HomeMy Public PortalAbout2013-07-31 Special Meeting Staff Report0
AGENDA STAFF REPORT
t
DATE: July 31, 2013
TO: Honorable Mayor and Members of the City Council
APPROVED BY: Roger L. Haley, City Manager 4'�L PC
PREPARED BY: A. Patrick Munoz, Special Counsel
SUBJECT: Consideration of Draft Solid Waste Agreement and related Instructions for
potential proposers who desire to respond to the RFP.
Recommendation:
The City Council RFP Ad Hoc Committee recommends the following:
1. Approve the Draft Solid Waste Agreement and Instructions for responding to the
Request for Proposal ( "RFP") for the City's solid waste franchise as recommended by
the solid waste RFP Ad Hoc Committee, or as modified following Council discussion:
2. Approve the release of the solid waste RFP as recommended by the Solid
Waste RFP Ad Hoc Committee, or as modified following Council discussion.
3. Approve the timeline for the RFP process as recommended by the Solid Waste
RFP Ad Hoc Committee.
Discussion & Analysis:
The City's current franchise agreement with CDS expires on November 1, 2013. The
City Council has hired special counsel (Rutan & Tucker) to prepare a draft franchise
agreement to include in an RFP and a consultant (Integrity Waste) to draft the RFP.
The Council also appointed an RFP Ad Hoc Committee to make recommendations in
connection with their work. On July 2, 2013 the City Council approved a list of
business points for a new franchise agreement to be included in the RFP and the draft
agreement. The Council requested that the draft agreement and RFP, when finalized,
be presented to it for approval before being released to the hauling community for
responses. Recall that it was reported to the Council at that time that it would be
difficult to meet the timeline that was being requested.
Based on the approved business points, a draft agreement ( "Draft Agreement") has
been prepared and was presented to the RFP Ad Hoc Committee on Thursday July 25,
2013. Based on input from the RFP Ad Hoc Committee, final revisions were made to
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the Draft Agreement, and it is included as part of Attachment 1 to this Staff Report for
the Council's discussion and input. Staff is seeking approval to release the Draft
Agreement as part of the RFP process (with any modifications as may be directed by
the Council) with the intent that it will be the franchise agreement which serves as the
basis for proposals.
While the Draft Agreement was prepared for the RFP Ad Hoc Committee meeting on
July 25` at that time Integrity Waste reported that it had been unable to prepare a
comprehensive RFP in the time allotted. It should be noted that part of the reason was
that its contract for services with the City had not been executed until July 8, 2011
The RFP Ad Hoc Committee discussed the strong desire to release the Draft
Agreement as soon as possible in order to receive proposals in response to it, and
further to be able to implement a new agreement by November 1". In an effort to keep
with these timing goals, the RFP Ad Hoc Committee directed Rutan & Tucker to work
with Integrity Waste and prepare an abbreviated RFP advising the hauling community
of the opportunity to make proposals for the Draft Agreement, and providing it with
instructions regarding the information required for their proposals to be considered
( "Instructions "). The Instructions have been prepared per the RFP Ad Hoc
Committee's direction, and are included as Attachment 1 to this Staff Report. Note that
the Draft Agreement is attached to the Instructions (see Attachment 2 to Instructions).
These Instructions are submitted for the Council's discussion and input. Staff is
seeking approval to release the Instructions (with any modifications as may be directed
by the Council), in order to commence the RFP process.
Finally, at the RFP Ad Hoc Committee on July 25, 2013 a timeline was discussed and
approved. The timeline is included as Attachment 2 which is submitted for Council
discussion, input and approval. The Ad Hoc Committee recommends approval of the
timeline. The timeline requires proposals to be received by August 15, 2013; sets a
time for a future RFP Ad Hoc Committee meeting to evaluate proposals, and
contemplates bringing a final recommendation to the Council for consideration at its
regular meeting on September 3, 2013. Naturally, at that time the Council would have
the option to accept the proposal recommended by the Committee or to select any
other proposal, or take such other action as it deems appropriate.
Issues
The City is currently in the process of auditing its current solid waste franchise. A
significant issue that has arisen is that it does not have a reliable understanding of the
number of carts currently being serviced in the City, and accordingly does not have a
reliable estimate of gross receipts flowing from such service. Recall that "carts" service
single family residences and some multi - family residences and "bins" (sometimes
called dumpsters) are used to service most multi - family residences and commercial
businesses.
Based on information currently available, it would appear that the City can estimate
with a high degree of certainty that the number of carts currently in service ranges from
9,500 to 11,500. There is a significant discrepancy between these various numbers
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which means the total carts and associated revenue could vary between as much as
10 and 20 percent based on the currently available information.
Efforts to address the above issue has delayed the preparation and release of the
RFP. Rutan & Tucker and Integrity Waste have both advised the RFP Ad Hoc
Committee, as well as the Council, that the time frame now available for the release of
an RFP and award of a new franchise agreement is very compressed. In particular,
Integrity Waste has specifically advised the RFP Ad Hoc Committee that it has
concerns about a new hauler being able to obtain equipment and implement services
in less than 90 days.
Recognizing the Council's strong desire to implement a new agreement as of
November 1, 2013, a meeting was called on July 19, 2013 to which interested solid
waste enterprises were invited. The purpose of the meeting was to provide such
companies with as much time as possible to present proposals by advising them of the
business points approved by the Council for a new agreement in advance of the RFP
and Draft Agreement receiving final approval from the Council. At the meeting on July
19` concerns were expressed by the companies in attendance that the City was
moving at a pace that was too fast for them to reasonably respond. The City
subsequently received various letters expressing concerns along these lines, which
were presented to the RFP Ad Hoc Committee on July 25' These letters are attached
hereto as Attachment 3.
The RFP Ad Hoc Committee reviewed and considered these letters, and discussed the
pros and cons of moving forward on a schedule that would allow for contract
implementation by November 1, 2013. After considering the various policy issues
implicated, the RFP Ad Hoc Committee is recommending that the Council move
forward with the RFP process using the timeline detailed in Attachment 2. Ultimately,
the RFP Ad Hoc Committee determined it is not in the City's interest to negotiate an
extension of the current agreement (largely due to unresolved issues stemming from
the ongoing audit), and rather that it is in the City's best interest to press forward
expeditiously to award a new franchise agreement.
The RFP Ad Hoc Committee did carefully consider the following issues before making
its recommendation.
1. Whether it makes more sense to negotiate a new franchise agreement with CDS,
rather than issue a request for proposals, in light of the current time constraints and
given the uncertainty related to the current audit results, and in particular whether CDS
owes money to the City or vice versa.
2. Whether the lack of accurate information related to the number of existing carts, anc
related revenue, would prevent otherwise qualified solid waste enterprises from making
proposals on the Draft Agreement, and, if they did make proposals, whether the
proposals would be less desirable than they might otherwise be.
3. Whether the currently proposed schedule would prevent otherwise qualified solid
waste enterprises (and in particular smaller businesses) from being able to obtain
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equipment in time to meet the contract implementation dates and hence foreclose them
from participating in the process.
4. Whether the Council is moving too fast with the proposed schedule, and if efforts for
a short extension of the existing agreement should be explored.
5. Whether it is in the public interest to extend the current agreement with CDS
considering: (1) the compressed time frame at issue is, to a significant degree, the
result of CDS' failure to keep accurate account records as required by the current
franchise, and (2) perceptions that CDS should have resolved the audit issues earlier
in this process.
Overall, the RFP Ad Hoc Committee concluded that solid waste enterprises operating
in the area are aware of the fact the current agreement expires in November, and
further that serious proposers would both be aware of this and able (as a result) to
respond to the RFP in the time allocated. Moreover, the RFP Ad Hoc Committee
believed that it was not in the public interest to attempt to negotiate an extension under
all the facts and circumstances currently in play (including specifically the role of CDS
in the existing audit).
Alternative Actions:
1. Extend the RFP process set forth in the accompanying timeline without extending
the current franchise. This would allow interested solid waste enterprises more time to
prepare responses, as well as allowing the City more time to analyze the submitted
responses. This option would delay the award of the solid waste franchise until late
September or early October. Extending the RFP process shortens the transition
timeframe for the successful solid waste enterprise to implement new service by the
franchise effective date of November 1, 2013.
2. Negotiate with CDS to attempt to extend the term of the existing contract until the
RFP process is complete and a new contract is implemented. Under this scenario, one
option is to postpone the RFP process until after the audit is complete. A second
option is to move forward with the RFP process so as to award a new contract prior to
November 1, 2013, but allow for a longer transition period (dependent on the terms of
any negotiated extension with CDS).
3. Negotiate a franchise renewal with CDS along the lines of the Draft Agreement, and
seek to resolve any issues stemming from the audit as part of that process.
4. Such other options as the Council deems desirable
Fiscal Impact:
The costs of the RFP process are included as items to be reimbursed by the
successful proposer.
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Coordinated With:
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Public Works, City Council RFP Ad Hoc Committee, and Integrity Waste.
Attachments:
1. Instructions for Proposers (includes Draft Solid Waste Agreement as an
Attachment)
2. Timeline for Award of Solid Waste Franchise
3. Letters from Solid Waste Enterprises re RFP Process
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City Council Staff Report
Attachment 1
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THE CITY OF LYNWOOD'S
REQUEST FOR PROPOSALS
FOR SOLID WASTE HANDLING SERVICES
INSTRUCTIONS
FOR PROPOSERS
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TABLE OF CONTENTS
Page
A. INTRODUCTION AND PRELIMINARY STATEMENT ........... ..............................2
B SUBMISSION ............................................................................... ..............................2
C. QUESTIONS AND COMMUNICATIONS DURING THE RFP ..............................
2
D. DRAFT AGREEMENT EXHIBITS ............................................ ...............................
3
E. EXCEPTIONS TO DRAFT AGREEMENT TERMS .................. ...............................
3
F. PROPOSEWS ABILITY TO PERFORM .................................... ...............................
4
G. PROPOSER INFORMATION ..................................................... ...............................
5
H. PROPOSAL. EVALUATION ....................................................... ...............................
6
I. AWARD OF FRANCHISE ........................................................... I.............................
7
ATTACHMENT I APPROVED BUSINESS POINTS
ATTACHMENT 2 DRAFT SOLID WASTE AGREEMENT
ATTACHMENT 3 TIMELINE FOR AWARD OF SOLID WASTE FRANCHISE
ATTACHMENT 4 SAMPLE PROPOSAL, TABLE OF CONTENTS
ATTACHMENT 5 AFFIDAVIT RE ANTI- COLLUSION
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A. INTRODUCTION AND PRELIMINARY STATEMENT
The City of Lynwood's ("City ") current solid waste franchise expires on November 1, 2013.
Therefore, the City is seeking to award a new solid waste franchise agreement. The City is
requesting proposals for the collection of solid waste within its City limits. The following
material is intended to provide interested solid waste enterprises ( "Proposers" or individually,
"Proposer ") with instructions as they prepare their proposals for submission to the City.
For purposes of providing a summary only, a copy of business points for the Draft Solid Waste
Agreement ( "Draft Agreement "), which were approved by the City Council, is attached hereto as
Attachment 1. The Draft Agreement is attached hereto as Attachment 2, and importantly it
supersedes Attachment 1 such that the business points are not a part of the Draft Agreement and
have no legal effect. Proposers are responsible for reading the Draft Agreement in its entirety to
ensure Proposers' ability to perform under the terms of the Draft Agreement. The failure, by any
Proposer, to-complete all the required documents and provide all the required information as
outlined in these instructions and /or the Draft Agreement allows the City, in its sole discretion to
disqualify the Proposer.
The City is auditing its current solid waste franchise. That audit is not complete, and thus these
instructions do not necessarily contain correct information regarding the City's current diversion
rates, gross revenue for residential services, gross revenue for commercial services, and the
number of carts currently being serviced. The City has received conflicting information
regarding the number of residential carts for single and multi - family dwellings and as a result
can only provide a rough estimate of such carts, which is approximately 10,500. Proposers
should be aware the City has a high degree of confidence that the actual number is between
9,500 and 11,500. The City makes no representation nor warranty regarding the specific number
of carts in service, and shall not be liable for any costs a Proposer incurs in relying on the
forgoing cart estimate in preparing its response..
The City is advised by its current franchisee that the following represents the number of
commercial Bins currently in service:
Bin Size in Cubic Yds
Number of Bins
plaintiffs
13
2
749
3
908
4
200
6
49
Total
1919
By participating in the RFP process, Proposers agree to indemnify and hold harmless the City, its
employees, agents, and representatives for any claims regarding the inaccuracy of the provided
data. Proposers are responsible for and encouraged to independently gather data needed to aid in
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the preparation of each respective proposal, including the number of existing Containers and
related calculations.
A timeline of the RFP process is attached hereto as Attachment 3.
B. SUBMISSION
(1) Proposers must deliver their completed proposals to the City Clerk in a
sealed package such that they are received by 4:00 p.m. on Thursday, August l5, 2013 in
order to have their proposal considered by the City. It is the Proposers' responsibility to
ensure their completed proposals are received by 4:00 p.m. Proposals received after 4:00
p.m. will not be considered.
(2) All proposals shall include a cover page, transmittal letter, and table of
contents. Attachment 4 provides a reference for what, at a minimum, should be included
in the table of contents and the corresponding order.
(3) Proposals shall contain all the required attachments and exhibits as set
forth in this RFP. Attachments and exhibits shall be clearly identified to allow the City to
determine the contents therein.
(4) Submitted proposal responses shall remain valid for at least ninety (90)
days.
(5) All submitted bids must include ten (10) hardcopies of the Proposer's
complete proposal, plus one unbounded copy which the City can easily photocopy. Each
Proposer must also include 10 CDs which contain Proposer's complete proposal.
(6) The sealed package must be addressed as follows
Attn: CITY CLERK
RESPONSE TO CITY OF LYNWOOD'S SOLID WASTE RFP
PROPOSER'S NAME
ADDRESS
PROPOSER REPRESENTATIVE OR CONTACT PERSON
TELEPHONE, FAX AND EMAIL OF CONTACT PERSON
C. QUESTIONS AND COMMUNICATIONS DURING THE RFP
Any questions regarding this RFP shall be made in writing to Ann Levin of Rutan & Tucker,
LLP at alevin(c),rutan.com Answers to questions shall be made via e -mail and shared with all
Proposers.
' Numerical exhibits refer to exhibits required under these instructions to be submitted with the
proposal. Alphanumeric exhibits refer to exhibits included as part of the Draft Agreement and
which require further information from the Proposer. References to "Attachments" refers to
documents attached hereto to the instructions.
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D. DRAFT AGREEMENT EXHIBITS
The following is a list of exhibits which are attached to the Draft Agreement. These exhibits
require Proposers to submit or fill in additional information in order for Proposers' submissions
to be considered complete.
(1) Exhibit A : Proposer shall fill in the applicable rate schedule provided as
Exhibit A to the Draft Agreement. Exhibit A must be completed in its entirety for a
proposal to be considered by the City. Any exceptions to the Draft Agreement, including
the rate schedule shall be separately considered as discussed in Section E of these
instructions. Note, Exhibit A assumes the sizes of carts, bins and rolloff containers to be
used. If Proposer wishes to use different container sizes, Proposer must, in addition to
completing the rate sheet, submit a separate rate sheet with maximum rates for the
alternative container sizes.
(2) Exhibit B : Proposer shall provide information on the specifications for the
containers it shall use to allow the City to determine whether the containers meet industry
standards and its expectations.
(3) Exhibit C : Proposals must propose and provide details regarding a Multi-
Family Dwelling Recycling Program that results in not less than 20% diversion of the
waste collected from this waste stream as set forth in Section 8.2.7. Proposers shall
describe and attach this Multi - Family Dwelling Recycling Program as Exhibit C to their
proposal.
(4) Exhibit D : Proposals must propose and provide details regarding a
commercial recycling program that results in not less than 30% diversion of the waste
collected from this waste stream as set forth in Section 8.3.4. Proposers shall describe
and attach this commercial recycling program as Exhibit D to their proposal.
(5) Exhibit E : Proposals must design, describe and attach a Bulky Item Sweep
Program as referenced in Section 8.7.5 to their proposal. This information should be
identified as Exhibit E to the proposal.
(6) Exhibit G: Proposers must identify the facilities at which they intend to
dispose of, recycle, process and deposit all solid waste and recyclable material collected
under the Agreement. This information should be identified as Exhibit G to the proposal.
E. EXCEPTIONS TO DRAFT AGREEMENT TERMS
Any and all exceptions to the terms set forth in the Draft Agreement shall be made in writing,
included with the proposal and marked separately as Exhibit 1. To the extent the exceptions
conflict with, modify, or otherwise change a term in the Draft Agreement, the'proposal shall
reference the Section of the Draft Agreement to which the exception relates. To allow full
consideration of any exceptions, a proposal shall provide as much detail regarding the proposed
exceptions, including, where appropriate substitute contract language being proposed.
2 Section number references are to the Draft Agreement unless otherwise indicated.
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Unless an exception is provided in writing, by submitting a proposal, Proposer accepts the terms
set forth in the Draft Agreement. It is intended, that the successful Proposer will enter into a
solid waste agreement with the City, subject only to exceptions raised by the Proposer. Only
exceptions noted in the proposal shall be considered by the City. The City is not required to
accept any submitted exception, but can choose to negotiate regarding the subject matter of said
exception to arrive at a mutually agreeable contract provision. Proposers should anticipate that
the City will not likely be willing to accept changes to the Draft Agreement language.
F. PROPOSER'S ABILITY TO PERFORM
Proposer shall include the following information with its bids, marked separately and
attached to the proposal as Exhibit 2. Each subpart of Exhibit 2 shall be labeled with the
applicable short heading. For example, the short heading for item number one below is
"Implementation Plan."
(1) Implementation Plan Proposer shall describe, in detail, their plan to
implement the transition of solid waste handling services from the City's current solid
waste handler on November 1, 2013. This implementation plan shall include details
regarding how it will provide collection services including information about the vehicles
to be used for collection and the collection method (including the number of pick -up
days, whether the City will be divided into sections or whether all pick -up will be
scheduled on the same day, etc.).
(2) Transition Experience Proposer shall provided examples, if any, and
details regarding previous experiences with implementing a transition between the prior
solid waste collection provider and itself.
(3) Evidence of Ability to Perform Proposer shall provide evidence that
reasonably supports that Proposer shall be able to perform the terms set forth in the Draft
Agreement, including, but not limited to, evidence of Proposer's financial strength and
other information relevant to its ability to provide the personnel and equipment required
under the Draft Agreement, such as, but not limited to, evidence of the availability of the
containers and vehicles required by the Draft Agreement.
(4) Initial Franchise Fee Proposer shall submit an offer of an initial franchise
fee in the amount of not less than S 1,000,000 as required under Section 1 l .3.1.
(5) Insurance and Surety Evidence Proposer shall submit evidence that
Proposer has or is able to obtain the form of surety as required in Section 14 and
insurance as required in Section 15 of the Draft Agreement.
(b) Affidavit re .Anti - Collusion Proposer shall submit a fully executed copy
of the Anti - Collusion Affidavit which is attached to these instructions as Attachment 5.
(7) Disposal or Diversion Facilities In addition to the information required in
Exhibit G, Proposer shall also provide documentation confirming that the facilities listed
in Exhibit G will in fact accept materials Proposer collects under the Draft Agreement.
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(8) Solid Waste Franchise Experience Proposer shall provide examples of
other public entities for which it provides solid waste collection services similar to those
required by the Draft Agreement, including an explanation of the types of services
provided for each jurisdiction listed. References for at least 5 jurisdictions where such
services have been provided is requested, but not required.
(9) Diversion Rates The submitted proposal shall include information
regarding Proposer's experience is assisting other public agencies in meeting their AB
939 diversion goals [with a preference but not requirement of experience with at least
five jurisdictions].
(10) Community Outreach Proposer shall submit examples of successful
community outreach programs Proposer has implemented for other public agencies.
(11) Residential Sharps Collection Program Proposer shall propose and
provide details regarding a program for the collection of used needles as required in
Section 8.2.13.
G. PROPOSER INFORMATION
Proposer shall include the following information with its bids, marked separately and attached to
the proposal as Exhibit J. Each subpart of Exhibit 3 shall be labeled with the applicable short
heading. For example, the short heading for item number one below is "Proposer Business
Information."
(1) Proposer Business Information Proposer shall provide the following
information: the Proposer's legal entity status (e.g., whether Proposer is a corporation, an
individual, limited liability company, partnership, subsidiary, etc.), the names of
Proposer's shareholders that hold at least a 5% interest in the legal entity, the names of
the entity's officers, and identification of creditors or potential creditors who are owed or
may be owed debt that is more than 5% of the entity's total assets.
(2) Legal Actions Proposer shall provide a list of any prior (within the last
ten (10) years) or current material legal actions for which Proposer was or is a named
party. This list shall include the case name, case number and the final disposition (if
any). "Material legal actions" for the purposes of this section means any litigation (i.e., a
proceeding where a complaint was filed) or regulatory proceeding (i.e., a proceeding
where an accusation was filed) brought by a public agency regarding the collection,
disposal or processing of solid waste. "Material legal actions" shall also include any
litigation initiated by a public agency alleging Proposer's noncompliance and /or breach
of an agreement for solid waste handling services.
(3) Financial Statements Proposer shall supply City with a copy of its most
recent financial statements. The financial statements must have been prepared in
accordance with the Generally Accepted Accounting Principles. If, after the date of the
most recent financial statements, there has been a material change which 1s not reflected
in the financial statements and which may impact Proposer's ability to continue as a
going concern, Proposer shall provide City with this additional information.
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H. PROPOSAL EVALUATION
All proposals will be objectively evaluated. The criteria the City may use to evaluate the
proposals it receives may include, but is not limited to, the following categories. Unless
otherwise noted, there is not a preference given to any of the categories below. Proposers are
encouraged to submit additional information regarding any of the categories below to the extent
such information is not already included in the materials Proposers are required to provide
above. Such additional information should be attached as Exhibit 4 to the proposal.
(1) Experience Proposer's ability to provide solid waste handling services to
other public entities, including, but not limited to, the satisfaction of other public entities'
with Proposer's performance, the successful implementation of community outreach
programs, and Proposer's experience transitioning between prior solid waste handling
haulers and itself.
(2) Implementation Plan Proposer's implementation plan as required under
Section F(1) of these instructions.
(3) Equipment and Transition Proposer's demonstrated ability to obtain the
equipment needed to perform under the Draft Agreement and evidence of Proposer's
ability to successfully implement a transition in service.
(4) Financial Status Proposer's demonstrated financial health.
(5) Initial Franchise Fee Proposals shall be weighted based on the
attractiveness of the Initial Franchise Fee offer.
(6) Insurance and Surety Proposer's ability to obtain the insurance and surety
required under the Draft Agreement.
(7) Diversion Goals Proposer's ability to meet or progress towards AB 939
division goals when providing solid waste handling services to other public entities,
including the applicable programs Proposer implemented to meet or progress towards
said goals.
(8) Exceptions The exceptions to the Draft Agreement as outlined and
permitted in Section E of these instructions, including the amount of exceptions put
forward by each Proposer and the type of exceptions.
(9) Rates The attractiveness of the maximum rates each Proposer provides in
comparison with rates proposed by other Proposers as well as the rates obtained by other
public entities for similar solid waste handling services.
(10) Local Office Participation Extra consideration shall be given to proposals
that agree to provide a local office which will be the point of sale for all equipment in the
City. Proposers agreeing to provide Local Office Participation shall include details
regarding this program as an additional separate subpart to Exhibit 2.
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(l 1) Local Hiring Preference Extra consideration shall be given to proposals
which guarantee that Proposer shall implement a program which provides a local hiring
preference. Proposers agreeing to provide a Local Hiring Preference shall include details
regarding this preference as an additional separate subpart in Exhibit 2.
I. AWARD OF FRANCHISE
The City may, prior to the award of the solid waste franchise, require additional information
from a Proposer or conduct its own evaluation of whether Proposer is qualified and possesses the
capacity to carry out the terms of the Draft Agreement. By participating in this UP, each
Proposer agrees to, upon request, provide the City with information which is reasonably
necessary to allow the City to make the above determination.
The City Council maintains broad discretion regarding who it ultimately selects to award
the solid waste franchise. To this end, the City can reject all proposals, determine a proposal is
nonresponsive and thus disqualified, and permit deviations from the UP. The City may, at any
time, modify the RFP and /or Draft Agreement, provide an addendum to the RFP, or cancel the
RFP in its entirety. Throughout the UP process, including the review, negotiation and selection
period, the City reserves the right to request additional information or clarification regarding
submitted proposals from any Proposer. Additionally, the City can, during the review and
negotiation period, select a waste hauler without further negotiation.
Proposers are advised that this RFP does not constitute a contract between the City and any said
Proposer. Proposers submit their proposals at their own risk. The City shall not reimburse and is
not liable to any Proposer for the costs incurred or associated with its proposal, including the
costs associated with preparing a response to the City's RFP.
The successful Proposer shall, within fourteen (14) business days from when the solid waste
franchise is awarded, provide evidence of the insurance required under Section 15 of the Draft
Agreement.
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Attachment 1
Approved Business Points
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Outline of Business Points for RFP Discussion
The following are approved by the City Council to include in an KFP /draft contract. The RFP
will require a proposal based on the following, but will also allow proposers to suggest
alternatives, enhancements, and different or additional terms which may be considered by the
Council.
Business Point
Details
Notes
Term
Seven year term, with option
for City to renew for three
additional years if after a review
of performance (paid for by
hauler) Cit chooses to do so
Afonthly Franchise
Continue existing franchise fee
Consider flat franchise fees for
Fee Administrative Fee
of 15% and administrative fee
residential service to be paid
of 7% on all Gross Billings, to
quarterly
be paid month)
Initial Franchise Fee
Proposers required to offer an
RFP responses will be weighted
initial franchise fee, in an
based on offers received from
amount of not less than $1
proposers
million, as consideration for
award of franchise
Annual Community
$100k/yr with CPI inflator.
Contribution
Rates
No charges for anything not on
rate sheet (i.e., no extras for
billing, etc.)
No charge for extra green waste
and rec clin Carts
3841030774.0002
56930815 47/18M
City Council Staff Report - Page 17 of 131
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Business Point
Details
Notes
Rate Adjustments
Automatically adjust all rates
(including disposal costs) by
[for instance, formula of 95%
LA/OC /Riverside CPI
excluding food and energy and
5% fuel based on national gas
index.) 3% cap in any one year.
Administratively handled rather
than going to Council (in order
to comply with Prop. 218,
Council does not set rate.
Billing
They handle and assume risk of
and otherwise deal with bad
debt
Annual Administrative Fee
Payment to City to cover admin
over head, consulting costs and
legal costs. Flat fee of $50k
with CPI inflator, plus actual
amount of legal fees
City Facilities
Free collection at all facilities
Payment of Citv's LA RA
Pay City's fees for membership
in LARA
Fees
Recycling Revenue
Flat fee of $lOk/mo with CPI
inflator
Negotiation Costs
Payment of all City's costs of
RFP process
Service at City Events
Free collection at City
sponsored events
M41030774-0002
56930875 907/18113 -2-
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Business Point
Details
Notes
Bulky Waste Collection
Free (up to 5 items per pickup),
for residential including tenants
of multi - family; charge for
commercial
Provide a City wide "sweep
program" to pick up anything
(up to 5 items) left out on
designated days, rather than
requiring residents to call in
Include electronic waste,
batteries, florescent tubes, etc at
curbside
Multi- family complexes with
three or more units shall receive
a bin for the collection of bulky
items (this service is not
intended to be a free service,
and a rate for this service will
be part of RFP
Containers for Block Watch
Twenty -four (24) containers per
year to be provided for a Block
Program
Watch Program
_City Wide Clean up Events
Two Citywide waste drop
off /clean up events to be
p rovided each year
Curbside Motor Oil
Curbside collection of motor
Collection
oil, and obligation to manage
grant funds for motor oil
p rogram
Bus stops
Collect waste at bus stops in
City (approx. 50) on a schedule
to be provided by Public Works
J84
5693087.5 e07118/13
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City Council Staff Report - Page 19 of 131
0 0
Business Point
Details
Notes
Electronic Waste, Batteries.
Curbside collection of these
items as free bulky item service
Proposers who offer to provide
drop off program will get extra
Florescent Tubes
consideration
Manage battery drop off
program at City Facilities at no
charge
Sharps and Unused
Fund mail in program by paying
Medication Disposal
for postage and packaging for
sharps disposal
Varied Cart Sizes
Smaller Carts for those who
Replaces current senior
need less service (i_e., seniors)
discount
or have space /maneuverability
issues
Two sizes to be provided: 96
al. and 35 gal.
6t'a /k out Service
Hauler brings Carts from
storage location to truck and
returns it. Free to qualified
Customers who have need
Charge for other Customers
who want it as a "luxury"
Local NirinQ Preference
Desire that preference be given
to residents
Not required but considered a
bonus if in proposal
Satellite Office
Set up an office in the City to
Not required but desired and
be point of sale for at least all
will receive extra consideration
equipment used in City, and as
in a proposal if offered
location for Customer
service /complaint resolution/
bill payments
Vehicles
Require new vehicles, less than
7 years old, that are powered
exclusively by CNG and
otherwise meet all clean air
requirements
384/030774 -0002
5093087,5 a07/18/13
0
City Council Staff Report - Page 20 of 131
0
r]
Business Point
Details
Notes
Reporting
Require all necessary reports
City Clerk to be provided a
for CalRecycle, and include
copy of all reports to ensure
tonnage reports for disposed
they are public records
waste, recycled materials, green
available for Council /public
waste, etc.
review
Assignment
Only if City agrees in its
unfettered discretion, with
requirement of significant
payments to City to capture
value City creates by granting
franchise
Performance Bond
Set appropriate level -
$lmillion dollars
Liquidated Damages
Liquidated damages to be paid
Schedule
for minor failures to perform
based on schedule to be
rovided
Strikes
Up to 5 days, performance
excused as a "force majeure ",
thereafter performance not
excused
Indemnity
Include comprehensive
language making hauler
responsible for all claims
excepting those arising from
City's sole negligence. Also,
include Hazardous material
indemnity and indemnity for
AB 939 penalties
Insurance
510,000,000
384t030774 -0007
5693087,5 a07/18/13 -5-
City Council Staff Report - Page 21 of 131
• •
Business Point
Details
Notes
AB 939
Give hauler responsibility for
City to develop a scavenging
Guaranlee/Recycling
all diversion and reporting
ordinance to assist with
compliance; and make them
maximizing recovery of
responsible for all penalties
materials
Require that they warrant and
guarantee they will get us in
compliance (goes beyond limit
in law on indemnity
obligations)
i
Require compliance with 75%
diversion requirement with no
rate increase
Agreement to outline programs
that they will implement as
minimum requirements, but
require hauler to do adjust
programs add programs, and in
essence do whatever else is
needed to comply with
diversion requirements and all
other laws and regulations
Public awareness programs to
be included in programs to be
implemented
384030774 -0002
5603087.5 .07(18113
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City Council Staff Report - Page 22 of 131
Attachment 2
Draft Solid Waste Agreement
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City Council Staff Report - Page 23 of 131
0 0
AGREEMENT
BETWEEN
CITY OF LYNWOOD
AND
[INSERT HAULER NAME]
FOR
SOLID WASTE HANDLING SERVICES
EFFECTIVE NOVEMBER 1, 2013
City Council Staff Report - Page 24 of 131
TABLE OF CONTENTS
Page
SECTION1. RECITALS ............................................................................. ..............................2
SECTION 2.
DEFINITI ONS ........................................................................
..............................2
2.1
AB 341 .............................................................:......................
..............................2
2.2
AB 939. .................................. ..............................................................................
2
2.3
Affiliate ...................................................................................
..............................2
2.4
Animal Waste ..........................................................................
..............................2
2.5
Applicable Law .......................................................................
..............................3
2.6
Billings ....................................................................................
..............................3
2.7
Bins .........................................................................................
..............................3
2.8
Bulky Items .............................................................................
..............................3
2.9
Cart ..........................................................................................
..............................3
2.10
City ..........................................................................................
..............................3
. 2.11
City Council ............................................................................
..............................4
2.12
City Limits ..............................................................................
..............................4
2.13
City Manager ..........................................................................
..............................4
2.14
Collect/Collection ...................................................................
..............................4
2.15
Commercial Premises .............................................................
..............................4
2.16
Container .................................................................................
..............................4
2.17
Contractor ...............................................................................
..............................4
2.18
Customer ........................ ....:.......................... .......................
..............................4
2.19
Dwelling Unit .......................:..................................................
..............................5
2.20
Effective Date .........................................................................
..............................5
2.21
Environmental Laws ...............................................................
..............................5
2.22
Franchise Area ...............................................:........................
..............................5
2.23
Franchise Fee .......................................................
............................... 5
2.24
Green Waste ............................................................................
..............................5
2.25
Gross Receipts ............................................ ...............................
................5
2.26
Hazardous Substance ..............................................................
..............................6
2.27
Hazardous Waste ....................................................................
..............................6
2.28
Multi - Family Dwelling ............ ...............................
.... ............................... ...........6
2.29
Municipal Code .......................................................................
..............................7
2.30
Person ......................................................................................
..............................7
2.31
Premises ..................................................................................
..............................7
2.32
Recyclable Material ................................................................
..............................7
2.33
Residential Premises ............................ I..................................
..............................7
2.34
Rolloff Box ....................... ............................... ....................
..............................7 '
2.35
Single Family Dwelling ..........................................................
..............................7
236
Solid Waste .............................................................................
..............................7
2.37
Solid Waste Handling Services ...............................................
..............................8
2.38
Special Wastes ........................................................................
..............................8
2.39
Temporary Service ..................................................................
..............................8
2.40
Term ........................................................................................
..............................8 i
2.41
Transformation ............................................. ...............................
.......................8 i
City Council Staff Report - Page 25 of 131
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Page
SECTION 3. GRANT OF EXCLUSIVE FRANCHISE FOR SOLID WASTE
HANDLING SERVICES FROM ALL RESIDENTIAL AND
COMMERCIAL PREMISES, AND FOR PROVIDING
TEMPORARY SOLID WASTE HANDLING SERVICE ..... ..............................8
3.1 Scope of Franchise .................................................................. ..............................8
3.2 Matters Excluded from Scope of Franchise ............................ ..............................9
SECTION 4. ENFORCEMENT OF EXCLUSIVITY ................................ .............................10
SECTION 5. ACCEPTANCE; WAIVER ................................................. ............................... 10
SECTION6. TERM .................................................................................... .............................10
SECTION 7.
CONDITIONS TO EFFECTIVENESS OF AGREEMENT . .............................11
7.1
Accuracy of Representation ................................................. ...............................
11
7.2
Absence of Litigation ............................................................. .............................I1
7.3
Furnishing of Insurance and Bond ....................................... ...............................
11
7.4
Effectiveness of City Council Action .................................... .............................11
7.5
Payment of Fees and Costs .................................................... .............................11
SECTION 8.
SOLID WASTE HANDLING SERVICES PROVIDED BY
CONTRACTOR.................................................................... .............................11
8 .1
General ................................................................................... .............................11
8 .1.1 Equipment .................................................................. .............................11
8.1.2 Disposal and Processing Facilities ............................. .............................12
8.1.3 Performance Standards .............................................. .............................12
8.I.4 Noise and Disruption ................................................. .............................12
8 .1.5 Collection Times ........................................................ .............................12
8.1.6 Collection Schedule ................................................... .............................12
8.1.7 Commingling of Routes ............................................. .............................13
8.1.8 Replacement of Containers ........................................ .............................13
8.1.9 Contractor's Containers .............................................. .............................13
8 .1.10 Missed Pick - ups ......................................................... .............................14
8.1.1 1 Record of Non - collect ion .................................!......... .............................15
8.2
Residential Solid Waste Handling Service ............................ .............................15
8.2.1 Single Family Dwellings — Automated Coll ection .... .............................15
8 .2.2 Walk -Out Service ...................:................................... .............................15
8.2.3 Recycling Program for Single Family Dwellings Using Carts ...............16
8.2.4 Curbside Grease Collection Program ......................... .............................16
8.2.5 Green Waste Program for Single Family Dwellings Using Carts ..........17
8.2.6 Multi - Family Dwelling Customers ............................ .............................17
8.2.7 Multi - Family Dwelling Recycling Program .............. .............................17
8.2.8 Bulky Item Service for Single Family Dwellings ...... .............................18
8.2.9 Bulky Item Service for Multi - Family Dwellings ....... .............................18
8.2.10 Multi - Family Dwelling Bulky Item Bins ................... .............................18
8.2.1 I Bulky Item Diversion ................................................. .............................19
8.2.12 Proper Handling of Bulky Items ................................ .............................19
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City Council Staff Report - Page 26 of 131
Page
SECTION 9. MINIMUM STANDARDS FOR CONTRACTOR'S SOLID WASTE
HANDLING SERVICE COLLECTION VEHICLES .......... .............................28
9.1 General ................................................................................... .............................28
91 Air Quality/Fuel Requirements .............................................. .............................28
9.3 Specific Requirements ........................................................... .............................28
9.4 Costs of Operation and Damages ........................................... ....................:........30
9.5 City Inspection ....................................................................... .............................31
9.6 Correction of Defects and Removal of Vehicles from Use within City .............31
SECTION 10. CONTRACTOR'S SOLID WASTE HANDLING SERVICE
PERSONNEL........................................................................ .............................31
10.1 Uniforms .............. ...................... .................. .... -------- * ........ ........ .......................31
-III-
City Council Staff Report - Page 27 of 131
8.2.13
Residential Sharps Collection Program ..................... .............................19
8.2.14
Residential Non - Controlled Medication Collection Program .................19
8.3
Commercial
Solid Waste Handling Services ......................... .............................20
8.3.1
Commercial Bins and Rolloff Boxes ......................... .............................20
8.3.2
Commercial Carts ...................................................... .............................20
8.3.3
Commercial Bulky Item Service ................................ .............................20
8.3.4
Commercial Recycling Services ................................ .............................20
8.4
Other Collection Programs As May Be Required by Law .... .............................21
8.5
Temporary Services ............................................................... .............................21
8.6
Recycling
Obligations and Public Education Program .......... .............................22
8.6.1
Minimum Requirements for Recyclable Materials, Green Waste
andRolloff Boxes ...................................................... .............................22
8.6.2
Extent of Applicable Franchise Rights ...................... .............................22
8.6.3
AB 939 Obligations, Guarantee, and Indemnification ............................22
8.6.3.1 Warranties and Representations ......... .............................22
8.6.3.2 Mutual Cooperation ........................... .............................23
8.6.3.3 Waste Reduction and Program Implementation .............23
8.6.3.4 Guarantee and Indemnification .......... .............................23
8.6.4
Waste Generation/Characterization Studies .............. .............................24
8.6.5
Implementation of Additional Diversion Services .... .............................24
8.7
Additional Services ................................................................ .............................25
8.7.1
Monitoring and Cleaning of Bin Enclosures ............. .............................25
8.7.2
Public Service Calls From City Departments ............ .............................25
8.7.3
Collection at City Sponsored Events ......................... .............................25
8.7.4
Recycling Assistance for Special Events ................... .............................25
8.7.5
City-Wide Sweep Program for Bulky I tems .............. .............................26
8.7.6
Holiday Trees ............................................................. .............................26
8.7.7
Handling of Electronic Waste... ..............................................................
26
8.7.8
Battery Drop Off Program ......................................... .............................26
83.9
Curbside Motor Oil Collection Program .................... .............................26
83.10
Block Watch Program ................................................ .............................27
8.7.11
City -Wide Clean Up Events ....................................... .............................27
8.7.12
Services for Public Trash Cans Along Streets and at Bus Stops ............27
8.8
Special
Services ..................................................................... .............................28
SECTION 9. MINIMUM STANDARDS FOR CONTRACTOR'S SOLID WASTE
HANDLING SERVICE COLLECTION VEHICLES .......... .............................28
9.1 General ................................................................................... .............................28
91 Air Quality/Fuel Requirements .............................................. .............................28
9.3 Specific Requirements ........................................................... .............................28
9.4 Costs of Operation and Damages ........................................... ....................:........30
9.5 City Inspection ....................................................................... .............................31
9.6 Correction of Defects and Removal of Vehicles from Use within City .............31
SECTION 10. CONTRACTOR'S SOLID WASTE HANDLING SERVICE
PERSONNEL........................................................................ .............................31
10.1 Uniforms .............. ...................... .................. .... -------- * ........ ........ .......................31
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City Council Staff Report - Page 27 of 131
E
Page
10.2
Identification of Employees ...................................................
.............................31
10.3
Employee List ........................................................................
.............................31
10 .4
Driver's License .....................................................................
.............................31
10.5
Screening of Field Employees ...............................................
.............................32
10.6
Discontinued Use of Unsatisfactory Employees ....................
.............................32
10.7
Training and Legal Compliance .............................................
.............................32
10 .8
Customer Service ...................................................................
.............................32
10.8.1 Local Office; Local Participation ...............................
.............................32
10.8.2 Telephone Customer Service Requirements ..............
.............................32
10.8.2.1 Toll Free Number ...............................
.............................32
10.8.2.2 Call Responsiveness ...........................
.............................33
10.8.3 Complaint Documentation .........................................
.............................33
10.8.4 Resolution of Customer Complaints. ..........................................
_ ......... 33
10.8.5 Government Liaison ...................................................
.............................34
10.9
Education and Public Awareness ...........................................
.............................34
10.9.1 General ....................................................................... .............................34
10.9.2 Written Program Materials ....................................... .............................34
10.9.3 Public Outreach .......................................................... .............................34
10.9.4 On -going Education Requirements ............................ .............................34
10.9.4.1 Annual Notices ................................... .............................34
10.9.4.2 How -To Brochure .............................. .............................35
10.9.4.3 Corrective Action Notice ................... .............................35
10.9.4.4 Contractor Representative .................. .............................35
10.9.4.5 Web Site Page... ..................... ...............
........................35
SECTION 1l
11.1
11.2
11.3
11.4
11.5
11.6
11.7
11.8
CONTRACTOR'S CONSIDERATION ..........................
Reimbursement of Negotiation Costs ..............................
Administrative Cost Reimbursement ...............................
Franchise Fee ....................... ...............................
11.3.1 Initial Franchise Fee .. ...............................
11.3.2 Monthly Franchise Fee ............................
Administrative Fee ................ ...............................
Services at City Facilities ...... ...............................
Recyclable Materials Revenue Sharing ...............
Annual Contribution to Community Programs....
Los Angeles Regional Agency Fee ......................
SECTION 12. CHARGE FOR LATE PAYMENTS
SECTION 13. CONTRACTOR'S BILLING SERVICES AND SYSTEMS ..................
13.1 Billing ......... ...............................
............................... ...............................
13.1.1 Suspension of Service Due to Non - Payment ....................
13.1.2 Unoccupied Premises ......................... ...............................
13.2 Minimum Requirements for Billing Statements ...........................
13.3 Billing System ................................................ ...............................
13.3.1 Computerization of Account Information .........................
13.3.2 Minimum Computer Programming Requirements ...........
�I$
W
...........38
...........38
...........39
.............39
.............39
.............40
.............40
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City Council Staff Report - Page 28 of 131
Ll
9
Page
SECTION 16. ASSIGNMENT, SUBLETTING, AND TRANSFER;
REQUIREMENTS AND LIMITATIONS ..................
16.1 General .......................................... ...............................
16.2 Assignment to be Broadly Interpreted .........................
16.3 Nature of Agreement - Personal to Contractor............
16.4 Procedure for Consideration of Assignment ................
... ............................... 45
........ ............................... 45
SECTION 17. REVIEW OF SERVICES AND PERFORMANCE .............. .............................47
17.1 Performance Hearing ............................................................. .............................47
17.2 Performance Satisfaction Survey ........................................... .............................48
SECTION 18.
13.3.3 Billing Inquiries ......................................................... .............................41
18.1
13.3.4 Distribution of Public Information ............................. .............................41
13.4
Payment, Accounting Systems ............................................... .............................41
18.3
13.4.1 Collection and Processing of Payments ..................... .............................41
18.4
13.4.1.1 Accounting and Deposit of Funds ...... .............................41
18.5
13.4.1.2 Allocation of Funds., .................. ....................................
41
SECTION 14.
FAITHFUL PERFORMANCE .............................................. .............................41
14.1
Surety ................................................................................... ...............................
41
14.1.1 Forfeiture of Surety .................................................... .............................42
14.1.2 Use of Surety by City ................................................. .............................42
- Page 29 of 131
14.2
Replacement Letter of Credit ................................................. .............................42
SECTION 15.
INSURANCE COVERAGE .................................................. .............................42
15.1
Minimum Scope of Insurance ................................................ .............................42
15.2
Minimum Limits of Insurance ............................................... .............................43
15.2.1 Comprehensive General Liability: ..........................................................
43
15.2.2 Automobile Liability: ........................................ .....................................
43
15.2.3 Workers' Compensation and Employers Liability: .................
............... 43
15.3
Deductibles and Self - Insured Retentions ............................... .............................43
15.4
Other Insurance Provisions .................................................... .............................43
15.4.1 General Liability and Automobile Liability Coverages ..........................43
15.4.2 Workers' Compensation and Employers Liability Coverage ..................44
15.4.3 All Coverages ............................................................. .............................44
15.5
Acceptability of Insurers ........:............................................... .............................44
15.6
Verification of Coverage ......................:................................. .............................44
15.7
Loss or Reduction in Insurance .............................................. .............................44
SECTION 16. ASSIGNMENT, SUBLETTING, AND TRANSFER;
REQUIREMENTS AND LIMITATIONS ..................
16.1 General .......................................... ...............................
16.2 Assignment to be Broadly Interpreted .........................
16.3 Nature of Agreement - Personal to Contractor............
16.4 Procedure for Consideration of Assignment ................
... ............................... 45
........ ............................... 45
SECTION 17. REVIEW OF SERVICES AND PERFORMANCE .............. .............................47
17.1 Performance Hearing ............................................................. .............................47
17.2 Performance Satisfaction Survey ........................................... .............................48
SECTION 18.
CITY'S REMEDIES; DEFAULT AND TERMINATION ... .............................48
18.1
Notice of Default ........................................:........................... .............................48
18.2
Failure to Cure ....................................................................... .............................48
18.3
Review by City Manager ....................................................... .............................49
18.4
City Council Review .............................................................. .............................49
18.5
Performance During Reviews ................................................ .............................49
18.6
Termination without Right to Cure ........................................ .............................49
18.7
Liquidated Damages .............................................................. .............................50
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City Council Staff Report
- Page 29 of 131
Page
18.7.1
General ....................................................................... .............................50
23.1
18.7.2
Service Performance Standards; Liquidated Damages for
23.2
Quarterly Reports ................................................................... .............................56
Failure to Meet Standards .......................................... .............................51
23.3
18.7.3
Calculations for Liquidated Damages ........................ .............................51
23.4
Number of Reports ................................................................. .............................57
18.7.3.1 Collection Reliabilit y ......................... .............................51
23.5
Adverse Information .............................................................. .............................57
18.73.2 Collection Quality .............................. .............................51
23.6
Disaster Plan .......................................................................... .............................58
18.7.3.3 Customer Responsiveness .................. .............................52
23.7
Failure to Report .................................................................... .............................58
18.7.3.4 Timeliness of Submissions to City .... .............................52
SECTION 24.
18.7.4
Process for Assessment of Liquidated Damages ....... .............................52
24.1
18.7.5
Timing of Payment .................................................... .............................53
24.2
SECTION 19. CONTRACTOR'S REMEDIES; ADMINISTRATIVE HEARING ..................53
19.1 Administrative Hearing .......................................................... .............................53
19.2 Other Remedies; Claims ........................................................ .............................53
19.3 Actions for Damages .............................................................. .............................54
SECTION 20. CITY'S ADDITIONAL REMEDIES .................................... .............................54
SECTION 21. RIGHTS OF CITY TO PERFORM DURING EMERGENCY .........................54
21.1 Provision of Service ............................................................... .............................54
21.2 Possession of Equipment ....................................................... .............................55
21.3 Exclusions from Right to Possession of Equipment without
Compensation........................................................................ ...........................:.55
SECTION 22. PRIVACY .............................................................................. .............................55
SECTION 23. REPORTS AND ADVERSE INFORMATION .................... .............................55
23.1
Monthly Reports .................................................................... .............................56
23.2
Quarterly Reports ................................................................... .............................56
23.3
Annual Reports ...................................................................... .............................56
23.4
Number of Reports ................................................................. .............................57
23.5
Adverse Information .............................................................. .............................57
23.6
Disaster Plan .......................................................................... .............................58
23.7
Failure to Report .................................................................... .............................58
SECTION 24.
COMPENSATION ................................................................ .............................58
24.1
Contractor Rates ..................................................................... .............................58
24.2
Resolution of Disputes Regarding Rate Adjustments ............ .............................58
24.3
Annual Consumer Price Index Adjustments .......................... .............................58
24.4
Limitations to Annual CPI Adjustments ................................ .............................59
24.4.1 Three Percent (3 %) Cap ............................................. .............................59
24.4.2 Compliance with Agreement ..................................... .............................59
24.5
Discretionary Adjustments ..................................................... .............................59
24.6
Grants ..................................................................................... .............................59
SECTION 25. IDENTIFICATION OF CONTRACTOR ............................. .............................60
SECTION 26. INDEMNIFICATION ............................................................ .............................60
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City Council Staff Report - Page 30 of 131
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26.1 General ............................................... ............................... .. .............................60
26.2 Hazardous Substances Indemnification ................................. .............................61
SECTION 27. CONTRACTOR'S BOOKS AND RECORDS; AUDITS .............
27.1 Maintenance and Inspection of Records ......... .........:.....................
27.2 CERCLA Defense Records ............................. ...............................
27.3 Ongoing Compliance Review ......................... ...............................
27.4 Audits .............................................................. ...............................
27.4.1 Examination of Services ..................... ...............................
27.4.2 Route Audit ...... ...............................
SECTION 28. TRANSITION OBLIGATIONS...
SECTION 29. GENERAL PROVISIONS .......................
29.1
Force Majeure ............ ...............................
29.2
Independent Contractor .............................
29.3
Pavement Damage ..... ...............................
29.4
Property Damage ....... ...............................
29.5
Right of Entry ............. ...............................
29.6
Law to Govern Venue
......65
........................... ............................... 66
........................... ............................... 66
............. ............................... .. .......... 66
... ...............................
29.7 Amendment .................... ...............................
29.8 Notices ........................... ...............................
29.9 Savings Clause ............... ...............................
29.10 Exhibits Incorporated
................ ............................ .............................................. oo
29.11 Joint Drafting .................................. ............................... .............68
........................
29.12 Attorneys' Fees and Litigation Costs ..................................... .............................68
29.13 City's Authorized Agent ................................... ................................................... 68
29.14 Integrated Agreement ............................................................. .............................68
29.15 Section Headings ................................................................... .............................69
29.16 Compliance with Law ..................................... ............................... .....69
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EXHIBIT A MAXIMUM RATE SCHEDULE FOR SOLID WASTE HANDLING
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SERVICES
EXHIBIT B
CONTAINER/BIN SPECIFICATIONS
EXHIBIT C
MULTI - FAMILY DWELLING RECYCLING PROGRAM
EXHIBIT D
COMMERCIAL RECYCLING PROGRAM
EXHIBIT E
BULKY ITEM SWEEP PROGRAM
EXHIBIT F
PUBLIC TRASH CAN LOCATIONS
EXHIBIT G
FACILITIES TO BE USED FOR DISPOSAL AND PROCESSING
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w
AGREEMENT
This Agreement ( "Agreement ") is entered into to be effective as of the 1st day of
November 2013, by and between the City of Lynwood ( "City") and [INSERT NAME OF
HAULER], ( "Contractor') (collectively, the "Parties ") to provide an exclusive franchise for Solid
Waste Handling Services within the City.
RECITALS:
A. The Legislature of the State of California, by enactment of the California
Integrated Waste Management Act of 1989 ( "AB 939 "), has declared that it is in the public
interest to authorize and require local agencies to make adequate provision for the disposal of all
Solid Waste within their jurisdictions.
B. Pursuant to California Public Resources Code Section 40059(a)(1), the City
Council of the City has determined that the public health, safety, and welfare require that an
exclusive franchise agreement be awarded to a qualified solid waste enterprise for Solid Waste
Handling Services within the City Limits.
C. City and Contractor are mindful of the provisions of the laws governing the safe
collection, transport, recycling, and disposal of Solid Waste, including AB 939, AB 341, the
Resource Conservation and Recovery Act ( "RCRA "), and the Comprehensive Environmental
Response, Compensation and Liability Act ( "CERCLA "). City and Contractor desire to leave no
doubts as to their respective roles, and to memorialize that by entering into this Agreement, City
is not thereby becoming an "arranger" or a "generator' as those terms are used in CERCLA, and
that it is Contractor, not City, who is "arranging for' the collection, transport for disposal,
composting, and recycling of municipal Solid Waste in the City which may contain hazardous
substances. 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 such Solid Waste in City , but rather intend that whatever, if any, title in
and to such Solid Waste that 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. By entering this Agreement City and Contractor further desire to confirm that
Contractor has agreed to indemnify the City in connection with any claims relating to the
inadvertent or intentional collection, transportation and/or disposal of hazardous materials that
may occur in connection with Contractors performance under this Agreement.
E. Contractor has agreed, as part of this Agreement, to provide such services as are
necessary or desirable to ensure City complies with the requirements of AB 939, AB and
Public Resources Code Section 40000, et seq
COVENANTS:
Based upon the foregoing Recitals and for good and valuable consideration, the receipt
and sufficiency of which is acknowledged by each of the Parties, City and Contractor hereby
agree as follows:
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SECTION 1.
RECITALS
The Parties acknowledge the above recitals are true and correct and incorporate them
herein as if they were fully restated.
SECTION 2.
DEFINITIONS
Whenever any term used in this Agreement has been defined by the California Public
Resources Code, the definition of such term set forth therein shall apply unless the term is
otherwise defined in this Agreement.
2.1 AB 341
"AB 341" shall mean Assembly Bill 341 from the 2011 -2012 Regular Session of the
California Legislature (Chapter 476, Statutes 2011).
2.2 AB 939
"AB 939" shall mean the California Integrated Waste Management Act of 1989, currently
codified as California Public Resources Code Section 40000 et sea ., as it may be amended from
time to time.
2.3 Affiliate
"Affiliate" means a business in which Contractor owns a direct or indirect ownership
interest, a business (including corporations, limited and general partnerships and sole
proprietorships) 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.
2.4 Animal Waste
"Animal Waste" shall mean animal carcasses, dead animals, and/or pans or portions of
dead animals. Animal Waste shall not include manure.
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2.5 Applicable Law
"Applicable Lave' shall mean all federal, state, county, and local laws, regulations, rules,
orders, judgments, decrees, permits, approvals, or other requirement of any governmental agency
having jurisdiction over an aspect of this Agreement that are in force on the Effective Date, and
as may be enacted, issued or amended thereafter, including without limitation City's Municipal
Code, AB 939 and AB 341.
2.6 Billings
"Billings" or "Billing" or "Bill" means the statements of charges provided to Customers
for services rendered by Company pursuant to the terms of this Agreement.
2.7 Bins
"Bins" shall mean a metal Container, including dumpsters, compactors, and any similar
such devices with a capacity of under ten (10) cubic yards.
2.8 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 with and without Freon, ranges,
washers, dryers, water heaters, dishwashers, plumbing, small household appliances and other
similar items, commonly known as "white goods "); residential wastes (including wood waste,
tree branches, scrap wood, in the aggregate not exceeding one cubic yard per Collection); and
clothing. For purposes of this Agreement, and notwithstanding any provision hereof to the
contrary, Bulky Items shall specifically include items commonly known in the waste industry as
"brown goods," "e- waste" and "universal waste" (including, without limitation all types of
electronic waste, stereos, televisions, computers and monitors, cellular phones, VCRs,
microwaves and other similar type of equipment and products), batteries, and fluorescent light
tubes. Bulky Items do not include car bodies, Construction and Demolition Debris or (with the
exception of appliances /white goods described above) items that cannot reasonably be moved
with equipment of the type which, pursuant to industry standards, would normally be carried in a
truck Collecting Bulky Items. In the event a question arises as to whether a specific item, or
category of items meets the defmition of Bulky Items, City shall be responsible to determine
whether said definition shall apply, which determination shall be final and binding on the Parties.
2.9 Cart
"Cart" means a plastic Container with a hinged lid and wheels serviced by an automated
or semi - automated process, as opposed to a manual process of lifting and dumping.
2.10 _City
"City" shall mean the City of Lynwood, a municipal corporation, located in Los Angeles
County, California.
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2.11 City Council
"City Council" shall mean the City Council of City.
2.12 City Limits
"City Limits" shall mean the territorial boundaries of the City together with all
amendments and changes thereto, which boundaries are depicted on maps, incorporated herein
by reference, that are kept on file in the office of the City Clerk of the City of Lynwood, and
which are from time to time amended to reflect changes.
2.13 City Manager
"City Manager" shall mean the City Manager of the City of Lynwood or his or her
designee.
2.14 Collect/Collection
"Collect" or "Collection' shall mean to take physical possession of, transport, and remove
Solid Waste from a premises.
2.15 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
Municipal Code, or otherwise, for purposes of this Agreement, Premises upon which hotels and
motels are operated and upon which Multi- Family Dwellings exist shall be deemed to be
Commercial Premises.
2.16 Container
"Container" means any and all types of Solid Waste receptacles, including Carts and
Bins.
2.17 Contractor
"Contractor" shall mean [INSERT NAME OF HAULER], the entity granted the franchise
pursuant to this Agreement, or any party permitted pursuant to the terms hereof permitted to
become the successor or assignee thereof.
2.18 Customer
"Customer" shall mean any person receiving Solid Waste Handling Services from
Contractor within the Franchise Area.
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2.19 Dwelling Unit
0
"Dwelling Unit" shall mean one or more rooms designed for occupancy by one family for
living and sleeping purposes and containing kitchen facilities or an area designed for the
preparation of food for use solely by one family.
2.20 Effective Date
"Effective Date" shall mean November V 2013,
2.21 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 §6901
et seq .; the Federal Clean Water Act, 33 USC §1251 et seq .; the Toxic Substances Control Act,
15 USC §2601 et seq .; the Occupational Safety and Health Act, 29 USC §651 et seq .; the
California Hazardous Waste Control Act, Califomia Health and Safety Code §25100 et seq .; the
Carpenter- Presley - Tanner 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 se g.; as currently in force or as hereafter amended, and all rules and regulations
promulgated thereunder.
2.22 Franchise Area
"Franchise Area" shall mean all Premises within the City Limits, including Premises
which may be annexed and thereby added to the City Limits following the Effective Date.
2.23 Franchise Fee
"Franchise Fee" shall mean the franchise fee set forth and more fully defined in Section
11 hereof.
2.24 Green Waste
"Green Waste" means tree trimmings, grass cuttings, dead plants, leaves, branches and
dead trees (not more than six (6) inches in diameter or 48 inches in length) and similar materials
as more fully described herein.
2.25 Gross Receipts
"Gross Receipts" shall mean and include all monies, fees, charges, consideration, and
revenue received, charged or imputed to Contractor and any Affiliate of Contractor, in
connection with, arising from, or in any way attributable to the Solid Waste Handling Services
carried out by or on behalf of Contractor pursuant to this Agreement. Gross Receipts includes,
without limitation, monthly Customer charges for Collection of Solid Waste, without subtracting
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Franchise Fees, fees imposed and collected pursuant to this Agreement, sums collected in
connection with Temporary Services; and transportation charges. Gross Receipts does not
include revenue from the sale of Recyclable Material, Green Waste, food waste, and other
material which is diverted from disposal. .
2.26 Hazardous Substance
"Hazardous Substance" shall mean any of the following: (a) any substances defined,
regulated or listed (directly or by reference) as "Hazardous Substances," "hazardous materials,"
"Hazardous Wastes." "toxic waste," "pollutant" 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 §5101, et se g.;
(iii) the Resource Conservation and Recovery Act, 42 USC §6901 et seq. (iv) the Clean Water
Act, 33 USC §1251 et se q.; (v) California Health and Safety Code §§25115-25117, 25249.8,
25281, and 25316; (vi) the Clean Air Act, 42 USC §7401 et se Q.; 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 (e) 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 laws or regulations, including any of
the 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.
2.27 Hazardous Waste
"Hazardous Waste" means all substances defined as Hazardous Waste, acutely Hazardous
Waste, or extremely Hazardous Waste by the State of California in Health and Safety Code
§25110.02, §25115, and §25117 or in the future amendments to or recodifications of such
statutes or identified and listed as Hazardous Waste by the US Environmental Protection Agency
(EPA), pursuant to the Federal Resource Conservation and Recovery Act (42 USC §6901
et se g.), all future amendments thereto, and all rules and regulations promulgated thereunder.
2.28 Multi - Family Dwelling
"Multi- Family Dwelling" means any building or lot containing more than one Dwelling
Unit at which Contractor determines (and City agrees) the Dwelling Units must receive Solid
Waste Handling Services through the use of shared Bins, since they are not reasonably able to
store Carts or otherwise receive individualized Solid Waste Handling Service through the use of
the automated Collection system utilizing Carts contemplated by this Agreement for Single
Family Dwellings. Unless otherwise determined as set forth above, any Premises upon which
four (4) or more Dwelling Units exists shall be deemed to be a Multi - Family Dwelling. Any
ambiguity as to whether a Customer's Premises qualifies for purposes of this Agreement as a
Single Family Dwelling or Multi - Family Dwelling shall be resolved by the City Manager whose
decision shall be final.
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2.29 Municipal Code
"Municipal Code" shall mean City's Municipal Code.
2.30 Person
`J
"Person" shall mean any individual, firm, association, organization, partnership,
corporation, business trust, joint venture, the United States, the State of California, the County of
Los Angeles, towns, cities, and special purpose districts.
2.31 Premises
"Premises" shall mean any land, building, and/or structure within the City Limits where
Solid Waste is generated or accumulated.
2.32 Recyclable Material
"Recyclable Material" or "Recyclables" shall mean that Solid Waste discarded within the
Franchise Area which is capable of being recycled, including Green Waste.
2.33 Residential Premises
"Residential Premises" shall mean all premises upon which Dwelling Units exist.
Notwithstanding any provision to the contrary herein, in the Municipal Code, or otherwise, for
purposes of this Agreement, Premises upon which hotels and motels are operated or upon which
Multi- family Dwellings exist shall be deemed to be Commercial Premises.
2.34 Rolloff Box
"Rolloff Box" means Solid Waste Collection Containers of ten (10) yards or larger,
including compactors.
2.35 Single Family Dwelling
"Single Family Dwelling" means a building or lot containing one Dwelling Unit, and for
purposes of this Agreement includes buildings and lots with more than one Dwelling Unit where
such Dwelling Units are determined by the City to be reasonably able to receive individualized
Solid Waste Handling Service by the automated process utilizing Carts contemplated herein.
Any ambiguity as to whether a Customers Premises qualifies as a Single Family Dwelling or
Multi - Family Dwelling shall be resolved by the City Manager whose decision shall be final.
2.36 Solid Waste
"Solid Waste" shall mean and include all discarded putrescible and nonputrescible solid,
semisolid, and liquid wastes, including garbage, trash, Refuse, rubbish, construction waste,
industrial waste, commercial Solid Waste, Bulky Items, and any other discarded solid, semisolid,
and liquid waste permitted to be disposed of at a Class III landfill and which are included within
the definition of "Nonhazardous Solid Waste" set forth in the California Code of Regulations, as
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if may be amended from time to time. Solid Waste does not include hazardous (Class I) waste,
low -level radioactive waste, untreated medical waste, or Special Wastes as defined herein.
2.37 Solid Waste Handling, Services
"Solid Waste Handling Services" means the Collection, transfer, transport, recycling,
processing, and disposal of Solid Waste.
2.38 Special Wastes
'Special Wastes" shall mean wastes other than Solid Waste including sewage, sludge,
industrial sludge, asbestos, auto bodies, tires, used motor oil, hazardous waste, Animal Waste,
explosive substances, radioactive materials, and other materials which may not be disposed of at
a Class III landfill or which require special handling.
2.39 Temporary Service
"Temporary Service" shall mean Solid Waste Handling Services provided by Contractor
on an as- needed and temporary basis to any Premises within the City in conjunction with
construction, demolition, cleanup or other projects, and by use of temporarily placed Bins or
Rolloff Boxes.
2.40 Term
"Term" shall have the meaning ascribed in Section 6 of this Agreement.
2.41 Transformation
"Transformation" means incineration, pyrolysis, distillation, gasification, or biological
conversion other than composting. "Transformation" does not include composting.
SECTION 3.
GRANT OF EXCLUSIVE FRANCHISE FOR SOLID WASTE
HANDLING SERVICES FROM ALL RESIDENTIAL AND
COMMERCIAL PREMISES, AND FOR PROVIDING
TEMPORARY SOLID WASTE HANDLING SERVICE
3.1 Scope of Franchise
Except as hereinafter expressly set forth, City hereby grants to Contractor and Contractor
hereby accepts from City, for the Term hereof, the exclusive contract, right, and privilege to
Collect, transport, and dispose of all Solid Waste generated or accumulated within the Franchise
Area. The exclusive franchise, right and privilege to provide Solid Waste Handling 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 or future enactments limit
the ability of City to lawfully grant Contractor the scope of services as specifically set forth
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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.
3.2 Matters Excluded from Scope of Franchise
Notwithstanding any other provisions set forth in this Agreement to the contrary, the
exclusive franchise granted herein shall exclude the Collection, transportation, recycling, and
disposal of:
(A) any Solid Waste otherwise within the scope of this Agreement which is
transported by a Self Hauler as that term is used in the Municipal Code, or any other City
ordinance, resolution, regulation or policy, as such may be adopted or amended from time
to time;
(B) the sale or donation of Recyclable Material by the person or entity that
generated such Recyclable Material (the "Generator ") to any person or entity other than
Contractor; provided, however, to the extent permitted by law, if the Generator is
required to pay monetary or non - monetary consideration for the Collection,
transportation, transfer, or processing of Recyclable Material to any person or entity other
than Contractor, the fact that the Generator receives a reduction or discount in price (or in
other terms of the consideration the Generator is required to pay) shall not be considered
a sale or donation;
(C) ' any Solid Waste otherwise within the scope of this Agreement which is
Collected or transported to a disposal or recycling facility by City employees in the
course and scope of their employment with City;
(D) the Collection, transportation, or disposal of Hazardous Waste; Universal
Waste; E- Waste; biohazardous waste; untreated medical waste; infectious waste; Animal
Waste; used cooking fats, oils, grease and similar waste; or other materials which do not
constitute Solid Waste;
(E) the Collection, transportation, and disposal of Construction and
Demolition Waste by a contractor, handyman, repairman, or other similar service
provider, using its own equipment, as an incidental part of the services provided to its
Customers, rather than as a hauling service, provided that such waste is not Collected or
transported by a third party hired for the primary purpose of Collecting and transporting
said materials;
(F) the Collection, transportation, and disposal of Green Waste and related
Solid Waste by a gardener, or landscaper, as an incidental part of the gardening or
landscaping services provided to its customers, rather than as a hauling service provided
that such Solid Waste is not collected or transported by a third party hired for the primary
purpose of Collecting and transporting said materials;
(G) Solid Waste Handling Services provided by any Person having a legal
right to continue doing so, pursuant to Public Resources Code Section 49520, et. seq., or
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otherwise, as long as and to the extent such legal right continues to exist; except that to
the degree any territory in which Contractor has a franchise granted by another
governmental entity is annexed into City during the Term, Contractor agrees the
provisions of this Agreement shall apply to such territory and further acknowledges that
this Agreement constitutes any notice required by the Public Resources Code in
connection therewith.
SECTION 4.
ENFORCEMENT OF EXCLUSIVITY
Contractor shall be responsible for enforcing the exclusivity of this Agreement. City
shall reasonably assist Contractor in its efforts to enforce the exclusivity hereof. In addition,
City shall adopt such ordinances or other regulations as it deems to be necessary or desirable to
protect the exclusive rights granted herein. City shall have the right, but not the obligation, to
enforce the exclusivity hereof, including by instituting appropriate legal proceedings, and/or to
request that Contractor do so. Contractor shall have an affirmative obligation to enforce such
exclusivity provisions when requested to do so by City. Contractor shall reimburse City for its
reasonable legal costs, extraordinary administrative costs (including staff time), or other
expenses incurred in connection with City's actions to either enforce the exclusivity hereof, or to
assist Contractor in doing so.
SECTION 5.
ACCEPTANCE; WAIVER
Contractor agrees to be bound by and comply with all the requirements of this
Agreement. Contractor waives Contractors right to challenge the terms of this Agreement under
Federal, State, or local law, or administrative regulation. Contractor waives any right or claim to
serve the City or any part of the City under any prior grant of franchise, contract, license, or
permit issued or granted by any governmental entity including any right under Section 49520 of
the Public Resources Code.
SECTION 6.
TERM
The term of this Agreement (the "Term ") sh'all be for an approximate seven (7) year
period of time commencing on November 1, 2013, and ending at midnight on June 30, 2020,
unless this Agreement is terminated sooner pursuant to Section 18 hereof, or otherwise. The
City Council shall have the option to extend the Term of this Agreement for three additional
years such that it expires at midnight on June 30, 2023. Prior to exercising this option, the City
Council shall review a performance review which the City Manager is hereby authorized to
conduct during fiscal year 2018 -2019 after receiving an advance deposit, in an amount subject to
the City Manager's reasonable determination, to cover the cost of such review from Contractor.
Contractor shall be responsible for all costs of such performance review, and said performance
review will be separate from and in addition to the performance review set forth in Section 17. If
the City Council does not exercise the option to extend the Term as set forth above, as evidenced
by a formal action of the Council taken in a duly noticed open meeting, on or before December
31, 2019, said option shall expire and this Agreement shall automatically terminate at midnight
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on June 30, 2020. While it is the intent of the City Council to exercise the forgoing option to
extend the Term absent a negative performance review, the decision to exercise said option shall
be subject to the City Council's sole, absolute and unfettered discretion.
SECTION 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:
7.1 Accurate of Representation
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 of this Agreement.
7.2 Absence of Litigation
There shall be no litigation pending in any court challenging the award of this Franchise
to Contractor or the execution of this Agreement or seeking to restrain or enjoin its performance.
7.3 Furnishing of Insurance and Bond.
Contractor shall have furnished evidence of the insurance and Surety required by
Sections 14 and 15 hereof, and shall comply with all ongoing requirements relating thereto.
7.4 Effectiveness of City Council Action
The City Council's Resolution approving this Agreement shall have become effective
pursuant to California law.
7.5 Payment of Fees and Costs
Contractor shall have made payment to City of all fees, costs and other payments due as
more fully set forth in Section 11.
SECTION 8.
SOLID WASTE HANDLING SERVICES
PROVIDED BY CONTRACTOR
8.1 General
8.1.1 Equipment
Contractor shall furnish all labor, supervision, materials, supplies, and equipment
necessary to provide for all services required by the terms of this Agreement.
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8.1.2 Disposal and Processing Facilities
Contractor has provided a list of facilities that it intends to use for the disposal,
processing, and/or reuse of Solid Waste and Recyclable Materials Collected pursuant to this
Agreement, which is attached hereto as Exhibit G and incorporated herein by reference.
Contractor shall not utilize other facilities for these purposes without first updating Exhibit G and
obtaining the prior written consent of the City Manager, which consent shall not be unreasonably
withheld.
8.1.3 Performance Standards
Contractor shall perform Solid Waste Handling Services as required hereunder in a
workmanlike manner consistent with good housekeeping standards and all relevant provisions of
Applicable Law.
8.1.4 Noise and Disruption
Contractor shall perform Solid Waste Handling Services as required hereunder in such a
manner as to minimize noise and other disruptive impacts including, without limitation, those
upon traffic. Contractor shall use its best efforts to coordinate its Collection schedules such that
street sweeping on any given street shall occur the business day following Collection of Solid
Waste by Contractor.
8.1.5 Collection Times
Contractor shall not commence Solid Waste Handling Services for Customers at
Commercial Premises (excepting Multi - Family Dwellings) until 6:00 a.m. and for Customers at
Residential Premises and at Multi- Family Dwellings until 7:00 a.m., nor shall such activities
occur after 7:00 p.m. for Customers at Commercial Premises (excepting Multi - Family
Dwellings) and 6:00 p.m. for Customers at Residential Premises and at Multi - Family Dwellings.
The City Manager may require Contractor.to comply with time frames applicable to Residential
Premises in connection with Solid Waste Handling Services for Customers at Commercial
Premises whose premises are in close proximity to Residential Premises. Solid Waste Handling
Services at Residential Premises and at Multi - Family Dwellings shall not occur on Saturday's;
excepting Temporary Bin Services and Collection occurring on Saturdays following such
holidays as may be approved by the City Manager. No Solid Waste Handling Services shall
occur on Sundays at Residential Premises or. at Multi- Family Dwellings, except in exceptional
circumstances for which specific approval is given by the City Manager. Except as noted herein,
Solid Waste Handling Services may occur at Commercial Premises on Sundays; provided,
however, no such service shall occur on Sundays in connection with any Premises at which the
City Manager determines such service would be contrary to the public interest.
8.1.6 Collection Schedule
Contractor shall establish Collection routes and a Collection schedule which shall be
approved by the City Manager such that Customers at all Residential and Commercial Premises
within the City will have not less than one established Collection day each week. Contractor j
shall provide notice to each Customer of its established Collection day(s), and shall provide at
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least one week's notice to Customers of any change in their established Collection day(s).
Notwithstanding any provision herein to the contrary, should any established Collection date fall
on a legal holiday, or on any other holiday which is observed by either a landfill or other lawful
disposal site to which Solid Waste is taken for disposal, or a recycling facility to which
Recyclable Material is taken, Contractor shall provide for Collection one (1) day later during the
pick -up week, and the regular pick -up schedule shall be resumed the following week. A pick -up
week shall be defined as Monday through Saturday. Contractor may not change its established
Collection schedules without obtaining the prior written consent of the City Manager.
8.1.7 Commingling of Routes
Contractor shall not during its Collection process commingle Solid Waste Collected
hereunder with Solid Waste Collected in any other City, or on behalf of any other entity
operating or existing within City that is not subject.to this Agreement, and is specifically
prohibited from combining Collection routes related to services provided pursuant to this
Agreement with Collection routes for other jurisdictions it may service.
8.1.8 Replacement of Containers
Contractor shall, whenever possible, place Carts in the street gutter, adjacent to the curb,
upon completing Collection. Contractor shall replace all Bins in the location upon the property
of each Customer utilizing Bins designated for storage of Bins, and shall secure gates, doors,
and/or enclosures when applicable.
8.1.9 Contractor's Containers
(A) Contractor's Containers shall meet the minimum standards set forth on the
attached Exhibit B.
(B) Contractor shall be responsible to maintain and replace, as necessary, all
of its Containers.
(C) All Contractor's Containers shall be maintained by Contractor in good
repair, and any question as to the meaning of this standard shall be resolved by the City
Manager.
(D) Contractor shall deliver Containers to each Customer at no additional
charge.
(E) Contractor shall ensure it maintains an accurate list that contains the total
number of Carts at each service address and the serial number associated with each Cart
located at such address. Contractor shall keep this list up to date at all times, provide it to
City upon request, and shall include a current updated list with each annual report as set
forth in Section 23.3. In addition, Contractor shall provide this list to City within thirty
(30) days of the Effective Date of this Agreement.
(F) All Carts shall be maintained by Contractor in a watertight condition, as
shall all Bins which are used primarily for the disposal of Solid Waste containing liquids.
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(G) Contractor shall replace any damaged Carts at no charge to Customers,
provided, however, Contractor shall be entitled to charge Customers for the replacement
of any Cart that has been damaged by a Customer, ordinary wear and tear excepted, with
such charges being subject to the City Manager's approval.
(H) Contractor shall replace any lost or stolen Carts within three business
days, at no cost to Customers. Contractor shall only be obligated to replace a lost or
stolen Cart for a Customer at no charge two times during the Term hereof For each
replacement of a lost or stolen Cart thereafter, Contractor shall be entitled to charge
Customers provided the rates charged by Contractor shall be subject to the City
Manager's approval.
(I) Contractor shall at Customer's request annually refurbish, replace, and
steam clean as necessary all Bins and Rolloff Boxes at no charge to Customers; provided,
however, City may require the steam cleaning or replacement of Bins utilized at
restaurants, bars and grocery stores /markets more frequently if it determines such action
is needed to protect public health and safety. Additional steam cleaning shall be provided
to any Customers who request it at a charge not to exceed the maximum rate set forth in
Exhibit A hereto, or alternatively Contractor shall provide a replacement Bin/Rolloff Box
to Customers at no charge.
(J) Contractor shall remove any graffiti that appears on its Containers within
twenty -four (24) hours after becoming aware of it.
(K) All Bins and Rolloff Boxes shall be kept freshly painted in a uniform
fashion and shall be identified with Contractor's name and phone number in letters not
less than three inches high on its exterior so as to be visible when the Container is placed
for use.
(L) At a Customer's request, Contractor shall provide Bins with locking lids
and locks and may charge rates to Customers for locking Bins which do not exceed the
maximum rates set forth on Exhibit A.
8.1.10 Missed Pick -ups
In case of a missed pick -up called in by a Customer, Contractor shall Collect Solid Waste
and Recyclable Material from such Customer no later than the next day of the pick -up week
following the date of the call. Records of the addresses of all missed pick -ups shall be
maintained by Contractor, and shall be reported to City upon request. If Contractor demonstrates
to the satisfaction of the City Manager a pattern of ongoing late "set- outs" by a given Customer,
missed pick -ups resulting from late set -outs by that Customer shall not be counted as missed
pick -ups in evaluating Contractor's performance hereunder. The Customer service phone system
required by Section 10.8.2 hereof is intended, among other things, to serve as a '`hotline" for
Customers to call in the event Solid Waste placed for Collection is not Collected by Contractor
and to facilitate having such Solid Waste Collected as soon as reasonably possible, and in no
event later than as required by the provisions hereof.
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8.1.11 Record of Non - collection
As more fully set forth herein, Contractor shall Collect all Solid Waste placed for
Collection by Customers in Containers, excepting materials that do not meet the definition of
Solid Waste (such as hazardous materials) or which are commingled with such materials.
Whenever Contractor determines not to Collect any Solid Waste deposited for Collection,
Contractor shall leave a tag at least 2" by 6" in size, indicating the reason for Contractor's refusal
to do so. This information may be either handwritten or left by means of a check system (i.e.,
checking off boxes on a preprinted form). The tag shall provide Contractor's business name and
its local telephone number and shall be securely fastened to the Container or the article refused.
Contractor shall maintain a record of all such taggings at its place of business. Such record shall
contain the date of such notice, street address, reason for non - collection, and a summary of any
communications between Contractor and the Customer involved. Such notice shall be retained
so that it may be inspected by representatives of City upon request.
8.2 Residential Solid Waste Handling Service
8.2.1 Single Familv Dwellin¢s — Automated Collection
Contractor shall provide each Customer at a Single Family Dwelling with one Cart
designated for the Collection of mixed Solid Waste (a Refuse Cart). Contractor shall provide
each such Customer with a ninety -six (96) gallon Refuse Cart, excepting that any Customer
requesting a smaller Refuse Cart(s) shall be provided with a thirty-five (35) gallon Refuse Cart
instead. Contractor shall Collect all Solid Waste placed out for Collection in a Refuse Cart by
each Customer at a Single Family Dwelling not less than once per week using an automated
Collection system at rates that do not exceed the maximum rates set forth in Exhibit A. Upon
request from any Customer at a Single Family Dwelling, Contractor shall provide such Customer
with one or more additional Refuse Carts, and shall Collect all Solid Waste placed for Collection
in such additional Refuse Carts at rates that do not exceed the maximum rates set forth in Exhibit
A. Wherever feasible, Customers shall be directed by Contractor to place Carts for Collection
either in the street gutter, against the curb, in front of their Premises, or adjacent to their Premises
in the alley or easement in the rear of their Premises. If a Customer and Contractor cannot agree
upon a Collection location, or if City determines the selected location may cause safety or other
concerns, City may make the final determination of the Collection location. It is the intent of the
parties that the services provided under this Agreement will result in an automated Collection
system that includes source separation of recyclable materials. Accordingly, if Solid Waste is
routinely placed for Collection other than in a Refuse Cart, Contractor shall work with the
Customer involved to determine if the Customer is in need of additional or larger Refuse Carts.
The City Manager is authorized to require Contractor to deliver additional Refuse Carts to any
such Customers or to require such other action of Contractor as is reasonably deemed necessary
to ensure the Collection system, including specifically the recycling programs, contemplated by
this Agreement is achieved.
8.2.2 Walk -Out Service
Contractor shall provide eligible Customers with "walk -out service" as set forth in this
paragraph at no additional charge. This service shall require Contractor to use its own forces to
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bring a Customer's Carts from a Customer's backyard, side yard, or such other location at which
the Customer's Containers are regularly stored, to Contractor's Collection Vehicle; and, after
disposal of the contents thereof, returning said Containers to the location where they are
regularly stored. To be eligible for this service a Customer shall have a DMV issued disabled
person placard/license plates, and provide a letter to Contractor from a physician confirming the
Customer is unable to move his/her Carts to the curb, and that to the best of the physician's
knowledge there is no other capable persons living in the Customer's household to provide this
service. Contractor may require each eligible Customer to provide a new letter from a physician
on an annual basis in order to maintain eligibility for walk -out service. Any dispute regarding a
Customer's eligibility for walk -out service shall be resolved by the City Manager. Contractor
may provide Customers who are not eligible for free walk -out service pursuant to the forgoing
with walk -out service at a rate which shall not exceed the maximum rate set forth in Exhibit A.
Contractor may require as a condition of walk -out service that a Customer sign a standardized
agreement, the terms of which shall be subject to City's approval, which authorizes entry onto the
Customer's property and holds Contractor harmless from liability (including specifically liability
related to pets escaping) associated with Contractor providing such service.
8.2.3 Recycling Program for Single Family Dwellings Using Carts
Contractor shall provide each Customer at a Single Family Dwelling with one (1) ninety-
six (96) gallon Cart designated for the Collection of Recyclables (a Recycling Cart) at no
additional charge. Any Customer requesting smaller Recycling Cart(s) shall be provided with a
thirty-five (35) gallon Recycling Cart(s) by Contractor instead of the standard ninety -six (96)
gallon Cart noted above. Upon request from any Customer at a Single Family Dwelling,
Contractor shall provide such Customer with one or more additional Recycling Carts at no
additional charge. Contractor shall Collect Recyclable Material placed in Recycling Carts for
Collection from each Customer at a Single Family Dwelling on the same day as such Customer's
Refuse Cart is Collected, utilizing an automated Collection process. Customers shall be directed
to place Recycling Carts in the same location for Collection as Refuse Carts. At a minimum the
following materials shall be allowed to be deposited by Customers for Collection in Recycling
Carts aluminum cans; glass jars and bottles; bi- metal, and tin cans; empty aerosol containers;
polyethylene terephthalate plastic ( "PET "); high density polyethylene plastic ( "HDPE "); plastics
types 3 — 7; plastic bags, shrink wrap, plastic toys and tools, and other plastic materials (if readily
identifiable as being recyclable); juice boxes and milk cartons (aseptic packaging, Tetra Pak
and waxed cardboard); coat hangers and metal foil; newspaper; mixed paper (e.g., ledger,
computer,junk mail, magazines, paperback books cereal boxes, envelopes, paper shopping bags
and non - metallic wrapping paper); corrugated cardboard; and telephone books.
8.2.4 Curbside Grease Collection Program
If ever required by the applicable sanitation district, or other regulatory agency,
Contractor shall design a program for the collection of grease, fat, oils and similar waste
generated from household cooking activities (the "Curbside Grease Collection Program ") that the
City Manager finds satisfactory and approves. Contractor shall be responsible to ensure the
Curbside Grease Collection Program complies with all applicable laws and regulations. At such
time as (if) a Curbside Grease Collection Program is implemented, Contractor and City shall
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meet and confer in good faith to determine a fair and reasonable adjustment to the maximum
rates set forth on Exhibit A in order to compensate Contractor for implementing such a program.
8.2.5 Green Waste Program for Single Family Dwellings Using Carts
Contractor shall provide all Customers at Single Family Dwellings to whom it provides
Refuse Carts, with a ninety-six (96) gallon Cart for Collection of commingled green waste (a
"Green Waste Cart") at no additional charge. Any Customer requesting a smaller Green Waste
Cart(s) shall be provided with a thirty -five (35) gallon Green Waste Cart(s) by Contractor instead
of the standard ninety-six (96) gallon Cart noted above. Upon request from any Customer at a
Single Family Dwelling, Contractor shall provide such Customer with one or more additional
Green Waste Carts at no additional charge. Contractor shall Collect Green Waste placed in
Green Waste Carts for Collection from each Customer on the same day as such Customers'
Refuse Cart is Collected, using an automated collection process. Customers shall be directed to
place Green Waste Carts in the same location for Collection as Refuse Carts.
8.2.6 Multi - Family Dwelling Customers
Contractor shall comply with all requirements applicable to Commercial Customers, set
forth below, in connection with Multi - Family Dwellings, and further shall comply with the
specific provisions contained herein related to such Dwellings. Contractor shall provide all
Customers at Multi - Family Dwellings with Bins meeting the minimum standards set forth in
Exhibit B for the Collection of mixed Solid Waste ( "Refuse Bins "), and shall Collect all Solid
Waste placed therein for Collection not less than once per week, at rates that do not exceed the
maximum rates set forth in Exhibit A. Contractor shall provide a number of Bins reasonably
needed for Solid Waste Collection at each Premises at which Multi - Family Dwellings exist
bearing in mind both the number of Dwellings and space limitations. Contractor shall endeavor
to provide at least one (1) Refuse Bin for every ten (10) Dwelling Units located at each Multi -
Family Dwelling. If warranted by specific circumstances, and upon written approval of the City
Manager, at any given Multi - Family Dwelling Refuse Carts may be utilized instead of Refuse
Bins, and/or the minimum number of Refuse Bins /Carts may be adjusted. The size of Refuse
Bins utilized, and the frequency of their Collection, shall be mutually agreed upon by Contractor
and its Customers, except that Collection shall occur not less than one time per week and City
shall have the right to impose minimum requirements for Bin sizes and more frequent Collection
should it determine such action is needed to protect public health, safety and welfare. In the
event of any dispute as to the adequacy of the number of Bins at any given Multi - Family
Dwelling, the City Manager shall have the ability to approve the number of Refuse Bins used at
such location. In the event extra pickups are required at a Multi - Family Dwelling in any given
month, Contractor may charge the Person who manages or owns the Multi - Family Dwelling for
such pickups an amount that does not exceed the maximum rate for "extra dumps" as set forth in
the attached Exhibit A.
8.2.7 Multi - Family Dwelling Recycling Program
Contractor shall offer and provide a recycling program to all Customers at Multi - Family
Dwellings (the "Multi- Family Dwelling Recycling Program ") that at a minimum meets the
standards required under AB 341, and results in the diversion of not less than 20% of the waste
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stream Collected at Multi - Family Dwellings. Contractor's Multi- Family Dwelling Recycling
Program is more fully set forth in Exhibit C. Contractor shall produce, keep current, and provide
public information specifically outlining its Multi - Family Dwelling Recycling Program, which
shall specifically include the annual publication and distribution of a brochure describing this
service to all applicable Customers in City.
8.2.8 Bulky Item Service for Single Family Dwellings
Contractor shall provide Bulky Item Collection services to residents living at all Single
Family Dwellings in City at no charge on an on -call basis. The no- charge Bulky Item Collection
service set forth in this Section shall only apply with respect to Bulky Items generated at the
Dwelling Unit at which the Customer calling for service resides and is limited to up to five (5)
items per scheduled pick up. In order to receive such service, residents shall provide Contractor
with notice by phone of the number and type of Bulky Items to be collected. Bulky Item
Collection service calls shall be responded to within a reasonable time but not longer than three
(3) business days from the date of the Customer's call for service. Contractor shall produce, keep
current, and provide public information specifically outlining its Bulky Item Collection service,
which shall specifically include the annual publication and distribution of a brochure describing
this service to residents of all Single Family Dwellings in City. Contractor may charge rates for
the Collection of each Bulky Item in excess of five (5) that do not exceed those set forth on
Exhibit A.
8.2.9 Bulky Item Service for Multi - Family Dwellings
Residents at Multi- Family Dwellings shall receive the same unlimited Bulky Item
Collection services as Single Family Dwellings as set forth in Section 8.2.8 above. Should an
apartment manager, property manager, or the owner of a Multi - Family Dwelling contact
Contractor for Bulky Item Collection in connection with Bulky Items not generated at the
Dwelling Unit at which such person actually resides, Contractor shall provide Bulky Item
Collection Service in the same manner as to other Commercial Premises as set forth in Section
8.3.3 below. Contractor shall produce, keep current, and provide public information specifically
outlining its Bulky Item Collection service, which shall specifically include the annual
publication and distribution of a brochure describing this service to residents of all Multi- Family
Dwellings in City. .
8.2.10 Multi - Family Dwelling Bulky Item Bins
Contractor shall provide all Multi - Family Dwellings with one Bin designated for Bulky
Item Collection for every 20 Dwelling Units ( "Bulky Item Bin "). The size of Bulky item Bins
utilized; and the frequency of their Collection, shall be mutually agreed upon by Contractor and
its Customers, except that Collection shall occur not less than one time per week. The City
Manager shall have the right to impose minimum requirements for Bin sizes and more frequent
Collection in connection with any Customer should it determine such action is needed to protect
public health, safety and welfare. In the event Contractor or one of its Customers asserts that
requiring all or some of the Bulky Item Bins set forth in this provision at a given Multi - Family
Dwelling is unreasonable due to the lack of space, the City Manager shall have the ability to
approve a reduction (including a complete elimination) of the Bulky Item Bin requirements at
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such location. Contractor may charge rates for Bulky Item Bins that do not exceed the maximum
rates for such service as set forth on the attached Exhibit A.
8.2.t1 Bulky Item Diversion
Bulky Items Collected pursuant to this Agreement may not be landfilled until the
following hierarchy of diversion efforts has been followed by Contractor:
a. Reuse as is (if energy efficient);
b. Disassemble for reuse or Recycling;
C. Recycle, Transformation, other means of diversion; and
d. 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. The disposition
of Bulky Items shall be tracked by Contractor and this information shall be included in
Contractor's quarterly reports to City.
8.2.12 Proper Handling of Bulky Items
Contractor shall properly handle all materials required to be collected as Bulky Items,
including specifically items that require special handling pursuant to the Environmental Laws,
such as materials that constitute "universal waste" and/or "e- waste."
8.2.13 Residential Sharps Collection Program
Contractor shall design and implement at no cost to all Residential Customers a program
for the collection of used needles (the "Sharps Collection Program ") that the City Manager finds
satisfactory and approves. Contractor shall be responsible to ensure the Sharps Collection
Program complies with all Applicable Laws. It is anticipated that any Sharps Collection
Program at a minimum will allow for Customers to mail used needles to a specific collection
location, in specialized packaging with pre -paid postage provided by Contractor.
8.2.14 Residential Non - Controlled Medication Collection Program
If requested to do so by City, or otherwise required by law, Contractor shall design and
present a program to City for the collection of unused non - controlled medicines (the "Non -
Controlled Medication Collection Program ") that the City Manager finds satisfactory and
approves. Contractor shall be responsible to ensure any Non - Controlled Medication Collection
Program complies with all Applicable Laws. It is anticipated that any Non - Controlled
Medication Collection Program at a minimum will allow for Customers to mail unused
medication (excepting controlled substances) to a specific Collection location, in specialized
packaging provided by Contractor, and/or deliver unused medication (excepting controlled
substances) to a location in or near City designated by Contractor. At such time as (if) a Non -
Controlled Medication Collection Program is implemented, Contractor and City shall meet and
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confer in good faith to determine a fair and reasonable adjustment to the maximum rates set forth
on Exhibit A in order to compensate Contractor for implementing such a program.
8.3 Commercial Solid Waste Handling Services
8.3.1 Commercial Bins and Rolloff Boxes
Contractor shall provide all Customers at Commercial Premises ( "Commercial
Customers ") with at least one Bin and/or Rolloff Box for Collection of mixed Solid Waste, and
shall Collect all Solid Waste placed therein for Collection not less than once per week, at rates
that do not exceed the maximum rates set forth in Exhibit A. Contractor shall provide additional
Containers to Customers and shall provide additional Collections upon request, or as may be
required by City's Municipal Code, health and safety requirements, or by the City Manager, and
may charge rates for such services which do not exceed the maximum rates set forth in Exhibit
A. Bins and Rolloff Boxes shall be Collected by Contractor from the location upon each
Customer's property designated for their storage, and replaced to that location with gates and/or
doors secured, as applicable, after Collection is completed, unless different arrangements are
agreed upon by the Customer and Contractor.
8.3.2 Commercial Carts
As an alternative to the requirements of Section 8.3.1, Contractor shall offer Collection in
96 gallon Refuse Carts to Commercial Customers that do not have space for, or do not generate
enough waste to require the use of Bins for Collection. Rates for Customers receiving such
service shall not exceed the maximum rates set forth on Exhibit A. 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, City shall make the final
determination as to whether Collection in a Refuse Carl may occur.
8.3.3 Commercial Bulky Item Service
Contractor shall provide unlimited Bulky Item Collection services to Commercial
Customers on an on -call basis. Contractor may charge rates for such services which shall not
exceed the maximum rates set forth in the attached Exhibit A. Bulky Item Collection service
calls shall be responded to within a reasonable time but not longer than seven (7) days from the
date of the Customer's call for service. Contractor shall produce, keep current, and provide
public information specifically outlining the Bulky Item pick -up service. Bulky Items Collected
pursuant to this Section are subject to the diversion and handling requirements set forth in
Sections 8.2.11 and 8.2.12.
8.3.4 Commercial Recycling Services
Contractor shall offer and provide a commercial recycling program (the "Commercial
Recycling Program ") that at a minimum meets the standards required under AB 341. and results
in the diversion of not less than 30% of the waste stream Collected from Commercial Premises
(excepting Multi - Family Dwellings). Contractor's Commercial Recycling Program is more fully
set forth in Exhibit D. Contractor shall produce, keep current, and provide public information
specifically outlining its Commercial Recycling Program, which shall specifically include the
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annual publication and distribution of a brochure describing this service to all applicable
Customers in City.
8.4 Other Collection Programs As May Be Required by Law
In the event CalRecycle, or any Federal, State, or Local law or regulation, imposes upon
City or Contractor a requirement for the implementation of any source separated program for the
Collection of any waste material (whether or not meeting the definition of Solid Waste
hereunder) not already covered by this Agreement, whether Commercial or Residential in nature,
Contractor shall design and present a program to City to comply with such requirement, which
program shall meet the City Manager's reasonable approval. Excepting with respect to programs
which are required due to Contractor's failure to achieve the diversion requirements set forth
herein (which programs are subject to Section 8.6.5), at such time as (if) any such program is
implemented, Contractor and City shall meet and confer in good faith to determine a fair and
reasonable adjustment to the maximum rates set forth on Exhibit A in order to compensate
Contractor for implementing such a program.
8.5 Temporary Services
Contractor shall provide Temporary Services on an on call basis to any Customer
requesting such service pursuant to the following conditions:
(A) Bins and Rolloff Boxes utilized in connection with Temporary Services
shall meet the minimum standards set forth herein.
(B) No charges excepting rates not exceeding the maximum rates set forth in
the attached Exhibit A related to Bins or Rolloff Boxes utilized in connection with
Temporary Services shall be imposed by Contractor, unless approved in accordance with
Section 8.8 (Special Services).
(C) Temporarily placed three (3) cubic yard Bins may be used for small
cleanup type projects at Residential Premises; provided, however, Bins used for such
purposes shall not remain at the same address for a period that exceeds four consecutive
weeks. Bins used for Temporary Service shall not remain in any public rights -of -way for
a period exceeding two consecutive weeks. Bins may not be placed in any public rights -
of -way so as to create a safety hazard or so as to block any right -of -way to a degree that it.
is not reasonably usable. Bins placed in City's rights -of -way shall be subject to such
requirements as may be imposed by City, and at a minimum shall be equipped with
reflectors, reflective tape, reflective paint, or other reflective devises which, to the
satisfaction of the City Manager, make such Bins reasonably visible to vehicle traffic at
night.
(D) At any such times as City may have in place an ordinance regulating the
recycling and disposal of construction and demolition waste, Contractor agrees to comply
with all provisions of any such ordinance, and to provide services for construction
contractors in City as may be contemplated by any such ordinance at no charge (such as
assistance in preparing plans for the collection, recycling and disposal of construction and
demolition waste). Moreover, during the pendency of any such ordinance, Contractor
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shall be responsible to provide any administrative support as may be requested by City
which is necessary to implement such ordinance.
(E) In addition to complying with any related requirements that may exist in
any ordinance which may be in effect in City regulating construction and demolition
waste, including specific diversion levels that may be required by any such ordinance,
Contractor shall make all reasonable efforts to recycle all construction and demolition
waste it Collects, especially to the degree such loads contain clean inert materials.
Towards this end, Contractor shall make available to Customers involved in construction
separate containers within which to Collect different types of marketable materials, such
as dirt, steel, concrete and wood.
8.6 Recycling Obligations and Public Education Program
8.6.1 Minimum Requirements for Recyclable Materials, Green Waste and Rolloff
Boxes
Contractor shall utilize a truck dedicated for the purpose of Collecting Green Waste from
Customers, such that Green Waste which has been separated prior to Collection, once Collected,
is not commingled with other Solid Waste (including Recyclable Material). Similarly,
Contractor shall utilize a truck dedicated for the purpose of Collecting Recyclable Materials,
such that Recyclable Material Collected in Recycling Carts or Recycling Bins, once Collected, is
not commingled with other Solid Waste (including Green Waste). All material Collected by
Contractor in Recycling Carts or Bins pursuant to this Agreement shall be delivered to a properly
permitted facility for recycling and reuse purposes. All Green Waste separated prior to
Collection and thereafter Collected by Contractor pursuant to this Agreement (including
specifically materials Collected in Green Waste Carts and Holiday Trees) shall be delivered to a
properly permitted facility for recycling, mulching, composting, or alternative uses for which
diversion credit is provided as may be approved by CalRecycle. All Rolloff Boxes, whether for
Commercial Customers or Temporary Service shall be delivered to a properly permitted facility
for recycling and reuse purposes.
8.6.2 Extent of Applicable Franchise Rights
Nothing in this Agreement shall be construed as giving Contractor the right to Collect
Recyclable Material which has not been discarded and placed for Collection by Contractor in the
location designated for that purpose.
8.6.3 AB 939 Obligations, Guarantee, and Indemnification
8.6.3.1 Warranties and Representations
Contractor warrants and represents that it is aware of and familiar with City's Source
Reduction and Recycling Element (the "SRRE "), that it is familiar with City's waste stream, and
that it has the ability to and will provide sufficient programs and services to ensure City will
meet or exceed the diversion goals (including, without limitation, amounts of Solid Waste to be
diverted, time frames for diversion, and any other requirements) set forth in AB 939 and AB 341,
and all amendments thereto, and that it shall do so without imposing any costs or fees other than
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those set forth on the attached Exhibit A (including if it implements new programs to achieve
such goals which are not called out herein). Contractor specifically acknowledges that the City's
current mandated diversion goal as set forth pursuant to the applicable laws is 50% but that
commencing on January 1, 2020, this diversion goal shall increase to 75 %.
8.6.3.2 Mutual Cooperation.
City and Contractor shall reasonably cooperate in good faith with all efforts by each other
to meet City's diversion and other compliance requirements imposed by AB 939, AB 341 and
other Applicable Laws. In this regard, City's obligations shall include, without limitation,
making such petitions and applications as may be reasonably requested by Contractor for time
extensions in meeting diversion goals, or other exceptions from the terms of AB 939, AB 341
and other Applicable Laws.
8.6.3.3 Waste Reduction and Program Implementation
Contractor shall implement the programs identified in the Source Reduction and
Recycling Element (SRRE) and Household Hazardous Wastes Element (HHWE) of the City's
General Plan immediately upon the Effective Date hereof, and will implement any programs
required by any amendments or modifications thereto. Contractor shall provide City with
monthly, quarterly and annual written reports in a form adequate to meet City's AB 939 and AB
341 related filing and reporting requirements to CalRecycle and to the County of Los Angeles
throughout the Term of this Agreement wherein City's performance under the above programs
shall be set forth in detail. Contractor shall be responsible to prepare, or assist City with the
preparation of, all reports and other information as may be required by any agency, including
specifically, the State of California, in order to comply with AB 939 and/or AB 341. Contractor
shall reimburse City for any costs City incurs in appearing before CalRecycle and/or the County
of Los Angeles in relation thereto.
8.6.3.4 Guarantee and Indemnification
Contractor warrants and guaranties that it will, carry out its obligations under this
Agreement such that: (i) both it and City will at all times be in compliance with the requirements
of all Applicable Laws including specifically AB 939 and AB 341, and (ii) 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, AB 341 and
all amendments thereto. In this regard Contractor agrees that it will, in addition to any other
requirement contained herein, at its sole cost and expense:
(A) to the extent legally permitted, defend, with counsel approved by City,
indemnify, and hold harmless City and City's officials, employees, and agents from and
against all fines and/or penalties and other liabilities which may be imposed by
CalRecycle or any other regulatory agency if: (1) Contractor fails or refuses to timely
provide information relating to its operations which is required pursuant to this
Agreement or any Applicable Law and such failure or refusal prevents or delays City
from submitting reports required by Applicable Law in a timely manner; or (2) the source
reduction and recycling goals, diversion goals, program implementation requirements, or
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any other requirements of Applicable Law are not met with respect to the waste stream
Collected under this Agreement;
(B) assist City in responding to inquires from CalRecyle;
(C) assist City in preparing for, and participating in, any review of City's
SRRE pursuant to Applicable Law;
(D) assist City in applying for any extension, including under Public
Resources Code Section 41820, if so directed by City;
(E) assist City in any hearing conducted by CalRecycle relating to City's
compliance with Applicable Laws;
(F) assist City with the development of and implement a public awareness and
education program that is consistent with the City's SRRE and Household Hazardous
Waste Element, as well as any related requirements of Applicable Law;
(G) provide City with recycling, source reduction, and other technical
assistance related to compliance with the Applicable Laws;
(H) defend, with counsel acceptable to City, City and City's officials,
employees, and agents against the imposition of fines and/or penalties, or any other
liabilities, issued by CalRecycle pursuant to AB 939;
(1) be responsible for and pay, any fees, penalties or other costs imposed
against the City by CalRecycle, and indemnify and hold harmless City from and against
any fines, penalties, or other liabilities, levied against it for violation of AB 939's
diversion requirements, or violation of any other provision of the Applicable Laws,
arising from or in any way related to Contractor's performance of its obligations under
this Agreement.
8.6.4 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 to satisfy the requirements of AB 939.
8.6.5 Implementation of Additional Diversion Services
In the event City does not meet the current diversion goal of 50% imposed by AB 939 or
the 75% diversion goal of AB 341 when applicable with respect to all waste generated in City,
City may direct Contractor to perform additional services (including the implementation of new
diversion programs) or modify the manner in which it performs existing services, and Contractor
agrees to do so at no additional charge. Pilot programs and innovative services which may entail
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new Collection methods, and use of new or alternative waste processing and disposal
technologies are included among the kinds of changes which City may direct.
8.7 Additional Services
As part of the consideration for entering this Agreement, Contractor shall provide the
following additional services at no charge, and shall not adjust its rates to Customers to offset
costs incurred in providing any of the following services:
8.7.1 Monitoring and Cleaning of Bin Enclosures
Contractor shall work with the City Manager in identifying and resolving continual
problems with overflowing Bins or Bin enclosures, and/or other unsanitary conditions caused by
Customers. Contractor shall clean out any overflowing Bins or Bin enclosures within City
within twenty-four (24) hours of notification by City. Contractor may bill Customers for any
such services when they are required by City at rates subject to approval by City.
8.7.2 Public Service Calls From City Departments
Contractor shall, free of charge, respond to calls from City's Maintenance and Code
Enforcement Divisions and from its Police Department, to provide Containers and dispose of
Bulky Items and other Solid Waste as a result of illegal or unauthorized dumping, or other Code
enforcement matters, occurring within City. Contractor agrees that if requested to provide such
services in connection with abatement activities for which reimbursement is sought from the
property owner by City through abatement liens or otherwise, Contractor will provide billing
information sufficient for City to include it in its liens, and Contractor will be paid at such time
as the abatement lien is paid, or reimbursement is otherwise obtained by City from the property
owner. Upon receipt of a call for service from City made pursuant to this Section, Contractor
shall advise City within four (4) hours as to when service will be provided, and unless otherwise
agreed by City service shall be provided within 72 hours.
8.7.3 Collection at City Sponsored Events
Contractor shall provide Solid Waste and Recyclable Materials Collection at all City
sponsored or supported non - profit events. The number, type and service requirements for these
events may vary from year to year. This service shall include providing servicing and storing
Containers (cardboard boxes, Carts, Bins and/or Rolloff Boxes) to Collect and Dispose of all
Solid Waste Collected, and providing, servicing and storing Containers to Collect and process
source - separated Recyclable Materials. Contractor shall provide these services at no cost to the
City or the event sponsors_
8.7.4 Recycling Assistance for Special Events
Contractor shall assist persons designated by City (whether City employees or private
individuals) who are responsible to coordinate special events or events in large venues (such as
concerts or sporting events) in the implementation of recycling programs. Contactor shall be
responsible to prepare and submit to City a "waste reduction and recycling plan" prior to such
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events, and within 30 days following each such event shall submit a waste characterization report
listing the amount of each material collected for disposal and recycling at the event.
8.7.5 City -Wide Sweep Program for Bulky Items
In addition to the Bulky Items Collection services set forth above, Contractor shall design
and implement a Bulky Item Sweep Program for Residential Premises including all Multi - Family
Dwellings (the "Bulky Item Sweep Program "). The Bulky Item Sweep Program shall, at a
minimum, divide the City into sections and result in sweeps in each section at least once per
month such that the entire City receives a sweep at least once per month. The Bulky Item Sweep
Program will further allow residents to place Bulky Item's for Collection on the designated day
of the sweep of their area such that the Bulky Items can be Collected without the need for a
resident to call in for such service. Contractor's Bulky Item Sweep Program, contemplated as of
the Effective Date, is more fully set forth in Exhibit E which is attached hereto and incorporated
herein, and which may only be amended with the written consent of the City Manager.
Contractor shall produce, keep current, and provide public information specifically outlining its
Bulky Item Sweep Program, which shall specifically include the annual publication and
distribution of a brochure describing this service to all Residential Customers in City.
8.7.6 Holiday Trees
For a reasonable period (as determined by City) following December 25th each year,
Contractor shall, free of charge, pick up all Holiday Trees placed out for Collection by
Customers_ Such trees shall not be comingled with other Solid Waste and shall be delivered to a
proper facility for processing, rather than disposal, as required by the provisions hereof.
8.7.7 Handline of Electronic Waste
Contractor shall Collect electronic waste, or "e- waste," and/or universal waste, from any
Customer in the manner set forth herein, but shall handle and dispose of such materials in
accordance with all Applicable Laws.
8.7.8 Battery Drop Off Program
Contractor shall manage the City's existing battery drop off program at City facilities, at
no charge. Contractor shall handle and dispose of batteries Collected in accordance with all
Applicable Laws.
8.7.9 Curbside Motor Oil Collection Program
Contractor shall upon request manage grant funds received by City for a curbside motor
oil program, and create and implement a program for curbside collection of motor oil ( "Curbside
Motor Oil Program ") to the satisfaction of the City Manager which may take such funds into
account. At a minimum, the program shall allow Customers to phone in requests that motor oil
to be collected, and provide for technical support and materials (such as containers for used oil.)
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8.7.10 Block Watch Program
Contractor shall provide up to twenty -four (24) Rolloffs per year for Collection of Solid
Waste for City's existing Block Watch Program, and shall provide Solid Waste Handling
Services in connection therewith. Contractor shall work with the City Manager to create written
guidelines satisfactory to the City Manager for the distribution of such Rolloffs.
8.7.11 Citv -Wide Clean Up Events
Contractor shall promote and conduct at least two Bulky Item and Solid Waste drop -off
events (clean-up days) per year at no cost to City. Contractor shall obtain prior approval for the
date of the events (typically on a Saturday) from City, and for the location of the events. On
event day, Contractor shall accept all Solid Waste and Bulky Items dropped off by City
residents. Residency will be proved by driver's license, utility bills, or other method approved
by City. Contractor may impose the following restrictions on material Collected:
No single item that cannot be handled by two workers will be accepted.
The following items will not be Collected: Hazardous Substances, Hazardous
Waste, including waste oil or anti- freeze; concrete and dirt; excepting that all
materials defined as Bulky Items, including televisions, monitors and other items
referred to as "e- waste," shall be Collected by Contractor and be properly handled
in accordance with all Applicable Laws.
Contractor shall record by class and weight (in tons) the Solid Waste Collected during the
cleanup events. Contractor shall record the types and weights (in tons) of Solid Waste diverted
during these cleanups from the landfill through recycling, reuse, Transformation or other means
of diversion.
8.7.12 Services for Public Trash Cans Along Streets and at Bus Stops
As of the Effective Date, City has eighty Three (83) Solid Waste Collection Containers
( "Public Trash Cans ") placed along streets and generally at bus stops throughout City. Three
times per week during the Term hereof Contractor shall, at its expense: (1) provide Solid Waste
Collection services for each Public Trash Can; (2) change the liner in each Public Trash Can; (3)
clean the inside, outside and lid of each Public Trash Can in a manner reasonably satisfactory to
City; and (4) clean up any Solid Waste that has been discarded next to or generally around each
Public Trash Can in a manner reasonably satisfactory to City. The forgoing services shall be
provided on a schedule to be submitted to the City Manager for approval, and unless otherwise
agreed shall occur at least once on every Monday, Wednesday and Friday. Contractor shall
provide Containers of a design satisfactory to the City Manager to be used as Public Trash Cans
at any location designated by the City, and shall be responsible to replace lost, damaged or stolen
Public Trash Cans. City may change the schedule for the forgoing services to be provided at an
Public Trash Cs from time to time and may change, increase or decrease the locations for
Public Trash Cans. Notwithstanding any provision herein to the contrary, Contractor shall only
be responsible for providing Public Trash Cans, and the above noted services at Public Trash
Cans at no charge for a maximum of 100 locations. A list of locations designated for Public
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Trash Cans as of the Effective Date, including locations at which Public Trash Cans are currently
missing and need to be provided by Contractor, is attached hereto as Exhibit F.
8.8 Special Services
Contractor may provide special pickup procedures or services in addition to the services
described herein for Customers who request or require such services at reasonable rates
established by Contractor, which rates are subject to approval by the City Manager. Contractor
shall notify the City Manager of any such services prior to such time as they are provided in
order to allow the City an opportunity to conduct necessary inspections, review the proposed
rate, and impose appropriate regulations.
SECTION 9.
MINIMUM STANDARDS FOR CONTRACTOR'S SOLID
WASTE HANDLING SERVICE COLLECTION VEHICLES
9.1 General
Contractor shall provide vehicles for the Collection of Solid Waste ( "Collection
Vehicles ") 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. Upon or prior to the
Effective Date of -this Agreement and prior to the start of any extension period of this Agreement
pursuant to Section 6, Contractor shall provide City with a report containing the information
required under South Coast Air Quality Management District's Rule 1193(d)(7).
9.2 Air Quality /Fuel Requirements
Contractors Collection Vehicles shall comply with all rules and regulations of the South
Coast Air Quality Management District, the Air Resource Board, and any other regulatory body
that may be in effect during the term of this Agreement, as well as other Federal, State and local
laws and regulations that may be enacted during the term of this Agreement. Contractor's
Collection Vehicles shall meet or exceed such air quality standards as may be adopted by the
forgoing regulatory bodies during the Term. Contractor's Collection Vehicles shall comply with
the requirements in the South Coast Air Quality Management District's Rule 1 193 regardless of
whether Contractor would otherwise not be subject to Rule 1 193 according to the "Applicability"
determination in Rule 1 I93(b) or as otherwise stated in Rule 1193.
9.3 Specific Requirements
Each Collection Vehicle utilized by Contractor in the performance of this Agreement
shall meet the following minimum standards:
(A) Each Collection Vehicle shall consist of an engine manufactured no earlier
than in 2010 and a chassis manufactured no earlier than in 2011.
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(B) Each Collection Vehicle must be fueled by Compressed Natural Gas
( "CNG ").
(C) Each Collection Vehicle shall be registered with the California
Department of Motor Vehicles.
(D) Each Collection Vehicle shall be inspected regularly by Contractor to
ensure it meets the requirements of the California Vehicle Code and the California
Highway Patrol. Contractor shall provide copies of its Biannual Inspection of Terminal
( "BIT ") inspection reports to City within 30 days of its receipt of such reports and shall
make all records related to its vehicles, including Contractor's maintenance records,
available to City upon request by the City Manager.
(E) Each Collection Vehicle shall be equipped with devices capable of
covering every open section of the vehicle in which Solid Waste may be placed and,
while operating upon the public rights -of -way, shall be covered so as to prevent any Solid
Waste from falling or being blown or otherwise dislodged from the vehicle.
(F) Each Collection Vehicle shall be continuously maintained so as to both:
(1) meet the highest industry standards with regards to efforts to prevent liquid from
leaking and to the degree possible ensure each Collection Vehicle is "watertight" and
"leak- proof' and, (2) at all times comply with the provisions of all laws and regulations
including the Vehicle Code and any applicable NPDES permit, with regard to materials
leaking from Collection Vehicles. Contractor shall be responsible to promptly clean any
spillage or Solid Waste that leaks or otherwise escapes the vehicle.
(G) Each Collection Vehicle shall be painted periodically, and not less than
once every two years, which shall include all necessary body work, and shall be regularly
cleaned, so that such vehicles do not become unsightly, as determined by the City
Manager. Each vehicle shall be painted with Contractor's colors and identifying
information as required herein.
(H) Contractor's name, local or toll free telephone number, and a vehicle
number shall be visibly printed or painted in letters not less than five (5) inches in height
on both sides of each Collection Vehicle. Any other information or signage printed,
painted, or displayed on Contractor's Collection Vehicles, when such Vehicles are
providing Collection services within City Limits, shall be subject to approval by City.
(1) Contractor shall allow City, at no additional charge, to place City
advertisements related to City and City sponsored events on Contractor's Vehicles while
such Vehicles are providing Collection services within City Limits.
(J) Each Collection Vehicle shall be maintained in a clean and sanitary
condition both inside and out.
(K) Each Collection Vehicle shall carry a broom, shovel, and operable fire
extinguisher, and shall be equipped with a communication device sufficient to allow the
driver to communicate directly with Contractor's dispatcher and/or main office.
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(L) Each Collection Vehicle shall be kept in good repair and working order,
and shall be equipped with appropriate safety equipment, including any new safety
related technologies that become standard in the waste industry, and at a minimum shall
have a video monitor based back -up system, or its equivalent. Contractor shall keep a
sufficient supply of replacement parts and equipment on hand to ensure adequate vehicle
maintenance and timely and continuous performance of the services contemplated by this
Agreement.
(M) 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 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 keep accurate records of all Collection Vehicle
maintenance and repair, recorded according to date and mileage, including signed
verifications that repairs and maintenance has been properly performed, and shall make
such records available to City upon request.
(N) No Collection Vehicle shall be utilized if it is leaking brake, hydraulic, or
other fluids, and Contractor shall clean up any leaks or spills from their vehicles per the
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.
(0) 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, ID number, date of
acquisition, type and capacity.
(P) Contractor shall utilize Collection Vehicles of a size, weight, nature, and
type so as to not be unreasonably intrusive on the community with respect to noise,
emissions, maneuverability, safety, and other factors and to avoid or minimize pavement
damage and wear and tear of the street or adjacent properties, as approved by the City
Manager.
(Q) Contractor shall not load Collection Vehicles in excess of the
manufacturer's recommendations or limitations imposed by state or local laws or
regulations. Noise levels of equipment used for Collection shall not exceed 75db
(seventy -five decibels) when measured at a distance of twenty -five (25) feet from the
vehicle, five (5) feet from the ground.
9.4 Costs of Operation and Damages
Contractor shall be responsible for any costs incurred in connection with ensuring all
Collection Vehicles comply with all applicable laws and regulations, including without limitation
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any such laws and regulations that may now exist or hereinafter be adopted relating to noise,
fuels, emission standards, or weight limits.
9.5 City Inspection
City may cause or require any Collection Vehicle used in performance of this Agreement
to be inspected and tested at any time and in such manner as may be appropriate to determine
that the vehicle is being maintained in compliance with the provisions of this Agreement.
9.6 Correction of Defects and Removal of Vehicles from Use within City
Contractor agrees to immediately remove from service, and replace or repair, to the City's
satisfaction, any Collection Vehicle which City determines to be of unsightly appearance, unsafe,
unsanitary, leaking, out of compliance with any law or regulation or this Agreement, or
otherwise in an unsatisfactory operating condition; and any such vehicle shall not be returned to
service until the City Manager gives his written consent for its return.
SECTION 10.
CONTRACTOR'S SOLID WASTE HANDLING
SERVICE PERSONNEL
10.1 Uniforms
Each of Contractor's Collection employees shall wear a clean uniform bearing the
Contractor's name.
10.2 Identification of Employees
Contractor shall provide identification badges, cards or similar devices, for all of its
employees, and all authorized subcontractors, who may make personal contact with residents of
the City. City may require Contractor to notify Customers yearly of the form of said
identification.
10.3 Employee List
Contractor shall provide a list of current employees and authorized subcontractors to City
upon request.
10.4 Driver's License
Each employee operating a vehicle as part of his or her duties shall, at all times, carry a
valid operator's license for the type of vehicle he or she is operating. All employees who may
have contact with Customers in the course of performing their duties shall possess the ability to
communicate effectively with Customers.
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10.5 Screening of Field Employees.
Contractor shall make reasonable efforts to determine if its employees working in the
field (i.e., drivers of Collection Vehicles, and employees otherwise involved in Collection at
Customer Premises) have been convicted of a felony, and shall identify any such employees
known to it to City. City shall have the ability to require that any employee so identified by
Contractor not work in the field within City.
10.6 Discontinued Use of Unsatisfactory Employees
No employee shall continue to have any involvement whatsoever with regard to any work
in anyway relating to or arising from this Agreement if City gives notice to Contractor that such
employee is determined by City to be discourteous, disorderly, inefficient, or otherwise
objectionable (provided the term "otherwise objectionable" shall not permit City to "ban" an
employee for reasons that violate public policy; and, further, City shall give a reason for
requesting the "ban" of any employee from engaging in work related to this Agreement).
10.7 Training and Legal Compliance
Contractor shall provide operating and safety training that meet minimum OSHA
standards for all personnel, and shall comply with all laws and regulations applicable to its
employees and personnel.
10.8 Customer Service
10.8.1 Local Office• Local Participation
Contractor maintains an office located at . No change in this location shall
occur without City's approval if such change would result in Contractor not having an office
within _ miles of City's City Hall. Said office shall be open at a minimum, from 8:00 a.m. to
5:00 p.m. Monday through Friday, and 8:00 a.m. to 12:00 p.m. Saturday, holidays excepted. At
least one responsible and qualified representative of Contractor, capable of communicating in
English and Spanish, shall be present and available during all times that an office is required to
be open as noted above ( "Office Hours "), for personal communication with the public regarding
billing, complaints, customer service inquiries, etc. and a similarly qualified person shall be
available for communication with the public by phone during any, times other than Office Hours
when Collection is occurring.
10.8.2 Telenhone Customer Service Requirements
10.8.2.1 Toll Free Number
Contractor shall maintain a toll free telephone number that rings at an office
within Los Angeles County at all times during Office Hours. Both English and Spanish
speaking personnel will be available during Office Hours to assist Customers with
telephonic inquiries. Contractor shall have the ability (through the use of outside
resources or otherwise) to communicate with Customers who only speak Spanish to
ensure their inquiries, questions, complaints and other matters are dealt with in a
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reasonably timely fashion. All such personnel shall be polite and responsive, and shall be
sufficiently knowledgeable, and have the authority to respond and/or advise Customers
seeking assistance. Contractors telephone system shall be adequate to handle the volume
of calls typically experienced on the busiest days. Contractor shall provide City with a
24 -hour emergency number to a live person, not voice -mail.
10.8.2.2 Call Responsiveness.
Contractor shall make reasonable attempts to answer all phone calls within five
(5) rings. If a call has been placed on hold for three (3) minutes, the caller will either be
switched to a message center which shall be responsible to obtain the caller's address and
phone number, or a Customer service representative will obtain the Customer's address
and a number at which the call can be returned. Contractor shall make at least three
attempts within the next twenty -four (24) hour period to return the call, with the first such
attempt not more than one (1) hour after the caller leaves the message. If Contractor is
unsuccessful in contacting the Customer after following this procedure, it shall send a
letter to the caller indicating its efforts.
10.8.3 Complaint Documentation
All service complaints shall be directed to Contractor. 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 complaining party, 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. All written Customer complaints and inquiries shall be date - stamped
when received. All complaints shall be initially responded to within one (1) business day
(Monday through Friday) of receipt. Contractor shall log action taken to respond to and remedy
the complaint. Daily logs of complaints shall be retained for a minimum of twenty-four (24)
months. 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 provide to City on a monthly,
quarterly, and annual basis, a complaint log, in a form satisfactory to the City, that includes all of
the complaints logged pursuant to this Section, the complainant and the resolution.
10.8.4 Resolution of Customer Complaints
Disputes between Contractor and its Customers regarding the services provided in
accordance with this Agreement may be resolved by the City. The City's decision shall be final
and binding. Should Contractor and Customers not be able to establish a mutually acceptable fee
to be charged for special services as set forth in Section 8.8, the matter shall be dealt with
pursuant to this Section, be determined by the City, and the City's decision shall be final.
Intervention by the City is not a condition precedent to any rights or remedies third parties might
otherwise have in any dispute with Contractor_ Nothing in this Section is intended to affect the
remedies of third parties against Contractor.
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10.8.5 Government Liaison
Contractor shall designate in writing a "Government Liaison" who shall be responsible
for working with City and/or City's designated representative(s) to resolve Customer complaints.
City shall have the right to approve the Contractor's choice for a liaison. It is anticipated that the
Government Liaison will regularly attend City events involving community outreach programs
and wilt routinely attend City Council meetings.
10.9 Education and Public Awareness
10.9.1 General
Contractor acknowledges and agrees that education and public awareness are critical, key
and essential elements of any efforts to achieve the requirements of AB 939. Accordingly,
Contractor agrees 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.
10.9.2 Written Program Materials
Contractor shall maintain a program of providing information relevant to needs and
methods to reduce, reuse and recycle Solid Waste, and City upon request from City may include
such information along with bills provided to Customers. All public education materials shall be
approved in advance by City. Contractor shall keep a record of all promotional and public
education materials utilized, and shall provide quarterly reports summarizing its public outreach
and education efforts.
10.9.3 Public Outreach
At a minimum, Contractor shall conduct school assemblies and promote recycling
through presentations and educational materials to the Chamber of Commerce, homeowners
associations, construction contractors and other civic groups. , Contractor shall also provide
articles on recycling for local newsletters.
10.9.4 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 both English and Spanish languages, and all written materials shall
be approved by City in advance of distribution, and shall bear the City seal, unless otherwise
approved by the City:
10.9.4.1 Annual Notices
Not less than once each year 'during the Term of this Agreement, Contractor shall
prepare and distribute to each Customer a brochure providing relevant information about
Contractor's services, including, at a minimum: information regarding access to and use
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of available services; Collection schedules; holiday Collection schedules; Contractor's
Customer service numbers; procedures to begin and terminate services; and information
promoting and explaining available programs, such as Recycling, Green Waste, Holiday
Tree and Bulky Item Collections, the availability of Household Hazardous Waste and
e -waste Collection, and the proper handling and disposal of such wastes.
10.9.4.2 How -To Brochure
Contractor will prepare and distribute a brochure packet to new Customers when
they start service. This packet will contain updated information on how to use the
Contractor- provided Carts, when, where and how to place Solid Waste for Collection,
and who to contact with service or Billing questions.
10.9.4.3 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.
10.9.4.4 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 and other programs that Contractor offers, and
participate in demonstrations, and civic events.
10.9.4.5 Web Site Page
Contractor shall dedicate one page of its web site to City services, which shall
include at least the following information: a listing of contact names and numbers for
Customer Service; information on Bulky Item Collection; Collection schedules, including
holiday schedules; and the procedures to begin and terminate services. During the fast
six months following the implementation of new services hereunder, this web page shall
also provide information explaining the new service, and the proper use of Carts.
Contractor shall assist the City in establishing a link to this web page from the City's web
site.
SECTION 11.
CONTRACTOR'S CONSIDERATION
In addition to any other consideration set forth herein, as part of its consideration for
entering this Agreement, and for the exclusive franchise, right and privilege to provide Solid
Waste Handling Services within City as specified herein Contractor shall provide the following:
11.1 Reimbursement of Negotiation Costs
Contractor shall pay to City a one -time lump sum payment to reimburse the City for its
actual staff expenses and out -of- pocket costs (including specifically consultant and legal fees) it
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incurred in connection with the Request for Proposals ( "RFP ") process for Solid Waste Handling
Services, the negotiation of this Agreement, and ultimate award of this Agreement. City shall
provide an invoice to Contractor for the amount due pursuant to this Section and the outstanding
amount shall be paid by Contractor within thirty (30) days of being invoiced by City.
11.2 Administrative Cost Reimbursement
On or before July 1, 2014, and on or before July 1 each year thereafter, Contractor shall
make a payment to City in the amount more fully set forth in this paragraph intended to defray its
administrative costs related to this Agreement (the "Administrative Cost Reimbursement "). The
amount of the annual Administrative Cost Reimbursement shall be the sum of. (1) Fifty
Thousand Dollars ($50,000.00) [adjusted annually by the change in the Consumer Price Index
for the 12 month period ending the preceding March 31, for All Urban Consumers,
CUURA421SAO not seasonally adjusted, all items index (CPI -U) — Los Angeles County,
Riverside County, Orange County average], intended for use with ongoing compliance review as
noted in Section 27.3; plus (2) City's actual legal fees and out of pocket costs incurred in the
administration of this Agreement, including fees and costs associated with analyzing new
legislation, considering requests from Contractor (including specifically, without limitation,
requests for rate increases), and otherwise analyzing issues that arise in connection with this
Agreement. Commencing with the payment due July 1, 2014, invoices for the Administrative
Cost Reimbursement will be provided to Contractor by City and shall be due to City within thirty
(30) days of the date such invoice is mailed by City, or on July 1, whichever comes later. If any
invoice for the Administrative Cost Reimbursement is not timely paid by Contractor, and in
addition to any other remedy provided by law, Contractor shall pay to City a penalty in an
amount equal to ten percent (10 %) per month, or portion thereof, of the amount owing until paid.
11.3 Franchise Fee
11.3.1 Initial Franchise Fee
Contractor shall pay to City an initial one -time lump sum fee of $ ( "Initial
Franchise Fee ") as consideration for the award of this Agreement. The Initial Franchise Fee
shall be due on or before the Effective Date of this Agreement.
11.3.2 Monthly Franchise Fee
Contractor shall pay to City, a franchise fee equal to fifteen percent (15 %) of Contractor's
annual Gross Receipts each year, or portion thereof, during the entire Term of this Agreement
(the "Franchise Fee "). Said Franchise Fee shall be paid to City monthly on or before the
fifteenth (15th) day of each month. Should any such due date fall on a weekend or holiday in
which the City's business offices are closed, payment shall be due on the first day thereafter in
which the City's business offices are open. The amount of each payment shall be equal to fifteen
percent (15 %) of Contractors Gross Receipts in the calendar month preceding the date payment
was due. The Franchise Fee due hereunder shall apply to Gross Receipts of Contractor collected
after the expiration of the Term hereof relating to Contractor's performance during the Term
hereof. Franchise Fees shall be accompanied by a statement certified by an officer of Contractor
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attesting to the accuracy of the amounts paid, and setting forth the basis lbr their calculation in a
manner acceptable to City.
11.4 Administrative Fee
Contractor shall pay - to City, an administrative fee equal to seven percent (7 %) of
Contractor's annual Gross Receipts each year, or portion thereof, during the entire Term of this
Agreement (the "Administrative Fee "). Said Administrative Fee shall be paid to City monthly on
or before the fifteenth (15th) day of each month. Should any such due date fall on a weekend or
holiday in which the City's business offices are closed, payment shall be due on the first day
thereafter in which the City's business offices are open. The amount of each payment shall be
equal to seven percent (7 %) of Contractor's Gross Receipts in the calendar month preceding the
date payment was due. The Administrative Fee due hereunder shall apply to Gross Receipts of
Contractor collected after the expiration of the Tetra hereof relating to Contractor's performance
during the Term hereof. Administrative Fees shall be accompanied by a statement certified by
an officer of Contractor attesting to the accuracy of the amounts paid, and setting forth the basis
for their calculation in a manner acceptable to City.
11.5 Services at City Facilities
Contractor shall provide Collection services at all Premises owned and/or operated by the
City, at no cost to City and shall provide Containers for such service as City deems appropriate
for each of its various Premises (i.e., Carts, Bins or Rolloff Boxes). Such services shall be
provided for all existing City facilities, as they may be expanded from time to time, as well as all
new or additional facilities acquired/constructed during the Term hereof at no additional cost.
Contractor shall carry out its obligations pursuant to this provision in a manner, and to a degree,
approved by the City Manager.
11.6 Recyclable Materials Revenue Sharing
Contractor shall make a payment of Ten Thousand Dollars ($10,000) per month ( "CRV
Fee ") [adjusted annually each July I by the change in the Consumer Price Index for the 12
month period ending the preceding March 31, for All Urban Consumers, CUURA421SAO not
seasonally adjusted, all items index (CPI -U) — Los Angeles County, Riverside County, Orange
County average] to City which is intended as a sharing in revenues paid to Contractor by the
State related to the California Redemption Value program. The CRV Fee shall be paid to City
monthly on or before the fifteenth (15th) day of each month. Should any such due date fall on a
weekend or holiday in which City's business offices are closed, payment shall be due on the first
day thereafter in which City's business offices are open.
11.7 Annual Contribution to Community Programs
Contractor shall make a payment of $100,000 to City each year during the term hereof for
City to use for community programs of any nature as it deems appropriate (the "Community
Program Payment "). Such payments shall be due on or before July 1 of each year, except that
the first payment shall be due on or before December, 1, 2013. The Community Program
Payment shall be adjusted each year during the Term by the change in the Consumer Price Index
for all Urban Consumers, CUURA421SAO not seasonally adjusted, all items index (CPI -U) —
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Los Angeles County, Riverside County, Orange County average, for the 12 -month period ending
the preceding March 31.
1 1.8 Los Angeles Regional Agency Fee
City is a member of the Los Angeles Regional Agency ( "LARA "). LARA promotes
environmental responsibility that is consistent with AB 939. Contractor shall reimburse City's
its annual membership fee, and payment shall be due within 30 days of being invoiced for this
amount by City.
SECTION 12.
CHARGE FOR LATE PAYMENTS
In the event Contractor fails to timely make any of the payments provided for in this
Agreement (whether reimbursements, Franchise Fees, payments of funds collected in connection
with billing services, or otherwise), Contractor shall pay to City, as additional consideration, a
sum of money equal to five percent (5 %) of the amount due. This amount is required in order to
defray those additional expenses and costs incurred by City by reason of the delinquent payment
including, but not limited to, the cost of administering, accounting for, and collecting said
delinquent payment and the cost to City of postponing services and projects necessitated by the
delay in receiving the revenue. In addition, any amounts not paid to City by Contractor within
sixty (60) days of the due date shall be subject to interest in the amount of ten percent (10 %) per
annum, calculated on a daily basis for each day such sums remain past due.
SECTION 13.
CONTRACTOR'S BILLING SERVICES AND SYSTEMS
13.1 Billing
Contractor shall provide services pursuant to this Agreement at rates it sets, charges to,
and collects from Customers; provided, however, Contractor's rates shall not exceed those set
forth in the attached Exhibit A, which sets out the maximum rates that may be charged by
Contractor for the various different service options that may occur hereunder, as such maximum
rates may be adjusted from time to time pursuant to the terms hereof. Contractor shall provide
all Customers with itemized Bills, detailing charges for all services, including charges for late
payments, as well as the period of service to which the Bill applies. Contractor acknowledges
that it, and not Customers, is to pay a Franchise Fee and the other fees noted herein to City as
consideration for this Agreement. Accordingly, Contractor's Bills shall not include separate
itemization of a "Franchise Fee" or other similar designation relating to fees which Contractor is
required to pay to City. Contractor shall reproduce and include in any Billing, at no additional
cost, one page informational "inserts" provided by City.
Billings may be made on a quarterly basis in advance of, or subsequent to services being
provided for all Customers at Single Family or Multi - Family Dwellings utilizing Carts for
Collection, and on a monthly basis in advance for all other Customers. Premises ordering
service after the first of the month or canceling service prior to the end of the month shall be
charged on a prorated per- pickup basis.
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13.1.1 Suspension of Service Due to Non - Payment
Contractor may discontinue service to any Customer as set forth in this Section.
Customers who have not remitted required payments within thirty (30) days after the date of
Billing shall be notified on forms approved by the City Manager. Said forms shall contain a
statement that services may be discontinued fifteen (15) days from the date of notice if payment
is not made before that time. If payment is not made by the expiration of said fifteen (15) day
period, Contractor may discontinue service forty-eight (48) hours thereafter. Contractor shall
resume Solid Waste Handling Services on the next regularly scheduled Collection day for any
Customer whose service is discontinued upon receipt of payment of delinquent fees and any
related service restart charges in accordance with the maximum rates set forth in Exhibit A, or at
such sooner time as directed to do so by City. Contractor may not charge for service during any
period in which service was suspended. Any delinquent fees or service charges to be imposed in
connection with delinquent accounts shall be set by Contractor and be subject to City Manager
approval. A deposit equal to the maximum rate for one month's service as set forth on Exhibit A,
as such rates may be amended from time to time, may be required of accounts which have been
discontinued for non - payment prior to re- instituting service at such accounts. Notwithstanding
the above, in the event of a Billing dispute and/or to avoid negatively impacting public health or
safety, Contractor shall not suspend service to any Customer without the City's prior consent,
and shall continue to provide service to any Customer if directed to do so by City without regard
to the status of said Customer's account.
13.1.2 Unoccupied Premises.
During any time when a Premises is unoccupied for more than forty-five (45)
days, and Collection services are not provided by Contractor, Contractor shall not Bill such
Premises for Solid Waste Handling Service. Contractor shall remove its Containers from any
Premises after being notified by a Customer that service is to be cancelled as a result of the
Premises being unoccupied. The Customer at any such Premises shall be responsible to provide
notice to Contractor to cease service due to a vacancy, as well as reasonable evidence pursuant to
such guidelines as the City Manager is hereby authorized to develop, demonstrating the Premises
was vacant for the period in question. Such Customers shall be entitled to a refund from
Contractor for any amounts paid to Contractor for each thirty (30) day period during which the
vacancy exists. Any Customer grievance regarding a claim that a Premises was unoccupied and
received no service, and hence should not be Billed for a given period pursuant to this Section,
may be appealed by the Customer to the City Manager whose decision shall be final. It is the
intent of the Parties that a Contractor shall not be entitled to charge for services which are not
needed or used. Accordingly, the time frame set forth in this Section is not intended to suggest
that Contractor may bill Customers for up to 45 days of service in situations in which no service
is needed or used due to a vacancy.
13.2 Minimum Requirements for Billing Statements .
In addition to any other pertinent data, billing statements mailed by Contractor shall be
printed to contain the following information:
(A) A "statement date" indicating the date the bill is generated and mailed.
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(B) A notice to Customers that payments are due upon receipt of the bill, an
advisement that the Customer's account will become delinquent if payment is not
received by the 20th day following the statement date, an advisement of the date and time
by which payments must be received in order to avoid delinquent fees (i.e., 4:00 p.m. on
the 45th day following the statement date), and a notification of the amount of fees that
will be imposed and the potential for service interruptions if payments are not received by
the specified date and time.
(C) An advisement to Customers that payments can be made in the following
manner:
(1) by mailing payment to Contractor at such address as Contractor may
designate; or
(2) by automatic withdrawal from a checking account; or
(3) by major credit card on -line (i.e., via the Internet).
(D) An advisement that inquiries relating to Solid Waste Handling Services
should be directed to Contractor, including an address, phone number and internet site,
for such inquiries.
13.3 Billing System
133.1 Computerization of Account Information
Contractor shall provide and maintain, at its expense, computer equipment sufficient to
operate pertinent computer programs and otherwise provide the services required by this Section.
Contractor shall create, at its own expense, computer programs sufficient to operate a
computerized billing system, permanently maintain all account records and otherwise meet the
requirements of this Section.
13.3.2 Minimum Computer Programming Requirements
In addition to any other requirements set forth herein, the programs created by Contractor
to operate and maintain the billing system shall at a minimum be able to perform the following
functions:
(A) create a permanent record of any adjustment to a Customer's account;
(B) work in connection with a backup system such that all Customer account
data and records is protected from a computer failure and permanently preserved on not
less than a daily basis;
(C) allow Customers to make payments on -line (i.e., via the Internet) by a
major credit card.
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13.3.3 Billing Inquiries
All billing inquiries shall be entered into the computerized billing system. Contractor's
computer programs shall keep a permanent record of all billing inquiries and all adjustments to
Customer bills resulting therefrom.
13.3.4 Distribution of Public Information
If requested to do so by City, and at no charge to City, Contractor shall insert any printed
material prepared by City into its billing statements for delivery to its Customers. City shall not
request Contractor to include any printed material in its bills if such material is of a size, shape,
or weight that would increase Contractor's postage costs or if such material does not fit into the
envelopes utilized by Contractor to mail the bills. Any printed material to be included in the bills
to be mailed by Contractor shall be provided to Contractor within a reasonable time in advance
of Contractor's scheduled mailing date, such that the insertion of such material into billing
envelopes does not delay their scheduled mailing date.
13.4 Payment, Accounting Systems
13.4.1 Collection and Processing of Payments
13.4.1.1 Accounting and Deposit of Funds
All payments received by Contractor shall be appropriately credited to Customer
accounts, deposited in a bank account and accounted for in a businesslike manner utilizing
generally accepted accounting principles. To facilitate audits and record keeping Contractor
shall make all withdrawals from its bank accounts by check, ACH debit/credit or wire, regardless
of whether the withdrawal is to provide funds to City, Contractor, or any permissible
subcontractor of Contractor.
13.4.1.2 Allocation of Funds
With respect to payments received from each Customer, unless a Customer specifically
directs a different allocation, funds shall be allocated first to outstanding charges for Solid Waste
Handling Services, then to any related delinquency fees or other administrative charges, up to the
amount of any outstanding balance. Any overpayment shall be credited to future bills in the
same sequence, or returned to Customers as appropriate.
SECTION 14.
FAITHFUL PERFORMANCE
14.1 Sure
Contemporaneously with execution of this Agreement, as security for Contractor's
faithful performance of all obligations of this Agreement, Contractor shall provide a surety
mechanism (the "Surety ") as more fully defined below in the amount of One Million Dollars
($1,000,000.00). The Surety may be comprised of either a performance bond or an irrevocable
letter of credit, or a combination of both. If a letter of credit utilized to satisfy some or all of the
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Surety requirement shall be drawn upon a financial institution with an office within one hundred
(100) miles of City, and otherwise in a form acceptable to the City Attorney. The performance
bond, if any, shall be issued by a duly authorized corporate surety company authorized to do
business in California, and in a from acceptable to the City Attorney. The cost of the Surety
shall be the sole responsibility of Contractor. The Surety shall be released within thirty (30) days
after both (i) the expiration of the Term of this Agreement; and (ii) Contractors satisfactory
performance of all obligations hereunder.
14.1.1 Forfeiture of Surety
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 Surety, as may be
necessary to recompense and make whole the City, forfeited to the City. Upon partial or full
forfeiture of the Surety, Contractor shall restore the Surety to its original amount within thirty
(30) days of the City's notice to do so. Failure to restore the Surety to its full amount within
thirty (30) days shall be a material breach of this Agreement.
14.1.2 Use of Surety by City
Notwithstanding any provision hereof to the contrary, thirty (30) days following City
providing Contractor with written notice of its failure to pay City any amount owing under this
Agreement, either the letter of credit or performance bond comprising the Surety may be utilized
by City for purposes including, but not limited to: (1) Payment of sums due under the terms of
this Agreement which Contractor has failed to timely pay to City, including specifically
liquidated damages; (2) Reimbursement of costs bome by City to correct violations of this
Agreement not corrected by Contractor.
14.2 Replacement Letter of Credit
City may draw upon the entire letter of credit (if any) utilized to meet Contractor's
obligations pertaining to the Surety, and convert it to a cash deposit, if Contractor fails to cause
the letter of credit to be extended or replaced with another satisfactory letter of credit no later
than sixty (60) days prior to its expiration. .
SECTION 15.
INSURANCE COVERAGE
Contractor shall procure and maintain during the entire Term of this Agreement the
following types of insurance, and shall maintain the following minimum levels of coverage,
which shall apply to any claims which may arise from or in connection with Contractor's
performance hereunder or the actions or inactions of any of Contractor's officers, agents,
representatives, employees, or subcontractors in connection with Contractors performance. The
insurance requirements hereunder in no way limit Contractor's various defense and
indemnification obligations, or any other obligations as set forth herein.
15.1 Minimum Scope of Insurance
Coverage shall be at least as broad as:
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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
1001 covering Automobile Liability, code 1 "any auto ".
3. Workers' Compensation insurance as required by the Labor Code of the State of
California and Employers Liability insurance.
15.2 Minimum Limits of Insurance
Contractor shall maintain in force for the term of this Agreement limits no less than:
15.2.1 Comprehensive General Liability-
Ten Million Dollars ($10,000,000.00) limit aggregate and Ten Million Dollars
($10,000,000.00) limit per occurrence for bodily injury, personal injury and property damage.
Such limits can be achieved through a combination of primary and excess liability policies.
15.2.2 Automobile Liability
Ten Million Dollars ($10,000,000.00) limit aggregate and Ten Million Dollars
($10,000,000.00) limit per accident for bodily injury and property damage. Such limits can be
achieved through a combination of primary and excess liability policies.
15.2.3 Workers' Compensation and Employers Liability
Workers' compensation limits as required by the Labor Code of the State of California
and Employers Liability limits of One Million Dollars ($1,000,000.00) per accident.
15.3 Deductibles and Self - Insured Retentions
Any deductibles or self - insured retentions must be declared to and approved by City. If,
in the reasonable opinion of the City, Contractor does not have sufficient financial resources to
protect the City from exposure with respect to any deductibles or self - insured retentions
Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim
administration and defense expenses.
15.4 Other Insurance Provisions
The policies are to contain, or be endorsed to contain, the following provisions:
15.4.1 General Liability and Automobile Liability Coveraees
City, as well as its elected and appointed officials, officers, employees, agents and
volunteers are to be named as additional insureds as respects: liability arising out of activities
performed by or on behalf of Contractor; 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 City, or its elected and appointed officials,
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officers, employees, agents or volunteers. Contractor's insurance coverage shall be primary
insurance as respects City, as well as its elected and appointed officials, officers, employees,
agents or volunteers. Any insurance or self - insurance maintained by City, or its elected and
appointed officials, officers, employees, agents or volunteers shall be excess of Contractor's
insurance and shall not contribute with it. Any failure to comply with reporting provisions of the
policies shall not affect coverage provided to City, or its elected and appointed officials, officers,
employees, agents or volunteers. 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.
15.4.2 Workers' Compensation and Employers Liability Coverage
The insurer shall agree to waive all rights of subrogation against City, as well as its
elected and appointed officials, officers, employees, agents or volunteers, for losses arising from
work performed by Contractor for City.
15.4.3 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 by certified mail, return receipt requested, has been
given to City.
15.5 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, unless otherwise approved by the' City Manager.
15.6 Verification of Coverage
Contractor shall furnish City with certificates of insurance and with original
endorsements affecting coverage required by this Article. The certificates and endorsements for
each insurance policy are to be signed by a Person authorized by that insurer to bind coverage on
its behalf. The certificates and endorsements are to be on forms provided by or acceptable to
City and are to be received and approved by City before work commences. City reserves the
right to require complete, certified copies of all required insurance policies, at any time.
15.7 Loss or Reduction in Insurance
In the event that Contractor fails to retain or maintain insurance with the scope and
amounts of coverage required hereunder, City shall have the right, but not the obligation to either
terminate this Agreement, or obtain insurance coverage as required herein on behalf of
Contractor and utilize funds from the Surety defined in Section 14 to pay the cost of providing
such coverage.
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SECTION 16.
ASSIGNMENT, SUBLETTING, AND TRANSFER;
REQUIREMENTS AND LIMITATIONS
16.1 General
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 approval by the City Council of the City. The City Council has
unfettered discretion to approve or deny such an Assignment. Any such Assignment made
without the approval by the City Council of the City shall be void and the attempted Assignment
shall constitute a material breach of this Agreement.
16.2 Assignment to be Broadly Interpreted
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 the Contractor's assets dedicated to service under this Agreement to a third
party; (ii) a sale, exchange or other transfer of any membership interest of Contractor to a third
party; (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.
16.3 Nature of Agreement — Personal to Contractor
Contractor acknowledges that this Agreement involves 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
Handling 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.
16.4 Procedure for Consideration of Assignment
If Contractor requests City's consideration of and consent to an Assignment, the City
Council of City may deny, approve or conditionally approve such request in its sole and absolute
discretion. Under no circumstances shall City be obliged to consider any proposed Assignment
if Contractor is in default at any time during the period of consideration. Should the City consent
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to any Assignment request, such Assignment shall not take effect until all conditions relating to
the City's approval have been met Any request for an Assignment shall be made in a manner to
be prescribed by the City Manager, 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 undertake to pay City its reasonable direct and indirect
expenses, including administrative, investigative, consulting, and attorney's fees and 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
(collectively the "Administrative Assignment Fee "). An advance non - refundable
payment in an amount to be determined by the City Manager towards the Administrative
Assignment Fee shall be paid to the City prior to City's consideration of any Assignment
request, although 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) If requested to do so, Contractor shall furnish City with audited financial
statements of the proposed assignee's operations for the immediately preceding three (3)
operating years.
(C) Contractor shall fumish City with satisfactory proof: (i) that the proposed
assignee has at least ten (10) years of Solid Waste management experience on an 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 laws, including the Environmental Laws and that the
assignee has provided City with a complete list of such citations and censures (iii) ro proposed assignee that
the
p p gnee 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.
(D) The proposed assignee shall execute an agreement assuming all of
Contractors rights and liabilities under this Agreement.
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SECTION 17.
REVIEW OF SERVICES AND PERFORMANCE
17.1 Performance Hearing
(A) Commencing in or about July 2014, and on a biennial basis thereafter,
City may hold a hearing 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 Hearing "). The purpose
of the Solid Waste Services and Performance Review Hearing 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 Hearing 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 and
where applicable AB 341's goals, regulatory constraints and Contractor performance.
City and Contractor may each select additional topics for discussion at any Solid Waste
Services and Performance Review Hearing.
(B) In addition to the Solid Waste Services and Performance Review Hearings
City may hold in accordance with the immediately preceding paragraph, if the number of
Customer complaints regarding Contractor's Solid Waste Handling Services are deemed
by City to be excessive, City may, at any time (subject to the paragraph immediately
below), hold a Solid Waste Services and Performance Review Hearing.
(C) City shall notify Contractor of its intent to hold a Solid Waste Services
and Performance Review Hearing at least ninety (90) days in advance thereof. The
notice wM indicate whether the hearing will occur before City staff, the City Council, or
such other body as the City may designate in the notice. Forty-five (45) days after
receiving notice from City of a Solid Waste Services and Performance Review Hearing,
Contractor shall submit a report to City which may contain such information as it wished
to have considered, and shall contain the following:
the past year.
(1) Current diversion rates and a report on Contractor's outreach activities for
(2) Recommended changes and/or new services to improve the City's ability
to meet the goals of AB 939 and AB 341 and to contain costs and minimize impacts on rates.
Contractor.
(3) Any specific plans for provision of changed or new services by
(D) The reports required by this Agreement regarding Customer complaints
shall be used as one basis for review of Contractor's performance, and Contractor may
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submit other relevant performance information and reports for consideration at the Solid
Waste Services and Performance Review Hearing. 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 Hearing, and any
Customer may submit comments or complaints during or before the Hearing, either orally
or in writing. Contractor shall be present at and participate in the Solid Waste Services
and Performance Review Hearing.
17.2 Performance Satisfaction Survey
If requested by the City, Contractor will create and conduct a survey at Contractor's
expense in preparation for any Solid Waste Services and Performance Review Hearing held
pursuant to Section 17.i. City shall notify Contractor of its desire for such a survey at least
ninety (90) days in advance of the Solid Waste Services and Performance Review Hearing. The
purpose of the survey is to determine Customer satisfaction with current Collection services and
Customer service provided by the 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. The City may require
that Contractor have Customer responses to the survey returned directly to the City. The Survey
results shall be made available to the City thirty (30) days prior to the Solid Waste Services and
Performance Review Hearing.
SECTION 18.
CITY'S REMEDIES; DEFAULT AND TERMINATION
18.1 Notice of Default
If the City Manager determines that Contractor has defaulted in the performance of any
obligation hereunder, or that Contractor's performance pursuant to this Agreement with respect
to such matters has not been in conformity with reasonable industry standards which are obtained
in similar cities in Southern Califomia, the provisions of this Agreement, the requirements of the
Municipal Code, the requirements of CalRecycle, including, but not limited to, requirements for
source reduction and recycling or any other applicable Federal, State, or local law or regulation,
including but not limited to the laws governing transfer, storage, or disposal of special wastes, or
hazardous wastes, the City Manager may provide written notice to Contractor of such default.
The City Manager may, in such written notice, set a reasonable time within which correction of
such default shall be made. Unless a longer or shorter time is otherwise specified by the City
Manager, a reasonable time for correction shall be thirty (30) days from the date such written
notice is given.
18.2 Failure to Cure
If Contractor fails to correct, to the satisfaction of the City Manager, all deficiencies
contained in the written notice thereof within the specified time, or if it is not reasonably possible
to correct such deficiencies within the specified time, and Contractor fails to commence to
correct or remedy such deficiencies within the specified time and diligently effect such
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correction or remedy thereafter, then the City Manager may refer the matter to the City Council
for review, or review the matter himself.
18.3 Review by City Manager
If the City Manager reviews the matter and determines that Contractor has failed to
properly or adequately cure any default set forth above, the City Manager, in the exercise of his
discretion, may terminate this Agreement, o; take such other action as he deems appropriate to
pursue any remedy available to City. A decision or order of the City Manager shall be final and
binding on Contractor unless Contractor files a "Notice of Appeal" with the City Clerk within
five (5) business days of the date the notice of the City Manager's decision is given. The City
Manager shall schedule any appeal for consideration by the City Council at the earliest feasible
City Council Meeting following the date a Notice of Appeal is given to City.
18.4 City Council Review
In the event an appeal of a decision of the City Manager is filed, or if the City Manager
refers the matter to the City Council without rendering a decision, the City Council shall set the
matter for consideration before the City Council as a regular agenda item. In reviewing the
matter the City Council may consider any information reported by the City Manager regarding
the deficiencies, and shall give Contractor, or its representatives and any other interested person,
a reasonable opportunity to be heard. The Council shall determine whether Contractor has failed
to properly or adequately perform as set forth above, and if so whether to terminate the
Agreement, or to pursue any other remedy available to City.
18.5 Performance During Reviews
Contractor's performance under this Agreement is not excused during any period of time
when its performance is under review as set forth above, including at any time prior to a final
decision as to whether such performance is deficient.
18.6 Termination without Right to Cure
The above right of termination as a result of Contractor's failure to timely cure any
deficiency is in addition to City's right to terminate this Agreement without affording Contractor
an opportunity to cure in circumstances where Contractor is determined by City to have
materially breached this Agreement. City shall thus be afforded the right to terminate this
Agreement in the event of any material breach hereof by Contractor without affording Contractor
the right to cure as a result of any action, inaction or circumstance which is a legally defined
material breach, or is defined herein as a material breach, and/or under any of the following
circumstances which are hereby specifically defined as material breaches:
(A) If Contractor practices, or attempts to practice, any fraud upon City.
(B) If Contractor becomes insolvent, unable, or unwilling to pay its debts, or
upon listing of an order for relief in favor of Contractor in a bankruptcy proceeding.
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(C) If Contractor willfully violates any orders or rulings of any regulatory
body having jurisdiction over Contractor relative to this Agreement. So long as City's
rights are not prejudiced during the pendency of any challenge to such orders or rulings
by Contractor, Contractor may contest any such orders or rulings by appropriate
proceedings conducted in good faith, in which case no material breach of this Agreement
shall be deemed to have occurred until a final ruling has been rendered.
(D) If Contractor ceases to provide Solid Waste Handling Services, including
Collection of Solid Waste and/or Recyclable Material, as required under this Agreement
over all or any portion of the Franchise Area for a period of seven (7) days or more, for
any reason not specified as a force majeure event hereunder.
(E) If Contractor fails to materially comply with any insurance or
indemnification requirement set forth in this Agreement.
(F) If City is required to pay any fine or penalty, which is not paid on its
behalf by Contractor or which Contractor fails, refuses, neglects or is unable to pay or
indemnify City against, relating to any diversion or other requirement of AB 939 and/or
AB 341.
(G) If Contractor, or any management level employee of Contractor is
convicted of a Criminal Matter (as defined herein). For purposes of this Section the term
Criminal Matter refers to any felony or misdemeanor offense having any relationship to
either Solid Waste Handling Services or public corruption (including, without limitation,
bribery, conflict of interest related allegations, vote selling, or any similar type charges).
18.7 Liquidated Damages
18.7.1 General
The City finds, and Contractor agrees, that as of the time of the execution of this
Agreement, it is impractical, if not impossible, to reasonably ascertain the extent of damages
which shall be incurred by City as a result of a breach by Contractor of certain specific.
obligations under this Agreement. The factors relating to the impracticability of ascertaining
damages include, but are not limited to, the fact that: (i) substantial damage results to members
of the public who are denied services or denied quality or reliable service; (ii) such breaches
cause inconvenience, anxiety, frustration, and deprivation of the benefits of the Agreement to
individual members of the general public for whose benefit this Agreement exists, in subjective
ways and in varying degrees of intensity which are incapable of measurement in precise
monetary terms; (iii) that the services that are the subject of this Agreement might be available at
substantially lower costs than alternative services and the monetary loss resulting from 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.
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18.7.2 Service Performance Standards; Liquidated Damaees for Failure to Meet
Standards
The parties further acknowledge that consistent, reliable Solid Waste Handling Service is
of utmost importance to City and that City has considered and relied on Contractors
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, 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
City
Initial Here
18.7.3 Calculations for Liquidated Damages
Contractor agrees to pay (as liquidated damages and not as a penalty) the amounts set
forth below for each type of action warranting such damages:
18.7.3.1 Collection Reliability
(A) For each failure to commence service to a new Customer account within
seven (7) days after order, which exceed five (5) such failures annually: $150.00.
(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 Collected within the period described in this Agreement: $150.00.
(C) For each failure to Collect Solid Waste, which has been properly set out
for Collection, from the same Customer on two (2) consecutive scheduled pickup days:
$150.00.
18.7.3.2 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 with lids secured
which exceeds ten (10) such occurrences annually: $150.00.
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(B) For each occurrence of excessive noise or discourteous behavior which exceeds
ten (10) such occurrences 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 occurrence of damage to private property in an amount in excess of
$1,000 which exceeds five (5) such occurrences annually: $250.00.
(E) For each failure to clean up Solid Waste spilled from Containers, excepting
amounts that are so nominal in nature that they would not reasonably be expected to be noticed
by the driver of a Collection Vehicle, within 90 minutes that exceeds ten (10) such failures
annually: $150.00.
18.7.33 Customer Responsiveness
(A) For each failure to initially respond to a Customer complaint within one
(1) business day, which exceeds five (5) such occurrences annually, and for each
additional day in which the complaint is not addressed: $250.00.
(B) For each failure to process Customer complaints to City as required
herein, which exceeds five (5) such occurrences annually: $250.00.
(C) For each failure to remove graffiti from Containers, or to replace with
Containers bearing no graffiti, within twenty -four' (24) hours of request from City:
$150.00.
18.7.3.4 Timeliness of Submissions to City,
(A) 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:
(1) Monthly Reports: $100.00 per day
(2) Quarterly Reports: $250.00 per day
(3) Annual Reports: $350.00 per day
18.7.4 Process for Assessment of Liquidated Damages
(A) City may determine the occurrence of events giving rise to liquidated
damages through the observation of its own employees or representative or investigation
of Customer complaints. It is the desire of the parties to work together to avoid the
imposition of liquidated damages and accordingly City will endeavor to timely
communicate to Contractor any information that it receives which might give rise the
imposition of liquidated damages in order to facilitate Contractor's ability to correct any
f
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deficiency, or prevent the recurrence of any conduct for which liquidated damages might
eventually be imposed.
(B) Prior to assessing liquidated damages, City shall give Contractor notice of
its intention to do so. The notice will include a brief description of the incident(s)/non-
performance. Contractor may review (and make copies at its own expense) all
information in the possession of City relating to incident(s) /non - performance. Contractor
may, within ten (10) days after receiving the notice, request a meeting with City.
Contractor may present evidence in writing and through testimony of its employees and
others relevant to the incidents) /non - performance. City will provide Contractor with a
written explanation of his or her determination on each incident(s) /non - performance prior
to authorizing the assessment of liquidated damages. The decision of City shall be final.
(C) 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.
18.7.5 Timing of Payment
Contractor shall pay any liquidated damages assessed by City within ten (10) days after
they are assessed. If they are not paid within the ten (10) day period, City may proceed against
any security required by this Agreement to obtain payment, , and/or find Contractor in default
and exercise its right to terminate this Agreement as set forth herein.
SECTION 19.
CONTRACTOR'S REMEDIES; ADMINISTRATIVE HEARING
19.1 Administrative Hearin
Should Contractor contend that City is in breach of any aspect of this Agreement, it shall
give notice to the City Manager requesting an administrative hearing on the allegation. The
hearing shall occur as soon as reasonably possible, or on such date as mutually agreed by the
parties, and shall be held before an impartial hearing officer to be determined by the City
Manager. The hearing officer shall make an advisory ruling on Contractor's allegations, and
suggest a remedy if a breach by City is determined to exist. The hearing officers ruling and
recommendations shall become final and binding if the parties so agree in writing within thirty
(30) days of the date notice of the decision is given to both parties. Otherwise, the hearing
officer's ruling shall have no further force or effect.
19.2 Other Remedies: Claims
Contractor shall be entitled to all available remedies in law or equity for City's breach of
this Agreement; provided, however, Contractor shall not file or otherwise commence any action
against City, in law or equity, in any court, until after an administrative hearing as set forth above
has been completed, and the above noted thirty (30) day period to accept the hearing officer's
decision has passed, or either City or Contractor has given timely written notice to the other that
it will not accept the hearing officer's decision.
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19.3 Actions for Damages
As a prerequisite to the filing and maintenance of any action for damages by Contractor
against City arising out of this Agreement, Contractor shall present a claim to City, as required
by Government Code Section 910 et seq., within 30 days of the date of the occurrence giving rise
to the claim for damages.
SECTION 20.
CITY'S ADDITIONAL REMEDIES
In addition to any other remedies set forth herein, City shall be entitled to any or all of the
following rights and remedies in the event of a breach of this Agreement by Contractor:
(A) The right to use Contractor's equipment for the purpose of Collecting,
transporting, and/or disposing of Solid Waste, including Recyclable Material, for a period
not to exceed six (6) months. In the case of equipment not owned by Contractor,
Contractor shall assign to City, to the extent Contractor is permitted to do so under the
instruments pursuant to which Contractor possesses such equipment, the right to use and
possess the equipment. If City exercises its rights under this Section, City shall pay to
Contractor the reasonable rental value of the equipment for the period of City's
possession thereof (although payment may, if appropriate, occur in the form of a setoff
against damages otherwise owed by Contractor pursuant to the terms hereof);
(B) The right to license others to perform the services otherwise to be
performed by Contractor hereunder, or to perform such services itself; and
(C) The right to obtain damages and/or injunctive relief. Both parties
recognize and agree that in the event of a breach of this Agreement by Contractor, City
will suffer irreparable injury and incalculable damages sufficient to support injunctive
relief, to specifically enforce the provisions of this Agreement, and to enjoin the breach
hereof.
SECTION 21.
RIGHTS OF CITY TO PERFORM DURING EMERGENCY
21.1 Provision of Service
Should Contractor, for any reason whatsoever, refuse or be unable to provide Solid Waste
Handling Services for a period of more than seventy-two (72) hours, and if as a result thereof,
Solid Waste should accumulate in City to such an extent or in such a manner that the City
Manager finds that such accumulation endangers or menaces the public health, safety, or welfare,
City shall have the right, upon twenty -four (24) hours prior written notice to Contractor, during
the period of such emergency, to temporarily take possession of any or all equipment and
facilities of Contractor previously used in providing Collection, transportation, and disposal of
Solid Waste and provide, through its own forces or otherwise, Solid Waste Handling Services
which Contractor otherwise would be obligated to provide pursuant to this Agreement.
Contractor agrees that in such event it'shall fully cooperate with City to affect such a transfer of
possession for City's use.
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21.2 Possession of Equipment
Contractor agrees, that in the event of circumstances described in Section 21.1 above,
City may take temporary possession of and use all of said equipment and facilities without
paying Contractor any rental or other charge. Upon Contractor giving City notice that it is able
to resume its normal responsibilities under this Agreement City shall either relinquish possession
of all of the above mentioned property to Contractor.
21.3 Exclusions from Rieht to Possession of Equipment without Compensation
Specifically excluded from the circumstances in which City may possess and utilize
Contractor's equipment without compensation are circumstances in which Contractor fails or
refuses to provide Solid Waste Handling Services hereunder for any reason which is not a force
majeure event as defined herein. In such circumstances City's right to utilize and possess
Contractor's equipment shall be subject to the provisions of the above Section 20.
SECTION 22.
PRIVACY
. Contractor shall strictly observe and protect the privacy rights of Customers. Information
identifying individual Customers or the composition or contents of a Customer's Solid Waste
stream, or any of the billing information pertaining to any Customers, shall not be revealed to
any person, governmental unit, private agency, or company, unless upon the authority of a court
of law, by statute, ordinance, or regulation of a governmental agency having jurisdiction, 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 audits which may be required by AB 939 or this Agreement.
Contractor shall not market or distribute, outside the normal course of its business, mailing lists
with the names and addresses of Customers. The rights afforded Customers pursuant to this
Section shall be in addition to any other privacy right afforded Customers pursuant to federal or
state law.
SECTION 23.
REPORTS AND ADVERSE INFORMATION
The parties acknowledge that City will require reporting at various intervals by which
information important to City can be complied and analyzed. Throughout the Term the parties
agree to work together to address City's needs with respect to the information to be contained in
reports prepared by Contractor. The following is intended as a starting point in order to have
established an objective baseline for reporting, but the frequency and content of the reports
called out below may be changed by agreement of the parties; provided any such change is
approved by the City Manager in writing. Records related to performance of this Agreement
shall be maintained by Contractor in forms and by methods that facilitate flexible use of data
contained in them to structure reports, as needed_ The format of each report shall be approved by
City. In addition to submitting all reports on paper, Contractor agrees to submit all reports in an
electronic format approved by the City, compatible with City's software /computers at no
additional charge. Monthly reports shall be submitted within twenty (20) calendar days after the
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end of the report month. Quarterly reports shall be submitted within twenty (20) calendar days
after the end of the calendar quarter.
23.1 Monthly Reports
At a minimum, Contractor shall report the following to City on a monthly basis: Solid
Waste Collected by Contractor for each month, sorted by type of Solid Waste in tons broken
down at level acceptable to City (which at a minimum shall include: refuse, Green Waste,
e -waste and universal waste item counts, types of recyclables including PET, HDPE, mixed
plastics, aluminum, cardboard, mixed paper, sand, and concrete), as well as by customer type
(i.e., single family, multi - family, commercial, roll -off, curbside, etc.); the facilities where all
Solid Waste Collected was processed or disposed; warning notices issued for contaminated
Recyclable Materials, and Green Waste Containers; and a narrative summary of problems
encountered (including scavenging) and actions taken with recommendations for City, as
appropriate.,
23.2 Quarterly Reports
At a minimum, Contractor shall report the following to City on a quarterly basis: the
information required in the monthly reports; the complaint summary for the quarter summarized
by nature of complaints; copies of promotional and public education materials sent during the
quarter; description of Contractor outreach activities conducted the previous quarter; and such
other information or reports that the City may reasonably request or require. Contractor shall,
upon demand by City, provide true and accurate copies of landfill tipping receipts, records
showing delivery at processing or reuse facilities, and similar such documents in order to enable
City to verify Contractor's quarterly reports.
23.3 Annual Reports
On or before June 30 of each year during the Term of this Agreement and within fifteen
(15) days prior to the end of the Term, Contractor shall submit a written annual report, at its sole
expense, in a form approved by City, which includes, but is not limited to, the following
information:
(A) A summary of the previous year's activities including, but not limited to,
services begun or discontinued during the reporting year, and the number of Customers
broken down on a monthly basis;
(B) A summary of the total tons of Solid Waste Collected in City in the
preceding year as well as a summary of the total tonnage diverted from the State's landfill
systems during that time frame;
(C) Information and reports required by City to meet its reporting obligations
imposed by AB 939 and the regulations implementing AB 939, in a form and content
approved by the City Manager;
(D) A revenue statement, certified by the chief financial officer of Contractor,
setting forth Franchise Fees and AB 939 Fees paid and the basis for the calculation
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thereof, including specifically a breakdown of sources of revenue included in Gross
Receipts and the amount of revenue derived from each such source comprising Gross
Receipts;
(E) A list of Contractor's officers and the members of its Board of Directors ,
or as applicable a list identifying all Persons holding a membership interest in Contractor;
and
(F) A list of stockholders or other equity investors holding five percent (5 0 /D)
or more of the interest in Contractor.
(G) A list of each service address, the total number of Carts at each such
address and the serial numbers associated with each cart at such address.
23.4 Number of Reports
At minimum, two copies of each monthly, quarterly, and annual report shall be submitted
to City with one copy addressed to the City Manager or his or her designee and the second copy
addressed to the City Clerk.
23.5 Adverse Information
(A) Contractor shall provide City two copies of all reports and other material
adversely affecting this Agreement submitted by Contractor to the United States
Environmental Protection Agency, CalRecycle, the California Regional Water Quality
Control Board, and any other federal, state, regional, or local regulatory agency. Copies
shall be submitted to City simultaneously with Contractor's filing of such matters with
said agencies. Contractors routine correspondence to said agencies need not be
automatically submitted to City, but shall be made available to City upon written request.
(B) Contractor shall submit to City copies of all pleadings, applications,
notifications, communications, and documents of any kind submitted by Contractor to, as
well as copies of all decisions, correspondence, and actions by, any Federal, State, and
local courts, regulatory agencies, and other government bodies relating in any manner to
Contractor's performance of services pursuant to this Agreement. To the degree
authorized by law, any confidential data exempt from public disclosure shall be retained
in confidence by City and its authorized agents and shall not be made available for public
inspection.
(C) Contractor shall submit to City such other information or reports in such
forms and at such times as City may reasonably request or require.
(D) All reports and records required under this or any other Section hereof
shall be furnished at the sole expense of Contractor.
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23.6 Disaster Plan
P i
Within 90 days of the Effective Date, Contractor shall prepare an updated draft disaster
debris cleanup implementation plan that sets forth procedures for collection of debris following a
major disaster such as an earthquake, fire or other similar event. The disaster plan shall address
priorities for cleanup at critical facilities, procedures for reimbursement for costs, describe
communication plans, list key contact persons, and provide maps showing proposed sites for
stockpiling of disaster debris that cannot be transported to the landfill. Contractor shall
coordinate the plan with City's emergency service teams. The draft plan shall be presented to the
City Manager for consideration and approval. The final plan shall be distributed to those
employees of Contractor and City who would have a role in implementing it in the event of a
disaster.
23.7 Failure to Report
The refusal of Contractor to file any of the reports required, or the inclusion of any
materially false or misleading statement or representation made knowingly by Contractor in such
report shall be deemed a material breach of the Agreement, and shall subject Contractor to all
remedies, legal or equitable, which are available to City under this Agreement or otherwise.
SECTION 24.
COMPENSATION
24.1 Contractor Rates
Contractor shall provide services to Customers pursuant to this Agreement at rates it sets,
charges to, and collects from Customers, which rates shall not exceed those set forth in the
attached Exhibit A, which sets out the maximum rates that may be charged by Contractor, as
such maximum rates may be adjusted from time to time pursuant to the terms hereof. The
maximum rates set forth in Exhibit A are inclusive of all services to be provided, including
transportation, disposal, and Bin costs, and no other charges shall be imposed by Contractor for
such services.
24.2 Resolution of Disputes Regarding Rate Adiustments
Any dispute regarding an adjustment to the maximum rates Contractor may charge, or the
computation thereof, shall be decided by the City Manager. The rates in effect at the time such
dispute is submitted to the City Manager shall remain in effect pending resolution of such
dispute. The effective date of the adjusted maximum rate following the resolution of any such
dispute, whether retroactive or prospective, shall be determined by the City Manager.
24.3 Annual Consumer Price Index Adjustments
Commencing on July 1, 2014, the maximum rates as set forth in Exhibit A shall be
adjusted, and such rates shall be adjusted annually thereafter on each subsequent July 1st during
the Term hereof (the "Adjustment Dates "), by multiplying each rate by a percentage equal to the
change in the Consumer Price Index ( "CPI") for All Urban Consumers, CUURA421 SAO not
seasonally adjusted, all items index (CPI -U) — Los Angeles County, Riverside County, Orange
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County average for the twelve (12) month period ending on the date of March 31 immediately
prior to the applicable Adjustment Date. At least forty -five (45) days prior to charging
Customers any rate increased due to an increase in the CPI, Contractor shall obtain the City
Manager's approval to do so. The City Manager shall approve such a request unless it is
determined, based upon substantial evidence, that the requested adjustment to the maximum rate
does not meet the requirements as set forth herein.
24.4 Limitations to Annual CPI Adiustments
Notwithstanding anything to the contrary in Section 24.3 above, the maximum annual
adjustment occurring pursuant to Section 24.3 shall be limited by the provisions set forth below:
24.4.1 Three Percent (3 %) Cap
Any maximum rate may not be increased in any given year by more than three percent
(3 %) without regard to any higher increase which may otherwise be justified by the formula set
forth in Section 24.3.
24.4.2 Compliance with Agreement
No increase to the maximum rates shall occur if the City Manager determines that
Contractor did not fully comply with all terms of this Agreement in the Rate Year preceding the
increase, including without limitation, provisions hereof relating to reporting, diversion, and
Customer.service standards.
24.5 Discretionary Adiustments
Contractor may request an adjustment to the maximum rates set forth in Exhibit A at
reasonable times other than as set forth in Section 24.3 for unusual changes in the cost of
providing service under this Agreement. For each request for an adjustment to the maximum
rates brought pursuant to this Section Contractor shall prepare a schedule documenting the
extraordinary costs. Such request shall be prepared in a form acceptable to City with support for
assumptions made by Contractor in preparing the estimate. City shall review the Contractor's
request and, in the City Council's sole judgment and absolute, unfettered discretion, make the
final determination as to whether an adjustment to the maximum rates will he made, and, if an
adjustment is permitted, the appropriate amount of the adjustment. City may consider increases
or decreases in the Contractor's total revenues and total cost of services when reviewing an
extraordinary rate adjustment request. Contractor may not request an extraordinary increase in
the maximum rates as a result of: changes in fees or tares such as Social Security, disability or
income tax; changes in the market value of Recyclables or processing costs for Recyclables or
Green Waste; inaccurate estimates by the Contractor of its cost of operations; or costs of
compliance with South Coast Air Quality Management District and Air Resource Board rules
and standards for Collection Vehicles.
24.6 Grants
From time to time, Federal, State or local agencies including the City may provide to
Contractor grants to assist in financing qualified programs provided by Contractor in the City
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(including, without limitation, grants for diversion programs and related equipment, alternative
fuel vehicles and equipment, and Household Hazardous Waste Collection and Disposal).
Contractor shall notify City upon receipt of any such grant funds that may be used to fund
services provided pursuant to the terms of this Agreement. With the exception of grants already
received by Contractor as of the Effective Date, and grants for Collection Vehicles, any funds
received through grants for services in the City are intended to benefit City and its residents and
businesses, and in essence are held by Contractor in trust on behalf of City. Accordingly,
Contractor agrees that the total amount of compensation it receives from Customers hereunder,
may be reduced by the amount of any such grant, unless the grant is used to pay for services in
City. The City Council shall determine whether the reduction in Contractor's compensation shall
be: (1) passed through to Customers designated by City as a reduction to maximum rates; (2) as
an offset to the next increase to maximum rates requested by Contractor; (3) paid to City for use
as City directs; or (4) applied in any combination of (1) through (3).
SECTION 25.
IDENTIFICATION OF CONTRACTOR
Contractor has agreed to use the name "[ INSERT HAU LER NAMEV to identify itself to
the public as the specific organization that shall provide all services under this Agreement.
Unless otherwise approved in writing by City, this name shall be used for all correspondence,
billing statements, directory listings, references, signs, and vehicle and Bin identification.
SECTION 26.
INDEMNIFICATION
26.1 General
(A) Contractor hereby agrees to and shall indemnify and hold harmless City,
its elected and appointed boards, commissions, officers, employees, and agents
(collectively the "Indemnities ") 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 out
of, resulting from, and/or in any way connected with this Agreement including: (1) the
negligence or willful misconduct of Contractor, its officers, employees, agents, and/or
subcontractors in performing services under this Agreement; (2) the failure of Contractor,
its officers, employees, agents, and/or subcontractors to comply in all respects with the
provisions of this Agreement, all applicable laws (including, without limitation, the
Environmental Laws), ordinances and regulations, and/or applicable permits and licenses;
(3) the acts of Contractor, its officers, employees, agents, and/or subcontractors in
performing services under this Agreement for which strict liability is imposed by law
(including, without limitation, the Environmental Laws); and (4) any challenge to the
award of, or any provisions of this Agreement (including any claim that the application of
any provision hereof violates . any provision of the California Constitution). The
foregoing indemnity and hold harmless provisions shall apply regardless of whether such
loss, liability, penalty, forfeiture, claim, demand, action, proceeding, suit, injury, death or
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City Council Staff Report - Page 91 of 131
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damage is also caused in part by any of Indemnities' negligence, but shall not extend to
matters resulting from Indemnities' 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) City, its elected and appointed boards and
commissions, officers, employees, and agents 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.
(B) Contractor, upon demand of City, made by and through the City Attorney,
shall protect City and appear in and defend City and its elected officials, officers,
employees and agents, in any claims or actions by third parties, whether judicial,
administrative or otherwise, including, but not limited to disputes and litigation over the
definitions of "Solid Waste" or "Recyclable Material," the scope of the rights granted
herein, conflicts between the rights granted herein and rights asserted by other Persons, or
the limits of City's authority with respect to the grant of licenses, or agreements,
exclusive or otherwise, asserting rights under the Dormant Commerce Clause or any
other federal or state laws to provide Collection services in the City.
(C) 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.
26.2 Hazardous Substances Indemnification
(A) - Without regard to any insurance coverage or requirements, and without
limiting the above general indemnification obligation in any way, Contractor specifically
agrees to and shall, to the maximum extent permitted by law, defend (with counsel
acceptable to City) reimburse, indemnify, and hold City and its past and present officers,
council members, employees, consultants and agents (hereinafter "Indemnified Parties ")
harmless from and against any and all claims, actions, liabilities, damages, demands,
judgments, losses, costs, liens, expenses, suits, actions, attorneys' fees, consultant fees,
penalties and any and all other losses, damages, fees and expenses of whatever kind or
nature ( "Claims ") (including but not limited to response costs, investigative costs,
assessment costs, monitoring costs, treatment costs, cleanup costs, removal costs,
remediation costs, and similar costs, damages and expenses) that arise out of or are
alleged to arise out of or in any way relate to any action, inaction or omission of
Contractor that:
(1) results in any demand, claim, notice, order, or lawsuit, asserting that any
Indemnified Party 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
City Council Staff Report - Page 92 of 131
(2) relates to material Collected, transported, recycled, processed, treated or
disposed of by Contractor.
(B) Contractor's obligations pursuant to this Section shall apply, without
limitation, to:
(1) any Claims brought pursuant to or based on the provisions of the
Environmental Laws, including without limitation the Comprehensive Environmental Response,
Compensation and Liability Act ( "CERCLA "), 42 U.S.C. § 9601 et seq., the Resource
Conservation and Recovery Act ( "RCRA "), 42 U.S.C. § 6901 et seq., the Carpenter-Presley-
Tanner Hazardous Substances Account Act (California Health & Safety Code Sections 25300 et
seq.), the California Hazardous Waste Control Laws (California Health and Safety Code Sections
25100 et seq.), the California Porter - Cologne Act (California Water Code Section 13000 et seq.),
and any and all amendments and regulations thereto, and any other Federal, State, regional or
local environmental statutory or regulatory provision;
(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 by Contractor of any
facility;
(3) any Claims based on or arising out of or alleged to be arising out of the
marketing, sale, distribution, storage, transportation, disposal, processing or use of any materials
recovered by Contractor;
(4) any Claims based on or arising out of or alleged to be arising out of any
breach of any express or implied warranty, representation or covenant arising out of or in
connection with this .Agreement.
(C) The foregoing indemnity and defense obligations shall apply irrespective
of the negligence or willful misconduct of Contractor or any Affiliate of Contractor.
(D) For purposes of this Agreement, the term "Hazardous Contaminant" shall
mean any "hazardous material," as that term is defined under California Health & Safety
Code Section 25501(o); any "hazardous substance," as that term is defined herein or
under California Health & Safety Code Sections 25281(h), 25501(p), 25501.1 and under
Title 42, Section 9601(14) of the United States Code; any "hazardous waste," as that term
is defined herein and under Title 42, Section 6903(5) of the United States Code and under
California Health & Safety Code Section 25501(q); any chemical which the Governor has
identified as a chemical known to the State to cause cancer or reproductive toxicity
pursuant to California Health & Safety Code Section 25249.8; 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 the above - referenced statutory and regulatory provisions made
before or after the date of execution of this Agreement.
(E) 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.
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City Council Staff Report - Page 93 of 131
•
SECTION 27.
CONTRACTOR'S BOOKS AND RECORDS; AUDITS
27.1 Maintenance and Inspection of Records
Contractor shall maintain all records relating to the services provided hereunder,
including but not limited to Customer lists, billing records, accounts payable records, maps, AB
939 compliance records, records reflecting the number of refuse, recycling and Green Waste
routes and route hours by service category (such as residential, multi - family, commercial; roll -
off, and special services), records demonstrating facilities, equipment and personnel used to
perform services, records reflecting the number of refuse, recycling and Green Waste containers
in service by frequency of collection for each customer group (such as single family, multi-
family, commercial, roll -off); records reflecting the number of roll -off box pulls, and such other
documents and materials which reasonably relate to Contractors compliance with the provisions
of this Agreement (the "Records "), for the full Term of this Agreement, and an additional period
thereafter of not less than three (3) years, or any longer period required by law. City shall have
the right, upon five (5) business days advance notice, to inspect the Records. Such Records shall
be made available to City at Contractor's regular place of business, but in no event outside the
County of Los Angeles.
27.2 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, the City regards the ability to prove where Solid Waste Collected in
the City was taken for Disposal, as well as where it was not taken, to be matters of concern.
Contractor shall maintain data retention and preservation systems which can establish where
Solid Waste Collected in the City was landfilled (and therefore establish where it was not
landfilled) for not less than five (5) years following the termination of this Agreement, and
agrees to notify City's Risk Manager, City Clerk 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. The requirements of this Section shall survive the
expiration of the Term of this Agreement.
27.3 Ongoing Compliance Review
City intends review Contractor's performance on an ongoing basis to ensure compliance
with the terms and provisions of this Agreement, and it is City's intent that a designated portion
of the Administrative Cost Reimbursement, as more fully described in Section 11.2, will be used
to fund City's costs associated with ensuring Contractor's ongoing compliance. At a minimum,
City intends to have internal staff or outside consultants annually review Contractor's
performance to ensure ongoing compliance with the terms hereof, including, but not limited to,
the payment of required fees, performance of the services stated herein, implementation of
programs required under the Agreement, Contractor's maintenance and upkeep of records, and
compliance with all Applicable Laws. Contractor shall provide any and all information
reasonably requested by City in connection with its efforts to ensure compliance with the terms
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City Council Staff Report - Page 94 of 131
• •
hereof, regardless of whether such information is specifically otherwise called out herein as an
item that Contractor is required to maintain and provide to City.
27.4 Audits
27.4.1 Examination of Services
From time to time, anticipated to be at least once every other year, City may request
Contractor to make available any or all of its records related to performance hereunder available
to an independent auditor or examiner, to be selected by the City, for auditing and examination
purposes (a "Discretionary Audit "). City shall bear the cost of any Discretionary Audit except as
otherwise provided herein. Should any Discretionary Audit reveal an underpayment of any
Franchise Fee required pursuant to this Agreement, the amount of such underpayment shall
become due and payable to City not later than fifteen (15) days after written notice of such
underpayment is sent to Contractor by City, complete with any additional late charges as set
forth herein. If a Discretionary Audit reveals inaccuracies or inconsistencies in more than five
percent (5 %) of all Customer accounts, either with the Contractor's operations or billing systems,
or an underpayment of Franchise Fees of more than three percent (3 %), Contractor shall bear the
entire cost of such Discretionary Audit.
27.4.2 Route Audit
Contractor shall complete an audit at its expense of its Collection routes for all Customers
at such times as may be requested by City; provided, however, that while City may request that
such an audit occur at any time, it may not request such audits at Contractor's expense more than
5 times during the Term. The timing of such audits is at the City's discretion and may be
required to be timed with the issuance of a request for proposals for a new agreement. The route
audit, at minimum, shall consist of an independent physical observation by Person(s) other than
the route driver or route supervisor of each Customer in the City. The route audit shall include,
as a minimum, the following information for each account:
• Route Number;
• Truck Number;
• Account Name;
• Account Number;
• Account service address;
• Service Level per Billing System (quantity, size, frequency);
• Service Level per Routing System;
• Observed Containers (quantity, type and size);
64
City Council Staff Report -Page 95 of 131
0 0
• Serial number (or other coding if acceptable to the City Manager) identifying each
Cart and its associated service address;
• Bin condition;
• Proper signage; and
• Graffiti.
r
Within thirty (30) days after the completion of the route audit, Contractor shall submit to City a
report summarizing the results thereof which shall include:
• Identification of the routes;
• Truck numbers;
• Number of accounts, by route and in total;
• Number of Containers (broken down by type) per service address, per route and total
number of Containers;
• Types of exceptions observed;
• Number of exceptions by type;
• Total monthly Billing, pre- audit;
• Total monthly Billing, post -audit (subsequent to corrections of identified exceptions);
• Percentage of the number of accounts with errors to the total number of accounts
served; and
• Percentage of the "net" change in monthly Billing as a result of the audit to the total
pre -audit monthly Billing.
The report shall include a description of the procedures followed to complete the audit, and shall
include the names and titles of those supervising the route audits and the name and titles of those
performing the observations. Additionally, the report shall include a description of the pre -audit
training of the route auditors, particularly if temporary personnel are used. The report shall also
include a description of the changes and Contractor's plans to resolve any exceptions. The route
audit data and results of the audit shall be available for review by the City or its representative.
SECTION 28.
TRANSITION OBLIGATIONS
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 services. Contractor's cooperation shall
City Council Staff Report - Page 96 of 131
• •
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.
Contractor shall provide any new solid waste enterprise with all keys, security codes and
remote controls used to access garages, gates and bin enclosures. Contractor shall be responsible
for coordinating transfer immediately after its final collection activities, so as to not disrupt
services. 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, provide an updated list
two weeks before the transition, and a final updated list with any changes the day before the
transition. Contractor shall provide means of access to the new solid waste enterprise at least
one full business day prior to its first day of collection, and within sufficient time so as to not
impede in any way the new solid waste enterprise from easily servicing all containers.
SECTION 29.
GENERAL PROVISIONS
29.1 Force Maieure
Contractor shall not be in default under this Agreement in the event that its ability to
provide Solid Waste Handling Services or Temporary Services, in compliance with its obligation
to do so hereunder, is temporarily interrupted or discontinued for any of the following reasons:
riots, wars, sabotage, civil disturbances, insurrections, strikes or other labor disturbances lasting
5 days or less, explosion, natural disasters such as floods, earthquakes, landslides, and fires, or
"other catastrophic events" which are beyond the reasonable control of Contractor. The term
"other catastrophic events" does not include: (i) the financial inability of Contractor to perform;
(ii) failure of Contractor to obtain any necessary permits or licenses from other governmental
agencies; (iii) the failure to obtain the right, or the loss of the right, to use the facilities of any
public utility where such failure is due in substantial part to the acts or omissions of Contractor;
or (iv) strikes or other labor disturbances lasting longer than 5 days.
29.2 Independent Contractor
Contractor is an independent contractor and not an officer, agent, servant, or employee of
City. Contractor is solely responsible for the acts and omissions of its officers, agents,
employees, and subcontractors, if any. Nothing in this Agreement shall be construed as creating
a partnership or joint venture between City and Contractor. Neither Contractor nor its officers,
employees, agents, or subcontractors shall obtain any rights to retirement or other benefits which
accrue to City employees.
29.3 Pavement Damaee
Contractor shall be responsible for the cost of repair of any extraordinary damage to the
public streets located within the City resulting from providing the services required hereunder.
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City Council Staff Report - Page 97 of 131
9
29.4 Property Damage
Any physical damage caused by the negligent or willful acts or omissions of employees,
agents, or subcontractors of Contractor to private or public property shall be promptly repaired or
replaced at Contractor's expense.
29.5 Right of Entry
Contractor shall not have the right, until Contractor receives permission from the
property owner, to enter or drive on any private street, court, place, easement, or other private
property for the purpose of providing Temporary Services and/or Solid Waste Handling Services
pursuant to this Agreement.
29.6 Law to Govern; Venue
The laws of the State of California shall govern this Agreement. In the event of litigation
between the parties, venue in state trial courts shall lie exclusively in the County of Los Angeles.
29.7 Amendment
This Agreement is intended to carry out City's obligations to comply with the provisions
of AB 939 and AB 341, as implemented by regulations of CalRecycle ( "Regulations "), as they
from time to time may be amended. In the event that AB 939 or other state or federal laws or
regulations enacted after this Agreement has been enacted, prevent or preclude compliance with
one or more provisions of this Agreement, such provisions of the Agreement shall be modified or
suspended as may be necessary to comply with such state or federal laws or regulations. Except
as otherwise expressly stated herein, no other amendment of this Agreement shall be valid unless
in writing duly executed by the parties.
29.8 Notices
All notices required or permitted to be given under this franchise shall be in writing and
shall be personally delivered or sent by United States certified mail, postage prepaid, return
receipt requested, and addressed as follows:
To City: City of Lynwood
Attn: City Manager
11330 Bullis Road
Lynwood, CA 90262
To Contractor: [NAME],
or to such other address as either party may from time to time designate by notice to the other
given in accordance with this Section. Notice shall be deemed given on the date served if served
personally between the hours of 8:00 a.m. to 5:00 p.m. on any regular business day for City's
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City Council Staff Report - Page 98 of 131
i r
business offices. If mailed, notice shall be deemed given three (3) business days from the date
such notice is deposited in the United States mail in the manner proscribed above.
29.9 Savings Clause
If any non - material provision of this Agreement is for any reason held to be invalid or
unenforceable, the invalidity or unenforceability of such provision shall not affect the validity
and enforceability of any of the remaining provisions of this Agreement.
29.10 Exhibits Incorporated
Exhibits A through G are attached to and incorporated in this Agreement by reference.
29.11 Joint Drafting
This Agreement shall be interpreted as if it were drafted jointly by the parties to the
Agreement.
29.12 Attorneys' Fees and Litigation Costs
In the event either party brings any action or proceeding to enforce or interpret the terms
or provisions of this Agreement, the prevailing party in any such action or proceeding shall be
entitled to recover its reasonable attorneys' fees and other litigation costs and expenses, including
without limitation expert witness fees, consultant fees and costs. Without limiting its scope in
any way, this provision is expressly intended to, and shall, apply to fees and costs incurred in any
appeal.
29.13 City's Authorized Agent
Notwithstanding anything contained herein to the contrary, and excepting amendments
hereto and such actions set forth herein specifically calling for City Council action or approval,
the City Manager is designated as the City's authorized agent to take any action with regard to
any matter, or enforce any right, set forth herein requiring action by the City.
29.14 Integrated Agreement
This Agreement contains the entire integrated agreement and understanding concerning
the subject matter herein and supersedes and replaces any prior negotiations, promises,
proposals, 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.
-68 City Council Staff Report - Page 99 of 131
29.15 Section Headings
The 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.
29.16 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, including the laws and regulations of the United
States, the State of California, the provisions of the Municipal Code, - and any federal, state,
regional or local administrative and regulatory, agencies, now in force and as they may be
enacted, issued or amended.
"City"
CITY OF LYNWOOD
Salvador Alatorre, Mayor
ATTEST:
By:
Maria Quinonez, City Clerk
APPROVED AS TO FORM:
A. Patrick Munoz, Special Counsel
M
"Contractor'
[NAME], LLC.
By:
69- City Council Staff Report - Page 100 of 131 j
EXHIBIT A
MAXIMUM RATE SCHEDULE FOR SOLID WASTE HANDLING SERVICES:
ATTACHED
City Council Staff Report - Page 101 of 131
CITY OF LYNWOOD •
EXHIBIT "A"
Maximum Rates for Services
Residential Cart Service (both single and
multi - family dwellings) (Monthly)
35- gallon refuse cart
96- gallon refuse cart
Each additional 35- gallon refuse cart
Each additional 96- gallon refuse cart
Walkout service for eligible customers
Walkout service for ineligible customers
Multi - Family Dwelling Bulky Item 3 yard
Bin (Monthly) [In event different size bins
are proposed, provide size and rate]
1 x p /wk
2 x p /wk
3 x p /wk
4 x p /wk
5 x p /wk
6 x p /wk
Single & Multi - Family Dwelling Bulky
Item On -Call Service
For each Bulky Item in excess of five (5) -
price per item
Commercial Refuse Carts: Rate Per Cart
(Monthly) [96 gal only]
1 x p /wk
2 x p /wk
3 x p /wk
4 x p /wk
5 x p /wk
6 x p /wk
Page 1 of 4
Maximum Rate
$0.00
$0.00
$0.00
$0.00
No Charge
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
Z M
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
City Council Staff Report - Page 102 of 131
1 0 CITY OF LYNWOOD •
EXHIBIT "A"
Maximum Rates for Services
Page 2 of 4
Maximum Rate
Commercial Refuse Bins: Rate Per Bin (Monthly)
1 x p /wk
3yd
2 x p /wk
3yd
3 x p /wk
3yd
4 x pJwk
3yd
5 x p /wk
3yd
6 x pJwk
3yd
7x pJwk
3yd
Commercial Refuse Bins
1 x p /wk
2 x p /wk
3 x p /wk
4 x p /wk
5 x p /wk
6 x p /wk
7x p /wk
Commercial Refuse Bins
1 x p /wk
2 x p /wk
3 x p /wk
4 x p /wk
5 x p /wk
6 x p /wk
7x p /
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
Rate Per Bin (Monthly)
4yd
4yd
4yd
4yd
4yd
4yd
4yd
Rate Per Bin (Monthly)
5yd
5yd
5yd
5yd
5yd
5yd
5yd
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
Commercial Refuse Bins: Rate Per Bin (Monthly)
1 x p /wk
6yd
2 x p /wk
6yd
3 x p /wk
6yd
4 x p /wk
6yd
5 x p /wk
6yd
6 x p /wk
6yd
7 x p /wk
6yd
Locking Bins
Installa
Monthly
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
City Council Staff Report - Page 103 of 131
0
9
Page 3 of 4
CITY OF LYNWOOD
EXHIBIT "A"
Maximum Rates for Services
Maximum Rate
Each Extra "Dump"
Commercial Refuse Bin
Commercial Refuse Bin
Commercial Refuse Bin
Commercial Refuse Bin
Commercial Rolloff Boxes Rates per pull
per Box (Monthly "Permanent Service ")
[In event different size rolloffs are
proposed, provide size and rate]
10 yd Rolloff
15 yd Rolloff
20 yd Rolloff
30 yd Rolloff
40 yd Rolioff
20 yd Compactor
30 yd Compactor
40 yd Compactor
Additional Rolloff Charges
Per Ton Processing /Disposal Charge
Applicable to all Commercial and
Temporary Rolloff Boxes
Relocation
Dead Run
Saturday Service - per pull
Temporary Bins (price per number of
services per week)
1 x p /wk
2 x p /wk
3 x p /wk
4 x p /wk
5 x p /wk
6 x p /wk
Temporary Bins (applicable to a single
drop off and Collection)
3yd
4yd
5yd
6yd
3yd
3yd
3yd
3yd
3yd
3yd
3yd
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
City Council Staff Report - Page 104 of 131
0 9
CITY OF LYNWOOD
EXHIBIT "A"
Maximum Rates for Services
Temporary Service - Rolloff Boxes {price
per pull
10 yd Rolloff
15 yd Rolloff
20 yd Rolloff
30 yd Rolloff
40 yd Rolloff
Additional Steam Cleaning
Bins
Rolloff Box
Commercial Bulky Item Service
First two items
Each additional item
Restart Fee
Page 4 of 4
Maximum Rate
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
City Council Staff Report - Page 105 of 131
EXHIBIT B
CONTAINER/BIN SPECIFICATIONS
• Contractor shall provide Container Specifications to City which shall be attached to this
Exhibit B. All Containers utilized by Contractor shall meet the standards of the industry and
shall perform to the reasonable satisfaction of the City Manager in order to be utilized in
City.
Each Refuse, Green Waste and Recycling Cart utilized by Contractor shall be labeled on the
inside in English and Spanish and with graphics so as to: (1) explain/depict the items for
which it is designated to Collect, and (2) identify the name of Contractor and Contractor's
phone number for service related issues, including complaints. In addition, each such Cart
shall include information, in a formal acceptable to City (such as hot stamping or stickers),
regarding Contractor's Bulky Item service, and a phone number that Customers can call to
access such service.
The body of Refuse Carts shall be a uniform _ color, Recycling Carts shall be a uniform
color and Green Waste Carts shall be a uniform color.
Any. Cart distributed by Contractor in City after the Effective Date shall be newly
manufactured and have never previously been used for the Collection of Solid Waste;
excepting that Carts which have been refurbished such that they are "like new" may be used
so long as their condition is satisfactory as determined by the City Manager.
All Carts distributed pursuant to this Agreement shall have an identifying serial number hot
stamped into the Cart body, or otherwise have an individual identification demarcation
affixed to the Cart in a manner acceptable to the City Manager. Contractor shall keep
current, and provide to City at the times set forth in this Agreement, a list of each address to
which a Cart has been distributed and the serial number (or other acceptable identification) of
all Carts at each such address.
• Upon request of any Customer, Contractor shall provide Bins with lids that close securely
and which are capable of being locked at rates that do not exceed those set forth in Exhibit A.
-1-
City Council Staff Report - Page 106 of 131
0 •
EXHIBIT C
MULTI- FAMILY DWELLING RECYCLING PROGRAM
-1-
City Council Staff Report - Page 107 of 131
EXHIBIT D
E
COMMERCIAL RECYCLING PROGRAM
2
City Council Staff Report -Page 108 of 131
0
11
EXHIBIT E
BULKY ITEM SWEEP PROGRAM
-3-
City Council Staff Report - Page 109 of 131
EXHIBIT F
PUBLIC TRASH CAN LOCATIONS:
ATTACHED
-4-
City Council Staff Report - Page 110 of 131
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City Council Staff Report - Page 114 of 131
EXHIBIT G
FACILITIES TO BE USED FOR DISPOSAL AND PROCESSING
-5-
City Council Staff Report - Page 115 of 131
• •
Attachment 3
Timeline for Award of Solid Waste Franchise
-to-
City Council Staff Report - Page 116 of 131
0 0
' City of Lynwood
Timeline for Award of Solid Waste Franchise
DATE
TASK
July 31, 2013 (Wednesday)
City Council Special Meeting to (1) obtain
City Council authorization to release Solid
Waste Agreement for proposals and (2) obtain
approval of Instruction Sheet to proposers
explaining requirements of RFP process.
August 15, 2013 (Thursday) at 4:00 p.m.
Interested haulers must submit their bids to the
City Clerk in a sealed envelope by 4:00 p.m.
August 15, 2013 (Thursday) from 4:00 -6:00
RFP Ad Hoc Committee, Emilio Murga, Sarah
p.m.
Withers, Solid Waste Consultant and Special
Counsel open and begin review of proposals.
August 16, 2013 (Friday)
Copies of proposals distributed to Council.
August 15, 2013- August 26` 2013
Review and analysis of proposals.
August 26, 2013 (Monday) at 1:00 p.m.
Ad Hoc Committee, Emilio Murga, Sarah
Withers, Solid Waste Consultant and Special
Counsel meet to discuss proposals and develop
recommendations for City Council.
August 29, 2013 (Thursday)
Agenda posted for September 3, 2013 City
Council meeting. Agenda will include staff
report with recommendations for selection of a
proposal, and a resolution to award the Solid
Waste Franchise. The Staff report will include
all the proposals and will provide flexibility for
the Council to choose a proposal other than
that recommended by Ad Hoc Committee if it
so desires.
September 3, 2013 (Tuesday)
Regular City Council meeting: Consideration
of award of Franchise and adoption of
Resolution re same.
November 1, 2013 (Friday)
Implementation of new Franchise Agreement.
25751030774 -0002
5961117.1 a07/26113
City Council Staff Report - Page 117 of 131
Attachment 4
Sample Proposal Table of Contents
The following is an order that Proposers should adhere to when preparing their proposals:
1). Introductory Requirements
a) Cover page
b) Transmittal letter
c) Table of contents
2) Completed Draft Agreement Exhibits
a) Exhibit A: Rate Schedule
b) Exhibit B: Container Specifications
c) Exhibit C: Multi - Family Dwelling Recycling Program
d) Exhibit D: Commercial Recycling Program
e) Exhibit E: Bulky Item Sweep Program
0 Exhibit G: Facilities to be Used for Disposal and Processing
3) Additional Exhibits
a) Exhibit l: Exceptions
b) Exhibit 2: Performance
i) Implementation Plan
ii) Transition Experience
iii) Evidence of Ability to Perform
iv) Initial Franchise Fee
v) Insurance and Surety Evidence
vi) Affidavit re Anti - Collusion
vii) Disposal or Diversion Facilities
City Council Staff Report - Page 118 of 131
viii) Solid Waste Franchise Experience
ix) Diversion Rates
x) Community Outreach Examples
xi) Residential Sharps Collection Program
c) Exhibit 3: Proposer Information
i) Proposer Business Information
ii) Legal Actions
iii) Financial Statements
d) Exhibit 4: Any Other Information Not Otherwise Already Included in the Proposal
-12-
City Council Staff Report - Page 119 of 131
0 0
Attachment 5
Affidavit Re Anti - Collusion
THIS ATTACHMENT MUST BE COMPLETED IN ORDER FOR PROPOSER'S BID
TO BE CONSIDERED.
The undersigned, being first duly sworn, deposes and says:
I have the legal authority to execute this affidavit on behalf of
( "Proposer ").
2. Proposer has not directly or indirectly induced, solicited, colluded with, or agreed
with any other person, potential proposer(s), or actual proposer(s) to refrain from submitting a
proposal, to control the price of a proposal, nor to limit the scope of a proposal or number of
proposers.
3. Proposer further has not and will not share the information to be contained in
Proposer's sealed proposal to any other person, potential proposer(s), or actual proposer(s) until
the sealed proposals are opened by the City of Lynwood ( "City "). The prohibition does not
extend to those that have a partnership or other similar financial interest in Proposer.
4. Proposer has not directly or indirectly induced, solicited, colluded with, or agreed
with any City official, officer, employee, or representative to as to the price or scope of services
in the solid waste agreement, nor have there been any conversations between Proposer and any
City official regarding the exchange of money or other things of value for special consideration
in the award of said solid waste agreement.
5. Proposer has not made any payment, donation, nor agreed to pay or agreed to
make a donation either directly or indirectly to any City official, officer, employee, or
representative for special consideration in the award of said solid waste agreement.
Executed under penalty of perjury on this day of , at
M
TITLE:
-13-
City Council Staff Report - Page 120 of 131
City Council Staff Report
Attachment 2
City Council Staff Report - Page 121 of 131
E
City of Lynwood
Timeline for Award of Solid Waste Franchise
DATE
TASK
July 31, 2013 (Wednesday)
City Council Special Meeting to (1) obtain
City Council authorization to release Solid
Waste Agreement for proposals and (2) obtain
approval of Instruction Sheet to proposers
explaining requirements of RFP process.
August 15, 2013 (Thursday) at 4:00 p.m.
Interested haulers must submit their bids to the
City Clerk in a scaled envelope by 4:00 p.m.
August 15, 2013 (Thursday) from 4:00 -6:00
RFP Ad Hoe Committee, Emilio Murga, Sarah
p.m.
Withers, Solid Waste Consultant and Special
Counsel open and begin review of proposals.
August 16, 2013 (Frida
Copies of proposals distributed to Council.
August 15, 2013- August 26` 2013
Review and analysis of proposals.
August 26, 2013 (Monday) at 1:00 p.m.
Ad Hoc Committee, Emilio Murga, Sarah
Withers, Solid Waste Consultant and Special
Counsel meet to discuss proposals and develop
recommendations for City Council.
August 29, 2013 (Thursday)
Agenda posted for September 3, 2013 City
Council meeting. Agenda will include staff
report with recommendations for selection of a
proposal, and a resolution to award the Solid
Waste Franchise. The Staff report will include
all the proposals and will provide flexibility for
the Council to choose a proposal other than
that recommended by Ad Hoc Committee if it
so desires.
September 3, 2013 (Tuesday)
Regular City Council meeting: Consideration
of award of Franchise and adoption of
'Resolution re same.
No vember 1, 2013 (Friday)
Implementation of new Franchise Agreement.
257 SIO30774 -0002
59611 V.1 07(26/13
City Council Staff Report - Page 122 of 131
0 0
City Council Staff Report
Attachment 3
City Council Staff Report - Page 123 of 131
0 0
July 25, 2013
Mr. A. Patrick Munoz
Rutan & Tucker, LLP
611 Anton Boulevard, 14th Floor
Costa Mesa, CA 92626
Dear Mr. Munoz,
It was informative meeting you at the hauler participation meeting. We are interested in and are
planning on responding to the City of Lynwood's Request for Proposal for Waste Hauling
Services. However, we are concerned with the time frame for RFP responses. While we can still
respond under this time frame, given the time constraints, our proposal may not be as thorough
as we would like it to be.
We appreciate this opportunity to express our concerns and look forward to working with you
during this process.
Sincerely,
Elba Romo
Government Affairs
13714 Chestnut Street • Whittier, CA, 90605 • Tel (562) 945 -2688. Fax (562) 945 -4311
City Council Staff Report - Page 124 of 131
Email: wasterecychngservicesOgmail.com
0 0
SloanVAZQUEZLLC
Municipal Solid Waste & Recycling Advisors
July 25, 2013
Louis Ippolito
Municipal Solid Waste Consultant
City of Lynwood, California
11330 Bullis Road
Lynwood, CA 90262
Re: Municipal Solid Waste Service Procurement Schedule
City of Lynwood, CA
Dear Mr. Ippolito:
Our firm provides services to municipalities and private sector waste management and recycling
contractors nationwide. One of our Southern California clients has expressed interest in
preparing a proposal in response to the City of Lynwood's Request for Proposals (RFP). Our
client is exceedingly well - qualified and able to provide all of the needed services at fair - market
prices. However, due to the uncharacteristically short submittal deadline, they are reluctant to do
so,.for several reasons, as follow:
The deadline does not allow sufficient time to complete the due - diligence that is required by aten
(10) year, $60,000,000.00 municipal contract that will require a multi - million dollar capital
investment in trucks, carts, bins, roll -off boxes, compactors, and processing equipment.
Unusually short deadlines seem to portend that the issuer has determined a probable course of
action and that the RFP process is simply going through the motions.
The City of Lynwood contract is a desirable piece of business that would certainly attract a
significant number of bona fide proposals under normal circumstances. The short submittal
deadline is anything but normal. I am certain that it will discourage participation by several
companies that would otherwise offer competitive bids to the city.
It is our recommendation that, in order to attract the highest number of bona fide, quality,
competitive proposals for the City of Lynwood, the submittal deadline be extended by, at least
six (6) weeks, and, preferably for two months.
Best Regards,
Joe Sloan
President
cc: Patrick Munoz, Rutan and Tucker
18006 Sky Park Circle - Suite 205, Irvine, CA 92614
Tel: 866.241.4533 Fax: 714.276.0625 info @sloanvazquez.com
City Council Staff Report - Page 125 of 131
0 0
Munoz, Patrick
From:
Gary Clifford [GClifford @athensservices.com]
Sent:
Thursday, July 25, 2013 8:49 AM
To:
Munoz, Patrick
Cc:
Will Wilson
Subject:
RFP Process
Patrick,
Athens Services would be honored to participate in the RFP process as indicated in your email. Athens Services also
recognizes the short timeline and potential condensed process that may be initialized. Our feedback to you is our
experience shows having adequate lead time to audit the city, create an accurate work -plan, and develop efficiencies
will result in a synergistic and competitive proposal. That being said, Athens is prepared to respond in any event, be it a
condensed timeline, or the latter. We look forward to working with your firm during this process.
Respectfully Submitted,
Gary M Clifford
626 - 705 -6919
City Council Staff Report - Page 126 of 131
0 0
Valley Vista Services
tbE.
Waste Disposal and Recycling Division
ucm.dny me r nns %eumef 17445 East Railroad Street • City of Industry, California 91748 • (800) 442 -6454 • fax (626) 961 -1105
A. Patrick Munoz
Rutan & Tucker, LLP
611 Anton Boulevard, 14th Floor
Costa Mesa, CA 92626
July 24, 2013
Subject: City of Lynwood Request for Proposals for Solid Waste Collection
Mr. Munoz;
It was good meeting you the other day at Lynwood City Hall for a hauler participation
meeting on the City's upcoming RFP for refuse and recycling. As you may know, Valley
Vista is a family owned solid waste collection company with its base in the City of
Industry with various franchise contracts in Los Angeles County. We are interested in
bidding on the City's solid waste collection RFP and would like to be involved in the
process as the City moves forward. However, there are things that are of concern to my
firm and those I've spoken with, and that is the timing of the RFP.
We are not sure why the City is on such a fast track to select a hauler who is qualified
and has gone through rigorous collection strategy development, legal negotiations, due
diligence, equipment and vehicle acquisition and mobilization to implement an Important
residential and business collection program that is error -free and assured of
circumventing mistakes made by the previous hauler. Valley Vista management believes
the City needs more time to conduct a fair and equitable selection process. For example,
if only the large public haulers can take refuse collection vehicles that are SCAQMD
compliant off the shelf for collection transition and implementation, this prejudices the
small and medium sized haulers. Suffice to say, the two previous haulers the City has
been unhappy with are WM and Republic Services. They would both have a clear
advantage.
® Printed on Recycled Paper
City Council Staff Report - Page 127 of 131
0 0
In almost all of the previous RFP sessions we have been involved with; the responsible
cities worked through a thorough process and selected a qualified hauler after much
evaluation and negotiations. Lynwood doesn't seem to be taking this route and the
haulers, whether they admit it or not, are concerned.
In other cities the residents and businesses are involved, the evaluation process is no
less than 45 days, the RFP development process is no less than 60 days, and
negotiations thereafter. Then, all has to be brought back to council for study,
examination, and final approval.
We would not like to complain. We will be available for the accelerated process, but we
are saying it is difficult and not in the best interest of the City of Lynwood to rush such an
important process.
David M
Vice Pre
City Council Staff Report - Page 128 of 131
0 0
United Pacific Waste
& Recycling Services
July 25, 2013
A Patrick Munoz
Rutan & Tucker, LLP
611 Anton Boulevard, 14 Floor
Costa Mesa, CA 92626
RE CITY OF LYNWOOD RFP FOR SOLID WASTE COLLECTION AGREEMENT
On Thursday July 18, 2013, UPW representatives attended an informational
meeting regarding the process for an upcoming RFP for providing solid waste
collection to the residents and business in the City of Lynwood. in general we
were informed that this would be a very quick process with extremely short
turnaround time between release of the RFP in August and deadline for the
haulers to provide written proposals to the RFP. The reason for this time
constraint is that city wants to have city council award the new contractor and to
have service begin before the current exclusive franchise agreement expires
November 1, 2013.
Several firms that attended this meeting raised concerns about the RFP process
not only because of the time line verbally discussed but also because the city was
still attempting to obtain and validate important data to be included in the RFP.
The RFP should not be released until the city and its consultants has obtained,
carefully reviewed and analyzed validated and included all critical data in the
RFP.
4340 San Gabriel River Parkway • Pico Rivera, CA 90660
Phone: 562.699.7600 fax:562.699.7665
www.upwrs.com i
r
City Council Staff Report - Page 129 of 131
The providing of trash service to the residents and business community is one of
the most important services in any city. The preparation of the RFP approval of
the RFP by the city, responses by qualified firms analysis of the responses
i1pproval by city councll and finally a smooth transition if a new firm is awarded
the franchise is a process that should not be rushed
Keep in mind, from a haulers standpoint a proper timeline with validated
information will produce the best proposals to the City. A proper timellne than
allows the city to award a contract with the best equipment alone with
competitive pricing to provide Impeccable service to the City and maintain the
standards of performance required by the RFP. I have included for your
Information a Procurement Schedule from a 2011 RFP which is a typical RFP
time line,
Sincerely,
Michael Kandilian
CEO
Cc; Sal Alatorre, Mayor
Ramon Rodriquez, Mayor Pro Tern
Aide Castro, Council Member
Jim Morton, Council Member
Maria T. Santillan -Beas, Council Member
Roger L. Haley, City Manager
I
City Council Staff Report - Page 130 of 131
• A
...,, u:c++r,. a 1v t c)cu nu Vr an
proposals, to accept or reject any one or more items of a proposal, or to waive any minor
irregularities or informalities in the proposal.
SCHEDULE
The procurement schedule is shown in Table 2. Thesedates are subject to change by the City
Table 2: Procurement Schedule
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Release of RFP
September 27, 2011
Pre-Proposal Meeting, 2:30 p.m. City Council Chambers
October 5, 2011
Last day to submit written questions
N o ve mber14,2011 .
Pr oposa l s due to t Ci Cl er k b 00
c ' or J anuar y 2012
I nterv i ews , if requested b
Fe '
A ward C
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of service
September 13, 2011 4 City of Pico Rivera
City Council Staff Report - Page 131 of 131