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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.
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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
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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
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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.
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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.
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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
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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
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.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.
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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
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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
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CURRENTFEE
RECOMMENDED FEE
d
None
$300 per inspection
Q
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REF #: S-055
TITLE:
STORM DRAIN TRANSFER TO COUNTY
ca
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CURRENTFEE
RECOMMENDED FEE
$1,011.37 per application
$660 per application
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REF #: S-056
TITLE:
STOCKPILE/BORROW SITE PLAN REVIEW
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CURRENTFEE
RECOMMENDED FEE
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$281.74 per plan
$155 per plan
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REF #: S-057
TITLE:
STOCKPILE/BORROW SITE INSPECTION
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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
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REF #: S-065 TITLE: PARKWAY DRAIN ENCROACHMENT PERMIT ILL
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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
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REF #: S-096 TITLE:
ADDITIONAL PLAN REVIEW/INSPECTION
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CURRENT FEE
RECOMMENDED FEE
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$98.89 per hour
Charges at the fully allocated hourly rates for all personnel
involved plus any outside costs.
L
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N
REF #: S-097 TITLE:
BUILDING RECORDS ARCHIVING
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CURRENT FEE
RECOMMENDED FEE
$2 per permit or plan sheet
5% of all building plan check and permit fees
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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
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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
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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
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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.
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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
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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 -
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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
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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
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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
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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.
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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
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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
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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
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2.3
2.4
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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
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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
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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
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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.
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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
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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.
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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.
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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MAPPING AND GIS
SERVICES
SCALE 1" 200'
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DETAIL STA 5 PER RS 67-51-56
NO SCALE
Packet Pg. 115
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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.
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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.
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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
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Subject Photographs
Subject Photographs
CBRE
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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(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
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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
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Self Insurance Fund (510)
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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
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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
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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
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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
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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
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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
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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
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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
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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
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8.2.a
6 Notary Certification
7. Example Monthly Report Format
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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
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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:
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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
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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.
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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.
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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.
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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);
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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,
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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
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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
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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
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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.
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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.
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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
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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.
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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.
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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.
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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;
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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
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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:
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• 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,
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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.
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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.
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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
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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.
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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.
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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
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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
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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).
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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
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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
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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
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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.
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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
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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
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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
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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.
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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.
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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
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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.
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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
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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
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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.
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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
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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
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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.
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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
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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
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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.
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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.
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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.
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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.
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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;
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• 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.
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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:
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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.
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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.
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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.
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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
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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.
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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
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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
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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.
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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.
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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
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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:
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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.
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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
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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
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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:
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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.
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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.
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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.
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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
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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;
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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.
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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
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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:
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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.
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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.
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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.
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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,
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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.
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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.
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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).
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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
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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
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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.
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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."
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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
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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:
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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.
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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.
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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.
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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.
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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.
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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
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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:
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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
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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:
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$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
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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.
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C. Amount. City may assess liquidated damages for each calendar day or event, as
appropriate, that Contractor is determined to be liable in accordance with this
Agreement.
D. Timing of Payment. Contractor shall pay any liquidated damages assessed by
City 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:
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• 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
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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
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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.
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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.
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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.
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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
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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,
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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.
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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
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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
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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.
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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.
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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.
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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
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8.2.a
EXHIBIT 1
PUBLIC EDUCATION PLAN
(to be attached after City approval per Section 5.3.2)
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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.
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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.
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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
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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
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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%
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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
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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
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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
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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
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8.2.a
with a copy to the City Attorney at the same address.
To the Guarantor:
By:
(title)
By:
(title)
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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
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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
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s
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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
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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
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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
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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
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6 Notary Certification
7. Example Monthly Report Format
February 16, 2017
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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
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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
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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.
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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.
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1.12 Contractor
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"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
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"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
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"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
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"Container" means any and all types of Solid Waste receptacles, including Carts, Bins 0
and Roll -off Boxes.
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1.16 CPI 'a
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"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
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"Customer" means a Person receiving Solid Waste Collection Services from Contractor E
pursuant to the terms of this Agreement. Q
1.18 Disposal
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"Disposal" means the ultimate disposition of Solid Waste Collected by Contractor at a
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landfill or otherwise in full regulatory compliance. 0
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1.19 Disposal Site(s)
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"Disposal Site(s)" means the Solid Waste handling Facility or Facilities utilized for the
06
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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);
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• 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,
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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
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Deleted: 30
8.2.b
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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
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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.
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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
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8.2.b
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Deleted: 37
Deleted: 38
Deleted: 39
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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
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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
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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
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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
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8.2.b
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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.
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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
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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
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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
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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:
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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,
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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.
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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.
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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
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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
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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.
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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
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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
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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).
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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
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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:
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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
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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
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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
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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
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Formatted: Left, Indent: First line: 0"
Deleted: , and negotiate in good faith,
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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
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Deleted. or terminate this Agreement
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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.
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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
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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.
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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
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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.
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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
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Deleted: two
Deleted: nine
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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
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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.
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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
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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
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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
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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
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8.2.b
Deleted: "Refuse," "Recycling" or "Green Wast,
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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
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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.
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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.
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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.
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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)
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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;
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• 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.
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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:
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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
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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.
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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.
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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.
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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
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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.
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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
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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
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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.
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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.
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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
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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
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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
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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
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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
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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
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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
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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.
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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.
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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.
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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
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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;
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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.
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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
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Deleted: reimburse
Deleted:
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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:
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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
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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.
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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.
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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.
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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,
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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
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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.,
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Deleted: not
Deleted: for the tonnage directed by the City to
facility.
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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).
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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
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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.
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with all endorsements, shall also be promptly del
city.
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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
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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
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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:
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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.
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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.
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Deleted: (except as provided below regarding F
Majeure)
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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.
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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.
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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.
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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
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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:
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I
2.
3.
8.2.b
a) For each occurrence of failure to properly return empty Containers to avoid
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pedestrian or vehicular traffic impediments or to place Containers upright
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which exceeds ten (10) such occurrences annually: $100.00
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exceed ten (10) annually: $250.00
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4)
a) For each failure to commence service to a new Customer account within
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seven (7) days after order, which exceeds five (5) such failures annually:
$100.00
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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
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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
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c) For each instance in which Contractor stops service to a Customer, other
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than at Customer request due to Customer vacating premises, without the
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advance written approval of the City: $100.00
Collection Quality
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a) For each occurrence of failure to properly return empty Containers to avoid
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pedestrian or vehicular traffic impediments or to place Containers upright
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which exceeds ten (10) such occurrences annually: $100.00
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b) For each occurrence of excessive noise or discourteous behavior which
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exceed ten (10) annually: $250.00
c) For each occurrence of Collecting Solid Waste during unauthorized hours
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which exceeds five (5) such occurrences annually: $250.00
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d) For each failure to clean up Solid Waste spilled from Solid Waste Containers
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within ninety (90) minutes that exceeds ten (10) such failures annually:
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$150.00
Customer Responsiveness
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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
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b) For each failure to process Customer complaints as required by Article 5, ry
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which exceed five (5) annually: $150.00 Deleted: February 8, 2017January 27, 2017 C
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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:
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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
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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.
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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:
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,i Deleted: Diamond Bar
Deleted: , and may contract with another party l
Waste Collection Services
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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
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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
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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.
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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.
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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.
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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
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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,
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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.
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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
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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
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8.2.b
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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.
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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.
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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.
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8.2.b
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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
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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
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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.
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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
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8.2.b
Deleted: for August 16, 2010
-- Deleted: 2011
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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%.
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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
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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,
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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: ¶
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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
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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
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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
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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
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of Diamond Bar - Residential
8.2.b
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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1.43 ROLL -OFF Box...................................................................................................................................................
1 I
1.44 SINGLE FAMILY DWELLING...............................................................................................................................
11
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1.45 SOLID WASTE....................................................................................................................................................
11
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1.46 SOLID WASTE COLLECTION SERVICES..............................................................................................................
12
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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
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2.4 TERM OF AGREEMENT............................................................................................................................................
14
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2.5 CITY'S OPTION TO EXTEND TERM
15
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..........................................................................................................................
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
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3.2 OTHER CITY FEES...................................................................................................................................................
23
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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
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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
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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
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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
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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
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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
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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:
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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.
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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.
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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.
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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.
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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
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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.
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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.
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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.
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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.
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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.
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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.
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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
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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.
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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.
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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.
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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;
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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.
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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.).
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• Labor requirements (number of employees by classification).
• Type(s) of Containers to be utilized.
• Type(s) of material to be Collected.
• Provision for program publicity/education/marketing.
• 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.
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Contractor must follow requirements of the Diamond Bar Municipal Code, including,
but not limited to, obtaining a City of Diamond Bar business license.
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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.
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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.
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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,
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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
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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.
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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.
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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
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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.
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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.
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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
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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
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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.
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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
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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:
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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,
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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.
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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
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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
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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.
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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
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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
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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
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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.
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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.
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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.
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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;
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• 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.
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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:
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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.
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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.
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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.
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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
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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
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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.
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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.
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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
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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:
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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:
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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.
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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.
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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
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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.
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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.
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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.
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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,
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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;
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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.
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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
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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
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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)].
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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
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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.
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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,
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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.
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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.
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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
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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
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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.
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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.
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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
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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
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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
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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.
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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.
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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.
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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.
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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.
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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.
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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
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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
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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
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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 >
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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
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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:
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$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
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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.
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C. Amount. City may assess liquidated damages for each calendar day or event, as
appropriate, that Contractor is determined to be liable in accordance with this
Agreement.
D. Timing of Payment. Contractor shall pay any liquidated damages assessed by
City 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:
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• 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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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,
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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:
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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.
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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.
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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.
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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.
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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
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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.
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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
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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.
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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.
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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.
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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.
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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
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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.
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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.
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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.
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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;
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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.
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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
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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.
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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.
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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.
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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.
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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,
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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
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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.
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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.
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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
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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.
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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.
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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.
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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.
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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
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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.
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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
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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:
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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,
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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.
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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.
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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.
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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.
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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
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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
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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
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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.
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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.
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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.
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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;
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• 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.
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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:
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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.
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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.
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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.
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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
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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
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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.
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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.
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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
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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.
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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
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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.
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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.
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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
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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-.
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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.
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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.
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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,
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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;
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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„^ �
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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
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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:
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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).
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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.
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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.
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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,
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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.
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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
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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).
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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
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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
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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
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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
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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.
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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
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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.
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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.
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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.
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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.
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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.
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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
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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
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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
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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:
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$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
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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.
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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.
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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
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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
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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.
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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TO:
FROM:
ADDRESS.
ORGANIZATION:
AGENDA#/SUBJECT:
CITY CLERK
apt DATE: 2/--'-
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I expect to address the Council on the subject agendalsubject item. Please have the Council Minutes
reflect my name and address as written above. "
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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:
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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.
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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
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AGENDA#/SUBJECT:
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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.
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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:
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reflect my name and address as written above. /&
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Thic rinni uman" is a nnhlir. rannrd cnhiant to rliaclnci ira unriar the Puhltn €2nenrris Art
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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
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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.
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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