HomeMy WebLinkAbout65B - INITIATION OF NEW SOLID WASTE SRVS CONTRACT PROCESSREQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
JUNE 20, 2017
TITLE:
AUTHORIZE INITIATION OF A NEW SOLID
WASTE SERVICES CONTRACT PROCESS
AND AMEND AND RESTATE EXISTING
SOLID WASTE AGREEMENT
:{STRATEGIC PLAN NO. 4, 1
DEPU ANAGER
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
APPROVED
❑ As Recommended
❑ As Amended
❑ Ordinance on 1� Reading
❑ Ordinance on 2nd Reading
❑ Implementing Resolution
❑ Set Public Hearing For
CONTINUED TO
FILE NUMBER
Authorize staff to start negotiation of a one-year extension of the current agreement with USA
Waste of California, Inc. (dba Waste Management of Orange County) and return to Council
with results within 90 days for further consideration and direction.
2. Direct staff to initiate a Request for Proposals process for solid waste services to be effective
upon the completion of the one-year extension negotiation.
3. Approve the proposed Amended and Restated Solid Waste Services Agreement with USA
Waste of California, Inc. (dba Waste Manaaement of Oranae Countv).
DISCUSSION
On June 30, 1993, at the completion of a Request for Proposals (RFP) process, the City entered
into an agreement with Great Western Reclamation for solid waste collection and handling.
Subsequently, there were 13 separate Council -approved amendments and resolutions to, among
other things, establish fees, implement the 3 -cart curbside trash collection service, and to extend
the agreement term. The most recent of these amendments was approved on June 1, 2009
(Exhibit 1). The agreement will expire June 20, 2018.
In December 2015, the City Council approved a consultant services agreement with Sloan
Vazquez to assist the City with a solid waste program RFP process. The scope includes a
comparison of solid waste services rates and level of service in ten comparable municipalities in
Orange County. In addition to analyzing the services, the consultant is also tasked with providing
an analysis of the options for either a new or extended contract.
Separately, the City Attorney's office reviewed the current solid waste services agreement and
recommended restating all amendments to the current solid waste services agreement into a
single Amended and Restated Agreement ("Proposed Agreement") and clarifying the pass -
6513 -1
Authorize Initiation of a new Solid Waste Services Contract Process and
Amend and Restate Existing Solid Waste Agreement
June 20, 2017
Page 2
through and impact fees, for tracking and transparency purposes, as well as compliance with
applicable legal requirements (Exhibit 2).
The Proposed Amended and Restated Agreement is a consolidation of all of the previous
amendments and agreements and identifies a single franchise fee to replace a number of
miscellaneous charges and transfers to the City (i.e., Program Surcharge, Administrative,
NPDES, and other fees added to the cost of services). All of the fees from residential,
commercial, and industrial services will be consolidated and set forth as a single Franchise Fee
of approximately 26 percent (Exhibit 2). The Proposed Agreement does not present any
customer rate or service changes. Waste Management has agreed to the terms of the Amended
and Restated Agreement. The proposed Amended and Restated Agreement action would not
extend the term of the original agreement, which is June 30, 2018.
Staff is recommending authorization to negotiate a one-year extension with Waste Management
of Orange County to provide sufficient time to complete the RFP process toward a new, long-
term agreement. As a part of this extension, the City must immediately address existing program
gaps mandated by legislation, which will require modification to the current agreement. Rollout of
the Los Angeles commercial franchise system requires transition of approximately 70,000
commercial accounts over the next nine months to a year and may place a strain on equipment
manufacturing and delivery capabilities (i.e., trucks, bins, etc.), consequently raising the cost of
services to the City. Finalization of County of Orange renewable energy infrastructure plan during
this time could provide lower-cost disposal options not currently available. The agreements with
Waste Management and Ware Disposal for construction and demolition debris collection, and the
Madison Materials Host Fee Agreement will be extended to expire concurrently with the
negotiated extension.
The RFP process will take approximately 15 to 18 months to complete. Staff recommends
releasing the RFP immediately upon completion of the short-term extension negotiation. This will
position the City for an effective and timely rollout of the new contract.
STRATEGIC PLAN ALIGNMENT
Approval of this item supports the City's efforts to meet Goal #4 — City Financial Stability,
Objective #1 (maintain a stable, efficient and transparent financial environment).
ENVIRONMENTAL IMPACT
There is no environmental impact associated with this action.
FISCAL IMPACT
There is no fiscal impact associated with this item.
65B-2
Authorize Initiation of a new Solid Waste Services Contract Process and
Amend and Restate Existing Solid Waste Agreement
June 20, 2017
Page 3
Fre Mou avip ur
Executive Director
Public Works Agency
FM/MLM/ck
Exhibits: 1. Solid Waste Agreement History
2. Proposed Amended and Restated Agreement
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FOURTH AMENDED AND RESTATED
AGREEMENT FOR COLLECTION AND HANDLING
OF SOLID WASTES GENERATED, PRODUCED AND/OR
ACCUMULATED IN THE CITY OF SANTA ANA
by and between
THE CITY OF SANTA ANA
0
USA WASTE OF CALIFORNIA INC.
EXHIBIT 2
65B-5
TABLE OF CONTENTS
Page
RECITALS....................................................................................................................................1
1.
GRANT OF CONTRACT: ................................................................................................
2
2.
TERM OF CONTRACT: ...................................................................................................
2
3.
DEFINITIONS: ..................................................................................................................
2
4.
SCOPE OF SERVICE: ......................................................................................................
6
5.
COLLECTION HOURS: ...................................................................................................
6
6.
HOLIDAYS: .......................................................................................................................
7
7.
FREQUENCY OF COLLECTIONS: ................................................................................
7
8.
MAINTENANCE OF SCHEDULES: ...............................................................................
7
9.
EXCLUSIVENESS OF AGREEMENT: ...........................................................................
7
10.
SOLID WASTE FRANCHISE FEE: .................................................................................
8
11.
AUTOMATED SYSTEM: ................................................................................................
9
(a) -(f) Intentionally Omitted
(g) REPLACEMENT OF RESIDENTIAL AND COMMERCIAL
COLLECTION VEHICLES..................................................................................
9
12.
COLLECTION POINTS AND REQUIREMENTS:.........................................................
9
13.
SERVICES TO BE PROVIDED BY CONTRACTOR TO CITY FOR CITY
OPERATIONS:................................................................................................................10
(a) CITY GOVERNMENT OPERATIONS.............................................................
10
(b) STREET SWEEPING..........................................................................................
10
(c) NEIGHBORHOOD CLEANUPS........................................................................10
14.
COLLECTION, RECYCLING, YARD WASTE DIVERSION AND DISPOSAL,
REQUIREMENTS: ..........................................................................................................
11
(a) CURBSIDE SERVICE........................................................................................
11
(1) Non -Recyclable Solid Waste Collection and Recycling Plastic
Carts.........................................................................................................
11
(2) Recyclable Solid Waste Collection and Recycling Plastic Carts .............
11
(3) Yard Waste Collection and Recycling Plastic Carts ................................
11
(b) BIN SERVICE.....................................................................................................11
(c) ROLL -OFF SERVICE.........................................................................................12
(d) TEMPORARY BIN SERVICE...........................................................................12
I
o• � ',
65B-7
TABLE OF CONTENTS
(continued)
Page
28. SPECIAL BIN SERVICES AND CUSTOMER SERVICE REQUIREMENTS .......... 19
29. MINIMUM SERVICE LEVELS - MULTI -FAMILY RESIDENTIAL
BUILDINGS: ................................................................................................................... 20
30. MINIMUM SERVICE LEVELS - COMMERCIAL/INDUSTRIAL BIN
SERVICE AND ROLL -OFF SERVICES....................................................................... 21
31. SERVICE STANDARDS:............................................................................................... 21
ii
o• w •
(e) PARKWAY CLEAN-UP FOLLOWING GARAGE SALES .............................12
(f) - ALLEY CLEAN -TIP FOLLOWING THE IST OF EACH MONTH................12
(g) DISPOSAL..........................................................................................................12
15.
[RESERVED]
16.
CIWMA REPORTING REQUIREMENTS: ...................................................................
13
17.
SRRE CONSULTANT: ...................................................................................................
13
18.
PUBLIC EDUCATION SERVICES: ..............................................................................
14
19.
STANDARDS FOR COLLECTION, EQUIPMENT AND NOISE: ..............................
15
20.
MAINTENANCE OF BINS AND ROLL -OFF CONTAINERS: ...................................
15
21.
COLLECTION OF BULKY ITEMS: .............................................................................
16
22.
CURBSIDE SERVICE PAYMENTS:............................................................................
17
23.
RESIDENTIAL BIN SERVICE RATES: .......................................................................
17
24.
COMMERCIAL/INDUSTRIAL BIN SERVICE RATES: .............................................
19
25.
ROLL -OFF SERVICE RATES: ......................................................................................
18
26.
COMPENSATION FOR GRANTS:...............................................................................
18
- - -27-.
.. -ADJUSTMENTS TO -CH A:RGES.......:::..-........:.. - - -
-
(a) HAULING AND PROCESSING CHARGES.....................................................18
(1) PRICE INDICES.....................................................................................18
(2) CURBSIDE SERVICE............................................................................18
(3) BIN SERVICE AND ROLL -OFF SERVICE.........................................18
(b) GATE FEES.........................................................................................................19
(c) SOLID WASTE FRANCHISE FEE....................................................................19
(d) SMART FEES....................................................................................................
19
28. SPECIAL BIN SERVICES AND CUSTOMER SERVICE REQUIREMENTS .......... 19
29. MINIMUM SERVICE LEVELS - MULTI -FAMILY RESIDENTIAL
BUILDINGS: ................................................................................................................... 20
30. MINIMUM SERVICE LEVELS - COMMERCIAL/INDUSTRIAL BIN
SERVICE AND ROLL -OFF SERVICES....................................................................... 21
31. SERVICE STANDARDS:............................................................................................... 21
ii
o• w •
TABLE OF CONTENTS
(continued)
Page
32.
SUPERVISION: .............................................................................................................. 21
33.
TITLE TO SOLID WASTE: ...........................................................................................
22
34.
FAILURE TO COLLECT: ..............................................................................................
22
35.
DEFAULT, DAMAGES AND TERMINATION OF AGREEMENT: .........................
23
36.
LIQUIDATED DAMAGES: ...........................................................................................
24
37.
USE BY CITY OF CONTRACTOR'S EQUIPMENT: ..................................................
25
38.
COMPLAINTS: ...............................................................................................................
25
39.
COMPENSATION REDUCTION DURING STRIKE PERIOD: ..................................
26
40.
FEES AND GRATUITIES: .............................................................................................
27
41.
LEGAL RELATIONS AND RESPONSIBILITIES: . .....................................................
27
(a) Applicable Laws..................................................................................................
27
(b) Personnel..............................................................................................................28
(c) Permits and Licenses............................................................................................
28
(d) Workers' Compensation Policy...........................................................................
28
(e) Public Liability Insurance....................................................................................
28
- - - -
- (f) - Insurance- Responsibility for -CITY Owned Solid Waste Collection and
-
RecyclingVehicles..............................................................................................
28
(g) Indemnification....................................................................................................29
(h) Enforcement of Scope of Services.......................................................................
29
(i) Waivers................................................................................................................29
42.
SUBCONTRACTORS AND MANAGEMENT: ............................................................
30
43.
ACCOUNTING AND AUDITING: ................................................................................
30
44.
BOND: .............................................................................................................................
30
45.
MEDIA RELATIONS: ....................................................................................................
30
46.
NOTICES: ........................................................................................................................
31
47.
GENDER AND NUMBER: ............................................................................................
31
48.
VALIDITY: .....................................................................................................................
31
49.
ASSIGNABILITY: ..........................................................................................................
31
50.
GOVERNING LAW: .......................................................................................................
32
WASTE MANAGEMENT HOLDINGS INC. (WMH) GUARANTEE ....................................
33
iii
o•
TABLE OF CONTENTS
(continued)
Page
EXHIBIT"A" _ SPECIFICATIONS.........................................................................................36
EXHIBIT `B" — NOT REQUIRED
EXHIBIT «C„ — RATES.............................................................................................................. 40
EXHIBIT "D" — NOT REQUIRED
iv
65B-10
FOURTH AMENDED AND RESTATED
AGREEMENT FOR COLLECTION AND HANDLING
OF SOLID WASTE GENERATED AND/OR
ACCUMULATED IN THE CITY OF SANTA ANA
This FOURTH AMENDED AND RESTATED AGREEMENT, made and entered into
this day of , 2017 by and between the City of Santa Ana, a charter city
and municipal corporation duly authorized under the Constitution and laws of the State of
California (referred to herein as "City")," and USA Waste of California Inc., a Delaware
corporation dba Waste Management of Orange County, formally Great Western Reclamation, a
division of Waste Management Collection and Recycling, Inc, a California corporation,
hereinafter called, "CONTRACTOR,"
RECITALS
1. The Legislature of the State of California, by enactment of the California
Integrated Waste Management Act of 1989, Division 30 of the California Public Resources
Code, commencing with Section 40000 ("CIWMA" ), declares that it is within the public interest
to authorize and require local agencies to make adequate provisions for Solid Waste handling
within their jurisdictions.
2. In the opinion of the City Council of the City of Santa Ana, the public health,
safety and wellbeing require that the collection, transportation, and recycling, diversion by
means of composting, mulching and/or transforming, and disposal of Solid Waste, including, but
not limited to, the frequency and means of such collection, transportation and recycling, yard
waste diversion or disposal, and the charges and fees therefore, be provided by contract to a
qualified contractor,
3. On June 30, 1993, CITY and CONTRACTOR entered into an agreement for such
Solid Waste collection and handling (the "Original Agreement").
4. Since the execution thereof, CITY and CONTRACTOR jointly concurred that it
would be in the best interest of the CITY and the residents therein that the Original Agreement
be revised to provide for Solid Waste collection, recycling and disposal of Curbside Service
Units by means of automated Solid Waste collection vehicles and Solid Waste collection and
recycling plastic carts.
5. On June 1, 1996, CITY and CONTRACTOR entered into an agreement entitled
"Amended and Restated Agreement for Collection and Handling of Solid Waste Generated
and/or Accumulated in the City of Santa Ana" (hereinafter referred to as "Amended Agreement"
to effectuate the new curbside service collection program.
6. On June 19, 1997, CITY and Contractor entered into an Agreement entitled
"Second Amended and Restated Agreement for the Collection and Handling of Solid Waste
Generated and/or Accumulated in the City of Santa Ana" to clarify the responsibilities associated
with the collection, handling, and processing of solid waste collected by Contractor.
1
65B-11
7. On April 3, 2005, CITY and CONTRACTOR entered into an Agreement entitled
"Third Amended and Restated Agreement for the Collection and Handling of Solid Waste
Generated and/or Accumulated in the City of Santa Ana" ("Third Amended Agreement'), in
order to, among other things: (i) extend the term of the Agreement to June 30, 2018, (ii)
incorporate new programs to increase recycling and reduce illegal disposal of used oil, as well as
to reduce illegal dumping and litter throughout the City and (iii) include measures to ensure
continued compliance with the 50% diversion requirements as imposed by the State of
California.
8. The parties again desire to amend the Third Amended Agreement in its entirety to
incorporate the provisions of previous amendments and to clarify, update and realign the
financial provisions of the Agreement.
The City Council of the City of Santa Ana, hereby desires that CONTRACTOR be
engaged to provide for both the collection of Solid Wastes within the corporate limits of the City
of Santa Ana and the transportation of such Solid Wastes to appropriate places of processing,
recycling, yard waste diversion, and disposal, and to perform such services on the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, for the reasons recited above, and in consideration of the
respective and mutual covenants and promises hereinafter contained and made, and subject to all
the terms and conditions hereof, the parties hereto do hereby agree as follows:
1. GRANT OF CONTRACT:
CITY hereby grants to CONTRACTOR, for the term hereinafter set forth, the contract,
right —and Privileg e to collect f Ycle divert by mens of coinPosfng> mulcri ,- and/r
transforming, dispose and transport, to appropriate facilities as set forth in this Agreement, all
Solid Wastes (as herein defined and subject to the terms herein) generated, produced, kept and/or
accumulated in the City of Santa Ana, and CONTRACTOR, subject to all of the terms hereof,
hereby accepts and agrees to faithfully perform such contract and obligation.
2. TERM OF CONTRACT:
The term of this Agreement shall begin upon execution of this Agreement and shall
extend to June 30, 2018.
3.
As used in this Agreement, the following words and phrases shall have the meaning
assigned in this section, unless the context at the point of usage clearly requires a different
meaning.
(1) Agreement shall mean this Amended and Restated Agreement, including the
exhibits thereto and the documents incorporated herein by reference.
(2) Auditor shall mean the certified public accountant firm retained by City for
auditing services.
65B-12
(3) Bin Service shall mean all Solid Waste collection services provided by
CONTRACTOR by means of front -loaded collection bins of various sizes.
(4) California Integrated Waste Management Act ("CIWMA") shall mean that act
codified by California Public Resources Code Sections 40000 et seq., and any subsequent
amendments thereto.
(5) California Integrated Waste Management Board shall mean the Board created by
the California Integrated Waste Management Act, and any subsequent modifications thereto, and
shall encompass any other agency which assumes the duties of this Board.
(6) CITY shall mean the City of Santa Ana.
(7) City Attorney shall mean the City Attorney of CITY.
(8) City Council shall mean the City Council of CITY.
(9) City Manager shall mean the City Manager of CITY.
(10) Clerk of the Council shall mean the Clerk of the Council of CITY.
(11) Code shall mean the Municipal Code of CITY, both codified and miscellaneous
ordinances.
(12) Commercial/Industrial Bin Service shall mean Bin Service which is provided by
CONTRACTOR to commercial and/or industrial units.
13 Commercial Solid Wastes shall mean Solid Waste originating from stores
business offices, commercial warehouses, hospitals, educational, health care, military and
correctional institutions, non-profit research organizations and government offices.
(14) Compost means the product resulting from the controlled biological
decomposition of 3 organic wastes that are source separated from the Solid Waste stream.
(15) Composting means a method of waste treatment which produces a product
meeting the definition of "compost" herein.
(16) Composting Facility means a state permitted Solid Waste facility at which
composting is conducted and which produces a product meeting the definition of compost.
(17) Construction and Demolition Solid Waste includes Solid Wastes, such as building
materials, and packaging and rubble resulting from construction, remodeling, repair and
demolition operations on streets, pavements, houses, commercial buildings, and other structures.
(18) Contract shall mean this Agreement, entered into between CITY and
CONTRACTOR.
(19) CONTRACTOR shall mean USA Waste of California Inc., a California
corporation, and shall also include the parent company Waste Management, Inc.
3
65B-13
(20) Curbside Service Unit shall mean each single family residence and duplex unit
which receives curbside collection services provided by CONTRACTOR. This shall include
commercial curbside users and any multi -family, business or professional user which does not
require Bin Service as determined by the Executive Director.
(21) Customer shall mean a user of CONTRACTOR's bin or roll -off container service.
(22) Disposal Site shall mean any licensed landfill site permitted by the California
Integrated Waste Management Board for the receipt and ultimate disposition of Solid Waste.
(23) Executive Director shall mean the Executive Director of Public Works of CITY,
or his or her designate.
(24) Gate Fees shall mean those charges by a Disposal Site for Solid Wastes disposed
of at said site. Gate Fees are also known as "tipping" fees and "landfill" fees.
(25) Gross Receipts means and includes all revenues actually received by
CONTRACTOR arising from, or attributable to, the services provided by CONTRACTOR to its
Customers in the CITY pursuant to this Agreement. Gross Receipts include Gate Fees as defined
herein. Gross Revenue does not include any revenue received by CONTRACTOR from the sale
of Recyclable Solid Waste. Notwithstanding the above, "Gross Receipts" shall not include any
SMaRT Fees collected by the CONTRACTOR from the customer as authorized by Section 7 of
Exhibit "C" herein.
(26) Hauling Charges shall mean those portions of the curbside, bin, roll -off and other
rates provided for in this Agreement which compensate CONTRACTOR for the Solid Waste
- - - — -collection and -transporting services -required of COPd-TRACTOR-ander-uiis A— ecmieiii.The -
parties have agreed upon the initial Hauling Charges as set forth hereinafter, and such charges
are subject to adjustments as provided in this Agreement.
(27) Hazardous Wastes are those wastes which, because of their physical or chemical
characteristics, and are defined as a "hazardous substance" or "hazardous waste" pursuant to the
Resource Conservation and Recovery Act" ("RCRA"), cannot be disposed of in a Class III
landfill under the applicable laws and regulations of the State of California.
(28) Industrial Solid Wastes means Solid Waste originating from mechanized
manufacturing facilities, factories, refineries, and publicly operated treatment works, and/or
Solid Wastes placed in bins and/or roll -off containers.
(29) Licensed Equipment means the Solid Waste collection and Recycling vehicles
and Solid Waste collection and Recycling plastic carts licensed by the CITY to the
CONTRACTOR pursuant to Section 11 of this Agreement.
(30) Materials Recovery Facility means a facility permitted as a Solid Waste Facility
by the California Integrated Waste Management Board for sorting, separating and processing of
Recyclable Solid Wastes as well as the segregation and transportation of non -Recyclable Solid
Wastes to a Disposal Site.
4
65B-14
(31) Permitted Solid Waste Facility means a Solid Waste facility for which there exists
a Solid Waste Facilities Permit issued by the local enforcement agency and concurred in by the
California Waste Management Board.
(32) Person shall include, without limitation, associations, clubs, societies, firms,
partnerships, sole proprietorships, corporations, schools, colleges and all governmental agencies
and entities, as well as individuals, including the officers of such associations, corporations, etc.
(33) Processine means the reduction, separation, recovery, conversion or Recycling of
Solid Waste.
(34) Processing Charges shall mean those portions of the curbside, bin, roll -off
container and other rates provided for in this Agreement which compensate CONTRACTOR for
Processing Solid Wastes collected by CONTRACTOR in the CITY and delivered by
CONTRACTOR to a designated Materials Recovery Facility or Composting Facility. The parties
have agreed upon the initial Processing Charges, as set forth hereinafter, and such charges are
subject to adjustments as provided in this Agreement. The cost of transporting the residue of the
CITY'S Solid Waste stream to a Disposal Site after Processing the Recyclable Solid Wastes
therefrom and the cost of transporting Recyclable Solid Wastes to their ultimate destination shall
be deemed part of this Processing Charge, but the gate fee charged at said Disposal Site for
depositing said Solid Waste residue shall not be included in the Processing Charge.
(35) Recyclable Solid Waste means and includes those Solid Wastes which may be
sorted, cleansed, treated, processed and/or reconstituted for purposes of reuse. Recyclable Solid
Wastes are not a separate category of materials, but merely an evolving portion of the entire
stream of Solid Waste generated within the CITY.
(36) Recycling means collecting, sorting, cleansing, treating, Processing and
reconstituting Recyclable Solid Wastes for the purpose of reuse or sale.
(37) Residential Bin Service shall mean Bin Service which is provided by
CONTRACTOR to any and all residential users which request or require such services pursuant
to this Agreement.
(38) Residential Solid Waste means Solid Waste originating from single-family or
multiple family dwellings.
(39) Roll -Off Service shall mean Solid Waste collection from transportable containers
of 10 cubic yards or larger which are dropped off at a residence, commercial or industrial
establishment and later removed for collection of contents of said container. Roll -Off Service
includes compactors which may be used with roll -off containers.
(40) Solid Waste shall mean all Solid Wastes, including, but not by way of limitation,
Recyclable Solid Wastes, whether now recyclable or not, generated and/or accumulated by all
residential, commercial and industrial sources, and at all construction and demolition sites within
the CITY excluding that Solid Waste referred to in Section 9(a) herein; provided, however, that
Solid Waste shall not be deemed, for purposes of this Agreement, to include any Hazardous
Wastes as defined hereinabove.
5
65B-15
(41) Solid Waste Facility shall include a Composting Facility, Materials Recovery
Facility or a transfer station.
(42) Source Reduction and Recycling Element shall be the CITY'S plan for meeting
the requirements of CIWMA.
(43) Waste Type means identified wastes having the features of a group or class of
wastes that are distinguishable from any other Waste Type, as identified by the CITY'S Source
Reduction and Recycling Element.
(44) Yard Waste means any wastes generated from the maintenance or alteration of
public, commercial or residential landscapes including, but not limited to, leaves, yard clippings,
tree trimming, brush, weeds and pruning.
(45) Yard Waste Diversion shall mean the diversion from the waste stream of yard
waste or organic waste and the composting, mulching, and/or transformation thereof.
4. SCOPE OF SERVICE:
(a) CONTRACTOR shall furnish all labor, material, facilities and equipment
necessary, except for those vehicles and equipment which the CITY shall license to
CONTRACTOR pursuant to Section 11 herein, for the collection of all Solid Waste originating,
generated and/or accumulated by any person within CITY boundaries, as they now exist or may
hereafter exist, and shall transport, process, Recycle, divert by means of composting, mulching
and/or transforming and/or dispose of said Solid Waste in compliance with the terms of this
Agreement.
(b) All Solid Waste collected by CONTRACTOR within the CITY shall not be
commingled in equipment and/or vehicles used by CONTRACTOR, whether such equipment
and vehicles are owned by or licensed to CONTRACTOR pursuant to Section 11 herein, with
Solid Waste from any other jurisdiction or person from outside the CITY limits; however, in the
event of an emergency vehicle breakdown, a vehicle from a neighboring jurisdiction may
complete the route of the vehicle which broke down. In this case, the CONTRACTOR must
notify the CITY in writing within twenty four (24) hours of such emergency breakdown and
must also provide the CITY with the allocation of tonnages contained in the vehicle.
5. COLLECTION HOURS:
(a) All collections from residential areas shall be made between the hours of 6:00
a.m. and 6:00 p.m. Collections from commercial and industrial locations greater than 100 feet
from residential units may start at 3:00 a.m. and must terminate by 9:00 p.m., however, if
complaints are received from such residential units, the Executive Director may direct that
collections in such areas shall be made between the hours of 6:00 a.m. and 6:00 p.m. and in that
event CONTRACTOR agrees to comply with such order.
(b) Notwithstanding section (a) above, Solid Waste collected pursuant to Section 13
hereto shall be collected pursuant to the provisions contained therein.
6
65B-16
6. HOLIDAYS:
Where, on a given route, the day of collection would be a legal holiday, CONTRACTOR
shall collect along said route on the work day next following said legal holiday and collection on
each day during said holiday week shall be similarly delayed one day. Legal holidays for the
purpose of this Agreement shall be New Year's Day, Memorial Day, Independence Day, Labor
Day, Thanksgiving Day, Christmas Day and such other days as may be mutually agreed upon in
advance by the parties,
7. FREOUENCY OF COLLECTIONS:
The Contractor will collect all Solid Waste from all areas of the CITY at least once each
week and in addition will provide more frequent service for those Customers using the Bin
Services or Roll -Off Services supplied by CONTRACTOR if requested by a Customer or if
required by the CITY. Contractor shall provide additional collection services as set forth in
Sections 14 (e) and (f),
u . t�Y ► : ► yTi] Y :I_ iJ *1
Presently existing routes, schedules and times for collection of Solid Waste shall be
maintained but may be changed by authorization of the Executive Director and at least one
week's advance notification by CONTRACTOR to occupants of the buildings in the area where
the changes are to be made.
9. EXCLUSIVENESS OF AGREEMENT:
— — — — Piave" -the -exclusive -duty,- -60-it and privilege- tG
transport, process, Recycle, divert by means of composting, mulching, and/or transforming,
retain and dispose of all Solid Waste, as defined in this Agreement, generated and/or
accumulated within the CITY, except as provided below. CONTRACTOR recognizes that this
grant of exclusiveness is subject to the restraints provided in Public Resources Code Sections
49520 et seq.
(a) The grant of exclusiveness shall not include Construction and Demolition Solid
Waste which has accumulated and/or been generated at a temporary construction site and which
is being disposed of in roll -off containers or in bins.
(b) This Agreement shall not prohibit the persons who generate Solid Waste, or the
persons who own the premises upon which solid waste has been generated or accumulated, from
personally collecting, transporting and disposing of their own Solid Waste so long as they
dispose of such Solid Waste at a site permitted by the California Integrated Waste Management
Board in accordance with all governing laws and regulations.
(c) This Agreement shall not prohibit the persons who generate Solid Waste, or the
persons who own the premises upon which Solid Waste has generated or accumulated, from: (1)
selling their Recyclable Solid Wastes, or, (2) donating their Recyclable Solid Wastes; provided,
however, that in both instances: (a) the person must, on its premises, personally segregate (by
Waste Type) from other Solid Waste the Recyclable Solid Waste to be sold or donated, and (b)
65B-17
the person may not pay the buyer or the donee any sums, consulting fees or other fees in lieu of
charging for collection, or other tangible consideration for collecting, Processing or transporting
such segregated Recyclable Solid Wastes. A person who simply receives a discount of, or
reduction in, the collection and disposal service rates of its unsegregated Solid Waste shall not be
deemed to be selling or donating Recyclable Solid Wastes for purposes of this exception.
(d) This Agreement shall not prohibit a gardener, tree trimmer or person engaged in
landscape maintenance who has a business license to operate in the CITY from collecting yard
waste or other organic Solid Wastes which it generates as an incidental portion of providing its
licensed services. Any yard waste or other organic Solid Waste collected pursuant to the
exception provided by this subsection must be transported by the gardener, tree trimmer or
person to a composting facility permitted by the California Integrated Waste Management Board
in accordance with all laws and regulations.
(e) This Agreement shall not prohibit collectors of Solid Waste originating outside
the CITY from hauling such Solid Waste over CITY streets, provided such collectors comply
with any governing laws or ordinances.
(f) CONTRACTOR's right to collect and/or dispose of Solid Waste shall not be
exclusive in the event of a failure to collect under Section 34 of this Agreement during which
CONTRACTOR fails to maintain substantially complete regular collection services pursuant to
this Agreement and the collection schedules then in effect, for any reason, including a strike by
CONTRACTOR's employees or similar labor dispute. The CITY may provide for collection
and/or disposal by persons other than CONTRACTOR during such periods and may permit the
public to obtain collection and/or disposal services from persons other than CONTRACTOR
_during such_periods,_including CONTRACTOR's Bin and/or Roll -Off Service Customers.
(g) CONTRACTOR shall not have the exclusive right to collect and dispose of Solid
Waste by providing Bin and/or Roll -Off Service if the conditions stated in Section 28(c) are
applicable.
10. SOLID WASTE FRANCHISE FEE:
(a) CONTRACTOR shall pay to the CITY, as a franchise fee, twenty-six and fifteen -
hundredths percent (26.15%) of the Gross Receipts received by CONTRACTOR for each
applicable period, provided that the actual amount payable to the CITY under this Agreement
remains unchanged from the Third Amended Agreement. The parties agree that this franchise
fee is intended to compensate the CITY in the same amount and in the same manner as in the
Third Amended Agreement between the parties. This amount may be increased by resolution of
the City Council and, whenever said franchise fee is increased by resolution of the City Council,
CONTRACTOR shall be permitted to pass through to its Bin Service Customers and Roll -Off
Service Customers one hundred (100%) percent of the amount of such increase. Payments to the
CITY of said franchise fee shall be made to the CITY on a monthly basis and shall be due and
payable on or before the last calendar day of the following month. Accompanying each payment
will be a listing of the Gross Receipts for that corresponding month. CONTRACTOR shall,
whenever requested to do so, make available such records to the Executive Director at any
reasonable time.
(b) Failure of CONTRACTOR to make any of the payments provided for in section
(a) above on or before the dates due will result in a penalty of ten (10%) percent per month to
CONTRACTOR.
11. AUTOMATED SYSTEM:
(a) -(f) Intentionally Omitted
(g) REPLACEMENT OF RESIDENTIAL AND COMMERCIAL COLLECTION
VEHICLES: When any collection vehicles used by CONTRACTOR to provide services
under this Agreement, have reached the end of their useful lives, the CONTRACTOR
will provide at its expense, new low -emission collection vehicle replacements which
meet or exceed the emission requirements of all Federal, State or Local air quality laws or
regulations. All residential collection vehicles will display the City's recycling logo. The
CONTRACTOR will also replace the Solid Waste collection and Recycling plastic carts
as described in Exhibit A with new carts as needed. All replacement vehicles and carts
provided shall be owned and operated by the CONTRACTOR.
12. COLLECTION POINTS AND REOUIREMENTS:
(a) CONTRACTOR shall not be required to collect Solid Waste from any Curbside
Service Unit unless the same is placed on the curb along a public or private street, or along an
alley having street access at both ends, and is placed in Solid Waste collection and Recycling
plastic carts provided to the Curbside Service Unit by CONTRACTOR and is prepared for
collection in a manner prescribed by the CITY'S regulations covering the same. Under no
circumstances shall CONTRACTOR be required to pick up and collect any material or matter
- - - — -which-i-s-noi Soud Wasie as denned in tliis Agreament, or to pick up anTcolliecEany"Solid Waste
from Curbside Service Units which does not comply with the following standards and
limitations:
(1) All Solid Waste shall be placed in the Solid Waste collection and
Recycling plastic carts provided by CONTRACTOR to each Curbside Service Unit pursuant to
the following:
(a) Non -Recyclable Solid Waste shall be placed in burgundy plastic
carts provided by CONTRACTOR;
(b) Recyclable Solid Waste shall be placed in grey plastic carts
provided by CONTRACTOR; and,
(c) Yard Waste shall be placed in green plastic carts provided by
CONTRACTOR.
(2) All non -Recyclable Solid Waste, Recyclable Solid Waste and Yard Waste
shall be placed in the appropriate Solid Waste collection and Recycling plastic carts adequate to
eliminate overflow or contamination of surrounding areas. Any non -Recyclable Solid Waste,
Recyclable Solid Waste and/or Yard Waste which is not placed in a Solid Waste plastic cart
which has been provided to the Curbside Service Unit will not be picked up; and,
65B-19
(3) Large, heavy items, including, without limitation, water heaters, couches,
tables, refrigerators, stoves, and large pieces of furniture or household equipment shall be
considered bully items which may be disposed of under the provisions of Section 21.
(b) The aforementioned requirements to place non -Recyclable Solid Waste,
Recyclable Solid Waste and Yard Waste in appropriate Solid Waste collection and Recycling
plastic carts shall not apply to Christmas trees properly placed for collection.
(c) Whenever any Solid Waste that does not comply with the above standards and
limitations is not collected by CONTRACTOR, CONTRACTOR shall leave a notice, the format
of which is subject to the approval of the CITY, indicating the reason for non -collection at such
Curbside Service Unit. Said notice shall also contain the CONTRACTOR'S business name and
his local telephone number. A copy of said notice shall be delivered, or sent via telephone
facsimile, to the CITY upon request by the Executive Director and, if the reason for
noncollection is not corrected within seven (7) days, CONTRACTOR shall notify the CITY as to
this continued noncollection.
13. SERVICES TO BE PROVIDED BY CONTRACTOR TO CITY FOR CITY
OPERATIONS:
(a) CITY GOVERNMENT OPERATIONS: CONTRACTOR shall collect all Solid
Waste and Construction and Demolition Solid Waste which is generated by CITY government
operations at no cost to the CITY. The CITY shall provide CONTRACTOR with a list of
locations of bins and/or roll -off containers fiom which such Solid Waste shall be collected. Said
list may be modified by time to time by the Executive Director. Solid Waste generated by such
_ CITY_ operations shall be _collected _by CONTRACTOR per_ a_ schedule provided to
CONTRCT
AOR by the Executive Director which schedule shall be approved between the_
CONTRACTOR and the Executive Director."
(b) STREET SWEEPING: The CONTRACTOR will coordinate with the Executive
Director to ensure that Solid Waste collection is compatible with the CITY'S street sweeping
operations. CONTRACTOR will be required to complete their designated routes each day so as
not to interfere with the CITY'S street sweeping operations.
(c) NEIGHBORHOOD CLEANUPS: The Contractor shall supply rolloff containers
for CITY sponsored neighborhood cleanups at no cost to the CITY. The number of roll off
containers shall not exceed a maximum total number of three hundred (300) containers annually.
Notwithstanding the above, at any time that the CITY determines that the number
of collections and/or the number of roll -off containers provided for in section (c) is not
adequately meeting the CITY'S needs, then the CITY and CONTRACTOR agree to meet and
confer regarding these provisions, and may, by mutual agreement, modify the number of
collections and/or roll -off containers.
(d) The CONTRACTOR shall coordinate with the Executive Director to provide
household hazardous waste collection events allowing residents to deliver their waste to a
collection site for proper disposal by CONTRACTOR.
10
65B-20
(e) The CONTRACTOR shall administer a Residential Mail -Back Service, providing
containers approved for safe disposal of used medical sharps by residents. When the container
is full, the resident will mail it for incineration at an authorized facility. This program will be
offered to residential customers who, for medical reasons, require the use of medical sharps.
14. COLLECTION, RECYCLING, YARD WASTE DIVERSION AND DISPOSAL,
(a) CURBSIDE SERVICE: CONTRACTOR shall provide each Curbside Service
Unit within the CITY with a minimum of three (3) Solid Waste collection and Recycling plastic
carts. Any provision of less than three (3) such plastic carts to any Curbside Service Unit shall be
approved by the Executive Director. Each Solid Waste plastic cart shall be a different color as
described in Section 12 above. CONTRACTOR shall be required to collect contents of each
Solid Waste plastic cart once per week and CONTRACTOR shall be required to process the
contents of said plastic carts as follows:
(1) Non -Recyclable Solid Waste Collection and Recycling Plastic Carts:
Contents of plastic carts containing Solid Waste shall be hauled directly to a legally authorized
Disposal Site pursuant to subsection (e) herein.
(2) Recyclable Solid Waste Collection and Recycling Plastic Carts: The
contents of containers containing Recyclable Solid Waste shall be hauled to a Material Recovery
Facility ("MRF"), which MRF shall be acceptable to the CITY, for Processing and diversion.
All Solid Waste transported to said MRF shall be processed and the portion thereof which is
recyclable shall be recycled by Waste Type in amounts so as to comply with CIWMA and the
CITY'S Source Reduction and Recycling__Element_("SRRE"). In_ the event that the MRF_ _ _,
approved by the CITY is not operated by the CONTRACTOR, CONTRACTOR will be
responsible to subcontract for the use of such a facility so as to ensure the CITY'S compliance
with CIWMA.
(3) Yard Waste Collection and Recycling Plastic Carts: The contents of the
plastic carts containing Yard Waste will be transported to a Composting Facility which meets all
state, federal and local laws for Yard Waste Diversion and which is acceptable to the CITY.
CONTRACTOR shall be responsible to ensure that the Yard Waste collected by
CONTRACTOR is diverted in compliance with CIWMA and the CITY'S SRRE.
(b) BIN SERVICE: CONTRACTOR shall operate a Recycling program as described
herein for Bin Service. Such Recycling program shall require that CONTRACTOR take the
Solid Waste in bins which have clean "dry" loads to a MRF which is acceptable to the CITY for
Processing and diversion. CONTRACTOR shall guarantee that, at a minimum, fifty (50%)
percent of the tonnage of Solid Waste which is contained in bins and which is determined to
have a high recyclable content will be transported to a MRF. All Solid Waste which is
transported to said MRF shall be processed and the portion thereof which is recyclable shall be
recycled by Waste Type in amounts so as to comply with CIWMA and the CITY'S SRRE. In
the event that the MRF approved by the CITY is not operated by the CONTRACTOR,
CONTRACTOR will be responsible to subcontract for the use of such a facility so as to ensure
the CITY'S compliance with CIWMA. CONTRACTOR shall be permitted to transport directly
11
65B-21
to a legally authorized Disposal Site those bins which are determined to have limited Recycling
potential due to food or other types of contamination. Any modifications to the above -
referenced percentage shall be approved by the Executive Director and shall be based on the
diversion realized.
(c) ROLL -OFF SERVICE: CONTRACTOR shall process all Solid Waste collected
from its Roll -Off Service in compliance with the CITY'S SRRE and CIWMA. CONTRACTOR
shall transport all Solid Waste collected by the CONTRACTOR from roll -off service within the
CITY boundaries to a state permitted MRF, as provided in, and in compliance with, CIWMA,
which MRF shall be acceptable to the CITY. All Solid Waste transported to said MRF shall be
processed and the portion thereof which is recyclable shall be recycled by Waste Type in
amounts so as to comply with CIWMA and the CITY'S SRRE. In the event that the MRF
approved by the CITY is not operated by the CONTRACTOR, CONTRACTOR will be
responsible to subcontract for the use of such a facility so as to ensure the CITY'S compliance
with CIWMA.
(d) TEMPORARY BIN SERVICE: CONTRACTOR shall process all Solid Waste
collected from temporary bins, not including Construction and Demolition Solid Waste, in
compliance with the CITY'S SRRE and CIWMA. CONTRACTOR shall transport all Solid
Waste collected by the CONTRACTOR from temporary bins within the CITY boundaries to a
state permitted MRF, as provided in, and in compliance with, CIWMA, which MRF shall be
acceptable to the CITY. All Solid Waste transported to said MRF shall be processed and the
portion thereof which is recyclable shall be recycled by Waste Type in amounts so as to comply
with CIWMA and the CITY'S SRRE. In the event that the MRF approved by the CITY is not
operated by the CONTRACTOR, CONTRACTOR will be responsible to subcontract for the use
-ofsuch_a facilitvsoas to_ensure.the CITY'S. compliance-with-CIWMA.__
(e) PARKWAY CLEAN-UP FOLLOWING GARAGE SALES: CONTRACTOR
shall provide 2 employees in a "front -loader" vehicle that will devote 60 hours each six working
days following the quarterly garage sales to canvass the City neighborhoods in order to remove
debris left in the parkways after garage sales. CONTRACTOR shall transport all Solid Waste
collected by the CONTRACTOR from Parkway Cleanups within the CITY boundaries to a state
permitted MRF, as provided in, and in compliance with, CIWMA, which MRF shall be
acceptable to the CITY.
(f) ALLEY CLEAN-UP FOLLOWING THE 1sT OF EACH MONTH:
CONTRACTOR shall provide 2 employees in a "front -loader" vehicle that will devote 60 hours
each six working days following the first day of each month and six working days during the
third week of the month to canvass the City neighborhoods in order to remove debris left in
alleyways following relocations. CONTRACTOR shall transport all Solid Waste collected by
the CONTRACTOR from Alley Cleanups within the CITY boundaries to a state permitted MRF,
as provided in, and in compliance with, CIWMA, which MRF shall be acceptable to the CITY.
(g) DISPOSAL: CONTRACTOR shall be required to dispose of any and all Solid
Waste which is not recycled or diverted by means of composting, mulching and/or transforming
pursuant to the terns of this Agreement, at a legally authorized Disposal Site(s) as designated by
the CITY. If CONTRACTOR is directed to dispose of said Solid Waste at a location other than
12
65B-22
the County of Orange's Disposal Sites, both parties agree to meet and confer regarding any
potential rate adjustments which may be necessitated thereby. Should Disposal Sites become
unavailable in Orange County at any time during the term of this Agreement, CONTRACTOR
hereby guarantees disposal at another Disposal Site owned and operated by CONTRACTOR or
an affiliate, and both parties agree to meet and confer regarding any potential rate adjustments
which may be necessitated thereby. Additionally, CONTRACTOR hereby agrees and guarantees
to the CITY that the CITY will be indemnified for CERCLA liability for any Solid Waste
collected by the CONTRACTOR in the CITY which is delivered to CONTRACTOR's landfill.
(h) CONTRACTOR will act as the contracting body and lead agency with the MRF
and Composting Facility with respect to this Agreement and shall be responsible for, and insure
that, both facilities act so as to meet the requirements of both this Agreement and CIWMA.
(i) CONTRACTOR hereby agrees and guarantees to the CITY that CONTRACTOR
will do each, every and all things required to ensure that all Solid Waste generated, produced or
accumulated in the CITY which is collected by CONTRACTOR will at all times be in full
compliance with all of the provisions of the CITY'S SRRE, CIWMA, and amendments thereto
adopted hereafter, and will protect, indemnify, pay, save, defend, and hold the CITY harmless
from any and all loss, expense, damage, fines, penalties and liability of every kind and nature
whatsoever by virtue of any non-compliance with such CITY and statutory requirements,
provided, however, that CONTRACTOR shall not be responsible to the extent Solid Waste is
generated in the CITY and collected, processed or disposed of, by other than CONTRACTOR.
Further, CONTRACTOR agrees to protect, defend, with counsel approved by the CITY, and
indemnify CITY against any and all fines and/or penalties imposed by the California Integrated
Waste Management Board in the event that the diversion quantities contained in the CITY'S
SRRE, or any other requirement of CIWMA, are not met.
15. [RESERVED]
16. CIWMA REPORTING REOUIREMENTS:
CONTRACTOR shall prepare and submit to the CITY, on forms previously approved by
the CITY, all monthly or annual reports required of the CITY pursuant to the CIWMA. In
addition thereto, within sixty (60) days after the end of each calendar year, the CONTRACTOR
shall provide to the CITY an annual report which: (a) provides a collated summary of all the
information contained in the monthly reports referred to above; (b) provides a narrative
description of all public awareness activities of CONTRACTOR during the past one year which
may have impacted Recycling participation; and (c) provides a discussion of Recycling and
source reduction program highlights and difficulties.
CITY may require additional reports from CONTRACTOR should the reports requested,
or submitted, pursuant to this section not satisfactorily fulfill the CITY'S requirements.
17. SRRE CONSULTANT:
(a) CONTRACTOR shall provide consultant services as necessary to modify the
CITY'S SRRE as required by either the County of Orange AB 939 Local Task Force and/or the
State of California. The consultant to perform such services shall be approved by the CITY. Such
13
65B-23
consultant services shall be provided upon request by the CITY and shall be subject to final
approval of the CITY. The CONTRACTOR shall be responsible for a maximum cost for such
services of twenty thousand ($20,000.00) dollars per fiscal year. Any costs incurred by the
CONTRACTOR for services approved by the CITY which exceed twenty thousand ($20,000.00)
dollars per fiscal year shall be the responsibility of the CITY as provided in section (b) below.
(b) CONTRACTOR shall submit a monthly report showing consultant services
performed for the preceding month. Subject to the approval of the Executive Director, any costs
for approved services which exceed twenty thousand ($20,000.00) dollars per fiscal year shall be
made by the CITY within thirty (30) days of receipt of said report for work satisfactorily
performed.
18. PUBLIC EDUCATION SERVICES:
The CONTRACTOR shall be responsible for the provision of public education services
as provided in the CITY'S SRRE. These services shall include, but are not limited to, the
following items:
(a) the production and distribution of a pamphlet containing trash regulations and
holidays to all Customers and Curbside Service Units on a yearly basis and to all new service
starts at service initiation;
(b) the production and distribution to all Customers and Curbside Service Units every
year of pamphlets concerning source reduction, Recycling and/or Yard Waste Diversion on an
annual basis and to all new service starts at service initiation;
-00-- — Phe- periibi mangy as-needed, of —conummity presentations ou source reduction,
Recycling and Yard Waste Diversion, including the production of all presentation materials;
(d) the provision, as necessary, of technical assistance in the areas of source
reduction, Recycling and Yard Waste Diversion;
(e) the establishment and maintenance of a telephone hotline to receive calls from the
public and provide information concerning integrated waste management;
(f) cooperation in the production of an integrated waste management video for use by
the CITY; and,
(g) development and management of grants pursuant to the regulations contained in
the CIWMA and/or adopted by the California Integrated Waste Management Board including the
Department of Conservation and other governmental agencies that offer grants related to
collection and recycling services provided under the Agreement. Contractor shall be
compensated $75.00 per hour for grant administrator's time to development and administer the
grant programs.
Annually, on July 1, or as soon thereafter as the CiWMB determines the level of
funding to be provided to City, the City and CONTRACTOR will set the compensation and level
of service for collection of used oil containers and filters.
14
65B-24
This Section may be reasonably modified from time to time as deemed necessary
and appropriate by the Executive Director, including increased grant compensation paid to
Contractor upon a writing executed by the Executive Director. The CONTRACTOR shall be
required to work with the Executive Director in the preparation and production of the services
listed and to proceed in the rendering of such services as the CITY dictates. Any services
required hereunder shall require the Executor Director's approval prior to the execution thereof.
19. STANDARDS FOR COLLECTION, EQUIPMENT AND NOISE:
(a) Equipment and vehicles used by CONTRACTOR, whether owned by or licensed
to CONTRACTOR, for the collection and hauling of Solid Waste shall be used so as to assure, in
the reasonable opinion of the Executive Director, that adequate standards of collection will be
maintained. All loads in CONTRACTOR's vehicles shall be kept completely covered at all times
except when material is actually being loaded or unloaded or where the vehicles are on route in
the process of collection. The collection equipment must be designed and operated in such a
manner as to prevent Solid Waste from escaping the vehicle, Any spillage of materials which
occurs during the collection process shall be immediately cleaned up by the CONTRACTOR at
its expense. Further, all vehicles used by the CONTRACTOR pursuant to this Agreement which
are not owned by the CITY shall be registered by CONTRACTOR with the Department of
Motor Vehicles of the State of California. The CONTRACTOR's vehicles and equipment shall
be subject to inspection by the CITY.
(b) It is the declared interest of the CITY that the CONTRACTOR be able to provide
a variety of sizes of bin and roll -off containers to meet the capacity requirements of commercial
and residential bin and roll -off container users. No material shall be permitted to leak, fall or be
spilled -on CITY streets -alleys or -high -ways.- Ant such_lleakago9t. spills--occurring_shall-- e
immediately corrected and the area cleaned at the CONTRACTOR's expense. The equipment
used must -be maintained in good mechanical condition and must employ adequate safety
conditions for the operating personnel.
(c) All collections shall be made as quietly as possible and no unnecessarily noisy
trucks or equipment shall be used. Employees of the CONTRACTOR who are unnecessarily
noisy or who violate the provisions of the State Motor Vehicle Code and/or any applicable CITY
ordinance in the collection of said materials shall be disciplined pursuant to CONTRACTOR'S
performance standards.
(d) CONTRACTOR shall equip all Solid Waste collection and Recycling vehicles
which collect Solid Waste within the CITY with informational displays. The CITY shall advise
CONTRACTOR as to the messages which should be displayed while said vehicles are operating
for the CITY. The CITY may, at its option, have the messages to be displayed changed once per
year.
20. MAINTENANCE OF BINS AND ROLL -OFF CONTAINERS:
(a) Bins and roll -off containers provided by CONTRACTOR shall be of a design and
size to contain, at all times, the contents therein in such a manner as to promote best possible
housekeeping conditions. Bins and roll -off containers supplied by the CONTRACTOR shall, at
15
65B-25
all times, be maintained by it in a well -kept appearance and shall be marked with reflectorized
material where such bins and/or roll -off containers are or may reasonably be expected to be
located in the public right-of-way. Customers shall be responsible for the cleanliness, sanitation
and deodorizing of such bins and roll -off containers; provided, however, CONTRACTOR shall
provide in its agreements with its Customers for a bin or roll -off container cleaning service,
including painting either as needed, at the request of the Customer or at the request of the CITY,
for a fee of twenty five ($25.00) dollars.
(b) Curbside Service Units shall be responsible for the cleanliness and sanitation of
the Solid Waste collection and Recycling plastic carts provided to such units.
(c) CONTRACTOR shall cause to have graffiti removed from bins within two (2)
business days and from roll -off containers within five (5) business days of a request by CITY to
do so. Failure to remove the graffiti within the required two (2) business days for bins and five
(5) business days for roll -off containers, excluding holidays, shall result in the assessment of a
two hundred dollar ($200.00) fine to the CONTRACTOR. CONTRACTOR may charge the user
of a bin or roll -off container which requires such graffiti removal a charge of twenty five
($25.00) dollars per incident.
(d) The Solid Waste collection and Recycling plastic carts receiving curbside service
shall be replaced where found by CONTRACTOR. The CITY reserves the right, upon
submission of proof by the Curbside Service Unit, to withhold sufficient compensation under this
Agreement to adjust and pay any claim for Solid Waste collection and Recycling plastic carts
damaged by the willful or careless acts of the employees of the CONTRACTOR. Repairs and
replacement costs for said plastic carts shall be borne by CONTRACTOR; provided, however,
that such repairs and/or replacements_ costs shall not be borne by CONTRACTOR when caused
by the wanton or intentional destruction thereof by the Curbside Service Unit. Curbside Service
Units shall be billed by CONTRACTOR for replacements caused by intentional or wanton
destruction.
21. COLLECTION OF BULKY ITEMS:
In order to promote public sanitation and reduce fire hazards, CONTRACTOR shall
provide to all Curbside Service Units the service of curbside collection of bulky items such as
couches, refrigerators, rugs, water heaters, and other items of Solid Waste, which
CONTRACTOR is not required to collect under Section 12 because of size or weight, as follows:
(a) Upon request by a Curbside Service Unit within the CITY, CONTRACTOR shall
provide no more than two at -demand bulky item collections per year per Curbside Service Unit
at no additional cost. Each such Curbside Service Unit is limited to a maximum of four (4) bulky
items (or twenty (20) bags of yard waste) per pick-up request. Such collection services shall
provide the opportunity of having large objects, and other Solid Waste which is not required to
be picked up pursuant to this Agreement, picked up and processed properly. Requests by
Curbside Service Units for such collections shall be made directly to the CONTRACTOR who
shall provide satisfactory telephone message receiving, transmitting and response procedures and
who shall be responsible for maintaining a log of such large item collections. At demand pick
ups shall be responded to by CONTRACTOR within a reasonable time but no more than five (5)
16
65B-26
working days after such a request is received. Requests for more than two (2) at -demand
collections per year shall cost thirty ($30.00) dollars per collection and shall be billed to the
Curbside Service Unit requesting the additional collection by the CONTRACTOR.
(b) CONTRACTOR shall provide assistance of removal of bulky items on private
property to senior citizens and the disabled at no cost.
(c) CONTRACTOR shall provide for the collection and recycling of televisions,
computer monitors and computer laptops as part of the Bulky Item collection program.
(d) CONTRACTOR shall provide on -request bulky item collection for commercial
and residential bin service customers, as set forth in subsection 21. (a), above. Each such request
for Residential/Commercial bulky item pick up shall cost forty-two dollars and eighty cents
($42.80) per collection and shall be billed to the residential/commercial bin service customer
requesting the additional collection by CONTRACTOR.
22. CURBSIDE SERVICE PAYMENTS:
(a) The CONTRACTOR shall establish rates for its provision of curbside services
pursuant to this Agreement. Such rates shall in no case exceed those set forth on Exhibit "C"
attached hereto and incorporated herein by this reference. The City shall collect on behalf of the
CONTRACTOR the rates established by the CONTRACTOR for said services. Rates collected
and paid to the CONTRACTOR shall be based on the total number of Curbside Service Units
billed by the CITY for curbside service during that month. CITY shall make billing records
available to CONTRACTOR upon reasonable notice for the purpose of auditing such records,
— '(b) --1 emiltance-Fo The -CONTRACTOR of payments collecfed-by the CIT- for
curbside service shall on a monthly basis.
(c) Payments to be made to the CONTRACTOR shall be reduced each month by an
amount equal to the total monthly payment on the C.O.P.s. A monthly payment schedule of the
maximum amount of monthly payments on the C.O.P.s will be attached as Exhibit "D" once they
are issued. The payments to be made to CONTRACTOR shall not be reduced to the extent of
any.credits against installment payments received by the CITY pursuant to Section 4.01 of the
IPC.
23. RESIDENTIAL BIN SERVICE RATES:
(a) The CONTRACTOR shall receive compensation for supplying Bin Service to
residential bin users by direct billing of the Customers receiving such service by means of
separate agreements entered into between the CONTRACTOR and each Residential Bin Service
Customer. A copy of every such agreement shall be made available to the Executive Director by
CONTRACTOR.
(b) Rates for Residential Bin Service, including Gate Fees, Hauling Charges,
Processing Charges and any Recycling and Yard Waste Diversion, shall be established by the
CONTRACTOR and shall not exceed those set forth on Exhibit "C" attached hereto and
17
65B-27
incorporated herein by reference. CONTRACTOR shall make records containing Residential
Bin Service available to the Executive Director at any reasonable time.
24. COMMERCIAL/INDUSTRIAL BIN SERVICE RATES:
(a) The CONTRACTOR shall receive compensation for supplying Bin Service to
commercial/industrial bin users by direct billing of the Customers receiving such service by
means of separate agreements entered into between the CONTRACTOR and each such Bin
Service Customer. A copy of every such agreement shall be made available to the Executive
Director by CONTRACTOR.
(b) Rates for Commercial/Industrial Bin Service, including Gate Fees, Hauling
Charges, Processing Charges and any Recycling and Yard Waste Diversion, shall be established
by the CONTRACTOR and shall not exceed those set forth on Exhibit "C" attached hereto.
CONTRACTOR shall make records containing Commercial/Industrial Bin Service available to
the Executive Director at any reasonable time.
25. ROLL -OFF SERVICE RATES:
(a) The CONTRACTOR shall receive compensation for supplying Roll -Off Service
by direct billing of the Customers receiving such service by means of separate agreements
entered into between the CONTRACTOR and each such Customer copy of every such
agreement shall be made available to the Executive Director by CONTRACTOR. Roll -off
Service shall be provided at a minimum of three (3) dumps per month per Customer.
(b) Rates for Roll -Off Services, including container delivery, collection, hauling and
-- transporTation—shalibe esTa'biisrien bylie CONTti`ACTOR and shall not ezceee -those seTfoith- - - -
on Exhibit "C" attached hereto. CONTRACTOR shall make records containing Roll -Off
Service available to the Executive Director at any reasonable time.
26. COMPENSATION FOR GRANTS:
CONTRACTOR shall be permitted to obtain compensation in an amount approved by the
Executive Director for the management of grants pursuant to Section 18(g) herein.
27. ADJUSTMENTS TO CHARGES:
(a) HAULING AND PROCESSING CHARGES:
(1) PRICE INDICES: The two indices which will be used for determining
adjustments to Hauling and Processing Charges shall be the December Consumer Price Index
("CPI") for All Urban Consumers (base years 1982-1984 = 100) for Los Angeles -Anaheim -
Riverside CMSA, published by the United States Department of Labor, Bureau of Labor
Statistics and the December Producer Price Index ("PPI"), Diesel Fuel #2 (#057303). When both
indices are to be used to determine an adjustment to the Hauling and Processing Charges, then
the adjustment formula shall be as follows: the CPI shall be weighted at ninety (90%) percent
and the PPI shall be weighted at ten (10%) percent.
(2) CURBSIDE SERVICE: The Hauling Charges and Processing Charges for
curbside service shall be adjusted annually, using the CPI and PPI adjustment formula set forth
in subsection (a)(1) above without limitation; provided, however, that adjustments permitted to
the Hauling and Processing Charges during this time period shall be calculated at seventy five
(75%) percent of the CPI with a five (5%) percent maximum adjustment and a zero 0% percent
minimum adjustment per year.
(3) BIN SERVICE AND ROLL -OFF SERVICE: From July 1, 1997 until the
termination of this Agreement, the Hauling and Processing Charges for Bin Service and Roll -Off
Service shall be adjusted in accordance with the CPI and PPI adjustment formula set forth in
subsection (a)(1) above. Adjustments to the Hauling and Processing Charges for Bin Service
and Roll -Off Service shall be calculated at seventy five (75%) percent of the CPI with a five
(5%) percent maximum adjustment and a zero 0% percent minimum adjustment per year.
(b) GATE FEES: Should any increase or decrease in the Gate Fees charged by a
Disposal Site occur during the term of this Agreement, CONTRACTOR shall be permitted to
pass through to both its Bin Service Customers and its Roll -Off Service Customers and CITY
shall pass through to its Curbside Service Units one hundred (100%) percent of such increase or
decrease in the Gate Fees for that portion of the Solid Waste which is taken to the Disposal Site.
CITY shall pass through to CONTRACTOR such increase or decrease in its curbside service
payments to CONTRACTOR. Should a change in Gate Fees become effective on July 1st of any
year, the parties agree to utilize the tonnages from the previous calendar year to determine the
percentage of Solid Waste that is taken to the Disposal Site.
(c) SOLID WASTE FRANCHISE FEE: Should any increase or decrease in the
Hauling and Processing Charge or the Gate Fees occur during the term of this Agreement, _
CONTTRACTOR shall e permitted to pass through to Bin Service Customers and its Roll -Off
Service Customers the corresponding increase or decrease incurred by CONTRACTOR for the
Solid Waste franchise fee which CONTRACTOR is required to pay to the CITY pursuant to
Section 10 herein.
(d) SMART FEES: Notwithstanding any provision of this Section 27 to the
contrary, the SMaRT Fees (as defined in Section 7 of Exhibit "C" herein), shall not be subject to
adjustment by CPI, PPI or any other index. Rather, the SMaRT Fees may be adjusted annually,
in accordance with the SMaRT Program, not to exceed a maximum amount of five (5%) percent
per annum.
28. SPECIAL BIN SERVICES AND CUSTOMER SERVICE REOUIREMENTS:
(a) The CONTRACTOR may enter into agreements with Bin Service Customers for
special collection services different from, in addition to, or greater than the minimum collection
services required by this Agreement. The special fees which CONTRACTOR may charge Bin
Service Customers are set forth on attached Exhibit "C."
(b) CONTRACTOR shall not be permitted to charge a special fee for moving a bin
from between buildings, other than the fees permitted as set forth on attached Exhibit "C".
Further, CONTRACTOR may not charge a fee when it is required to move its vehicles in reverse
19
65B-29
for purposes of emptying a bin. Circumstances not covered by any of the above or on attached
Exhibit "C" shall require an inspection by the CITY prior to a determination of the charges
which may be imposed. The decision of the Executive Director in respect to these charges shall
be final. A brief explanation of each special service charge must be included on every
Customer's billing.
(c) In the event the CONTRACTOR is unable to provide temporary service to any
Customer within five (5) calendar days after receipt of a call by such Customer, the Executive
Director may permit any other licensed hauler to provide temporary service to such Customer if,
but only if, CONTRACTOR has not provided such service within twenty-four (24) hours after
reasonable notification by the Executive Director to CONTRACTOR.
29. MINIMUM SERVICE LEVELS - MULTI -FAMILY RESIDENTIAL BUILDINGS:
(a) CITY shall require that all residential buildings with three or more dwelling units
be served by Bin Service, except that CITY may waive such requirement for any residential
buildings with four (4) or more units existing on January 1, 1972 and for any residential
buildings with three (3) units existing on February 23, 1983, upon a determination that no
lawfully usable space is available for such container within the boundary lines of the subject
property. The CONTRACTOR shall provide bin containers of such capacity and collections of
such frequency for residential buildings required to have Bin Service by this section as to
provide for Solid Waste collection of not less than one-half (1/2) of one (1) yard of Solid Waste
collection per dwelling unit per week. In all cases, collections shall be made at least once per
week. CONTRACTOR shall comply with any request by the Executive Director to change the
scheduled collection days for Residential Bin Service Customers, which is designed to promote
conformity of Bin Service collections in any specified area of the CITY to improve sanitation or
reduce noise.
(b) In the event that Solid Waste being disposed of at a Residential Bin Service
building exceeds the bin capacity for such building, CONTRACTOR shall notify the Executive
Director who shall cause an inspection to be made of the premises. If the Executive Director
determines that there is insufficient bin capacity at said location, he shall cause written
notification to be given to the property owner and/or person in possession of the property. Said
notification shall contain the date of the reported overflow of Solid Waste from the bins. The
notice shall also inform the property owner and/or person in possession of the property that
should another incident of overcapacity occur within thirty (30) days following the date of the
original incident, the property owner and/or person in possession of the property will be required
to increase the number of bins, the size of the bin, or the frequency of collections, up to the
equivalent of two (2) cubic yards per dwelling unit per week. In the event that this should occur,
the Executive Director shall determine whether to increase the number of bins or the frequency
of collections and CONTRACTOR shall furnish such additional services and shall be entitled to
compensation from the Customers to the same extent as if the Customer requested such
additional collections from the CONTRACTOR.
20
65B-30
30. MINDIUM SERVICE LEVELS - COMMERCIAL/INDUSTRIAL BIN SERVICE
AND ROLL -OFF SERVICES
City shall require that all commercial and/or industrial units and/or buildings be served
by Bin Service or Roll -Off Service; provided, however, that this requirement may be waived by
the Executive Director. In the event that Solid Waste being disposed of at a
commercial/industrial bin or roll -off container unit exceeds the bin or roll -off container capacity
for such building, CONTRACTOR shall notify the Executive Director who shall cause an
inspection to be made of the premises. If the Executive Director determines that there is
insufficient bin or roll -off container capacity at said location, he shall cause written notification
to be given both to the business and the property owner. Said notification shall contain the date
of the reported overflow of Solid Waste from the bin or roll -off container. The notice shall also
inform the business and property owner that should another incident of overcapacity occur
within thirty (30) days following the date of the original incident, the business and/or property
owner will be required to increase the number of bins or roll -off containers, or the frequency of
collections. In the event that this should occur, the Executive Director shall determine whether to
increase the number of bins or roll -off containers, the size of the bin or roll -off container, or the
frequency of collections and CONTRACTOR shall furnish such additional services and shall be
entitled to compensation from such Customers to the same extent as if the Customer requested
such additional collections from the CONTRACTOR.
31. SERVICE STANDARDS:
(a) The CONTRACTOR's office shall be accessible by a local or toll-free telephone
number. The CONTRACTOR's office hours shall be open at a minimum from 8:00 a.m. to 5:00
p.m. Monday through Friday and from 8:00 am, to noon on Saturdays. CONTRACTOR's offices_
shall be closed on Sundays and holidays. The CONTRACTOR shall have an answering machine
in operation after normal business hours, and on Sundays and holidays thus enabling the public
to leave a message. The CONTRACTOR shall have the capability of responding to the public in
English and Spanish during office hours.
(b) CONTRACTOR may charge a delinquency fee of not more than ten (10%)
percent per month on accounts which have not remitted required payments within 30 days after
the date of billing, Should payment not be received within 45 days of billing, CONTRACTOR
shall notify said Customer on forms approved by the CITY that services may be discontinued 15
days from the date of the notice if payment is not made before that time. Upon payment of the
delinquent fees, CONTRACTOR shall resume collection on CONTRACTORS next regularly
scheduled collection day. CONTRACTOR shall provide the CITY with a bi-weekly list
indicating the Customers which have had service ceased due to nonpayment.
32. SUPERVISION:
Performance of each of the provisions of this Agreement shall be under the direction and
supervision of the Executive Director. The CONTRACTOR shall furnish the Executive Director
every reasonable opportunity of ascertaining whether or not the work is performed in accordance
with the requirements of this Agreement. The CONTRACTOR shall designate a person to serve
as agent and liaison between its organization and the CITY and shall maintain a telephone and a
21
65B-31
means for contact at all times during periods of strike or
Director may inspect the CONTRACTOR's operations,
reasonable time and the CONTRACTOR shall admit him
reasonable time and place.
33. TITLE TO SOLID WASTE:
other emergencies. The Executive
facilities and equipment at any
to make such inspections at any
Title to all Solid Waste collected pursuant to this Agreement shall be vested in
CONTRACTOR upon being placed at the curb for collection, or placed in a bin or roll -off
container for collection. CONTRACTOR expressly hereby reserves and is granted the right to
retain, dispose of and otherwise use such Solid Waste, or any part thereof, in any fashion and for
any lawful purpose desired by CONTRACTOR and to retain any benefit or profit resulting there
from provided, however, that CONTRACTOR first complies with this Agreement, the CITY'S
SRRE and CIWMA.
34. FAILURE TO COLLECT:
(a) Should the CONTRACTOR materially and substantially fail to collect and
recycle, divert by means of composting, mulching and/or transforming or dispose of Solid Waste
in accordance with this Agreement and the collection schedules then in effect pursuant to Section
8, the CITY, after prior written notice of not less than forty eight (48) hours to the
CONTRACTOR, may collect, recycle, divert and/or dispose of all or any part of such Solid
Waste, or initiate services to cause or promote its collection, Recycling, Yard Waste Diversion
and/or disposal, using CITY employees and/or independent contractors, and the CONTRACTOR
shall be liable for all reasonable expenses thereby incurred by the CITY.
---co)-ihe -CiT Y` may give such nonce or any specified—inaivrdua17-omission by"— ---" "--
CONTRACTOR in which event CONTRACTOR shall be allowed a reasonable time of not less
than forty eight (48) hours to remedy such omission. In the event of substantial nonperformance
by CONTRACTOR for any reason, including a strike of CONTRACTOR's employees, the
notice shall continue in effect with respect to Solid Waste originating thereafter as long as the
omission continues. In addition to any other lawful means of effecting reimbursement from the
CONTRACTOR, such expenses may be deducted by the CITY from money due or which may
become due the CONTRACTOR. In addition, CITY shall be permitted to take control and
possession of the Licensed Equipment it owns pursuant to Section 11 herein and shall be allowed
to use, without charge, any of CONTRACTOR's other collection vehicles, containers, and other
equipment not then in actual use by CONTRACTOR which CITY shall deem necessary to
provide collection, Recycling, Yard Waste Diversion and/or disposal services pursuant to this
section. The right of the CITY to enter upon and use facilities and equipment as specified herein
shall extend for a period of ninety (90) days.
(c) Should CONTRACTOR fail to collect, recycle, divert by means of composting,
mulching and/or transforming, and/or dispose of Solid Waste in accordance with this Agreement,
CONTRACTOR shall be deemed to be in material default in the performance of its obligations
of this Agreement. In the event of such a material default, the reasonable time for correction
pursuant to Section 35 herein shall be seven (7) days.
22
65B-32
35. DEFAULT. DAMAGES AND TERMINATION OF AGREEMENT:
(a) In the event CONTRACTOR defaults in the performance of any of the
obligations, covenants or agreements to be kept, done or performed by it under the terms of this
Agreement, or any other applicable Federal, State, or local law or regulation, the CITY shall
notify CONTRACTOR in writing of the nature of such default.
(b) The Executive Director may, in such written instrument, set a reasonable time
within which correction of all such deficiencies is to be made. Unless otherwise specified, a
reasonable time for correction shall be thirty (30) days from the receipt by the CONTRACTOR
of such written notice. If the CONTRACTOR cannot reasonably correct or remedy the breach
within the time set forth in such notice, CONTRACTOR shall still be required to commence to
correct or remedy the violation within such time as set forth in the notice and shall be required to
diligently achieve such correction or remedy as soon thereafter as possible.
(c) The Executive Director shall review the CONTRACTOR's response to the notice
of deficiencies and shall either decide the matter and notify the CONTRACTOR of that decision
in writing, or, refer the matter to the City Council. A decision or order of the Executive Director
shall be final and binding on CONTRACTOR if the CONTRACTOR fails to file a "Notice of
Appeal" with the City Clerk within 10 days of receipt of the Executive Director's decision.
Within thirty working days of receipt of a Notice of Appeal, the City Clerk shall refer the appeal
to the City Council for proceedings in accordance with Chapter three of the Santa Ana Municipal
Code.
(d) In such case, the City Council may set the matter for hearing. The City Clerk shall
give CONTRACTOR written notice of the time and place of the hearing. At the hearing, the City
Council shall consider the report of the Executive Director indicating the deficiencies, and shall
give the CONTRACTOR a reasonable opportunity to be heard.
(e) Based on the evidence presented at the public hearing, the City Council shall
determine by Resolution whether this Agreement should be terminated. If, based upon the
record, the City Council determines that the performance of CONTRACTOR is in breach of any
material term of this Agreement or any material provision of any applicable Federal, State, or
local statute or regulation, the City Council, in the exercise of its sole discretion, may terminate
forthwith the Agreement. The decision of the City Council shall be final and conclusive,
CONTRACTOR's performance under the Agreement is not excused during the period of time
prior to the City Council's final determination as to whether such performance is deficient.
(f) The rights of termination or imposition of liquidated damages, as set forth in
Section 36 hereof, are in addition to any other rights of CITY upon a failure of CONTRACTOR
to perform its obligations under this Agreement. The CITY further reserves the right to terminate
CONTRACTOR's Agreement or impose liquidated damages in the event of any of the
following:
the CITY;
(1) If the CONTRACTOR practices, or attempts to practice, any fraud upon
23
65B-33
(2) If the 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;
(3) If the CONTRACTOR fails to provide or maintain in full force and effect
the workers' compensation, liability or indemnification coverage as required by this Agreement;
(4) If the CONTRACTOR willfully violates any orders or rulings of any
regulatory body having jurisdiction over the CONTRACTOR relative to this Agreement,
provided that the CONTRACTOR may contest any such orders or rulings by appropriate
proceedings conducted in good faith, in which case no breach of this Agreement shall be deemed
to have occurred;
(5) If the CONTRACTOR willfully fails to make any payments required
under the Agreement and/or refuses to provide the CITY with required information and/or
reports in a timely manner as provided in this Agreement; or,
(6) Any other act or omission by the CONTRACTOR which materially
violates the terms, conditions, or requirements of this Agreement, CIWMA, as it may be
amended from time to time, or any order, directive, rule, or regulation issued thereunder and
which is not corrected or remedied within the time set in the written notice of the violation.
(g) In addition to the remedies set forth herein, the CITY shall have the right to obtain
damages and/or injunctive relief. Both parties recognize and agree that in the event of a breach
under the terms of this Agreement by CONTRACTOR, the CITY may suffer irreparable injury
and incalculable damages sufficient to support injunctive relief, to enforce the provisions of this
Agreemnnf ana to enj0i ftne breach—thereof --- T --"— -- "--- — — —
(h) If CONTRACTOR claims default by the CITY in the payment of any money due
or alleged to be due to CONTRACTOR pursuant to this Agreement, CONTRACTOR shall not
be entitled to cancel this Agreement if the CITY, within seven (7) days after receipt of notice of
the claimed default, deposits the amount in controversy into an interest bearing account in a
commercial bank or lending institution and maintains such deposit until such time as a final
judicial decision or agreement between the parties determines the rightful disposition of the said
amount in controversy; provided that CONTRACTOR shall be deemed to have waived all claims
to the said amount if no agreement is reached nor any legal proceeding initiated within ninety
(90) days of the CONTRACTOR's service of written notice of default on the CITY.
36.. LIQUIDATED DAMAGES:
(a) The CITY finds, and the 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 the CITY as a result of a breach by CONTRACTOR of its
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 Solid Waste collection services or denied quality or reliable
collection service; (ii) such breaches cause inconvenience, anxiety, frustration, and deprivation
of the benefits of this Agreement to individual members of the general public for whose benefit
24
65B-34
this Agreement exists, in subjective ways and in varying degrees of intensity which are incapable
of measurement in precise monetary terms; (iii) that 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 breaches, and other remedies are, at
best, a means of future correction and not remedies which make the public whole for past
breaches.
(b) Accordingly, the CITY may, in its discretion but after complying with the notice
and hearing procedures set forth in Section 35, assess liquidated damages of Five Hundred
Dollars ($500.00) per day, for each calendar day that collection service is not provided by
CONTRACTOR in accordance with this Agreement. The amount of the liquidated damages shall
be subject to an annual CPI adjustment computed at one hundred (100%) percent of the CPI for
All Urban Consumers (base years 1982-1984 = 100) for Los Angeles -Anaheim -Riverside
CMSA, published by the United States Department of Labor, Bureau of Labor Statistics.
(c) The CITY finds, and the CONTRACTOR acknowledges and agrees, that the
above described liquidated damages provisions represent a reasonable sum in light of all of the
circumstances. Said liquidated damages sums shall be applicable to each calendar day of delay
during which CONTRACTOR has been found by the CITY to be in default after having been
given the proper notice and hearing set forth in Section 35 of this Agreement. The
CONTRACTOR shall pay any liquidated damages assessed by the CITY within ten (10)
calendar days after they are assessed. If they are not paid within the ten (10) day period, the
CITY may order the termination of this Agreement.
37. USE BY CITY OF CONTRACTOR'S EOUIPMENT:
T Upon cancellation of this Ag eeementby either party for any reason prior to the end of the
period specified herein as the term of this Agreement, the CITY shall take possession and control
of all vehicles and equipment which it has licensed to CONTRACTOR pursuant to Section 11
herein and CITY shall also have the exclusive right to rent or lease and operate any or all trucks,
trailers, tractors and other items of equipment used by CONTRACTOR in the performance of the
work specified in this Agreement. Further, the City shall have access to the MRF and
composting facilities used by the CONTRACTOR for the Processing, Recycling and Yard Waste
Diversion of Solid Waste produced or accumulated within the CITY. The right of the CITY to
enter upon and use facilities and equipment as specified herein shall extend following the date of
cancellation of this Agreement for a period of ninety (90) consecutive calendar days. The rental
prices to be paid the CONTRACTOR under this section shall be such to adequately reflect the
most current rental prices prevailing in the County of Orange at the date of termination.
Any moneys due the CONTRACTOR for rental of the equipment under the provisions of
this section may be withheld by the CITY and used by it for the purpose of paying any
outstanding liens or payments due and unpaid upon the said equipment.
38. C01VIPLAINTS:
(a) The CITY shall record all complaints and communications received by the CITY
from persons and businesses being served under the provisions of this Agreement and all other
25
65B-35
incidents of failure to perform in accordance with this Agreement noted by the CITY. The
CONTRACTOR shall be responsible to resolve such complaints within two (2) business days of
receipt thereof. CONTRACTOR shall likewise record all complaints received by
CONTRACTOR in a daily log which shall include the complaint, the communication, the date,
time, complainant's name and address if provided, and the nature, date and manner of resolution
of the complaint. A copy of said log shall be delivered to the Executive Director on a quarterly
basis; however, the Executive Director reserves the right to require the CONTRACTOR to
deliver, or send via telephone facsimile, such records to the Executive Director within twenty
four (24) hours of receipt thereof.
(b) The failure of the CONTRACTOR to pick up Solid Waste which has been set out
in the proper manner shall be considered a missed pick-up, and the CONTRACTOR shall collect
the material from the service recipient within twenty-four (24) hours of the CONTRACTOR's
receipt of notification of the missed pick-up. If the CONTRACTOR is notified of a missed pick-
up by 9:00 a.m. the following business day, the missed pick-up will be collected that same day.
The CONTRACTOR shall maintain a written record of all calls related to missed pick-ups and
the service response provided by the CONTRACTOR. Such records shall be made available for
inspection upon request by the Executive Director.
39. COMPENSATION REDUCTION DURING STRIKE PERIOD:
In the event that there occurs any period in which CONTRACTOR fails to maintain
substantially complete regular collection services pursuant to this Agreement and the collection
schedules then in effect, by reason of a strike or CONTRACTOR's failure to pay his employees,
and only if such period includes more than ten (10) normal collection days (weekdays), then the
following shall apply. ---- -- — ---- --__.. — _--
(a) The City Council may assess damages against the CONTRACTOR in an amount
which does not exceed the sum of the following:
(1) The expenses incurred by the CITY in providing collection, Recycling,
Yard Waste Diversion and/or disposal services pursuant to Section 34; and,
(2) Fifty percent (50%) of the amount by which CITY revenue from fees
collected for curbside service by the CITY from the public is reduced due to any reduction or
refimd of such fees granted by the City Council to compensate such fee payers for the
inconvenience experienced by them due to CONTRACTOR's failure to furnish fall performance
during such period.
(b) In assessing damages, the City Council shall take into account the
CONTRACTOR's efforts to mitigate the inconvenience to the public receiving curbside service.
In particular, CONTRACTOR shall be given credit for Curbside Service Unit collections made
by CONTRACTOR by having damages assessed, subject to the above said maximum, in
approximately the same proportion to the compensation due CONTRACTOR for curbside
service during the subject period as the number of Curbside Service Unit collections which
CONTRACTOR failed to make bears to the total number of Curbside Service Unit collections
which should have been made pursuant to this Agreement.
26
65B-36
(c) In addition to any other lawful means of effecting recovery of the damages
assessed against CONTRACTOR the amount thereof may be deducted by CITY from money
due or which may become due to the CONTRACTOR either in single sum or in installments. In
the event CONTRACTOR objects to such assessment or set-off, it shall nevertheless maintain
full performance under this Agreement, reserving all rights to subsequently litigate the propriety
or amount of the damages assessed.
(d) Refunds or reduction of payments of CONTRACTOR's Customers shall be the
sole responsibility of CONTRACTOR. CONTRACTOR covenants for the benefit of each such
Customer to grant a reasonable and fair refund or reduction or compensatory service; provided,
however, that the CONTRACTOR may condition such refunds or reductions or compensatory
service upon the Customer's filing of a claim for the same with the CONTRACTOR, To the
extent Bin or Roll -Off Service collections are made at CITY'S expense in the absence of
CONTRACTOR's performance, CONTRACTOR shall be liable to CITY for a proportionate
amount of the Customers' payments due to the CONTRACTOR..
40. FEES AND GRATUITIES:
CONTRACTOR shall not, nor shall it permit any agent, employee or subcontractor
employed by it to, request, solicit, demand, or accept, either directly or indirectly, any
compensation or gratuity for the collection of Solid Waste otherwise required to be collected
under this Agreement, except such compensation as is provided for in this Agreement. However,
CONTRACTOR may make available to Bin Service users special services as provided for in
Section 28 hereof. CONTRACTOR may make a direct charge in each instance for such service
under a written agreement which shall be subject to the approval of the Executive Director and at
such rates as are reasonable, just and uniform for all persons reguesting_such additional services.
All such charges shall be collected by CONTRACTOR. Nothing in this section or in this
Agreement shall be construed, however, to require CONTRACTOR to render services of any
kind to any person to the extent such services are not specifically required by the provisions of
this Agreement, or to require that CONTRACTOR having rendered special or additional services
not provided for herein to one or more persons, to offer or render the same services to any other
person or entity.
41. LEGAL RELATIONS AND RESPONSIBILITIES:
(a) Applicable Laws: CONTRACTOR shall at all times comply with all applicable
provisions of the Code, as now in effect or hereafter enacted, as well as all other applicable
County, State and Federal laws and regulations; provided, however, no amendment of the Code
shall operate to change CONTRACTOR's right to decline to pick up and collect any material or
matter which is not Solid Waste as defined in this Agreement or to decline to pick up and collect
Solid Waste which does not comply with the standards and limitations set forth in this
Agreement, or otherwise operate to materially impair the rights and privileges of
CONTRACTOR hereunder. Should any state or federal laws become effective after the date of
execution of this Agreement which require modifications to the terms hereof, the parties agree to
meet and confer regarding any such modifications.
27
65B-37
(b) Personnel: No employee of CONTRACTOR shall continue to be employed on
any work under this Agreement who is intemperate, discourteous, disorderly, inefficient or
unduly noisy.
(c) Permits and Licenses: CONTRACTOR shall obtain all permits and licenses
required of it by City, County, State and Federal agencies.
(d) Workers' Compensation Policy CONTRACTOR shall maintain in full force and
effect during the term of this Agreement, a workers' compensation policy in accordance with the
provisions and requirements of the Labor Code of the State of California and such other forms of
insurance as shall be required by law. The policy providing coverage shall provide that the
insurance shall not be suspended, voided, canceled, or reduced in coverage or in limits except
after thirty (30) days prior written notice by certified mail has been given to the CITY, Waivers
of Subrogation shall be in effect for any claims asserted against the CITY which arise out of
CONTRACTOR's operations and CONTRACTOR shall have this clause endorsed on their
Workers' Compensation policies.
(e) Public Liability Insurance: CONTRACTOR shall obtain, at its sole cost, and file
with the City Clerk of CITY, prior to exercising any right or performing any obligation pursuant
to this Agreement, and maintain for the period covered by this Agreement, a policy or policies of
liability insurance satisfactory to the City Attorney of CITY, naming CITY, its officers, agents
and employees, as insured or additional insured, which provides coverage for liability for any
and all claims and suits for damages or injuries to persons or property resulting from or arising
out of the performance by CONTRACTOR its officers, agents, or employees, or by CITY, its
officers, agents, or employees pursuant to Section 1 of this Agreement, of CONTRACTOR's
covenants hereunder, or any_failure or omission thereof.
Said policy or policies of insurance shall provide coverage for both bodily injury
and property damage in not less that the following minimum amount: One Hundred Million
Dollars ($100,000,000.00) combined single limit and, in addition, Ten Million Dollars
($10,000,000.00) of Environmental Impairment Liability coverage for bodily injury, property
damage and cleanup costs as it relates to the transportation of Solid Waste. Said insurance shall
protect CONTRACTOR and CITY from any claim for damages for bodily injury, including
accidental death, as well as from any claim for property damage which may arise from
operations performed pursuant to this Agreement, whether such operations be by
CONTRACTOR itself, or by its agents, employees, and/or subcontractors. Such policy or
policies shall contain severability of interests clauses so that the rights and duties of the CITY are
clearly separate from CONTRACTOR's interests. Said policy or policies shall also contain a
provision that no termination, cancellation or change of coverage of insured or additional insured
shall be effective until after thirty (30) days prior written notice by certified mail thereof has
been given to CITY. CONTRACTOR shall give CITY prompt and timely notice of any claim
made or suit instituted.
(f) Insurance Responsibility for CITY Owned Solid Waste Collection and Recvcline
Vehicles: This Agreement expressly and absolutely transfers the entire responsibility for any and
all damage to the CITY owned Solid Waste collection and Recycling vehicles, and any and all
liability arising out of the use of such vehicles, directly and completely to CONTRACTOR. This
same transfer includes the requirement that CONTRACTOR has expressly agreed to be
contractually, fully and completely responsible for complying with all of the State of California's
Motor Vehicle Insurance laws, rules and regulations. To be more specific, this includes having
CONTRACTOR insure each and every CITY Solid Waste collection and Recycling vehicle for
auto liability and physical damage, including both collision and comprehensive insurance. The
amount of auto liability insurance shall be not less than One Hundred Million Dollars
($100,000,000.00) combined single limit, covering auto bodily injury and property damage for
owned, non -owned and hired vehicles. Collision and Comprehensive coverage shall be insured
on an actual cash value basis. If the physical damage insurance is insured on a loss -limit basis,
the loss limit shall be equal to or exceed the actual cash value of all of the CITY Solid Waste
collection and Recycling vehicles. Insurers shall be currently rated by A.M. Best Company with
a minimum rating at A VII. The policy or policies shall contain severability of interest clauses so
that the right and duties of the CITY are clearly separate from CONTRACTOR's interests. The
CITY, its officers, agents and employees shall be additional insureds. CONTRACTOR will
verify to CITY that adequate funds are available to pay any liability Self -Insured Retention,
collision and comprehensive deductibles, or other self-insurance plans approved by the CITY.
Ninety (90) days or more of prior notice for material change in coverage, exclusions and
conditions or cancellation will be endorsed onto CONTRACTOR's policies in favor of the
CITY. Loss Payee endorsements or similar clauses will be endorsed onto CONTRACTOR's
property insurance policies protecting the CITY'S Solid Waste collection and Recycling
vehicles. Endorsements to all policies with policy declaration pages will be required. Certificates
of Insurance shall be provided prior to receiving insurer policy endorsements.
(g) Indemnification: CONTRACTOR shall indemnify and save harmless CITY, its
officers and employees, against any and all damages to property or injuries to or death of any
person_nErspnsfincluding_pmparty_and_ernnlnveee—or agents_af_C_LT and_shalLdefend,
indemnify and save harmless CITY, its officers and employees, from any and all claims,
demands, suits, actions or proceeding of any kind or nature, including, but not by way of
limitation, workers' compensation claims, of or by anyone whomsoever, directly or indirectly
caused by, or arising out of a breach of a requirement of this Agreement by the CONTRACTOR
or any negligent or willful act or omission of CONTRACTOR or any negligent or willful act or
omission of the CONTRACTOR its employees or subcontractors in the performance of this
Agreement. CONTRACTOR shall procure and maintain, at its own cost and expense, any
additional kinds and amounts of insurance which, in its own judgment, may be necessary for its
proper protection in the performance of the work. Insurance coverage specified in this
Agreement shall in no way lessen or limit the terms of this indemnification.
(h) Enforcement of Scope of Services: CONTRACTOR shall reimburse the CITY for
any costs incurred by the CITY in enforcing and potentially defending any challenges by any and
all school and college districts regarding the Solid Waste collection regulations contained herein.
(i) Waivers: No acquiescence, failure or neglect of either of the contracting parties to
insist on strict performance of any or all of the terns hereof shall be considered as or constitute a
waiver or any term or condition of this Agreement or any performance required thereunder, or
any remedy, damage or other liability arising out of such refusal, neglect or inability to perform
at any time.
29
65B-39
42. SUBCONTRACTORS AND MANAGEMENT:
(a) The CONTRACTOR shall not subcontract this Agreement nor any part hereof
without first obtaining the consent of the City Council.
(b) CONTRACTOR shall designate the person to be in charge of administering this
Agreement. The CITY retains the right to reject said person at any time during the term of this
Agreement upon reasonable grounds. Should the CITY require the replacement of any person so
designated by CONTRACTOR, the CONTRACTOR shall have thirty (30) days within which to
designate, with the CITY'S approval, a new person.
(c) The CITY may cancel this Agreement pursuant to Section 35 or in the event of a
breach of the covenants in subsections (a) and (b) hereinabove.
43. ACCOUNTING AND AUDITING:
(a) The CONTRACTOR shall maintain financial records in accordance with
generally accepted accounting principles.
(b) CONTRACTOR shall make its records, reports, and methods of accounting
available to the CITY'S designated representative during normal business hours to allow the
such person to review and verify the information reported pursuant to this Agreement including,
but not limited to, the information reported pursuant to Section 16 hereof, the information
reported pursuant to Sections 22 through 25 including, but not limited to, the tonnages reported
therein, and the Gross Receipts reported pursuant to Section 10 hereof.
— -(c)--CFPY- shall us1ai:able to GONT-Iz.AGTrP,-r ^Yar rersonable — —
notice for the purpose of auditing such records.
44. BOND:
The CONTRACTOR shall, prior to the initial date of the term of this Agreement, execute
and file with the City Clerk a surety bond in the penal sum of Two Million Dollars
($2,000,000,00) conditioned upon the faithful performance of this Agreement by the
CONTRACTOR and its subcontractors, if any. Said bond may be written for a term of one year,
and may thereafter be renewed by certificate, provided however, that the CONTRACTOR agrees
to maintain such bond or bonds in force for the complete tern of this Agreement.
45. MEDIA RELATIONS:
The CONTRACTOR shall notify the CITY by facsimile of all requests for news media
interviews related to the CITY'S Solid Waste collection program within twenty-four (24) hours.
Before responding to any inquiries involving controversial issues, CONTRACTOR will discuss
the proposed response with the CITY. Copies of draft news releases or proposed trade journal
articles shall be submitted to CITY for prior review and approval at least two (2) working days in
advance of release. Copies of articles resulting from media interviews or news releases shall be
provided to the CITY within five (5) days after publication.
30
M1
46. NOTICES:
Any notice required by this Agreement shall be sufficiently served if personally delivered
or if deposited into the U.S. Mail, postage prepaid, and if addressed as follows:
If served by CONTRACTOR upon CITY:
Executive Director of Public Works
Public Works Agency
City of Santa Ana
20 Civic Center Plaza M-21
Santa Ana, California 92701
If served by CITY upon CONTRACTOR:
Public Sector Manager
Waste Management
1800 South Grand
Santa Ana, California 92705
With a courtesy copy to:
West Group General Counsel
Waste Management, Inc.
7025 N Scottsdale Road, Suite 200,
Scottsdale, AZ 85253
47. GENDER AND NUMBER:
As used herein, the masculine gender shall include the feminine and neuter, and the
singular shall include the plural.
48. VALIDITY:
The invalidity in whole or in part of any provision of this Agreement shall not void or
affect the validity of the other provisions of this Agreement.
49. ASSIGNABILITY:
CONTRACTOR may not assign or transfer any rights, interests or duties or obligations
of performance under this Agreement, whether by assignment or novation, without the prior
written consent of the CITY; provided, however, that claims for money due or to become due to
the CITY under this Agreement may be assigned to a bank, trust company or other financial
institution, or to a trustee in bankruptcy, without such approval. This section shall not prohibit
the assignment, merger or transfer of any rights or interests herein to any other wholly owned
subsidiary of Waste Management, Inc. Notice of any assignment, merger or transfer shall be
furnished to the CITY in writing within seven (7) calendar days of such assignment, merger or
transfer.
31
65B-41
50. GOVERNING LAW:
This Agreement shall be governed by and construed in accordance with the laws of the
State of California.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year
first hereinabove written.
ATTEST:
MARIA D. HUIZAR
Clerk of the Council
APPROVED AS TO FORM:
— _SGNIA--r CAnV�-L CIi`s' tiiTvFit
JOHN M. FUNIC
Assistant City Attorney
RECOMMENDED FOR APPROVAL
CITY OF SANTA ANA
Un
USA Waste of California, Inc.
By: _
FRED MOUSAVIPOUR
Executive Director, Public Works Agency
Title:
32
65B-42
50. GOVERNING LAW:
This Agreement shall be governed by and construed in accordance with the laws of the
State of California.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year
first hereinabove written.
C`L972MX Ll WIN 11"M
By:
ATTEST:
MARIA D. HUIZAR
Clerk of the Council
APPROVED AS TO FORM:
- -SONIALR. CARVALIiO_. MYATT-ORNEY- -- - - -. -- - - - - - -- -
J M. FUNK
Assistant City Attorney
RECOMMENDED FOR APPROVAL
USA Waste of California, Inc.
By: _
FRED MOUSAVIPOUR
Executive Director, Public Works Agency
Title:
32
65B-43
WASTE MANAGEMENT HOLDINGS INC. (W IH) GUARANTEE
Name of Underlying Contract: Fourth Amended and Restated Agreement for Collection
and Handling of Solid Waste Generated and/or Accumulated in the City of Santa Ana
Date of Underlying Contract: June 19,1997
Beneficiary: CITY OF SANTA ANA, a municipal corporation of the State of California
Address: 20 Civic Center Plaza, Santa Ana, CA 92701
WMH Contracting Company: USA Waste of California, Inc., a Delaware corporation
TO THE BENEFICIARY IDENTIFIED ABOVE:
With respect to that certain underlying contract identified above (hereinafter the
"Agreement") dated as of the above specified date by and between the WMH Contracting
Company identified above (the "Contractor") and the beneficiary identified above (the
"Beneficiary"), and subject to the terms of this letter agreement (the "Guarantee"), Waste
Management Holdings Inc., a Delaware corporation (hereinafter "WMH ), hereby irrevocably
and unconditionally guarantees to the Beneficiary the performance of all obligations and the due
and punctual payment of all amounts payable by the Contractor to the Beneficiary under the
Agreement when the same shall become due and payable in accordance with the terms of the
Agreement. Upon failure of the Contractor punctually to perform or pay any such amounts, and
upon written demand by the Beneficiary to WMH at its address set forth below (or to such other
address or person as WMH may specify in writing), WMH agrees to perform or cause to be
_performed and to py or cause to be paid such amounts._..
Notwithstanding the foregoing, WMH's obligations hereunder as to any claim, suit,
proceeding, event or other matter in respect of which the Beneficiary at any time shall be seeking
payment hereunder (referred to herein as "Guarantee Events") shall be subject to the
preconditions that (i) the Beneficiary shall have given written notice of such Guarantee Event to
the Contractor promptly after learning thereof, (ii) in the case of any failure by the Contractor to
perform any obligation under the Agreement, shall have afforded WMH a reasonable
opportunity to cure such failure, and (iii) there shall not have occurred and be continuing any
material breach by the Beneficiary of its obligations under the Agreement.
WMH hereby agrees that, except as expressly provided herein, its obligations hereunder
will be unconditional and will not be discharged except by complete payment or other lawful
discharge (other than by operation of Bankruptcy law) of the amounts due under the Agreement,
irrespective of any claim as to the lack of authority of the Contractor to execute or deliver the
Agreement, the absence of any action to enforce the Agreement, the failure to obtain any
judgment against the Contractor, the failure to commence any action to enforce a judgment
against the Contractor under the Agreement or any similar circumstance which might otherwise
constitute a legal or equitable discharge or defense of a guarantor generally.
33
65B-44
Except as set forth above, WMH hereby waives diligence, presentment, demand on the
Contractor for payment, filing of claims, requirement of a prior proceeding against the
Contractor and protest or notice, except as provided for in the Agreement with respect to
amounts payable by the Contractor. If at any time payment under the Agreement is rescinded or
must be otherwise restored or returned by the Beneficiary upon the insolvency, bankruptcy, or
reorganization of the Contractor or WMH or otherwise, WMH's obligations hereunder with
respect to such payment shall be reinstated upon such restoration or return being made by the
Beneficiary.
WMH represents the Beneficiary as of the date hereof that:
(1) it is duly organized and validly existing under the laws of the jurisdiction
of its incorporation and has full corporate power and legal right to execute and deliver this
Guarantee and to perform the provisions of this Guarantee on its part to be performed;
(2) its execution, delivery, and performance of this Guarantee have been and
remain duly authorized by all necessary corporate action and do not contravene any provision of
its certificate of incorporation or by-laws or any law, regulation, or contractual restriction
binding on it or its assets; and
(3) this Guarantee is its legal, valid and binding obligation enforceable against
it in accordance with its terms except as enforcement hereof may be limited by applicable
bankruptcy, insolvency, reorganization, or other similar laws affecting the enforcement of
creditors' rights or by general equity principles.
By accepting this Guarantee and entering into the Agreement, the Beneficiary agrees that
`4TWI-shall--ba subrogated -te ::guts of-the-Benufiei ry-against-tlr-Gentrac 3r in -respect o any ---
amounts paid by WMH pursuant to the Guarantee.
WMH acknowledges that the Contractor is a direct or indirect subsidiary of WMH and
that WMH will receive substantial benefit from the performance of the Agreement.
Neither this Guarantee nor the Agreement may be amended without the advance written
consent of WMH and the Beneficiary. No amendment shall be effective unless set forth in a
written instrument so executed.
If WMH shall default in the performance of its obligations hereunder, WMH shall pay to
the Beneficiary all costs incurred by the Beneficiary in enforcing its rights hereunder against
WMH, including reasonable attorney fees and court costs.
Any notice or other communication required or permitted by the terms hereof shall be in
writing and shall be given in a commercially reasonable manner to WMH at 1001 Fannin, 40"
Floor, Houston TX 77002, Attention: General Counsel, or to such other address as WMH shall
specify in writing to the Beneficiary at its above-specified address or such other address as the
Beneficiary shall notify to WMH as provided herein.
This Guarantee shall be governed by and construed in accordance with the internal laws
of the State of Delaware applicable to contracts made to be performed therein.
34
65B-45
The Beneficiary's receipt and acceptance of this Guarantee shall constitute the
Beneficiary's acceptance of and agreement to each and every term hereof.
WASTE MANAGEMENT HOLDINGS, INC.
RECEIVED AND ACCEPTED:
By: By:
Its: Its:
(Beneficiary)
35
Mi .
EXHIBIT "A"
SPECIFICATIONS
Solid Waste collection and Recycling plastic carts ("carts') for curbside service, City of Santa
Ana, California
Description
Size A: 35 gallon
Depth: 23.75 inches maximum (including handles)
Width: 19 inches maximum
Height: 35 inches maximum (to body rim)
Size B: 64 gallon
Depth: 27 inches maximum (including handles)
Width: 24 inches maximum
Height: 39 inches maximum (to body rim)
Size C: 96 gallon
Depth: 34.5 inches maximum (including handles)
Width: 26 inches maximum
Height: 43 inches maximum (to body rim)
_ All three sizes must be available ingreen grey and burgundy.
Technical Requirements
1. Body: Carts shall be injection molded of virgin high density polyethylene plastic. The
body of the cart shall be molded to present a smooth interior and exterior surface. The
body of the carts shall have a minimum wear strip under the floor of `A inch (protecting
the floor from abrasive contact with the street surface).
2. Material: Recyclable polyethylene, U.L. approved with a rating of HB or better.
Average Wall Thickness: Size A: Not less than .140 inch
Size B: Not less than.160 inch
Size C: Not less than .165 inch
Carts shall be suitable for use in temperature of >120' F to -20T. All plastic and
component parts used in the constriction of the carts shall be recyclable into other
polyethylene products. Crosslink resin is not acceptable. All carts shall be manufactured
with a minimum of 20% post consumer recycle content.
Carts shall be manufactured with a UV stabilizer. The UV stabilizer shall be added in the
solution during the polymerization, prior to pelletizing, compounding and molding.
36
65B-47
Independent laboratory tests of the carts bid must accompany bid samples certifying
compliance as specified in part 2 of the detailed specifications.
3. Wheels: Two (2) wheels with self-lubricating bearings with a minimum load rating of
120 lbs. per wheel. Wheels shall be attached to the axle via a tamper resistant snap -on
method which contains no metal components. No cotter pins, "Pal nuts" or similar
restraining devices shall be utilized to attach the wheel. All wheels shall be 1.75 inches
wide. Wheels shall be easily removed for replacement with a non -commercially available
tool.
Wheel Sizes: Size A: 8 inches
Size B: 10 inches
Size C: 12 inches
4. Axles: Axles shall be solid steel and electro -plated with black zinc for durability and long
life. Carts should be designed in such a way as to prevent the axle from popping out. An
axle, which is only press fitted and not secured in some additional manner will not be
acceptable.
Axle Sizes: Size A:
5/8 inch
Size B:
6/8 inch
Size C:
7/8 inch
5. Lids: Lids shall be molded of the same material as the cart body and shall be permanently
attached to the cart body with plastic hinge(s). Metal fasteners are not acceptable. Lids
shall be watertight and slightly domed to facilitate run-off of rainwater. The lid shall be
designed to fold- nvPrp araH eL tothe-back-side -o f_the-cart xvhen_fiill-1,- oin, tined; T ids shall_be --- — —
factory assembled.
6. Locking Bar: The semi -automated lifting area shall be integrally molded with the body of
the cart. The locking bar shall be able to rotate a full three -hundred sixty (360) degrees
and shall be constructed of zinc -coated steel to prevent rust and corrosion, Plastic locking
bars are unacceptable.
7. Certification by a certified independent laboratory shall be required of the following
minimum standards and quality assurance measurements:
7.1 Drop Impact Test - material and weight shall be cold soaked at a temperature of
not less than -20 F for 24 hours and dropped within 60 seconds of leaving the cold
chamber. Carts shall remain watertight after a minimum drop height of 15 feet.
Test loads are as follows:
Size A: 120 lbs. distributed
Size B: 160 lbs. distributed
Size C: 180 lbs. distributed
7.2 Lift and Dump Test - shall verify the cart's compatibility with approved,
commercially available, standard dumping equipment. Test shall be performed at.
37
MM•
room temperature with a cycle time that simulates lift, dump and return of 6
seconds. Carts shall remain watertight and functional beyond 6,000 cycles. Test
loads are as follows:
Size A: 160 lbs. distributed
Size B: 250 lbs. distributed
Size C: 350 lbs. distributed
7.3 Wheel/Axle Test - shall verify the combined durability of the wheels, axle and
cart axle supports under fully loaded conditions. The two cycle tests shall be
performed at room temperature as follows:
Cycle 1 - with a rolling length of 75 feet and a 5" curb drop. Cart shall continue to
roll freely and be watertight after 1,000 drops.
Cycle 2 - repeated with a 5.5" stair drop. Cart shall continue to roll freely and be
watertight after 1,000 drops.
Test loads shall be as follows:
Size A:
125 lbs. distributed
Size B:
200 lbs. distributed
Size C:
350 lbs. distributed
7.4 Salt Spray - ASTM B 117-90 corrosion tests shall be applied to the lift bracket for
a minimum of 96 hours and to the axle for a minimum of 500 hours. Bracket and
axle shall remain corrosion free.
8. Serial Number/Manufacture Date: Each cart shall be hot stamped with a seven digit, 1-
1/2" high alpha/numeric identification number on the front of the cart. An in -molded
year/month date wheel identification will be located on the bottom of the cart.
9. Markings: Each cart lid shall be clearly and permanently marked with the cart's size or
volume capacity.
9.1 Precautionary instructions shall be molded into the lids in English and Spanish as
follows:
Size A: Cart Capacity 35 Gallons
Do not overload or you may have difficulty controlling the cart.
Do not roll cart with lid open.
Do not put sand, soil, rocks or concrete in cart.
Maximum load 125 pounds.
Do not put anything hot such as ashes in the cart.
Do not put paints, solvents, gasoline, oil, etc. in cart.
MR,
Size B: Cast Capacity 64 Gallons.
Do not overload or you may have difficulty controlling the cart.
Do not roll cart with lid open.
Do not put sand, soil, rocks or concrete in cart.
Maximum load 200 pounds.
Do not put anything hot such as ashes in the cart.
Do not put paints, solvents, gasoline, oil, etc. in cart.
Size C: Cart Capacity 96 Gallons.
Do not overload or you may have difficulty controlling the cart.
Do not roll cart with lid open.
Do not put sand, soil, rocks or concrete in cart.
Maximum load 250 pounds.
Do not put anything hot such as ashes in the cart.
Do not put paints, solvents, gasoline, oil, etc. in cart.
9.2 The hot stamp text area size shall be as follows:
Size A: 2'/2" x 14"
Size B: 31/2" x 18"
Size C: 4%2" "x 19"
10. References: Each bid shall include references of communities which have purchased like
sizes and quantities of carts. For each reference, carts shall currently be in service for a
minimum of 2 years.
-cwartmustbrSove-red-b3-a imnir ini 1-0-ysar--,?rananty-ab .:nst-rnaterlals -
and manufacturing defects. The first five years (1 through 5) shall be with full warranty;
years 6 through 10 shall be prorated.
39
65B-50
1.
2.
EXHIBIT "C"
Rates
Effective , 2017
Subject to the provisions of this Agreement, the City shall collect the rate of $20.03 on
behalf of the Contractor for curbside service. The City shall collect the rate of $17.69 on
behalf of the CONTRACTOR for all qualifying senior citizen and mobile park curbside
service units. Rates for each additional solid waste collection and recycling plastic cart
shall be no greater than $2.00 per month. .
RESIDENTIAL BIN SERVICE RATES
Subject to the provisions of this Agreement, the CONTRACTOR may charge no more
than the following rates for Residential Bin Service:
1 YARD BIN X 1/WEEK
1 YARD BIN X 2/WEEK
1 YARD BIN X 3/WEEK
1 YARD BIN X 4/WEEK
1 Y --ARD BIN- 5/WEEK T T
1 YARD BIN X 6/WEEK
2 YARD BIN X 1/WEEK
2 YARD BIN X 2/WEEK
2 YARD BIN X 31WEEK
2 YARD BIN X 4/WEEK
2 YARD BIN X 5/WEEK
2 YARD BIN X 61WEEK
3 YARD BIN X 1/WEEK
3 YARD BIN X 2/WEEK
3 YARD BIN X YWEEK
3 YARD BIN X 4/WEEK
3 YARD BIN X 5/WEEK
3 YARD BIN X 6/WEEK
4 YARD BIN X 1/WEEK
4 YARD BIN X 2/WEEK
4 YARD BIN X 3/WEEK
4 YARD BIN X 4/WEEK
40
65B-51
Monthly Rate
$102.52
$184.24
$265.94
$347.74
$429.39
$531.97
$111.61
$202.44
$293.30
$384.12
$474.94
$565.76
$162.18
$282.91
$403.51
$524.35
$645.04
$817.63
$192.07
$332.29
$472.43
$612.68
4 YARD BIN X 5/WEEK
4 YARD BIN X 6/WEEK
$752.79
$965.58
CONTRACTOR may offer a discount in the Residential Bin rates to a Residential Bin Service
Customer if said Customer regularly segregates Recyclable Solid Waste and/or Yard Waste by
Waste Type in separate bins.
93
H
COMMERCIAL/INDUSTRIAL BIN
Subject to the provisions of this Agreement, the CONTRACTOR may charge no more
than the following rates for Commercial/Industrial Bin Service:
1 YARD BIN X 1/WEEK
1 YARD BIN X 2/WEEK
1 YARD BIN X 3/WEEK
I YARD BIN X 4/WEEK
1 YARD BIN X 5/WEEK
1 YARD BIN X 6/WEEK
2 YARD BIN X YWEEK
2 YARD BIN X 2/WEEK
2 YARD BIN X 3/WEEK
2 YARD BIN X 4/WEEK
2 YARD BIN X 5/WEEK
2 YARD BIN X 6/WEEK
3 YARD BIN X 1/WEEK
3 YARD BIN X 2/WEEK
3 YARD BIN X 3/WEEK
3 YARD BIN X 4/WEEK
3 YARD BIN X 5/WEEK
3 YARD BIN X 6/WEEK
4 YARD BIN X 1/WEEK
4 YARD BIN X 2/WEEK
4 YARD BIN X 31WEEK
4 YARD BIN X 4/WEEK
4 YARD BIN X 5/WEEK
4 YARD BIN X 61WEEK
Monthly Rate
S81.94
$143.06
$204.30
$265.57
$326.74
$408.64
$91.22
$161.79
$232.28
$302.74
$373.25
$474.86
$131.69
$242.67
$353.59
$464.52
$575.45
$738.18
$172.17
$313.11
$454.11
$595.20
$736.20
$949.80
CONTRACTOR may offer a discount in the commercial/industrial bin rates to a
Commercial/Industrial Bin Service Customer if said Customer regularly segregates
Recyclable Solid Waste and/or Yard Waste by Waste Type in separate bins.
ROLL -OFF SERVICE RATES
41
65B-52
Subject to the provisions of this Agreement, the CONTRACTOR may charge no more
than the following rates for Roll -Off Services:
Container Size Haul Rate Additional Fee for Compactor
10 Cubic yard $248.13 $51.71
20 Cubic yard $248.13 $51.71
40 Cubic yard $248.13 $51.71
In addition to the Roll -Off Service rates set forth above, CONTRACTOR may charge the
Roll -Off Service Customer for the actual Gate Fees paid at the Disposal Site or fees
charged at the Materials Recovery Facility.
5. SPECIAL BIN SERVICE RATES
Subject to the provisions of this Agreement, the CONTRACTOR may charge no more
than the following rates for Special Bin Services:
(A) A bin which needs to be moved in excess of twenty-five (25) feet in order to be
emptied may be assessed no more than the following fees:
(1) Moving of bins 25 to 50 feet: $1.49 per month times the number of times
emptied each week,
(2) Moving of bins 51 to 75 feet: $2.92 per month times the number of times
emptied each week.
(B) A bin which possesses casters may be assessed a caster charge of no more than
$3.63 per bin per month.
(C) CONTRACTOR may apply a surcharge to bin Customers who use trash
compactors of not to exceed a multiplier of 1.5 times the normal bin rate for said
service.
(D) CONTRACTOR may charge a special service charge of no more than $2.92 a
month times the number of times a week a bin is emptied for moving a bin out of
an enclosure.
(E) CONTRACTOR may charge a fee of no more than $84.48 per bin for an
additional bin pickup when such pickup is requested by a Customer.
(F) CONTRACTOR may charge a fee of no more than $2.92 per month to a
Customer who requests a bin with a lock.
(G) CONTRACTOR may charge a reasonable fee for six (6) cubic yard Bin Service.
(H) CONTRACTOR may charge a reasonable fee for a plastic injection molded two
(2) cubic yard container.
42
65B-53
(1) CONTRACTOR may charge a fee of no more than $85.68 per bin to persons who
need temporary use of a three (3) cubic yard bin.
(J) CONTRACTOR may charge a reasonable fee for collection of Solid Waste on
difficult to service streets.
(K) CONTRACTOR may charge a fee of no more than $42.80 per occurrence for
overflowing bins.
(L) CONTRACTOR may charge a restart fee of $20.01 to restart commercial and roll
off service when a permanent account has been terminated for non-payment.
(M) CONTRACTOR may charge a bin exchange fee of $57.04 for each of two or
more bin exchanges in a twelve (12) month period, due to bin size change.
(1) CONTRACTOR may charge a trip charge of $68.43, per scheduled visit when the
roll -off is not serviceable.
(0) CONTRACTOR may charge a return to service fee of $68.43 per call, for two or
more calls in a one-month period, by a commercial/residential bin service
customer to return to provide service.
(P) CONTRACTOR may charge a fee of $7.12_per bin, times the number of service
visits per month, when stinger service is required for a commercial/residential bin
service customer.
(Q) CONTRACTOR may charge a customer a fee of $1.49 each for copies of disposal
tickets. ----------
6. EMERGENCY SERVICES
(A) The rate per vehicle hour with a two (2) person crew providing emergency Roll -
Off Service on an on-call basis shall be no more than sixty dollars ($60.00) for the
term of this Agreement.
(B) The rate per vehicle hour with a two (2) person crew providing emergency Bin
Services on an on-call basis shall be no more than sixty five dollars ($65.00) for
the term of this Agreement.
INCORPORATION OF "SMART" PROGRAM IMPACT FEES INTO REFUSE
SERVICE RATES
(A) As of the date of this Agreement, the City is considering adoption of the
"Sustainable Mobility and Roadway Transformation (SMaRT)" Program. The
primary purpose of the SMaRT Program is to provide funding for necessary
improvements to the City's streets to offset the "wear and tear" impact of heavy
vehicle travel thereon.
43
65B-54
(B) As part of the SMaRT Program, the City commissioned a study to assess the
impact heavy vehicles travelling within the City have on City streets. The study
concluded that approximately 38.1% of the impact is due to refuse trucks and
similar heavy vehicles travelling on City streets. As such, the study concluded
that the costs of maintaining City streets to offset these impacts may be fairly
apportioned to the cost of providing refuse service.
(C) Therefore, should the City Council establish the SMaRT Program and should it
apportion an amount of street maintenance costs to CONTRACTOR as part of
providing refuse service, those additional costs, as established by ordinance or
resolution (the "SMaRT Fees"), may be added as a separate line item by the
CONTRACTOR to the customer's service rates and charges, in addition to those
authorized herein.
M
65B-55
65B-56