Commercial Packet Pg. 641 b) 8.3.b Records of tons Collected, processed, diverted and disposed by waste stream (Refuse, Recycling, Gree i ­Q ganic Waste), by Customer type (Cart, Bin, Roll -Off Box), and the Facilities (Transfer Station, MRF, or landfill) where such material was taken; Quantity of Recyclable Materials recovered by material type, as well as quantity of material diverted from landfills in compliance with AB 939; Bulky Item results and Special Event tonnages, including tons disposed and diverted; Routes; Facilities, equipment and personnel used; Facilities and equipment operations, maintenance and repair; Number and type of Refuse, Recycling an C&ee Wasteand Organic Waste Containers in service; Complaints; and Missed pickups. 8.2.4 CERCLA Defense Records City views the ability to defend against the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and related litigation as a matter of great importance. For this reason, City regards the ability to prove where Solid Waste Collected in the City was taken for Disposal, as well as where it was not taken, to be matters of concern. Contractor shall maintain data retention and preservation systems which can establish where Solid Waste Collected in the City was landfilled (and therefore establish where it was not landfilled) for not less than twenty-five (25) years following the termination of this Agreement, and agrees to notify City Manager and City Attorney before destroying such records thereafter. At any time, including after the expiration of the Term hereof, Contractor shall provide copies of such records to City upon request. The requirements of this section shall survive the expiration of the Term „f � n„^ � February 7, 2017 -69- City of Diamond Bar - Commercial Packet Pg. 642 8.3.b 8.2.5 Section Deleted 8.2.6 Other Programs' Records Records for other programs shall be tailored to specific needs. In general, they shall include: a) Plans, tasks, and milestones; and, b) Accomplishments in terms such as dates, activities conducted, quantities of products used, produced or distributed, and numbers of participants and responses. 8.2.7 Audit City may conduct an audit of Contractor at any time. The scope of the audit, and auditing party, will be determined by City and the scope may include, but is not limited to, compliance with terms of this Agreement, Customer service levels and Billing, fee payments, Gross Receipts, tonnage, and verification of Diversion rate. The first audit, to be performed during calendar year 2012, will be based on the Contractor's reports and records from the start of the Agreement through calendar year 2011. Audits w-iU -may be performed every third year thereafter. Contractor will pqy feimbTf-5e-to the City the cost of such audits (including audits conducted by City staff) up to $50,000 for the first audit, and $35,000 for each subsequent audit in 2012 dollars. After 2012, the $35,000 amount shall be increased annually by the change in CPI using the formula for the change in the "all other' component of the rates in Section 6.4. -Audit payments from the Contractor to the City are due January 1 of year the audit is being` performed. Should an audit conducted or authorized by the City disclose that fees payable by Company were underpaid by two percent (2%) or more, that tonnage was mis-reported by 2% or more, or that more than two percent (2%) of the Customers were inaccurately billed based on the auditor's sampling, for the period under review, City may expand the scope of the audit and recover all additional audit costs from the Contractor. 8.2.8 Payments and Refunds Should an audit disclose that fees payable by the Contractor were underpaid to City or that Customers were overcharged for the period under review, Contractor shall pay to City any underpayment of fees and/or refund to Contractor's Customers or City as February 7, 2017 -70- City of Diamond Bar - Commercial Packet Pg. 643 8.3.b directed by City, any overcharges within thirty (30)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 -1-26%. Undercharges shall not be billed in arrears for more than ninety (90) days of service, with any remaining undercharges absorbed by Contractor. Should an audit disclose that fees were overpaid, City shall credit such amounts against future fees payable by Contractor with interest. 8.3 Reports 8.3.1 Report Formats and Schedule Records shall be maintained in forms and by methods that facilitate flexible use of data contained in them to structure reports, as needed. Contractor shall utilize the Monthly Report template included in Exhibit 7, which may be adjusted by the City at any time. Contractor may propose report formatsthe format for the Annual Report that anis responsive to the objectives and audiences for eat -report. The format of each the Annual Report shall be approved by City, which may require changes and/or additions to the format. Reports shall be submitted within thirty (30) calendar days after the end of the reporting period. Annual reports shall be submitted within thirty (30) calendar days after the end of the calendar year. If requested, Contractor's complaint summary, described in Section 5.2.2, shall be sent to the City within five (5) business days of request. All reports shall be submitted in electronic format compatible with City's software/ computers, at no additional charge, to the Public Works Director and/or other City staff designated by the Public Works Director at e-mail addresses to be provided by City. City may additionally request hard copies, which would be delivered to: Public Works Director City of Diamond Bar 21825 Copley Drive Diamond Bar, CA 91765 8.3.2 Monthly/Quarterly Reports The information listed below shall be the minimum reported monthly: February 7, 2017 -71- City of Diamond Bar - Commercial Packet Pg. 644 8.3.b a) Solid Waste Collected by Contractor, sorted by type of Solid Waste Collected and diverted (Refuse, Recycling, Gree i -Q ganic Waste) in tons, including contamination and Diversion rates for each wastestream and Customer type (Cart, Bin, Roll -Off Box) and the Facilities where the tons were processed or disposed. Bulky Item tons Collected and diverted shall also be reported as a separate line item. The information listed below shall be the minimum reported quarterly: a) Solid Waste Collected by Contractor, sorted by type of Solid Waste Collected and diverted (Refuse, Recycling, Gree n -Q ganic Waste) in tons (including contamination and Diversion rates for each wastestream and Customer type (Cart, Bin, Roll -Off Box) and the Facilities where the tons were processed or disposed. Bulky Item tons Collected and diverted shall also be reported as a separate line item. b) Number of warning notices issued for contaminated Recyclable Materials -and Green Waste, and Organic Waste Containers, and HHW improperly placed for Disposal. c) Narrative summary of problems encountered and actions taken with recommendations for City, as appropriate. d) Quantity of Recyclable Materials recovered by material type, as well as quantity of material diverted from landfills in compliance with AB 939. e) Description of Contractor outreach activities and copies of promotional and public education materials sent during the month. f) Other information or reports that City may reasonably request or require. 8.3.3 Annual Report The Annual Report is to be essentially in the form and content of the monthly report, but shall also include: a) A summary of the number of Containers in service as of December 31 by size (number of gallons/yards), service frequency, and type of service (Refuse, Recycling, r',.ee WasteOrganic Waste). February 7, 2017 -72- City of Diamond Bar - Commercial Packet Pg. 645 8.3.b b) Records of tons Collected, processed, diverted and disposed by waste stream (Refuse, Recycling, Gree -Organic Waste Waste), by Customer type (Cart Bin, Roll -Off Box), and the Facilities (Transfer Station, MRF, processing or compostingfacility, acility, or landfill) where such material was taken. c) Gross Receipts by sector (Cart, Bin, Roll -Off Box)]. d) A complete inventory of vehicles used to provide all services, including make, year, type, fuel used, use, California license number and whether or not it is used as a spare. e) A complete listing of accounts receiving scout service, including service address, billing name and address, telephone number, and proof of encroachment permit. ef) Number of routes and route hours per day by type of service as of December 31. fg) General information about the Contractor and its most recent annual report. gh) Other information or reports that City may reasonably request or require. 8.3.4 Financial Report The City may, at City's option, request and be provided with Contractor's financial reports/ statements for the most recently completed fiscal year in connection with any audit, extraordinary rate adjustment request, or verification of other information required under, but only as they pertain to this Agreement. Financial statements shall include a supplemental combining schedule showing Contractor's results of operations, including the specific revenues and expenses in connection with the operations provided for in this Agreement, separated from others included in such financial statements. The financial statements and footnotes shall be prepared in accordance with Generally Accepted Accounting Principles (GAAP) and audited, in accordance with Generally Accepted Auditing Standards (GARS) by a certified public accountant (CPA) licensed (in good standing) to practice public accounting in the State of California as determined by the State of California Department of Consumer Affairs Board of Accountancy. The cost for preparation of the financial statements and audit be borne by Contractor as a direct cost of service. In addition, Contractor shall provide to City the supplemental schedule on a compiled basis. February 7, 2017 -73- City of Diamond Bar - Commercial Packet Pg. 646 Reporting Adverse Information 8.3.b Contractor shall provide City two copies (one to the City Manager, one to the City Attorney) of all reports, pleadings, applications, notifications, Notices of Violation, communications or other material relating in any way to Contractor's performance of services pursuant to this Agreement, submitted by Contractor to, or received by Contractor from, the United States or California Environmental Protection Agency, tete California integrated Waste Management ent Bea -a CalRecycle, the Securities and Exchange Commission or any other federal, state or local agency, including any federal or state court. Copies shall be submitted to City within thirty (30) days of receipt by Contractor, or sooner if reasonably apparent that to do so is time critical, and any responses by Contractor shall be submitted to City simultaneously with Contractor's filing or submission of such matters with said agencies. Contractor's routine correspondence to said agencies need not be routinely submitted to City, but shall be made available to City promptly upon City's written request. Failure to Report The refusal or failure of Contractor to file any required reports, or to provide required information to City, or the inclusion of any materially false or misleading statement or representation by Contractor in such report shall be deemed a material breach of this Agreement as described in Section 11.1 and shall subject Contractor to all remedies which are available to the City under this Agreement, the Diamond Bar Municipal Code or otherwise. February 7, 2017 -74- City of Diamond Bar - Commercial Packet Pg. 647 8.3.b ARTICLE 9 INDEMNIFICATION, INSURANCE, BOND AND LETTER OF CREDIT 9.1 Indemnification Contractor hereby agrees to and shall indemnify and hold harmless City, its elected and appointed boards, commissions, officers, employees, consultants and agents (collectively, "Indemnitees") from and against any and all loss, liability, penalty, forfeiture, claim, demand, action, proceeding or suit in law or equity of any and every kind and description (including, but not limited to, injury to and death of any Person and damage to property, or for contribution or indemnity claimed by third parties) arising or resulting from and in any way connected with (1) the omissions, negligence or willful misconduct of Contractor, its officers, employees, agents, contractors and/or subcontractors in performing services under this Agreement; (2) the failure of Contractor, its officers, employees, agents, contractors and/or subcontractors to comply in all respects with the provisions of this Agreement, applicable laws (including, without limitation, the Environmental Laws), ordinances and regulations, and/or applicable permits and licenses; and (3) the acts of Contractor, its officers, employees, agents, contractors and/or subcontractors in performing services under this Agreement for which strict liability is imposed by law (including, without limitation, the Environmental Laws). The foregoing indemnity shall apply regardless of whether such loss, liability, penalty, forfeiture, claim, demand, action, proceeding, suit, injury, death or damage is also caused in part by any of the Indemnitees' negligence, but shall not extend to matters resulting from the Indemnitees' sole negligence, or willful misconduct. Contractor further agrees to and shall, upon demand of City, at Contractor's sole cost and expense, defend (with attorneys acceptable to City, acceptance of which shall not be unreasonably withheld) the Indemnitees against any claims, actions, suits in law or equity or other proceedings, whether judicial, quasi- judicial or administrative in nature, arising or resulting from any of the aforementioned events, and to reimburse City for any and all costs and expenses City incurs in providing any such defense, either before, during or after the time Contractor elects to provide such defense, including any and all costs incurred in overseeing any defense to be provided herein by Contractor. Contractor, upon demand of City, made by and through the City Attorney, shall protect City and appear in and defend the Indemnitees in any claims or actions by third parties, February 7, 2017 -75- City of Diamond Bar - Commercial Packet Pg. 648 8.3.b whether judicial, administrative or otherwise, including, but not limited to disputes and litigation over the definitions of "Solid Waste" or "Recyclable Material," the scope of the rights granted herein, conflicts between the rights granted herein and rights asserted by other Persons, or the limits of City's authority with respect to the grant of licenses, or agreements, exclusive or otherwise, or asserting rights under the United States or California Constitutions or any federal or state law to provide Solid Waste Collection Services in the City. THE PROVISIONS OF THIS SECTION SHALL NOT TERMINATE OR EXPIRE, SHALL BE GIVEN THE BROADEST POSSIBLE INTERPRETATION AND SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT. 9.2 Hazardous Substances Indemnification A. Without regard to any insurance coverage or requirements, and without limiting the above general indemnification obligation in any way, Contractor specifically agrees to and shall, to the maximum extent permitted by law, defend (with counsel acceptable to City, which acceptance shall not be unreasonably withheld), reimburse, indemnify, and hold harmless Indemnities from and against any and all claims, actions, liabilities, damages, demands, judgments, losses, costs, liens, expenses, suits, actions, attorneys' fees, consultant fees, penalties and any and all other losses, damages, fees and expenses of whatever kind or nature ("Claims") (including but not limited to response costs, investigative costs, assessment costs, monitoring costs, treatment costs, cleanup costs, removal costs, remediation costs, and similar costs, damages and expenses) that arise out of or are alleged to arise out of or in any way relate to any action, inaction or omission of Contractor that: 1. results in any demand, claim, notice, order, or lawsuit, asserting that any Indemnitee is liable, responsible or in any way obligated to investigate, assess, monitor, study, test, treat, remove, remediate, or otherwise cleanup, any Hazardous Contaminant (as defined herein); or 2. relates to material Collected, transported, recycled, processed, treated or disposed of by Contractor. February 7, 2017 -76- City of Diamond Bar - Commercial Packet Pg. 649 8.3.b B. Contractor's obligations pursuant to this section shall apply, without limitation, to: 1. any Claims brought pursuant to or based on the provisions of any Environmental Law; 2. any Claims based on or arising out of or alleged to be arising out of the ownership, use, lease, sale, design, construction, maintenance or operation of Contractor of any Facility; 3. any Claims based on or arising out of or alleged to be arising out of the marketing, sale, distribution, storage, transportation, Disposal, processing or use of any materials recovered by Contractor; 4. any Claims based on or arising out of or alleged to be arising out of any breach of any express or implied warranty, representation or covenant arising out of or in connection with this Agreement. C. The foregoing indemnity and defense obligations shall apply irrespective of the negligence or willful misconduct of Contractor or any Affiliate of Contractor. D. The foregoing indemnity shall apply regardless of whether such loss, liability, penalty, forfeiture, claim, demand, action, proceeding, suit, injury, death or damage is also caused in part by any of the Indemnitees' negligence, but shall not extend to matters resulting from the Indemnitees' sole negligence, or willful misconduct. E. For purposes of this section, the term "Hazardous Contaminant" shall mean any Hazardous Substance, any Hazardous Waste, any crude oil or refined or unrefined petroleum product or any fraction or derivative thereof; and any asbestos or asbestos - containing material. The term "Hazardous Contaminant" shall also include any and all amendments to any referenced statutory or regulatory provisions made before or after the date of execution of this Agreement. F. In the event that the City exercises its right under Sections 2.11 and 4.8 to direct Contractor to use a facility other than a site approved in this Agreement, and such facility is not owned and operated by Contractor or any parent, affiliate or guarantor of the Contractor, this indemnification shall onlynet apply to Claims arising out of Contractor's collection and transportation to such facilidirected by the February 7, 2017 -77- City of Diamond Bar - Commercial Packet Pg. 650 9.3 9.4 8.3.b G. THE PROVISIONS OF THIS SECTION SHALL NOT TERMINATE OR EXPIRE, SHALL BE GIVEN THE BROADEST POSSIBLE INTERPRETATION AND SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT. AB 939 Indemnification and Guarantee A. To the extent authorized by law, Contractor agrees to indemnify and hold harmless City from and against all fines and/or penalties imposed by the Californiaintegra ' Waste Management CalRecycle in the event the source reduction and Recycling goals or any other requirement of AB 939 are not met by City with respect to the waste strea Collected under this Agreement. B. Contractor warrants and represents that it is familiar with City's waste characterization study as set forth in City's Source Recovery and Recycling Element (SRRE), and that it has the ability to and will provide sufficient programs and services to ensure City will meet or exceed the Diversion requirements (including, without limitation, amounts of Solid Waste to be diverted, time frames for Diversion, and any other requirements) set forth in AB 939, with respect to that portion of the Solid Waste generated in City that is the subject of this Agreement. Insurance Contractor shall procure and maintain during the entire Term e f th _^_av^gym the following types of insurance, and shall maintain the following minimum levels of coverage, which shall apply to any claims which may arise from or in connection with Contractor's performance hereunder or the actions or inactions of any of Contractor's officers, agents, representatives, employees, or subcontractors in connection with Contractor's performance. The insurance requirements hereunder in no way limit Contractor's various defense and indemnification obligations, or any other obligations as set forth herein. A. Minimum Scope of Insurance. Coverage shall be at least as broad as: 1. The most recent editions of Insurance Services Office Commercial General February 7, 2017 Liability coverage ("occurrence" form CG 00 01). -78- City of Diamond Bar - Commercial Packet Pg. 651 8.3.b 2. The most recent editions of Insurance Services Office form number CA 00 01 covering Automobile Liability, code 1 "any auto" and endorsement CA 00 25. 3. Workers' Compensation insurance as required by the Labor Code of the State of California and Employers Liability insurance. B. Minimum Limits of Insurance. Contractor shall maintain in force for the term of this Agreement limits no less than: 1. Comprehensive General Liability: Ten Million Dollars ($10,000,000) limit aggregate and Ten Million Dollars ($10,000,000) limit per occurrence for bodily injury, Personal injury and property damage. 2. Automobile Liability: Five Million Dollars ($5,000,000) single limit per accident for bodily injury and property damage. 3. Workers' Compensation and Employers Liability: Workers' compensation limits as required by the Labor Code of the State of California or provide evidence of State approval to be self-insured. Employers Liability in the minimum amount of $1,000,000. C. Deductibles and Self -Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either: the insurer shall reduce or eliminate such deductibles or self-insured 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 February 7, 2017 General Liability and Automobile Liability Coverages a) City, its elective and appointive boards, commissions, officials, employees, gents and -. olunt er—s The Indemnitees shallare to be named as additional insureds as respects: liability arising out of activities performed by or on behalf of Contractor; products and completed operations of Contractor; Premises owned, leased or used by Contractor; or vehicles owned, leased, hired or borrowed -79- City of Diamond Bar - Commercial Packet Pg. 652 8.3.b by Contractor. The coverage shall contain no special limitations on the scope of protection afforded to the IndemniteesCity, , its e ^ and appointive boards, commissions, officials, employees, agents of volunteers. b) Contractor's insurance coverage shall be primary insurance as respects the IndemniteesCity, its , commissions, o ffieiais employees, gents __,,,rl olun -^---. Any insurance or self-insurance maintained by the Indemnitees; -its officials, elective and appointive boards, commissions, , agents or voltinteer-s shall be excess of Contractor's insurance and shall not contribute with it. c) Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the IndemniteesC� ,-it-s boards,off4eials, elective and appointive eo employees, agents volunteers. d) Coverage shall state that Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability 2. Workers' Compensation and Employers Liability Coverage - The insurer shall agree to waive all rights of subrogation against the IndemniteesC-i, employees,its officials, elective and appointive boards, comm.---, agents and volunteers for losses arising from work performed by Contractor for City. 3. All Coverages - Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice (ten (10) days written notice in the event of cancellation for non-payment) by certified mail, return receipt requested, has been given to City. E. Acceptability of Insurers. The insurance policies required by this section shall be issued by an insurance company or companies authorized to do business in the State February 7, 2017 -80- City of Diamond Bar - Commercial Packet Pg. 653 8.3.b 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 (ten (10) days written notice in the event of cancellation for non-payment) by certified mail, return receipt requested, shall be given to City in the event of cancellation, reduction in coverage, or non -renewal of this policy. Such notice shall be sent to: City Manager City of Diamond Bar 21825 Copley Drive Diamond Bar, CA 91765 2. "This policy shall be considered primary insurance as respects any other valid and collectible insurance maintained by City, including any self- insured retention or program of self-insurance, and any other such insurance shall be considered excess insurance only." 3. "Inclusion of City as an insured shall not affect City's rights as respects any claim, demand, suit or judgment brought or recovered against Contractor. This policy shall protect Contractor and City in the same manner as though a separate policy had been issued to each, but this shall February 7, 2017 -81- City of Diamond Bar - Commercial Packet Pg. 654 8.3.b 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 9.4. The liability insurance required by this Section 9.4 shall cover all Contractor or subcontractors or the Contractor or subcontractor must furnish evidence of insurance provided by it meeting all of the requirements of this Section 9.4. 2. Contractor shall comply with all requirements of the insurers issuing policies. The carrying of insurance shall not relieve Contractor from any obligation under this Agreement. If any claim exceeding the amount of any deductibles or self-insured reserves is made by any third Person against Contractor or any Contractor or subcontractor on account of any occurrence related to this Agreement, Contractor shall promptly report the facts in writing to the insurance carrier and to City. If Contractor fails to procure and maintain any insurance required by this Agreement, City may take out and maintain, at Contractor's expense, such insurance as it may deem proper and recover costs from the Contractor's Letter of Credit and/or Performance Bond provided under Sections 9.5 and 9.6. 9.5 Faithful Performance Bond Concurrently with execution of this Agreement, Contractor shall deliver to City a performance bond in the sum of the amount of One Hundred Twenty-five Thousand Dollars ($125,000), similar to the form provided in Exhibit 5, which secures the faithful performance of this Agreement, including, without limitation, payment of any penalty and the funding of any work to cure a breach of this Agreement, unless such requirement is waived by the City Manager. The bond shall contain the original February 7, 2017 -82- City of Diamond Bar - Commercial Packet Pg. 655 9.6 8.3.b notarized signature of an authorized officer of the surety and affixed thereto shall be a certified and current copy of his power of attorney. The bond shall be unconditional and remain in force during the entire term of the Agreement and shall be released only upon written release from City per Section 9.9. Faithful Performance Letter of Credit A. In addition to a corporate surety bond as noted in Section 9.5 above, Contractor shall furnish an irrevocable letter of credit in the amount of One Hundred Twenty-five Thousand Dollars ($125,000), from a financial institution acceptable to the City and in a form acceptable to the City Attorney as security for the performance of this Agreement (the "LOC'). The LOC shall be the sole responsibility of Contractor, shall be unconditional and remain in force during the entire Term of the Agreement and shall be released only upon written release from City per Section 9.9. B. As an alternative to providing the performance bond and letter of credit required under 9.5 and 9.6.A, Contractor may provide a letter of credit in the amount of $250,000. The letter of credit shall be from a financial institution acceptable to the City in a form acceptable to the City Attorney as security for the performance of this Agreement. The LOC shall be the sole responsibility of Contractor, shall be unconditional and remain in force during the entire Term of the Agreement and shall be released only upon written release from City per Section 9.9. C. As an alternative to providing the performance bond and letter of credit required under 9.5 and 9.6.A, Contractor may deposit funds, on terms satisfactory to City, in an interest-bearing account at an institution satisfactory to both City and Contractor. Contractor may replace any required amount of the performance bond requirement, or the LOC requirement with an equivalent deposit. The deposit shall be accessible to the City immediately without action required by Contractor. The deposit shall be accessible to the City immediately without penalty, unless the funds on deposit are increased in excess of the total $250,000 required under Sections 9.5 and 9.6 by the maximum amount of the total potential penalty. The funds on deposit shall be the sole responsibility of the Contractor, shall be unconditional and remain on deposit during the entire Term of the Agreement and shall be withdrawn to Contractor's custody only upon written release from City per Section 9.9. February 7, 2017 -83- City of Diamond Bar - Commercial Packet Pg. 656 8.3.b 9.7 Forfeiture of Performance Bond In the event Contractor shall for any reason become unable to, or fail in any way to, perform as required by this Agreement, City may declare a portion or all of the performance bond forfeited to the City up to an amount which is necessary to recompense and make whole the City. Upon partial or full forfeiture of the performance bond, Contractor shall restore the performance bond to its face amount within thirty (30) days of the City's declaration. Failure to restore the performance bond to its full amount within thirty (30) days shall be a material breach of the Agreement. 9.8 Forfeiture of Letter Of Credit or Deposit Thirty (30) days following City providing Contractor with written notice of its failure to pay City any amount owing under this Agreement, the LOC or deposit may be drawn upon by City for purposes including, but not limited to: a. Payment of sums due under the terms of this Agreement which Contractor has failed to timely pay to City b. Reimbursement of costs borne by City to correct violations of this Agreement not corrected by Contractor, including but not limited to the liquidated damages described in Section 11.3. City may draw upon the entire LOC and convert it to a cash deposit, or draw upon the entire deposit, if Contractor fails to cause it to be extended or replaced with another satisfactory LOC or deposit no later than 60 days prior to its expiration during the term hereof. If City partially draws down LOC or deposit, Contractor must restore it to full amount within 30 days of City's draw. Failure to restore the LOC or deposit to its full amount within thirty (30) days shall be a material breach of the Agreement. 9.9 Performance Security Beyond Service Term Some Agreement requirements extend beyond the Term of tl, _^_arccm and other requirements, such as minimum Diversion rates per Section 4.2.5, will not be substantiated until after the final service date. Therefore, the Contractor shall not terminate the performance bond, letter of credit or deposit, and will renew them to ensure continuous availability to the City, until receiving a written release from the City February 7, 2017 -84- City of Diamond Bar - Commercial Packet Pg. 657 8.3.b or until the fffAl-,second annual anniversary of the end of the Term of this gFeem^„t. Permission from the City to discontinue holding these performance securities does not relieve Contractor of payments to the City that may be due, or may become due. February 7, 2017 -85- City of Diamond Bar - Commercial Packet Pg. 658 8.3.b ARTICLE 10 CITY'S RIGHT TO CONTRACT WITH THIRD PARTIES TO PERFORM FRANCHISED SERVICES City may contract with another Solid Waste enterprise to Collect and transport Solid Waste in the event Contractor for any reason (except as provided below regarding Force Majeure) refuses or is unable to Collect Solid Waste for a period of more than forty-eight (48) hours. City must provide twenty-four (24) hours prior written notice to Contractor during such time before contracting with another solid waste enterprise. In such event Contractor must identify sources from which such substitute solid waste services are immediately available and reimburse City for all of its expenses for such substitute services during period in which Contractor does not provide Collection and transportation services required by this Agreement. February 7, 2017 -86- City of Diamond Bar - Commercial Packet Pg. 659 8.3.b ARTICLE 11 DEFAULT, REMEDIES AND LIQUIDATED DAMAGES 11.1 Events of Default Each of the following provisions, without limitation, are considered material and shall constitute an event of default by the Contractor. A. Fraud or Deceit or Misrepresentation. If the Contractor engages in, or attempts to practice, any fraud or deceit upon City or makes a misrepresentation regarding material information to City. B. Insolvency or Bankruptcy or Financial Irresponsibility. If Contractor becomes insolvent, unable, or unwilling to pay its debts, files a bankruptcy petition or takes steps to liquidate its assets. C. Failure to Maintain Coverage. If Contractor fails to provide or maintain or cause its subcontractors to vrovide or maintain, in full force and effect the Workers' Compensation, liability, or indemnification coverage as required by this Agreement D. Violations of Regulations. If Contractor violates any orders or filings of any regulatory body having jurisdiction over Contractor relative to this Agreement, provided that Contractor may contest any such orders or filings by appropriate proceedings conducted in good faith, in which case no breach of the Franchise and this Agreement shall be deemed to have occurred until a final decision adverse to the Contractor is entered. E. Failure to Perform. If Contractor ceases to provide all or a portion of the Collection, processing or Recycling services, or any other Solid Waste Collection Services as required under this Agreement for a period of seven (7) consecutive days or more, unless, and only to the extent, performance is excused pursuant to Section 11.4. F. Failure to Pay. If Contractor fails to make any payments required under this Agreement and/or refuses to provide City, within ten (10) days of the demand, with required information, reports, and/or records in a timely manner as provided for in the Agreement. February 7, 2017 -87- City of Diamond Bar - Commercial Packet Pg. 660 8.3.b G. Failure to Cooperate with Audits. Failure to complete, perform or cooperate with any audit as described by this Agreement. H. Failure to Submit Reports or Documentation. Failure to complete or to provide required reports or documents to City as required by this Agreement. I. Acts or Omissions. 1. Any act or omission by Contractorsee relative to the services provided under this Agreement which violates the terms, conditions, or requirements of this Agreement, or AB 939, or any law, statute, ordinance, order, directive, rule, or regulation issued pursuant to AB 939 not corrected or remedied within the time set in the written notice of the violation from the issuing entity or, if Contractoree cannot reasonably correct or remedy the breach within the time set forth in such notice, if Contractoree should fail to commence to correct or remedy such violation within the time set forth in such notice and diligently effect such correction or remedy. 2. Any situation in which Contractoree or any of its officers, directors or employees are found guilty of any crime related to the performance of this Agreement, or of any crime related to anti-trust activities, illegal transport or Disposal of hazardous or toxic materials, or bribery of public officials. The term "found guilty" shall be deemed to include any judicial determination that see Contractor or any of Contractor'sFr-anc- is officers, directors or employees is guilty as well as any admission of guilt by ContractorFranehisee or any of Fran' is Contractor's officers, directors or employees including, but not limited to, the plea of "guilty", "nolo contendere", "no contest", and "guilty to a lesser charge." J. False or Misleading Statements. Any representation or disclosure made to City by Contractor in connection with or as an inducement to entering into this Agreement, or any future amendment to this Agreement, which proves to be false or misleading in any material respect as of the time such representation or disclosure is made, whether or not any such representation or disclosure appears as part of this Agreement. K. Attachment. The seizure of, attachment of, or levy on, the operating equipment of Contractor, including, without limits, its equipment, maintenance or office facilities, or any part thereof. February 7, 2017 -88- City of Diamond Bar - Commercial Packet Pg. 661 8.3.b L. Suspension or Termination of Service. Any termination or suspension of the transaction of business by Contractor, including, without limitation, due to labor unrest including strike, work stoppage or slowdown, sick-out, picketing, or other concerted job action lasting more than seven (7) consecutive days, unless, and only to the extent, performance is excused pursuant to Section 11.4, or Section 5.1.6. M. Failure to Provide Assurance of Performance. If Contractor fails to provide reasonable assurances of performance as required under Section 11.6. N. Commingling of Recyclables With Refuse/Landfilling of Recyclables. If Contractor empties a Container of properly set out Recyclable Materials or Organic Waste or Green Waste into a Refuse load, or transports Recyclable Materials or Organic Waste or Greer Write to a landfill or other location at which the material will not be diverted from landfilling (with the exception of Green Waste used as alternative daily cover provided full Diversion credit is received). O. Failure to Meet Diversion Goals. Contractor fails to achieve diversion goals specified in Section 4.2.5, for two consecutive calendar years, beginning with calendar year 2011. P. Lapse of Performance Bond and/or Letter of Credit and/or Deposit. Contractor fails to restore the full balance of the Performance Bond and/or Letter of Credit and/or deposit required under Sections 9.5 and 9.6 to the full required value within 30 days of being depleted due to payment to City under Sections 9.7 or 9.8, or Contractor allows any of the securities at any time for any other reason to lapse or fall below required minimums for any period of time. Contractor shall have forty-eight (48) hours from the time it is given notification by City to cure any default arising under subsections E, F, G, H, K, L, M, N, and P provided, however, that City shall not be obligated to provide Contractor with a notice and cure opportunity if Contractor has committed the same or similar breach within a twenty- four (24) month period. It is expressly understood that Contractor is not entitled to receive notice of default, or to cure such default, with respect to those matters listed in subsections A, B, C, D,1, J and O above. February 7, 2017 -89- City of Diamond Bar - Commercial Packet Pg. 662 8.3.b 11.2 Right to Terminate Upon Default and Right to Specific Performance If Contractor commits a material breach, including specifically any of the matters listed in subsections A through P of Section 11.1 above (and, if permitted to cure, does not cure it within the forty-eight (48) hours), City shall be entitled to unilaterally terminate this Agreement or impose other such sanctions (which may include financial sanctions, temporary suspensions or any other conditions it deems appropriate short of termination) as it shall deem proper pursuant to the provisions in this Agreement or the Diamond Bar Municipal Code. Should City decide to terminate this Agreement upon a default by Contractor, City shall have the right to do so upon giving ten (10) days notice to Contractor, and shall not be required by this Agreement to take any further action (such as holding any hearing, bringing any suit or taking any other action.) City's rights to terminate this Agreement and City's termination of this Agreement shall not constitute an election of remedies. Instead, such remedies shall be in addition to any and all other legal and equitable rights and remedies which City may have. By virtue of the nature of this Agreement, the urgency of timely continuous and high- quality service for preservation of the public health, safety and welfare, the time required to effect alternative service, and the rights granted by City to Contractor, the remedy of damages for a breach hereof by Contractor is inadequate and City shall be entitled to seek injunctive relief and/or specific performance of any breach of this Agreement. 11.3 Liquidated Damages A. General. City finds, and Contractor agrees, that as of the time of the execution of this Agreement, it is impractical, if not impossible, to reasonably ascertain the extent of damages which shall be incurred by City as a result of a breach by Contractor of certain specific obligations under this Agreement. The factors relating to the impracticability of ascertaining damages include, but are not limited to, the fact that: (i) substantial damage results to members of the public who are denied services or denied quality or reliable service; (ii) such breaches cause inconvenience, anxiety, frustration, and deprivation of the benefits of the Agreement to individual members of the general public for whose benefit this Agreement exists, in subjective ways and in varying degrees of intensity which are incapable of measurement in precise monetary terms; (iii) that the services that are the subject of this Agreement might be available at February 7, 2017 -90- City of Diamond Bar - Commercial Packet Pg. 663 8.3.b substantially lower costs than alternative services and the monetary loss resulting from denial of services or denial of quality or reliable services is impossible to calculate in precise monetary terms; and (iv) the termination of this Agreement for such specific breaches, and other remedies are, at best, a means of future correction and not remedies which make the public whole for past breaches. B. Service Performance Standards; Liquidated Damages for Failure to Meet Standards. The parties further acknowledge that consistent, reliable Solid Waste Collection Service is of utmost importance to City and the public health, safety welfare and that City has considered and relied on Contractor's representations as to its quality of service commitment in entering this Agreement with it. The Parties further recognize that some quantified standards of performance are necessary and appropriate to ensure consistent and reliable service and performance. The Parties further recognize that if Contractor fails to achieve the performance standards, or fails to submit required documents in a timely manner, City and its residents will suffer damages and that it is and will be impractical and extremely difficult to ascertain and determine the exact amount of damages which City will suffer. Therefore, without prejudice to City's right to treat such breaches as an event of default under this Article 11, the Parties agree that the following liquidated damage amounts represent a reasonable estimate of the amount of such damages for such specific breaches, considering all of the circumstances existing on the date of this Agreement, including the relationship of the sums to the range of harm to City that reasonably could be anticipated and the anticipation that proof of actual damages would be costly or impractical. In placing their initials at the places provided, each party specifically confirms the accuracy of the statements made above and the fact that each party has had ample opportunity to consult with legal counsel and obtain an explanation of the liquidated damage provisions at the time that the Agreement was made. Contractor Initial Here Contractor agrees to pay (as liquidated damages and not as a penalty) the amounts set forth below: 1. Collection Reliability February 7, 2017 -91- City of Diamond Bar - Commercial Packet Pg. 664 8.3.b a) For each failure to commence service to a new Customer account within seven (7) days after order, which exceeds five (5) such failures annually: $100.00 b) For each failure, which exceeds ten (10) such failures annually, to Collect Solid Waste from any established Customer account on the scheduled Collection day and not make up the Collection within the time allotted per Section 4.6.1: 2. Collection Quality $100.00 a) For each occurrence of failure to properly return empty Containers to avoid pedestrian or vehicular traffic impediments or to place Containers upright which exceeds ten (10) such occurrences annually: $100.00 b) For each occurrence of excessive noise or discourteous behavior which exceed ten (10) annually: $250.00 c) For each occurrence of Collecting Solid Waste during unauthorized hours which exceeds five (5) such occurrences annually: $250.00 d) For each failure to clean up Solid Waste spilled from Solid Waste Containers within ninety (90) minutes that exceeds ten (10) such failures annually: $150.00 e) For each complaint that exceeds the maximum permitted number of complaints per month in Section 5.2.3: For each occurrence of failure to v $150.00 that Customer has obtained an encroachment permit from the City prior to Contractor placing a Container in the public right-of-way which exceeds ten (10) such occurrences annually $100.00 g) For each occurrence of failure to return a Container to Container storage locations, as described in Section 4.1.12 "Scout Service" of this Agreement, within two (2) hours of set out which exceeds ten (10) such occurrences annually: $100.00 February 7, 2017 -92- City of Diamond Bar - Commercial Packet Pg. 665 8.3.b 3. Customer Responsiveness a) For each failure to initially respond to a Customer complaint within one (1) business day, and for each additional day in which the complaint is not addressed, which exceed five (5) annually: $150.00 b) For each failure to process Customer complaints as required by Article 5, which exceed five (5) annually: $150.00 c) For each failure to remove graffiti from Containers, or to replace with Containers bearing no graffiti, within three (3) business days of request from City or Customer: $ 50.00 per day d) For each failure to repair or replace a damaged or missing Container within two (2) business days of request from City or Customer: $ 50.00 per day e) For each failure to process a claim for damages within thirty (30) days from the date submitted to Contractor: $100.00 f) For each additional thirty (30) day increment of time in which Contractor has failed to resolve a claim for damages within thirty (30) days from the claim date: $100.00 g) For each violation under Section 5.2.3 (one month of excessive complaints or one quarter of excessive delays in answering customer service calls): $500.00 hl For each occurrence of inaccurate information beine -provided to Customers by Contractor's customer service department which exceeds five (5) such occurrences annually: $100.00 4. Diversion Efforts a) For each calendar year, {beginning calendar year 2010 through calendar year 2017, in which Contractor fails to provide support to the City within thirty (30) days of year-end, documenting that it diverted at least 25% of the Solid Waste Contractor Collected under this Agreement: February 7, 2017 -93- City of Diamond Bar - Commercial Packet Pg. 666 8.3.b $25 for each ton below tonnage level necessary to meet 25% Diversion goal b) For each calendar year, beLyinning Tanuary 1, 2018, in which Contractor fails to provide supVeTt documentation to the City within thirty (30) days of year- end, documenting supporting that it diverted at least 25% of the Solid Waste Contractor Collected under this Agreement, excluding Construction and Demolition Debris loads: $25 for each ton below tonnage level necessary to meet 25% Diversion goal c) For each calendar vear, beainnina calendar vear 2018, in which Contractor fails to provide §±jVpgfj documentation to the City within thirty (30) days of year-end, documenting supporting that it diverted at least 75%, or the State - mandated Construction and Demolition diversion percentage, whichever is L-reater, of all Construction and Demolition Debris loads it Collects under this Agreement: $25 for each ton below tonnage level necessary to meet 75%, or State -mandated Construction and Demolition Diversion coal, whichever is greater. 5. Timeliness of Submissions to City Any report shall be considered late until such time as a correct and complete report is received by City. For each calendar day a report is late, the daily liquidated damage amount shall be: i) Monthly Reports: $190:8925 per day ii) Annual Reports: $299:90-50 per day 6. Accuracy of Billing Each Customer invoice that is not prepared in accordance with the City's approved rate schedule, in excess of ten (10) annually: $25.00 7. Cooperation with Service Provider Transition a) For each day routing information requested by City in accordance with Section 12.8 is received after City -established due dates, both for February 7, 2017 -94- City of Diamond Bar - Commercial Packet Pg. 667 8.3.b preparation of a request for proposals and for new service provider's implementation of service: $1,000.00/ day b) For each day delivery of keys, access codes, remote controls, or other means of access to Solid Waste Containers is delayed beyond one (1) day prior to new service provider servicing Customers with access issues, as described in Section 12.8: $1,000.00/ day c) For delay in not meeting the requirements contained in Sections 4.11 and 12.8 in a timely manner, in addition to the daily liquidated damages for breach under 7(a) and 7(b) above, liquidated damages of: $35,000.00 8. General Contract Adherence For each day that Franchisee fails to provide services required under the Agreement, or comply with terms of the Agreement, five (5) business days after receipt of written notification from City that such services are not being provided or terms are not being met: $300.00/ day City may determine the occurrence of events giving rise to liquidated damages through the observation of its own employees or representatives or through investigation of Customer complaints by such Persons. If any failure is permitted or excused by another section of this Agreement, such a failure shall not count towards assessment of liquidated damages (such as a failure to Collect would not apply if it were due to the presence of contamination, provided Contractor left a warning notice). Prior to assessing liquidated damages, the City Manager shall give Contractor notice of its intention to do so. The notice will include a brief description of the incident(s)/non- performance. Contractor may review (and make copies at its own expense) all information in the possession of City relating to incident(s)/non-performance. Contractor may, within ten (10) days after receiving the notice, request a meeting with City Manager. Contractor may present evidence in writing and through testimony at the meeting of its employees and others relevant to the incident(s)/non-performance. City Manager will provide Contractor with a written explanation of its determination on each incident(s)/non-performance prior to authorizing the assessment of liquidated damages. The decision of City Manager shall be final. February 7, 2017 -95- City of Diamond Bar - Commercial Packet Pg. 668 11.4 8.3.b C. Amount. City may assess liquidated damages for each calendar day or event, as appropriate, that Contractor is determined to be liable in accordance with this Agreement. D. Timing of Payment. Contractor shall pay any liquidated damages assessed by City within ten {0}60 days after receipt of notice that liquidated damages are being assessed. If they are not paid within the ten (10) day period, City may proceed against the performance bond, letter of credit, or deposit required by the Agreement or find Contractor in default and terminate this Agreement pursuant to Section 11.2, or both. Suspension of Performance 11.4.1 Force Majeure The Parties shall be excused from performing their respective obligations hereunder in the event they are prevented from so performing by reason of floods, earthquakes, other natural disasters, war, civil insurrection, riots, acts of any government (including judicial action), and other similar catastrophic events which are beyond the control of and not the fault of the party claiming excuse from performance hereunder. The interruption or discontinuance of Contractor's services caused by one (1) or more of the events excused shall not constitute a default by Contractor under this Agreement provided that other services delivered to properties in Diamond Bar (such as and without limitation electricity, gas, water, or residential solid waste collection services) have been similarly disrupted as a direct result of the catastrophic event. Notwithstanding the foregoing, however, if Contractor is excused from performing its obligations hereunder for any of the causes listed in this section, City may contract with another provider to perform all or part of this Agreement until such time Contractor is able to perform. If Contractor is unable to renew its performance of this Agreement for a period of thirty (30) days or more, where the City is not significantly impacted by the catastrophic event, City shall nevertheless have the right, in its sole discretion, to terminate this Agreement by giving ten (10) days' noticeay contract with another party for Solid Waste Collection Services. February 7, 2017 -96- City of Diamond Bar - Commercial Packet Pg. 669 8.3.b 11.4.2 Labor Unrest Labor unrest, including work stoppage or slowdown or sick-out conducted by Contractor's employees or directed at Contractor is excused from performance only to the extent that the following requirements are met: • Contractor provides a contingency plan to the City prior to the execution of this Agreement demonstrating how services will be provided. Plan is subject to City Manager approval and Contractor shall amend plan until it meets City requirements, including reasonably demonstrating how City's basic Collection and sanitary needs will be met to the City's satisfaction. • Contractor shall meet all requirements of this plan; if Contractor does not meet all requirements, City may choose to revoke this excuse from performance offered under this Agreement and may choose to use enforcement provisions under this Agreement, including Sections 11.1. 11.2 and 11.3. The party claiming excuse from performance shall, within two (2) days after such party has notice of such cause, give the other party notice of the facts constituting such cause and asserting its claim to excuse under this section. The interruption or discontinuance of Contractor's services caused by labor -related events excused under this Section 11.4.2 shall not constitute a default by Contractor under this Agreement. Notwithstanding the foregoing, however, if Contractor is excused from performing its obligations hereunder for any of the causes listed in this section for a period of thirty (30) days or more, City shall nevertheless have the right, in its sole discretion, to terminate this Agreement by giving ten (10) days' notice, and may contract with another party for Solid Waste Collection Services. 11.5 Dispute Resolution Except as may otherwise be set forth expressly herein, all disputes arising under this Agreement shall be resolved as set forth in this section. 11.5.1 Negotiation and Mediation The Parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiations between the Parties' authorized representatives. The disputing Party shall give the other Parties written notice of any February 7, 2017 -97- City of Diamond Bar - Commercial Packet Pg. 670 8.3.b dispute. Within five (5) days after delivery of such notice, the authorized representatives shall meet at a mutually acceptable time and place, and thereafter as often as they reasonably deem necessary to exchange information and to attempt to resolve the dispute. If the matter has not been resolved within ten (10) days of the first meeting, any Party may initiate a mediation of the dispute. The mediation shall be facilitated by a mediator that is acceptable to all Parties and shall conclude within thirty (30) days of its commencement, unless the Parties agree to extend the mediation process beyond such deadline. Upon agreeing on a mediator, the Parties shall enter into a written agreement for the mediation services with each Party paying a pro rata share of the mediator's fee, if any. The mediation shall be conducted in accordance with the Commercial Mediation Rules of the American Arbitration Association; provided, however, that no consequential damages shall be awarded in any such proceeding and each Party shall bear its own legal fees and expenses. 11.5.2 Confidentiality All negotiations and any mediation conducted pursuant to this section shall be confidential and shall be treated as compromise and settlement negotiations, to which Section 1152 of the California Evidence Code shall apply, which Section is incorporated in this Agreement by reference. 11.5.3 Injunctive Relief Notwithstanding the foregoing provisions, a Party may seek a preliminary injunction or other provisional judicial remedy if in its judgment such action is necessary to avoid irreparable damage or to preserve the status quo. 11.5.4 Continuing Obligation Each Party shall continue to perform its obligations under this Agreement pending final resolution of any dispute arising out of or relating to this Agreement. 11.5.5 Failure of Mediation If after good faith efforts to mediate a dispute under the terms of this Agreement the c CU U - cu a� cu M r 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. February 7, 2017 -98- City of Diamond Bar - Commercial Packet Pg. 671 8.3.b 11.6 Assurance of Performance City may, at its option and in addition to all other remedies it may have, demand from Contractor reasonable assurances of timely and proper performance of this Agreement, in such form and substance as City may require. If Contractor fails or refuses to provide satisfactory assurances of timely and proper performance in the form and by the date required by City, such failure or refusal shall be an event of default. February 7, 2017 -99- City of Diamond Bar - Commercial Packet Pg. 672 12.1 12.2 12.3 12.4 8.3.b ARTICLE 12 OTHER AGREEMENTS OF THE PARTIES Relationship of Parties The Parties intend that Contractor shall perform the services required by this Agreement as an independent contractor engaged by City and not as an officer or employee of City nor as a partner of or joint venture with City. No employee or agent or Contractor shall be or shall be deemed to be an employee or agent of City. Except as expressly provided herein, Contractor shall have the exclusive control over the manner and means of conducting the Solid Waste Collection Services performed under this Agreement, and all Persons performing such services. Contractor shall be solely responsible for the acts and omissions of its officers, employees, Affiliates, contractors, subcontractors and agents. Neither Contractor nor its officers, employees, Affiliates, contractors, subcontractors and agents shall obtain any rights to retirement benefits, workers' compensation benefits, or any other benefits which accrue to City employees by virtue of their employment with City. Compliance with Law In providing the services required under this Agreement, Contractor shall at all times, at its sole cost, comply with all applicable laws and regulations of the United States, the State of California, and any federal, state, regional or local administrative and regulatory agencies, now in force and as they may be enacted, issued or amended. Governing Law This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California. Jurisdiction Except for those matters where Federal Courts have exclusive jurisdiction, any lawsuits between the Parties arising out of this Agreement shall be brought and concluded in the courts of the State of California, which shall have exclusive jurisdiction over such lawsuits. February 7, 2017 -100- City of Diamond Bar - Commercial Packet Pg. 673 12.5 8.3.b With respect to venue, the Parties agree that this Agreement is made in and will be performed in Los Angeles County. Assignment Contractor shall not assign its rights, nor delegate, subcontract or otherwise transfer its obligations under this Agreement (collectively referred to as an "assignment") to any other Person without the prior written consent of City. Any such assignment made without the consent of City shall be void and the attempted assignment shall constitute a material breach of this Agreement. For purposes of this section the term "assignment" shall be given the broadest possible interpretation, and shall include, but not be limited to (i) a sale, exchange or other transfer of substantially all of Contractor's assets dedicated to service under this Agreement to a third party; (ii) a sale, exchange or other transfer of outstanding common stock of Contractor to a third party provided said sale, exchange or transfer may result in a change of control of Contractor; (iii) any dissolution, reorganization, consolidation, merger, re -capitalization, stock issuance or re -issuance, voting trust, pooling agreement, escrow arrangement, liquidation or other transaction which results in a change of ownership or control of Contractor; (iv) any assignment by operation of law, including those resulting from mergers or acquisitions by or of Contractor of any of its Affiliates, insolvency or bankruptcy, making assignment for the benefit of creditors, writ of attachment for an execution being levied against this Agreement, appointment of a receiver taking possession of Contractor's property, or transfer occurring in the event of a probate proceeding; and (v) any combination of the foregoing (whether or not in related or contemporaneous transactions) which has the effect of any such transfer or change of ownership, or change of control of Contractor. Contractor acknowledges that this Agreement involved rendering a vital service to City's residents and businesses, and that City has selected Contractor to perform the services specified herein based on (1) Contractor's experience, skill and reputation for conducting its Solid Waste Collection Services in a safe, effective and responsible fashion, at all times in keeping with applicable Environmental Laws, regulations and best Solid Waste management practices, and (2) Contractor's financial resources to maintain the required equipment and to support its indemnity obligations to City under this Agreement. City has relied on each of these factors, among others, in choosing Contractor to perform the services to be rendered by Contractor under this Agreement. February 7, 2017 -101- City of Diamond Bar - Commercial Packet Pg. 674 8.3.b If Contractor requests City's consideration of and consent to an assignment, City may deny or approve such request in its sole discretion. Any request for an assignment must be approved by the City Manager in writing, and no request by Contractor for consent to an assignment need be considered by City unless and until Contractor has met (or with respect to matters that would only occur upon completion of the assignment if approved, made reasonable assurances that it will meet) the following requirements: a) Contractor shall pay City its reasonable expenses for attorney's fees and investigation costs necessary to investigate the suitability of any proposed assignee, and to review and finalize any documentation required as a condition for approving any such assignment. An advance payment towards expenses may be requested by City prior to City consideration of any assignment request and Contractor shall be responsible to pay all costs incurred by City in considering a request for assignment, including those in excess of the aforesaid deposit amount, regardless of whether City consents to the assignment. b) Contractor shall pay the City a transfer fee equal to one percent (1 %) of the Gross Receipts it, or its assignee, will receive during the remaining term of the Agreement at rates and service levels in effect at the time of the assignment, as estimated by City. c) Contractor shall furnish City with audited financial statements for itself, and the proposed assignee's operations for the immediately preceding three (3) operating years. d) A proforma financial statement (income statement and balance sheet) for the proposed assignee with the projected results of operations assuming that the assignment is completed. Such proforma financial statement shall reflect any debt to be incurred by the assignee as part of the acquisition of Contractor's operations. e) Contractor shall furnish City with satisfactory proof: (i) that the proposed assignee has at least ten (10) years of Solid Waste management experience on a scale equal to or exceeding the scale of operations conducted by Contractor under 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 February 7, 2017 -102- City of Diamond Bar - Commercial Packet Pg. 675 8.3.b or local agency having jurisdiction over its Solid Waste management operations due to any significant failure to comply with state, federal or local Environmental Laws and that the assignee has provided City with a complete list of any such citations and censures; (iii) that the proposed assignee has at all times conducted its operations in an environmentally safe and conscientious fashion; (iv) that the proposed assignee conducts its Solid Waste management practices in accordance with sound Solid Waste management practices in full compliance with all federal, state and local laws regulating the Collection and Disposal of Solid Waste including Hazardous Substances; and, (v) of any other information required by City to ensure the proposed assignee can fulfill the terms of this Agreement in a timely, safe and effective manner. Under no circumstances shall City be obliged to consider any proposed assignment by City if Contractor is in default at any time during the period of consideration. Should City consent to any assignment request, such assignment shall not take effect until all conditions relating to City's approval have been met in accordance with Chapter 8.16 of the Diamond Bar Municipal Code, as amended from time to time. 12.6 Contracting or Subcontracting Contractor shall not engage any contractors or subcontractors for the Collection of Solid Waste. 12.7 Binding on Assigns The provisions of this Agreement shall inure to the benefit to and be binding on the permitted assigns (if any) of the Parties. 12.8 Cooperation in Preparation for Termination or Expiration of Contract Prior to, and at the end of the Term or in the event this Agreement is terminated for cause prior to the end of the Term, Contractor shall cooperate fully with City and any subsequent Solid Waste enterprise it designates to assure a smooth transition of Solid Waste Collection Services. Contractor's cooperation shall include, but not be limited to, providing route lists, Billing information and other operating records needed to service all Premises covered by this Agreement. The failure to cooperate with City following termination shall be conclusively presumed to be grounds for specific performance of this covenant and/or other equitable relief necessary to enforce this covenant. February 7, 2017 -103- City of Diamond Bar - Commercial Packet Pg. 676 8.3.b Contractor shall provide a new service provider with all keys, security codes and remote controls used to access garages and Bin enclosures. Contractor shall be responsible for coordinating transfer immediately after Contractor's final pickups, so as not to disrupt service. Contractor shall provide City with detailed route sheets containing service names and addresses, Billing names and addresses, monthly rate and service levels (number and size of Containers and pickup days) at least 90 days prior to the transition date, and provide an updated list two weeks before the transition and a final list of changes the day before the transition. Contractor shall provide means of access to the new service provider at least one full business day prior to the first day of Collection by another party, and always within sufficient time so as not to impede in any way the new service provider from easily servicing all Containers. 12.9 Parties in Interest Nothing in this Agreement, whether express or implied, is intended to confer any rights on any Persons other than the Parties to it and their representatives, successors and permitted assigns. 12.10 Waiver The waiver by either party of any breach or violation of any provisions of this Agreement shall not be deemed to be a waiver of any breach or violation of any other provision nor of any subsequent breach of violation of the same or any other provision. The subsequent acceptance by either Party of any moneys which become due hereunder shall not be deemed to be a waiver of any pre-existing or concurrent breach or violation by the other Party of any provision of this Agreement. 12.11 Contractor's Investigation Contractor has made an independent investigation (satisfactory to Contractor) of the conditions and circumstances surrounding the Agreement and the work to be performed by it. 12.12 Section Deleted February 7, 2017 -104- City of Diamond Bar - Commercial Packet Pg. 677 8.3.b 12.13 Notice All notices, demands, requests, proposals, approvals, consents and other communications which this Agreement requires, authorizes or contemplates, unless otherwise specified in this Agreement, shall be in writing and shall either be personally delivered to a representative of the Parties at the address below or be deposited in the United States mail, first class postage prepaid, addressed as follows: If to City: City Manager City of Diamond Bar 21825 Copley Drive Diamond Bar, CA 91765 If to Contractor: David Perez V.P. Operations Valley Vista Services 17445 E. Railroad St. City of Industry, CA 91748 The address to which communications may be delivered may be changed from time to time by a written notice given in accordance with this section. Notice shall be deemed given on the day it is personally delivered or, if mailed, three days from the date it is deposited in the mail. This notice shall also be sent by e-mail to the City Manager. 12.14 Representatives of the Parties All actions to be taken by City shall be taken by the City Council except as expressly provided herein. The City Council may delegate authority to the City Manager, and/or to other City employees and may permit such employees, in turn, to delegate some or all of such authority to subordinate employees. Contractor may rely upon actions taken by such delegates if they are within the scope of the authority so delegated to them. Contractor shall, by the Effective Date, designate in writing a responsible officer who shall serve as the representative of Contractor in all matters related to the Agreement and shall inform City in writing of such designation and of any limitations upon his or February 7, 2017 -105- City of Diamond Bar - Commercial Packet Pg. 678 8.3.b her authority to bind Contractor. City may rely upon action taken by such designated representative as actions of Contractor unless they are outside the scope of the authority expressly delegated to him/her by Contractor as communicated to City. 12.15 City Free to Negotiate with Third Parties City may investigate all options for the Collection, transporting, Recycling, processing and Disposal of Solid Waste for periods during which this Agreement has expired or been terminated. Without limiting the generality of the foregoing, City may solicit proposals from Contractor and from third parties for the provision of Solid Waste Collection Services which are the subject of this Agreement, including without limitation Collection services, Disposal services, Recycling services, Green Waste, Organic Waste- _services and processing, and any combination thereof, and may negotiate and execute agreements for such services which will take effect upon the expiration or earlier termination of this Agreement pursuant to Section 11.2 or otherwise. 12.16 Compliance with Municipal Code Contractor shall comply with those provisions of the municipal code of City which are applicable, and with any and all amendments to such applicable provisions during the term of this Agreement. 12.17 Privacy Contractor shall strictly observe and protect the rights of privacy of Customers. Information identifying individual Customers or the composition or contents of a Customer's waste stream shall not be revealed to any Person, governmental unit, private agency, or company, unless upon the authority of a court of law, by statute, or upon valid authorization of the Customer. This provision shall not be construed to preclude Contractor from preparing, participating in, or assisting in the preparation of waste characterization studies or waste stream analyses which may be required by AB 939. This provision shall not apply to reports or records provided to City pursuant to this Agreement. February 7, 2017 -106- City of Diamond Bar - Commercial Packet Pg. 679 8.3.b 12.18 Proprietary Information, Public Records The City acknowledges that a number of the records and reports of Contractor are proprietary and confidential. Contractor is obligated to permit City inspection of its records on demand and to provide copies to City where requested. City will endeavor to maintain the confidentiality of all proprietary information provided by Contractor. Notwithstanding the foregoing, any documents provided by Contractor to City that are public records may be disclosed pursuant to the California Public Records Act. February 7, 2017 -107- City of Diamond Bar - Commercial Packet Pg. 680 13.1 13.2 13.3 13.4 13.5 8.3.b ARTICLE 13 MISCELLANEOUS PROVISIONS Entire Agreement This Agreement contains the entire integrated agreement and understanding concerning the subject matter herein and supersedes and replaces any prior negotiations, promises, proposals (including Contractor's Proposal), and agreements between the Parties, whether written or oral. The Parties acknowledges this document has been executed with the consent and upon the advice of counsel. Each of the Parties acknowledges that no Party or agent or attorney of any other party has made any promise, representation, or warranty, express or implied, not contained in this Agreement, to induce the other Party to execute this instrument. Section Headings The article headings and section headings in this Agreement are for convenience of reference only and are not intended to be used in the construction of this Agreement nor to alter or affect any of its provisions. References to Laws and Other Agreements All references in this Agreement to laws shall be understood to include such laws as they may be subsequently amended or recodified, unless otherwise specifically provided. Interpretation This Agreement, including the Exhibits attached hereto, shall be interpreted and construed reasonably and neither for nor against either Party, regardless of the degree to which either Party participated in its drafting. Agreement This Agreement may not be modified or amended in any respect except by a writing signed by the Parties. February 7, 2017 -108- City of Diamond Bar - Commercial Packet Pg. 681 8.3.b 13.6 Severability Invalidation of any of the provisions contained in this Agreement, or of the application thereof to any person, by judgment or court order, shall in no way affect any of the other provisions hereof or the application thereof to any other person or circumstance, and that same shall remain in full force and effect, unless enforcement of this Agreement, as so invalidated, would be unreasonable or inequitable under all the circumstances or would frustrate the purposes of this Agreement and/or the rights and obligations of the parties hereto. 13.7 Exhibits Each of Exhibits identified as Exhibit "1" through "6" is attached hereto and incorporated herein and made a part hereof by this reference. 13.8 Attorneys' Fees If either Party to this Agreement is required to initiate or defend or made a party to any action or proceeding between the Parties in any way connected with this Agreement, the prevailing Party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to recover its reasonable attorney's fees and costs from the opposing Party. Attorneys' fees shall include attorney's fees on any appeal. A Party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery, expert fees, and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action. 13.9 Effective Date This Agreement shall be effective upon the date it has been executed by both Parties. Once so executed, the City's City Clerk shall insert the later date thereof in the opening paragraph of this Agreement. February 7, 2017 -109- City of Diamond Bar - Commercial Packet Pg. 682 8.3.b IN WITNESS WHEREOF, City and Contractor have executed this Agreement as of the day and year first above written. CITY OF DIAMOND BAR (11Cityll) DATED: CITY OF DIAMOND BAR By: City Manager Approved as to form: By: City Attorney ATTEST: City Clerk February 7, 2017 DATED: CONTRACTOP".NY By: NAME TITLE Valley Vista Services, Inc. NAME OF COMPANY 17445 Railroad Street, Industry, CA ADDRESS (626) 961-6291 TELEPHONE U C fC L U- 2 2n cc M r r -110- City of Diamond Bar - Commercial Packet Pg. 683 8.3.b EXHIBIT 1 PUBLIC EDUCATION PLAN (to be attached after City approval per Section 5.3.2) February 7, 2017 1 City of Diamond Bar - Commercial Packet Pg. 684 8.3.b EXHIBIT 2 INITIAL MAXIMUM RATES M Following are the rates fer August 16, 2010 through June 30, 20442018: Monthly Collection Rates Container Size Pickups per week 1 2 3 4 5 6 Extra Empty Refuse and Organics Bins 1.5 Cubic Yard $93.78 $154.13 extra bin (2) $84.41 $138.71 2 Cubic Yard $107.41 $186.22 $254.58 $329.44 $408.29 $476.65 $41.00 extra bin (2) $96.66 $167.59 $229.12 $296.50 $367.46 $428.97 3 Cubic Yard $132.98 $220.46 $309.55 $401.88 $492.60 $601.21 $47.48 extra bin (2) $119.68 $198.40 $278.60 $361.70 $443.35 $541.09 4 Cubic Yard $168.35 $270.95 $375.89 $535.36 $640.29 $777.75 $53.99 extra bin (2) $151.51 $243.84 $338.29 $481.82 $576.27 $699.99 6 Cubic Yard $200.96 $331.97 $464.66 $675.35 $806.37 $974.12 $62.71 extra bin (2) $180.86 $298.78 $418.19 $607.82 $725.74 $876.71 Organics Cart- 9665 $40.00 $80.00 $120.00 $160.00 $200.00 $240.00 Recycling - 96 gal. $17.56 Recycling -1.5 yd. $39.90 $63.55 Recycling - 2 yd. $45.81 $76.82 $101.95 $131.51 $162.57 $189.13 Recycling - 3 yd. $66.50 $102.51 $143.09 $185.29 $226.72 $277.14 Scout Service (3) $67.22 $160.16 $240.25 $320.32 $400.41 $480.48 (1) Including all fees retained by, or paid to, City. (2) Customers with more than one bin are charged a lower rate for additional bins. (3) Scout service rates may be charged in addition to collection rates, in accordance with Section 4.1.12 of the collection agreement, on a per container basis. February 7, 2017 2-1 City of Diamond Bar - Commercial Packet Pg. 685 8.3.b EXHIBIT 2 INITIAL MAXIMUM RATES(') (continued) Following are the rates .ter- August 16, -, through June 30, X42018: Bin Charges Rate Temporary Bin - 3 cubic yard $133.75/pull Temporary Bin - 6 cubic yard $165.17/pull Bin Cleaning (over one per year) $53.86 Locking Bin, per bin per month $11.67 Redelivery/ Return Trip Fee $104.21 Roll -off Box Charges Rate Standard Roll -Off Box - Rate per pull (including container rental) 12 to 16 yard $221.48 25 to 30 yard $212.90 40 to 45 yard $206.10 Compactor Roll -Off Box - Rate per pull (excluding compactor rental) 30 yard $329.16 40 yard $367.59 Container Rental Fee - for use in Excess of 7 days without being serviced $26.32/ day Processing Per Ton $71.77 Temporary Roll -Off Box, 40 yard - rate includes container rental, pull and disposal up to 6 tons $592.94 Temporary Roll -Off Box, Low Boy - rate includes container rental, pull, and disposal up to 6 tons $628.94 Roll -Off Box Cleaning (above one per year) $119.55 Redelivery/ Return Trip Fee/ Dry runs - roll -off box $154.79 Additional Service Charges Rate Per Service Multi -Family Bulky Item Pickup - each pickup above four per year of up to four items $32.40/ item Emergency Service Rates - one crew and one collection truck $91.81/hour (1) Including all fees retained by, or paid to, City. February 7, 2017 2-2 City of Diamond Bar - Commercial Packet Pg. 686 8.3.b EXAMPLE RATE ADJUSTMENT FORMULA Bin, Temporary Service and Other Service Rates Step One: Calculate percentage change in indices Step Two: Determine components G D E F Row Adjustment Factor Index Old Index Value New Index Value Percent Change in Index ((Column B Column A) -1) 1 Labor (1) $ 21.85 $ 22.25 1.8% 2 Fuel (2) 200.8 176.6 -12.1% 3 JEquipment (3) 139.3 142.0 1.9% 4 IDisposal (4) 240.9 245.4 1.9% 5 1 All Other 4 240.9 245.4 1.9% Step Two: Determine components Step Three: Apply percentage change to rates G D E F Row Adjustment Factor Index Cost Component Weighted as a /° of Component Total (5) Percent Change in Index Total Weighted Change (from Column C) (Column D x Column E) 6 Labor (1) 27.0% 1.8% 0.5% 7 Fuel (2) 6.1% -12.1% -0.7% 8 Equip ment (3) 1 20.0% 1.9% 0.4% 9 Disposal 4 17.0% 1.9% 0.3% 10 All Other (4) 29.9% 1.9% 0.6% 11 Total 1.1% 100.0% 0.40 1.1% Step Three: Apply percentage change to rates Step Four: Re -weight cost components G H L I J Row Rate Category (6) Total Weighted Rate Increase or Existing Customer Rate Percentage Change (Row Decrease (Column G x 11, Column F) Column H) Adjusted Rate (Column G + Column I) 12 3 Yd Bin, lx week S 94.68 1.1% $ 1.04 $ 95.72 13 3 Yd Bin, 2x week S 153.62 1.1% $ 1.69 $ 155.31 (2) 45 -yd roll -off S 485.00 1.1% $ 5.34 $ 490.34 E54Temp. Temp. 3 -yd bin S 110.10 1.1% $ 1.21 $ 111.31 E22 Extra Empty, 3 -yd S 36.68 1.1% $ 0.40 $ 37.08 17.1% Bin Cleaning S 92.28 1.1 % $ 1.02 $ 93.30 Step Four: Re -weight cost components (1) Rate increased for a "Driver" as described in the Articles of Agreement between Waste Management of San Gabriel/Pomona Valley, Inc. and Teamsters Automotive Industrial and Allied Workers Local No. 495. (2) Producer Price Index, WPU05522101 Fuels and related products and power. (3) Producer Price Index, PCU336120336120, Heavy duty truck manufacturing - average annual change. (4) Consumer Price Index for All Urban Consumers (CUURA421SA0L1E), all items less food and energy index - Los Angeles -Riverside -Orange County - average annual change. (5) July 1, 2018 rate adjustment weightings come from Article 6.4.2. Subsequent years' weightings will come from Column O of the previous year. (6) Example rates listed below. Adjustment applies to all applicable rate categories. February 7, 2017 3-1 City of Diamond Bar - Commercial Packet Pg. 687 L M N Row Adjustment Factor Index Cost Component Weighting (Column D) Percent Change as Applied to Rate Adjustment (Column E) Increase in Cost Components (Column m K x Column L) Cost Component Increased (Column K + Column M) Cost Components Re - weighted to Equal 100% 18 Labor (1) 27.0% 1.8% 0.5% 27.5% 27.2% 19 Fuel (2) 6.1% -12.1% -0.7% 5.4% 5.3% (3) 20.0% 1.9% 0.4% 20.4% 20.2% E22 Dis osal (4) 17.0% 1.9% 0.3% 17.3% 17.1% All Other (4) 29.9%Equipment 1.9% 0.6% 30.5% 30.2%Total 100.0% 1 101.1% 100.0 (1) Rate increased for a "Driver" as described in the Articles of Agreement between Waste Management of San Gabriel/Pomona Valley, Inc. and Teamsters Automotive Industrial and Allied Workers Local No. 495. (2) Producer Price Index, WPU05522101 Fuels and related products and power. (3) Producer Price Index, PCU336120336120, Heavy duty truck manufacturing - average annual change. (4) Consumer Price Index for All Urban Consumers (CUURA421SA0L1E), all items less food and energy index - Los Angeles -Riverside -Orange County - average annual change. (5) July 1, 2018 rate adjustment weightings come from Article 6.4.2. Subsequent years' weightings will come from Column O of the previous year. (6) Example rates listed below. Adjustment applies to all applicable rate categories. February 7, 2017 3-1 City of Diamond Bar - Commercial Packet Pg. 687 8.3.b EXHIBIT 3-43B EXAMPLE RATE ADJUSTMENT FORMULA Permanent Roll -Off Box Rate Adjustmen s Step One: Calculate percentage change in indices Step Two: Determine components A B C Row Adjustment Factor Index Old Index Value New Index Value Percent Change in Index ((Column B +Column A) - 1) I Service Component (Pull Rate) 16 -yd Rolloff Box $ 219.55 0.8% 2 Labor (1) $ 21.85 $ 22.25 1.8% 3 Fuel (2) 200.8 1 176.6 1 -12.1% 4 Equipment (3) 139.3 1 142.0 1 1.9% 5 All Other (4) 240.9 1 245.4 1 1.9% 6 Disposal/Processing 1 (4) 1 240.9 1 245.4 1 1.9% Step Two: Determine components Step Three: Apply percentage change to rates D E F Row Adjustment Factor Index Cost Factor Category Weighted as a % of Component Total (5) Percent Change in Index (Column C) Total Weighted Change (Column D x Column E) 7 Service Component (Pull Rate) 16 -yd Rolloff Box $ 219.55 0.8% 8 Labor (1) 34.2% 1.8% 0.6% 9 Fuel (2) 7.6% -12.1% -0.9% 10 Equipment (3) 1 25.0% 1 1.9% 1 0.5% 11 All Other (4) 33.2% 1.9% 0.6% 12 Service Component Total 364.38 100.0% $ 2.92 0.8% 13 Disposal/Processing (4) 1 100.0% 1 1.9% 1.9% Step Three: Apply percentage change to rates Step Four: Re -weight cost components K H I J Row Rate Category 6 g rY O Current Customer Rate Total Weighted Percentage Change (Colum F) Rate Increase or Decrease (Column G x Column H) Adjusted Rate (Column G + Column 1) 14 16 -yd Rolloff Box $ 219.55 0.8% $ 1.76 $ 221.31 15 30 -yd Rolloff Box $ 211.04 0.8% $ 1.69 $ 212.73 16 45 -yd Rolloff Box $ 204.30 0.8% $ 1.63. $ 205.93 17 30 -yd Compactor Rolloff $ 326.29 0.8% $ 2.61 $ 328.90 18 40 -yd Compactor Rolloff $ 364.38 0.8% $ 2.92 $ 367.30 19 1 Per Ton Disposal/Processing $ 71.77 1.9% $ 1.36 $ 73.13 Step Four: Re -weight cost components (1) Rate increased for a "Driver" as described in the Articles of Agreement between Waste Management of San Gabriel/Pomona Valley, Inc. and Teamsters Automotive Industrial and Allied Workers Local No. 495. (2) Producer Price Index, WPU05522101 Fuels and related products and power. (3) Producer Price Index, PCU336120336120, Heavy duty truck manufacturing - average annual change. (4) Consumer Price Index for All Urban Consumers (CUURA421SAOLIE), all items less food and energy index - Los Angeles -Riverside -Orange County - average annual change. (5) July 1, 2018 rate adjustment weightings come from Article 6.4.2. Subsequent years' weightings will come from Column O of the previous year. (6) Example rates listed below. Adjustment applies to all applicable rate categories. (7) Rounded down by 0.1 % to allow the Total in Line 25 to equal 100.0%. February 7, 2017 3-2 City of Diamond Bar - Commercial Packet Pg. 688 K L M N O Row Adjustment Factor Index Cost Component (Column D) Percent Change as Applied to Rate Adjustment (Column E) Increase in Cost Components (Column K x Column L) Cost Component Increased (Column K + Column M) Cost Components Re - weighted to Equal 100"/,, 20 Labor (1) 34.2% 1.8% 0.6% 34.8% 34.5% 21 Fuel (2) 7.6% -12.1% -0.9% 6.7% 6.6% 22 Equipment (3) 25.0% 1.9% 0.5% 25.5% 25.3% 23 1, Other (4) 33.2% 1.9% 0.6% 33.8% 33.6% (7) 24 Total 100.0% 100.8% 100.0 (1) Rate increased for a "Driver" as described in the Articles of Agreement between Waste Management of San Gabriel/Pomona Valley, Inc. and Teamsters Automotive Industrial and Allied Workers Local No. 495. (2) Producer Price Index, WPU05522101 Fuels and related products and power. (3) Producer Price Index, PCU336120336120, Heavy duty truck manufacturing - average annual change. (4) Consumer Price Index for All Urban Consumers (CUURA421SAOLIE), all items less food and energy index - Los Angeles -Riverside -Orange County - average annual change. (5) July 1, 2018 rate adjustment weightings come from Article 6.4.2. Subsequent years' weightings will come from Column O of the previous year. (6) Example rates listed below. Adjustment applies to all applicable rate categories. (7) Rounded down by 0.1 % to allow the Total in Line 25 to equal 100.0%. February 7, 2017 3-2 City of Diamond Bar - Commercial Packet Pg. 688 8.3.b EXAMPLE RATE ADJUSTMENT FORMULA Example Calculation of an Annual Change in a Published Index Consumer Price Index - All Urban Consumers, Los Angeles -Riverside -Orange County, CA w All items less food and energy, CUUSA421SAOLlE c L U. Yearld Jan I Feb I March April I May June I July August Sept I Oct I Nov I Dec Average tv .r 2014 239.084 239.908 240.322 240.507 240.366 240.460 240.981 241.574 242.016 242.360 241.842 241.491 240.909 A 2015 242.003 242.806 243.957 244.138 244.800 245.236 245.394 245.896 246.488 247.539 248.120 248.140 245.376 Average[Ehange:0 1.9% CO) to February 7, 2017 3-3 City of Diamond Bar - Commercial Packet Pg. 689 8.3.b EXHIBIT 4 [Section Deleted] February 7, 2017 4-1 City of Diamond ear - Commercial Packet Pg. 690 8.3.b EXHIBIT 5 Contractor's Faithful Performance Bond KNOW ALL MEN BY THESE PRESENTS: That , a California , as PRINCIPAL, and a Corporation organized and doing business by virtue of the laws of the State of California, and duly licensed for the purpose of making, guaranteeing, or becoming sole surety upon bonds or undertakings required or authorized by the laws of the State of California, as SURETY, are held and firmly bound to City, hereinafter called OBLIGEE, in the penal sum of one hundred twenty five thousand dollars ($125,000) lawful money of the United States, for the payment of which, well and truly to be made, we and each of us hereby bind ourselves, and our and each of our heirs, executors, administrators, successors, and assigns, jointly and severally, firmly by these presents. NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH THAT: WHEREAS, the above bounden PRINCIPAL has entered into a contract, entitled "RESIDENTIAL SOLID WASTE MANAGEMENT SERVICES" with City, to do and perform the following work, to wit: Collect, Process and dispose of Solid Waste generated within City, in accordance with the contract. NOW, THEREFORE, if the above bounden PRINCIPAL shall well and truly perform, or cause to be performed each and all of the requirements and obligations of said contract to be performed by said PRINCIPAL, as in said contract set forth, then this BOND shall be null and void; otherwise it will remain in full force and effect. And the said Surety, for value received hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the contract or to the work to be performed thereunder or the specifications accompanying the same shall in any wise affect its obligations on this BOND, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the contract or to the work or to the specifications. February 7, 2017 5-1 City of Diamond ear - Commercial Packet Pg. 691 8.3.b In the event suit is brought by OBLIGEE to enforce the provisions of this bond, said Surety will pay to OBLIGEE a reasonable attorney's fee, plus costs of suit, in an amount to be fixed by the court. IN WITNESS WHEREOF, said PRINCIPAL and said SURETY have caused these presents to be duly signed and sealed this DAY OF , 200— a California Corporation (PRINCIPAL) (SEAL) February 7, 2017 By: SURETY (ATTORNEY IN FACT) (SEAL) 5 - 2 City of Diamond Bar - Commercial Packet Pg. 692 8.3.b EXHIBIT 6 NOTARY CERTIFICATION ACKNOWLEDGMENT State of California County of ) On before me, (insert name and title of the officer) personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) February 7, 2017 City of Diamond Bar - Commercial Packet Pg. 693 D ' ` IUl SAR _�9 y TO: FROM: ADDRESS. ORGANIZATION: AGENDA#/SUBJECT: CITY CLERK apt DATE: 2/--'- e- j2e— -%PHONE: L I expect to address the Council on the subject agendalsubject item. Please have the Council Minutes reflect my name and address as written above. " ignat�ff This document is a public record subject to disclosure under the Public Records Act. TO: FROM: ADDRESS: ORGANIZATION: AGENDA#/SUBJECT: CITY CLERK DATE: /7 L--7 VAPH0NE: �ynwv I expect to address the Council on the subject reflect my name and address as written above. Please have the Council Minutes s" Signature D IOND B�'llC TO: C TYC K FROM: p 1 DATE: ADDRESS: Y • PHONE: ORGANIZATION:/ AGENDA#/SUBJECT: `,.�� �"q\ o\ I expect to address the Council on the s reflect my name and address as written This document is a public record subject to disclosure under the Il 1I011'D B� Please have the Council Minutes Signature Records Act. •+ �- - � • iii- • TO: CITY CLERK FROM: Okf Vel. 13 14e Q DATE: tr z Jl�17 ADDRESS: `C 3 7 �� PLA-ROM—PHONE: ��� % 7- Sz 7-/ ORGANIZATION:'/n/tel i 4C AGENDA#/SUBJECT: y{� (� SRC- I expect to address the Council on the subject agenda/subject item. Please have the Council Minutes reflect my name and address as written above. Signature This document is a public record subiect to disclosure under the Public Records Act. TO: CITY CLERK FROM: ( � 1) a 2m/ DATE: 2-1 1/4�^� ADDRESS: C6! i (r _ PHONE; (� - -1 �, LI I no-ITIOWEV90111, AGENDA#/SUBJECT: I T eB I- U i�_ 0UK 1\4 E I expect to address the Council on the subject agenda/subject item. Please have the Council Minutes reflect my name and address as written above. ignature This document is a public record sulbjiccif to disclosure under the ui_ lic Records Act. TO: CITY CLERK r FROM: ��'�t�lc�li�f Z11e-"-'10S DATE: ADDRESS: / PHONE: ORGANIZATION: 00LL� l / r z ��� Zt tem AGENDA#/SUBJECT: I expect to address the Council on the subject agenda/subject item. Please e the Council Minutes reflect my name and address as written above. /& 7 ='Cl Uie Thic rinni uman" is a nnhlir. rannrd cnhiant to rliaclnci ira unriar the Puhltn €2nenrris Art -D1011T BAR" TO: CITY CLERK FROM: _�r11t�� FIO DATE: - ADDRESS: PHONE: (Optional) WORTH _-G •l AGENDA#/SUBJECT: expect to address the Council on the subject agenda/subject item. Please have the Council Minutes reflect my name and address as written above. Signature This document is a public record subject to disclosure under the Public Records Act, TO: FROM: ADDRESS: CITY CLERK ORGANIZATION AGENDA#/SUBJECT: 1206 b, DATE: 2--2— 17 210 r,e�­Z ei ,e,. c26 PHONE: 7 e!�~- df :7 r I expect to address the Council on the subject agenda/subject item. Please have the Council Minutes reflect my name and address as written above. ire This document is a public record subject to disciom_fre under the Public Records :Act. TO: CITY CLERK y- FROM: F f�� �GL'ut' ' DATE: �Qe/> ADDRESS: PHONE: ORGANIZATION: �fJ, t �, w, AGENDA#/SUBJECT: I expect to address the Council on the subject agenda/subject item. Please have the Council Minutes reflect my name and address as written above. ignature This document is a public record subject to disclosure under the Public Records Act. U6111t�) 1 TO: CITY CLERK FROM: ADDRESS: ORGANIZATION: AGENDA#!SUBJECT: /^ DATE:_ �~ 2,1 1>t'� PHONE: I expect to address the Council on the subjQcJA reflect my name and address as written above. This document is a public record subject to disclosure unde -e-5 / 1 �U 1 t (::- /subject item. Pleade have the Counc Minutes