19-0521_R3 CONSULTING GROUP, INC._E18_Agenda ReportCity of San Juan Capistrano
Agenda Report
TO : Honorable Mayor and Members of the City Council
FROM : ~jamin Siegel, City Manager
SUBMITTED BY: Charlie View, Project Manage /))
Steve May, Public Works and Utilities Director
DATE : May21,2019
5/21/2019
E18
SUBJECT: Amendment No. 1 to the Agreement for Professional Services
Associated with Conducting a Limited Request for Information
Process and Negotiation of the Solid Waste Franchise Agreement
(R3 Consulting); and, Appropriation of Funds
RECOMMENDATION :
1. Approve and authorize the City Manager to execute Amendment No. 1 to the
Professional Services Agreement with R3 Consulting Group Inc., for a total agreement
amount not to exceed $104,385, for consulting services related to the solid waste
franchise agreement; and,
2. Approve a $29,385 appropriation from the General Fund for additional expenses
associated with a limited request for information process in preparation of a new solid
waste franchise agreement.
EXECUTIVE SUMMARY:
The City's current solid waste handling franchise agreement with CR&R Inc. terminates
on June 30, 2020 (Attachment 1). On November 5, 2018, the City Council approved a
Professional Services Agreement with R3 Consulting Group, Inc. (R3) for assistance
negotiating a new franchise agreement (Attachment 2). The scope of service from R3
focused on exclusive negotiations with the current solid waste hauler, CR&R. At this
juncture, staff and R3 are recommending a limited solicitation of additional information
from CR&R and up to three other qualified waste haulers . R3 has submitted a revised
proposal for preparing and conducting the limited request for information process and
City Council Agenda Report
May 21, 2019
Page 2 of 3
developing a new solid waste franchise agreement. The revised proposal requires an
appropriation of $29 ,385 from the General Fund to augment the $75,000 previously
appropriated for the solid waste franchise negotiation assistance. The entire cost to
procure and negotiate a new franchise agreement is expected to be reimbursed through
the new franchise agreement, resulting in no net cost to the City.
DISCUSSION/ANALYSIS :
The primary factors that need to be addressed with a new franchise agreement are
updated regulatory compliance requirements and determining a rate structure that is
competitive within the current regional market. Addressing these factors requires the
expertise of industry professionals with knowledge of the evolving state regulations
related to solid waste, and who have the analytical capabilities to evaluate and negotiate
residential and commercial rates.
With R3 's assistance , staff has engaged CR&R to discuss proposed rates and services
to be included in a new franchise agreement. At the same time, R3 has been researching
the rates and services offered in other Orange County cities, and industry trends. New
State regulations are resulting in cost increases for both residential and commercial
customers. Although the regulations will be phased-in over the next several years, there
are penalties for non-compliance. It is imperative that the new franchise agreement
provide the tools for regulatory compliance throughout the term of the agreement.
Based on negotiations with CR&R and research to date, staff is recommending an
expansion of the current process to invite a limited number of well qualified waste hauling
service providers to submit preliminary waste franchise agreement and proposed rate
information to the City, through R3. The use of a focused, request for information process
is intended to provide the most competitive rates in the market while reducing the time
and expense associated with a traditional request for proposal (RFP) process.
FISCAL IMPACT:
Funding for solid waste hauling franchise agreement consultant services in the amount
of $75,000 is included in the Fiscal Year 2018 -19 operating budget. An appropriation of
$29,385 is required for the proposed consultant services to conduct a request for
information process. It is expected that the entirety of the $104,385 consultant cost will
be reimbursed through the new franchise agreement, resulting in no net cost to the City .
ENVIRONMENTAL IMPACT:
The recommended actions are not subject to the California Environmental Quality Act
(CEQA) pursuant to Section 15060(c)(3) of CEQA Guidelines because the actions do not
constitute a project as defined in Section 15378 of the CEQA Guidelines , and the actions
have no potential for resulting in physical change'to the environment, directly or indirectly.
City Council Agenda Report
May21,2019
Page 3 of 3
PRIOR CITY COUNCIL REVIEW:
• On November 5, 2018, the City Council approved the Professional Service Agreement
with R3 Consulting Group for consulting services associated with negotiation of a new
solid waste franchise agreement.
• On April 3, 2018, the City Council approved a draft Request for Proposals for
consultant services for negotiating a new solid waste handling franchise agreement
with the City's current solid waste franchise contractor and, if necessary, for
assistance with a competitive bidding process for a new solid waste franchise
agreement.
COMMISSION/COMMITTEE/BOARD REVIEW AND RECOMMENDATIONS :
This item does not require commission/committee/board review .
NOTIFICATIONS:
Dean Ruffridge, CR&R
Richard Tagore-Erwin, R3 Consulting Group
Tom Koutroulis, OC Waste & Recycling
ATTACHMENTS:
Attachment 1: Current CR&R Franchise Agreement
Attachment 2: R3 Professional Services Agreement
Attachment 3: Amendment No. 1 to R3 Professional Services Agreement
AGREEMENT
BETWEEN
CITY OF SAN JUAN CAPISTRANO
AND
CR&RINCORPORATED
FOR
SOLID WASTE HANDLING SERVICES
EFFECTIVE FEBRUARY 18, 2014
AITACHMENT 1
TABLE OF CONTENTS
SECTION 1. RECITALS ........................................................................................................... 2
SECTION2.
2.1
2.2
2.3
2.4
2.5
2.6
2.7
2.8
2.9
2.10
2.11
2.12
2.13
2.14
2.15
2.16
2.17
2.18
2.19
2.20
2.21
2.22
2.23
2.24
2.25
2.26
2.27
2.28
2.29
2.30
2.31
2.32
2.33
2.34
2.35
2.36
2.37
2.38
2.39
2.40
2.41
DEFINITIONS ...................................................................................................... 2
AB 341 .................................................................................................................. 2
AB 939 .................................................................................................................. 2
Affiliate ................................................................................................................. 2
Animal Waste ........................................................................................................ 3
Applicable Law ..................................................................................................... 3
Billings .................................................................................................................. 3
Bins ....................................................................................................................... 3
Bulky Items ........................................................................................................... 3
Cart ........................................................................................................................ 3
City ........................................................................................................................ 4
City Council .......................................................................................................... 4
City Limits ............................................................................................................ 4
City Manager ........................................................................................................ 4
Collect/Collection ................................................................................................. 4
Commercial Premises ........................................................................................... 4
Container ............................................................................................................... 4
Contractor ............................................................................................................. 4
County Agreement ................................................................................................ 5
Customer ............................................................................................................... 5
Dwelling Unit. ....................................................................................................... 5
Effective Date ....................................................................................................... 5
Environmental Laws ............................................................................................. 5
Franchise Area ...................................................................................................... 5
Franchise Fee ........................................................................................................ 5
Green Waste .......................................................................................................... 6
Gross Receipts ...................................................................................................... 6
Hazardous Substance ............................................................................................ 6
Hazardous Waste .................................................................................................. 6
Household Hazardous Waste ................................................................................ 7
Household Sharps Waste ...................................................................................... 7
Multi-Family Dwelling ......................................................................................... 7
Municipal Code ..................................................................................................... 7
Person .................................................................................................................... 7
Premises ................................................................................................................ 7
Recyclable Material .............................................................................................. 8
Residential Premises ............................................................................................. 8
Rollo ff Box ........................................................................................................... 8
Single Family Dwelling ........................................................................................ 8
Solid Waste ........................................................................................................... 8
Solid Waste Handling Services ............................................................................. 8
Special Wastes ...................................................................................................... 8
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2.42 Temporary Service ................................................................................................ 9
2.43 Term ...................................................................................................................... 9
2.44 Transformation ...................................................................................................... 9
2 .45 Universal Waste .................................................................................................... 9
SE CTION 3. GRANT OF EXCLUSIVE FRANCHISE ............................................................ 9
3 .1 Scope of Franchise ................................................................................................ 9
3.2 Matters Excluded from Scope of Franchise ........................................................ 10
SECTION 4. ENFORCEMENT OF EXCLUSIVITY ............................................................. 11
SECTION 5. ACCEPTANCE; WAIVER ................................................................................ 11
SECTION 6 . TERM ................................................................................................................. 11
SECTION 7.
7.1
7.2
7.3
7.4
7.5
CONDITIONS TO EFFECTIVENESS OF AGREEMENT .............................. 12
Accuracy of Representation ................................................................................ 12
Absence of Litigation .......................................................................................... 12
Furnishing oflnsurance, Bond , and Letter of Credit.. ........................................ 12
Effectiveness of City Council Action ................................................................. 12
Payment of Fees and Costs ................................................................................. 12
SECTION 8. SOLID WASTE HANDLING SERVICES PROVIDED BY
CONTRACTOR ................................................................................................. 12
8.1 General ................................................................................................................ 12
8.1.1 Equipment ............................................................................................... 12
8.1.2 Performance Standards ........................................................................... 12
8.1.3 Noise and Disruption .............................................................................. 13
8.1.4 Collection Times ..................................................................................... 13
8.1.5 Collection Schedule ................................................................................ 13
8.1.6 Commingling ofRoutes .......................................................................... 13
8. 1 .7 Replacement of Containers ..................................................................... 14
8.1.8 Contractor's Containers ........................................................................... 14
8.1.9 Missed Pick-ups ...................................................................................... 15
8.1.10 RecordofNon-collection ........................................................................ 15
8.2 Residential Solid Waste Handling Service ......................................................... 16
8.2.1 Single Family Dwellings -Automated Collection ................................. 16
8.2.3 Recycling Program for Single Family Dwellings Using Carts ............... 17
8.2.4 Green Waste Collection for Single Family Dwellings ........................... 17
8.2.5 City Manager Authority to Oversee Encouragement of
Recycling ................................................................................................ 18
8.2.6 Multi-Family Dwelling Customers ......................................................... 18
8.2.6.1 Mixed Waste Bins ........................................................... 19
8.2 .6.2 Source Separated Collection Program ............................ 19
8.2.7 Bulky Item Service for Single Family Dwellings ................................... 20
8.2.8 Bulky Item Service for Multi-Family Dwellings .................................... 21
8.2.9 Targeted Neighborhood Abandoned Items Sweep ................................. 21
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8.2.10 Bulky Item Diversion .............................................................................. 21
8.2.11 Proper Handling of Bulky Items ............................................................. 21
8.2.12 Residential Drop Off of Household Sharps Waste ................................. 22
8.2.13 Residential Drop-Off of Universal Waste ............................................... 22
8.2.14 Curbside Household Hazardous Waste Collection ................................. 22
8.3 Commercial Solid Waste Handling Services ...................................................... 22
8.3 .1 Commercial Bins and Roll off Boxes ...................................................... 22
8.3 .2 Commercial Carts ................................................................................... 22
8.3.3 Commercial Recycling Services ............................................................. 23
8.3.4 Commercial Bulky Item Service ............................................................. 23
8.3.5 Food Waste Collection Services ............................................................. 23
8.3 .6 Monitoring and Cleaning of Bin Enclosures .......................................... 24
8.4 Other Collection Programs As May Be Required by Law ................................. 24
8.5 Roll Out Service .................................................................................................. 24
8.6 Manure Collection ............................................................................................... 24
8.7 Temporary Services ............................................................................................ 25
8.8 Recycling Obligations and Public Education Program ....................................... 25
8 .8.1 Minimum Requirements for Collection of Recyclable Material,
Green Waste and Rolloff Boxes ............................................................. 25
8.8.2 Extent of Applicable Franchise Rights ................................................... 26
8.8.3 AB 939 and AB 341 Obligations, Guarantee, and
Indemnification ....................................................................................... 26
8.8.3.1 Warranties and Representations ...................................... 26
8.8.3.2 Mutual Cooperation ........................................................ 26
8.8.3.3 Waste Reduction and Program Implementation ............. 26
8.8.3.4 Guarantee and Indemnification ....................................... 27
8.8.4 Waste Generation/Characterization Studies ........................................... 28
8.8.5 Implementation of Additional Diversion Services ................................. 28
8.9 Additional Services ............................................................................................. 28
8 .9.1 Public Service Calls From City Departments ......................................... 28
8.9.2 Collection at City Sponsored Events ...................................................... 29
8.9.3 Recycling Assistance for Special Events ................................................ 29
8.9.4 Holiday Trees .......................................................................................... 29
8.9.5 Services for Public Trash Cans Along Streets and at Bus Stops ............ 29
8.9.6 Dirt Disposal ............................................................................................ 29
8.9.7 Free Disposal and Processing of City Delivered Waste ......................... 30
8.10 Special Services .................................................................................................. 30
8.11 Non-Profit Assistance ......................................................................................... 30
SECTION 9. MINIMUM STANDARDS FOR CONTRACTOR'S SOLID WASTE
HANDLING SERVICE COLLECTION VEHICLES ....................................... 30
9.1 General ................................................................................................................ 30
9 .2 Air Quality /Fuel Requirements ........................................................................... 31
9 .3 Specific Requirements ........................................................................................ 31
9.4 Costs of Operation and Damages ........................................................................ 33
9.5 City Inspection ..... , .............................................................................................. 33
9.6 Correction of Defects and Removal of Vehicles from Use within City ............. 33
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SECTION 10. CONTRACTOR'S SOLID WASTE HANDLING SERVICE
PERSONNEL ..................................................................................................... 34
10.1 Uniforms ............................................................................................................. 34
10.2 Identification of Employees ................................................................................ 34
10.3 Driver's License .................................................................................................. 34
10.4 Screening of Field Employees ............................................................................ 34
10.5 Discontinued Use of Unsatisfactory Employees ................................................. 34
10.6 Training and Legal Compliance .......................................................................... 34
10. 7 Customer Service ................................................................................................ 3 5
10.7.1 Office Hours ............................................................................................ 35
10. 7.2 Telephone Customer Service Requirements ........................................... 3 5
10.7.2.1 Toll Free Number ............................................................ 35
10.7.2.2 Call Responsiveness ........................................................ 35
10.7.3 Complaint Documentation ...................................................................... 35
10. 7.4 Resolution of Customer Complaints ....................................................... 36
10.7.5 Government Liaison ................................................................................ 36
10.8 Education and Public Awareness ........................................................................ 36
10.8.1 General ..................................................................................................... 36
10.8.2 Written Program Materials ..................................................................... 36
10.8.3 Public Outreach ....................................................................................... 36
10.8.4 On-going Education Requirements ......................................................... 37
10.8.4.1 Annual Notices ................................................................ 37
10.8.4.2 How-To Brochure ........................................................... 37
10.8.4.3 Corrective Action Notice ................................................ 37
10.8.4.4 Contractor Representative ............................................... 37
10.8.4.5 Web Site Page ................................................................. 37
10.8.5 Public Education Fund ............................................................................ 38
SECTION 11. CONTRACTOR'S CONSIDERATION ............................................................. 39
11.1 Reimbursement of Negotiation Costs ................................................................. 39
11.2 Administrative Cost Reimbursement .................................................................. 39
11.3 Franchise Fee ...................................................................................................... 39
11.3.1 Monthly Franchise Fee ........................................................................... 39
11.4 Services at City Facilities .................................................................................... 40
SECTION 12. CHARGE FOR LATE PAYMENTS .................................................................. 40
SECTION 13. CONTRACTOR'S BILLING SERVICES AND SYSTEMS ............................ .40
13. l Billing ................................................................................................................. 40
13.1.1 Suspension of Service Due to Non-Payment.. ........................................ 41
13.1.2 Unoccupied Premises ............................................................................... 41
13.2 Minimum Requirements for Billing Statements ................................................ .42
13.3 Billing System ..................................................................................................... 42
13.3.1 Computerization of Account Information .............................................. .42
13.3.2 Minimum Computer Programming Requirements ................................. 43
13.3.3 Billing Inquiries ...................................................................................... 43
13.3.4 Distribution of Public Information .......................................................... 43
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13.4 Payment, Accounting Systems ............................................................................ 43
13.4.1 Collection and Processing of Payments .................................................. 43
13.4.1.1 Accounting and Deposit ofFunds .................................. .43
13.4.1.2 Allocation ofFunds ......................................................... 44
SECTION 14. FAITHFUL PERFORMANCE ........................................................................... 44
14.1 Surety .................................................................................................................. 44
14.1.1 Forfeiture of Surety ................................................................................. 44
14.1.2 Use of Surety by City .............................................................................. 44
14.2 Replacement Letter of Credit .............................................................................. 45
SECTION 15. INSURANCE COVERAGE ............................................................................... 45
15.1 Minimum Scope oflnsurance ............................................................................. 45
15.2 Minimum Limits oflnsurance ........................................................................... .45
15.2.1 Comprehensive General Liability .......................................................... .45
15.2.2 Automobile Liability ............................................................................... 45
15.2.3 Workers' Compensation and Employers Liability ................................. .46
15.3 Deductibles and Self-Insured Retentions ............................................................ 46
15.4
15.5
15.6
15.7
Other Insurance Provisions ................................................................................. 46
15.4.1 General Liability and Automobile Liability Coverage .......................... .46
15.4.2 Workers' Compensation and Employers Liability Coverage .................. 46
15 .4.3 Environmental Pollution Control Insurance ........................................... 46
15.4.4 All Coverages ................................... : ...................................................... 47
Acceptability of lnsurers ..................................................................................... 47
Verification of Coverage ..................................................................................... 47
Loss or Reduction in Insurance ........................................................................... 47
SECTION 16. ASSIGNMENT, SUBLETTING, AND TRANSFER;
REQUIREMENTS AND LIMITATIONS ......................................................... 47
16.1 General ................. 1 ..................................................................................... .' ........ 47
16.2 Assignment to be Broadly Interpreted ................................................................ 47
16.3 Nature of Agreement-Personal to Contractor ................................................... 48
16.4 Procedure for Consideration of Assignment.. ..................................................... 48
SECTION 17. REVIEW OF SERVICES AND PERFORMANCE .......................................... .49
17.1 Performance Hearing .......................................................................................... 49
SECTION 18 . CITY'S REMEDIES; DEFAULT AND TERMINATION ................................ 50
18.1 Notice ofDefault. ................................................................................................ 50
18.2 Failure to Cure .................................................................................................... 51
18.3 Review by City Manager .................. , ............................................... , ................. 51
18.4 City Council Review ........................................................................................... 51
18. 5 Performance During Reviews ............................................................................. 51
18.6 Termination without Right to Cure ..................................................................... 51
18. 7 Liquidated Damages ........................................................................................... 52
18.7.1 General .................................................................................................... 52
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18.7.2 Service Performance Standards; Liquidated Damages for
Failure to Meet Standards ....................................................................... 53
18.7.3 Calculations for Liquidated Damages ..................................................... 53
18. 7 .3.1 Collection Reliability ...................................................... 53
18.7.3.2 Collection Quality ........................................................... 54
18.7.3.3 Customer Responsiveness ............................................... 54
18.7.3.4 Timeliness of Submissions to City ................................. 54
18. 7.4 Process for Assessment of Liquidated Damages .................................... 55
18 .7.5 Timing of Payment ................................................................................. 55
SECTION 19. CONTRACTOR'S REMEDIES; ADMINISTRATIVE HEARING .................. 55
19 .1 Administrative Hearing ....................................................................................... 5 5
19.2 Other Remedies; Claims ..................................................................................... 56
19 .3 Actions for Damages ........................................................................................... 56
SECTION 20. CITY'S ADDITIONAL REMEDIES ................................................................. 56
SECTION 21. RIGHTS OF CITY TO PERFORM DURING EMERGENCY ......................... 56
21.1 Provision of Service ............................................................................................ 56
21.2 Possession of Equipment ................................. , .................................................. 57
21.3 Exclusions from Right to Possession of Equipment without
Compensation ..................................................................................................... 57
SECTION 22. PRIVACY ........................................................................................................... 57
SECTION 23. REPORTS AND ADVERSE INFORMATION ................................................. 57
23.l Monthly Reports ................................................................................................. 58
23.2 Quarterly Reports ................................................................................................ 58
23.3 Annual Reports ................................................................................................... 58
23 .4 Adverse Information ........................................................................................... 59
23.5 Disaster Plan ....................................................................................................... 60
23.6 Failure to Report ................................................................................................. 60
SECTION 24. COMPENSATION ............................................................................................. 60
24.1 Contractor Rates .................................................................................................. 60
24.2 Resolution of Disputes Regarding Rate Adjustments ......................................... 60
24.3 Annual Consumer Price Index Adjustments ....................................................... 61
24.4 Limitations to Annual CPI Adjustments ............................................................. 61
24.4.1 FourPercent(4%) Cap ............................................................................ 61
24.4.2 Compliance with Agreement .................................................................. 61
24 .5 Discretionary Adjustments .................................................................................. 61
24.6 Grants ................................................................................................................... 62
SECTION 25. IDENTIFICATION OF CONTRACTOR .......................................................... 62
SECTION 26. FLOW CONTROL; COUNTY AGREEMENT ................................................. 62
SECTION 27. INDEMNIFICATION ......................................................................................... 63
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27 .1 General ................................................................................................................ 63
27 .2 Hazardous Substances Indemnification .............................................................. 64
SECTION 28. CONTRACTOR'S BOOKS AND RECORDS; AUDITS .................................. 66
28.1 Maintenance and Inspection of Records ............................................................. 66
28.2 CERCLA Defense Records ................................................................................. 66
28.3 Audits .................................................................................................................. 66
28.3. l Examination of Services ......................................................................... 66
28.3.2 Annual Residential Audit... ..................................................................... 67
SECTION 29. TRANSITION OBLIGATIONS ................................. : ....................................... 67
SECTION 30. GENERAL PROVISIONS ................................................................................. 67
30.1 Force Majeure ..................................................................................................... 67
30.2 Independent Contractor ....................................................................................... 68
30.3 Pavement Damage .............................................................................................. 68
30.4 Property Damage ................................................................................................ 68
30.5 Right of Entry ..................................................................................................... 68
30.6 Law to Govern; Venue ........................................................................................ 68
30.7 Amendment ......................................................................................................... 68
30.8 Notices ................................................................................................................ 69
30.9 Savings Clause .................................................................................................... 69
30.10 Exhibits Incorporated .......................................................................................... 69
30.11 Joint Drafting ...................................................................................................... 69
30.12 Attorneys' Fees and Litigation Costs .................................................................. 69
30.13 City's Authorized Agent. ..................................................................................... 70
30.14 Integrated Agreement. ......................................................................................... 70
30.15 Section Headings ................................................................................................ 70
3 0 .16 Compliance with Law ......................................................................................... 70
EXHIBIT A MAXIMUM RA TE SCHEDULE FOR SOLID WASTE HANDLING
SERVICES
EXHIBIT B CONTAINER SPECIFICATIONS
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AGREEMENT
This Agreement ("Agreement") is entered into to be effective as of the 18th day of
February 2014, by and between the City of San Juan Capistrano ("City") and CR&R
Incorporated, ("Contractor") (collectively, the "Parties") to provide an exclusive franchise for
Solid Waste Handling Services within the City.
RECITALS:
A. The Legislature of the State of California, by enactment of the California
Integrated Waste Management Act of 1989 ("AB 939"), has declared that it is in the public
interest to authorize and require local agencies to make adequate provision for the disposal of all
Solid Waste within their jurisdictions.
B. Pursuant to California Public Resources Code Section 40059(a)(l), the City
Council of the City has determined that the public health, safety, and welfare require that an
exclusive franchise agreement be awarded to a qualified Solid Waste enterprise for Solid Waste
Handling Services within the City Limits.
C. City and Contractor are mindful of the provisions of the laws governing the safe
Collection, transport, recycling, and disposal of Solid Waste, including AB 939, AB 341, the
Resource Conservation and Recovery Act ("RCRA"), and the Comprehensive Environmental
Response, Compensation and Liability Act ("CERCLA"). City and Contractor desire to leave no
doubts as to their respective roles, and to memorialize that by entering into this Agreement, City
is not thereby becoming an "arranger" or a "generator" as those terms are used in CERCLA, and
that it is Contractor, not City, who is "arranging for" the Collection, transport for disposal,
composting, and recycling of municipal Solid Waste in the City which may contain Hzardous
Substances. City and Contractor understand and agree that it is Contractor, and not City, who
will arrange to Collect Solid Waste, that City has not, and, by this Agreement does not, instruct
Contractor on its Collection methods, nor supervise the Collection process, nor do the Parties
intend to place title to such Solid Waste in City, but rather intend that whatever, if any, title in
and to such Solid Waste that otherwise might exist in or with City in the absence of this
Agreement is hereby transferred to Contractor, and further that if Contractor gains title to such
Solid Waste it is by operation of law and agreement with its Customers and is not the result of
this Agreement. By entering this Agreement City and Contractor further desire to confirm that
Contractor has agreed to indemnify the City in connection with any claims relating to the
inadvertent or intentional Collection, transportation and/or disposal of hazardous materials that
may occur in connection with Contractor's performance under this Agreement.
E. Contractor has agreed, as part of this Agreement, to provide such services as are
necessary or desirable to ensure City complies with the requirements of AB 939, AB 341 and
Public Resources Code Section 40000, et seq.
F. Contractor and City previously entered an agreement dated December 7, 1996,
which agreement was amended on six different occasions (collectively the "Prior Agreement").
This Agreement is intended to restate the various provisions of the Prior Agreement in a single
document, and further to amend the Prior Agreement in various respects including specifically
by eliminating the so called "evergreen clause" contained therein, and accordingly it shall
supersede and replace the Prior Agreement.
COVENANTS:
Based upon the foregoing Recitals and for good and valuable consideration, the receipt
and sufficiency of which is acknowledged by each of the Parties, City and Contractor hereby
agree as follows:
SECTION 1.
RECITALS
The Parties acknowledge the above recitals are true and correct and incorporate them
herein as if they were fully restated.
SECTION 2.
DEFINITIONS
Whenever any term used in this Agreement has been defined by the California Public
Resources Code, the definition of such term set forth therein shall apply unless the term is
otherwise defined in this Agreement.
2.1 AB 341
"AB 341" shall mean Assembly Bill 341 from the 2011-2012 Regular Session of the
California Legislature (Chapter 476, Statutes 2011).
2.2 AB 939
"AB 939" shall mean the California Integrated Waste Management Act of 1989, currently
codified as California Public Resources Code Section 40000 et~., as it may be amended from
time to time.
2.3 Affiliate
"Affiliate" means a business in which Contractor owns a direct or indirect ownership
interest, a business (including corporations, limited and general partnerships and sole
proprietorships) which has a direct or indirect ownership interest in Contractor and/or a business
which is also owned, controlled or managed by any business or individual which has a direct or
indirect ownership interest in Contractor. For purposes of determining whether an indirect
ownership interest exists, the constructive ownership provisions of Section 318(a) of the Internal
Revenue Code of 1986, as in effect on the date of this Agreement, shall apply; provided,
however, that (i) "ten percent (10%)" shall be substituted for "fifty percent (50%)" in Section
318(a)(2)(C) and in Section 318(a)(3)(C) thereof, and (ii) Section 318(a)(5)(C) shall be
disregarded. For purposes of determining ownership under this paragraph and constructive or
indirect ownership under Section 318(a), ownership interest of less than ten percent (10%) shall
be disregarded, and percentage interests shall be determined on the basis of the percentage of
voting interest or value which the ownership interest represents, whichever is greater.
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2 .4 Animal Waste
"Animal Waste" shall mean animal carcasses, dead animals, and/or parts or portions of
dead animals. Animal Waste shall not include manure.
2.5 Applicable Law
"Applicable Law" shall mean all federal, state, county, and local laws, regulations, rules,
orders, judgments, decrees, permits, approvals, or other requirements of any govenunental
agency having jurisdiction over an aspect of this Agreement that are in force on the Effective
Date, and as may be enacted, issued or amended thereafter, including without limitation, City's
Municipal Code, AB 939 and AB 341.
2.6 Billings
"Billings" or "Billing" or "Bill" means the statements of charges provided to Customers
for services rendered by Contractor pursuant to the terms of this Agreement.
2.7 Bins
"Bins" shall mean a metal or plastic Container, including dumpsters, compactors, and any
similar such devices with a capacity of under ten (10) cubic yards.
2.8 Bulky Items
"Bulky Items" means Solid Waste that cannot and/or would not typically be
accommodated within a Cart including specifically: furniture (including chairs, sofas,
mattresses, and rugs); appliances (including refrigerators with and without Freon, ranges,
washers, dryers, water heaters, dishwashers, plumbing, small household appliances and other
similar items, commonly known as "white goods"); residential wastes (including wood waste,
tree branches, scrap wood, in the aggregate not exceeding one cubic yard per Collection); and
clothing. For purposes of this Agreement, and notwithstanding any provision hereof to the
contrary, Bulky Items shall specifically include items commonly known in the waste industry as
"brown goods" and "e-waste". Bulky Items do not include car bodies, Construction and
Demolition Debris or (with the exception of appliances/white goods described above) items that
callilot reasonably be moved with equipment of the type which, pursuant to industry standards,
would normally be carried in a truck Collecting Bulky Items. In the event a question arises as to
whether a specific item, or category of items, meets the definition of Bulky Items, City shall be
responsible to determine whether said definition shall apply, which determination shall be final
and binding on the Parties.
2.9 Cart
"Cart" means a plastic Container with a hinged lid and wheels serviced by an automated
or semi-automated process, as opposed to a manual process of lifting and dumping.
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2.10 City
"City" shall mean the City of San Juan Capistrano, a municipal corporation, located in
Orange County, California.
2.11 City Council
"City Council" shall mean the City Council of City.
2.12 City Limits
"City Limits" shall mean the territorial boundaries of the City together with all
amendments and changes thereto, which boundaries are depicted on maps, incorporated herein
by reference, that are kept on file in the office of the City Clerk of the City of San Juan
Capistrano, and which are from time to time amended to reflect changes.
2.13 City Manager
"City Manager" shall mean the City Manager of the City of San Juan Capistrano or his or
her designee.
2.14 Collect/Collection
"Collect" or "Collection" shall mean to take physical possession of, transport, and remove
Solid Waste from a Premises.
2.15 Commercial Premises
"Commercial Premises" means Premises upon which business activity is conducted,
including but not limited to retail sales, services, wholesale operations, manufacturing and
industrial operations, but excluding Residential Premises upon which business activities are
conducted when such activities are permitted under applicable zoning regulations and are not the
primary use of the property. Notwithstanding any provision to the contrary herein, in the
Municipal Code, or otherwise, for purposes of this Agreement, Premises upon which hotels and
motels are operated and upon which Multi-Family Dwellings exist shall be deemed to be
Commercial Premises.
2.16 Container
"Container" means any and all types of Solid Waste receptacles, including Carts and
Bins.
2.17 Contractor
"Contractor" shall mean CR&R Incorporated, the entity granted the franchise pursuant to
this Agreement, or any party permitted pursuant to the terms hereof permitted to become the
successor or assignee thereof.
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2.18 County Agree ment
"County Agreement" shall mean that certain waste disposal agreement entered between
various Orange County cities, including specifically the City of San Juan Capistrano, and the
County of Orange relating to the use of County landfills for the disposal of Solid Waste
Collected in such cities, and which is on file in the office of City's City Clerk, as the same may
be amended from time to tin:ie.
2.19 Customer
"Customer" or "Customers" shall mean any person receiving Solid Waste Collection
services from Contractor within the Franchise Area.
2.20 Dwelling Unit
"Dwelling Unit" shall mean one or more rooms designed for occupancy by one family for
living and sleeping purposes and containing kitchen facilities or an area designed for the
preparation of food for use solely by one family.
2.21 Effective Date
"Effective Date" shall mean February 18 1h, 2014.
2.22 Environmental Laws
"Environmental Laws" means all federal and state statutes, county, local and City
ordinances concerning public health, safety and the environment including, by way of example
and not limitation, the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, 42 USC §9601 et seq.; the Resource Conservation and Recovery Act, 42 USC §6901
et seq.; the Federal Clean Water Act, 33 USC §1251 et seq.; the Toxic Substances Control Act,
15 USC §2601 et seq.; the Occupational Safety and Health Act, 29 USC §651 et seq.; the
California Hazardous Waste Control Act, California Health and Safety Code §25100 et seq.; the
Carpenter-Presley-Tanner Hazardous Substance Account Act, California Health and Safety Code
§25300 et seq.; the Porter-Cologne Water Quality Control Act, California Water Code §13000
et seq.; the Safe Drinking Water and Toxic Enforcement Act, California Health and Safety Code
§25249.5 et seq.; as currently in force or as hereafter amended, and all rules and regulations
promulgated thereunder.
2.23 Franchise Area
"Franchise Area" shall mean all Premises within the City Limits, including Premises
which may be annexed and thereby added to the City Limits following the Effective Date.
2.24 Franchise Fee
"Franchise Fee" shall mean the franchise fee set forth and more fully defined in Section
11 hereof.
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2.25 Green Waste
"Green Waste" means tree trimmings, grass cuttings, dead plants, leaves, branches and
dead trees (not more than six (6) inches in diameter or 48 inches in length) and similar organic
materials.
2.26 Gross Receipts
"Gross Receipts" shall mean and include all monies, fees, charges, consideration, and
revenue received, charged or imputed to Contractor and any Affiliate of Contractor, in
connection with, arising from, or in any way attributable to the Solid Waste Handling Services
carried out by or on behalf of Contractor pursuant to this Agreement. Gross Receipts includes,
without limitation, monthly Customer charges for Collection of Solid Waste, without subtracting
Franchise Fees, fees imposed and collected pursuant to this Agreement, sums collected in
connection with Temporary Services, revenue received by Contractor attributable to landfill,
material processing and composting tipping fees, and transportation charges. Gross Receipts
does not include revenue from the sale of Recyclable Material, Green Waste, food waste, and
other material which is diverted from disposal or the receipt of governmental funding.
2.27 Hazardous Substance
"Hazardous Substance" shall mean any of the following: (a) any substances defined,
regulated or listed (directly or by reference) as "Hazardous Substances," "hazardous materials,"
"Hazardous Wastes," "toxic waste," "pollutant" or "toxic substances" or similarly identified as
hazardous to human health or the environment, in or pursuant to (i) the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 USC §9601 et seq.; (ii)
the Hazardous Materials Transportation Act, 49 USC §5101, et seq.; (iii) the Resource
Conservation and Recovery Act, 42 USC §6901 et seq.; (iv) the Clean Water Act, 33 USC §1251
et seq.; (v) California Health and Safety Code §§25115-25117, 25249.8, 25281, and 25316; (vi)
the Clean Air Act, 42 USC §7401 et seq.; and (vii) California Water Code §13050; (b) any
amendments, rules or regulations promulgated thereunder to such enumerated statutes or acts
currently existing or hereafter enacted; and (c) any other hazardous or toxic substance, material,
chemical, waste or pollutant identified as hazardous or toxic or regulated under any other
applicable federal, state or local laws or regulations, including any of the Environmental Laws,
currently existing or hereinafter enacted, including, without limitation, friable asbestos,
polychlorinated biphenyl's ("PCBs"), petroleum, natural gas and synthetic fuel products, and by-
products.
2.28 Hazardous Waste
"Hazardous Waste" means all substances defined as Hazardous Waste, acutely Hazardous
Waste, or extremely Hazardous Waste by the State of California in Health and Safety Code
§25110.02, §25115, and §25117 or in the future amendments to or recodifications of such
statutes or identified and listed as Hazardous Waste by the US Environmental Protection Agency
(EPA), pursuant to the Federal Resource Conservation and Recovery Act (42 USC §6901
et seq.), all future amendments thereto, and all rules and regulations promulgated thereunder.
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2.29 Household Hazardous Waste
"Household Hazardous Waste" shall mean any Hazardous Waste genera,ted by a Single
Family or Multi-Family Dwelling, including but not limited to: automobile maintenance and
repair products (e.g., motor oil, oil filters, antifreeze, brake fluid, etc.); lawn and garden
chemicals (e.g., pesticides, herbicides, fungicides, etc.); cleaning products (e.g., bathroom
cleaners, drain cleaners, chlorine bleach, solvents, oven cleaners, etc.); and home improvement
supplies (e.g., stains, paints, varnish, paint thinners, chemical strippers, glue, pool chemicals,
etc.). Household Hazardous Waste does not include any waste generated from a business
operating out of a Single Family or Multi-Family Dwelling or waste otherwise generated from
operating a business.
2.30 Household Sharps Waste
"Household Sharps Waste" shall mean home generated sharps waste as defined in Health
and Safety Code Section 117671 and includes hypodermic needles, pen needles, intravenous
needles, lancets, and other devices that are used to penetrate the skin for the delivery of
medications, which are generated from a Customer at Single Family or Multi-Family Dwelling.
2.31 Multi-Family Dwelling
"Multi-Family Dwelling" means any building or lot containing more than one Dwelling
Unit at which Contractor determines (and City agrees) the Dwelling Units must receive Solid
Waste Collection services through the use of shared Bins, since they are not reasonably able to
store Carts or otherwise receive individualized Solid Waste Collection service through the use of
the automated Collection system utilizing Carts contemplated by this Agreement for Single
Family Dwellings. Unless otherwise determined as set forth above, any Premises upon which
four (4) or more Dwelling Units exists shall be deemed to be a Multi-Family Dwelling. Any
ambiguity as to whether a Customer's Premises qualifies for purposes of this Agreement as a
Single Family Dwelling or Multi-Family Dwelling shall be resolved by the City Manager whose
decision shall be final.
2.32 Municipal Code
"Municipal Code" shall mean City's Municipal Code.
2.33 Person
"Person" shall mean any individual, firm, association, organization, partnership,
corporation, business trust, joint venture, the United States, the State of California, the County of
Orange, towns, cities, and special purpose districts.
2.34 Premises
"Premises" shall mean any land, building, and/or structure within the City Limits where
Solid Waste is generated or accumulated.
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2.35 Recyclable Material
"Recyclable Material" or "Recyclables" shall mean that Solid Waste discarded within the
Franchise Area which is capable of being recycled, including Green Waste.
2.36 Residential Premises
"Residential Premises" shall mean all premises upon which Dwelling Units exist.
Notwithstanding any provision to the contrary herein, in the Municipal Code, or otherwise, for
purposes of this Agreement, Premises upon which hotels and motels are operated or upon which
Multi-Family Dwellings exist shall be deemed to be Commercial Premises.
2.3 7 Roll off Box
"Rolloff Box" means Solid Waste Collection Containers of ten (10) yards or larger,
including compactors.
2.38 Singl e F a mily Dwe lling
"Single Family Dwelling" means a building or lot containing one Dwelling Unit, and, for
purposes of this Agreement, includes buildings and lots with more than one Dwelling Unit where
such Dwelling Units are determined by the City to be reasonably able to receive individualized
Solid Waste Collection service by the automated process utilizing Carts contemplated herein.
Any ambiguity as to whether a Customer's Premises qualifies as a Single Family Dwelling or
Multi-Family Dwelling shall be resolved by the City Manager whose decision shall be final.
2.39 Solid Waste
"Solid Waste" shall mean and include all discarded putrescible and nonputrescible solid,
semisolid, and liquid wastes, including garbage, trash, refuse, rubbish, construction waste,
industrial waste, commercial Solid Waste, Bulky Items, and any other discarded solid, semisolid,
and liquid waste permitted to be disposed of at a Class III landfill and which are included within
the definition of "Nonhazardous Solid Waste" set forth in the California Code of Regulations, as
it may be amended from time to time. Solid Waste does not include hazardous (Class I) waste,
low-level radioactive waste, untreated medical waste, or Special Wastes as defined herein.
2.40 Solid Waste Handling S ervices
"Solid Waste Handling Services" means the Collection, transfer, transport, recycling,
processing, and disposal of Solid Waste for Premises within the City.
2.41 Speci al Wastes
"Special Wastes" shall mean wastes other than Solid Waste including sewage, sludge,
industrial sludge, asbestos, auto bodies, tires, used motor oil, Hazardous Waste, Animal Waste,
explosive substances, radioactive materials, and other materials which may not be disposed of at
a Class III landfill or which require special handling.
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2.42 Temporary Service
"Temporary Service" shall mean Solid Waste Handling Services provided by Contractor
on an as-needed and temporary basis to any Premises within the City in conjunction with
construction, demolition, cleanup or other projects, and by use of temporarily placed Bins or
Rollo ff Boxes.
2.43 Term
"Term" shall have the meaning ascribed in Section 6 of this Agreement.
2.44 Transformation
"Transformation" means incineration, pyrolysis, distillation, gasification, or biological
conversion other than composting. "Transformation" does not include composting.
2.45 Universal Waste
"Universal Waste" shall mean those hazardous wastes identified as universal waste in
Section 66261.9 of Title 22 of the California Code of Regulations, including, but not limited to:
florescent bulbs and tubes; household batteries (e.g., D, AA, button-type, etc.); non-empty
aerosol cans; electronic devices (e.g., televisions, computer monitors, cell phones, radios, video
cassette recorders, etc.); and mercury containing devices (e.g., thermometers, thermostats,
gauges, etc.), and generated by Single or Multi-Family Dwellings. Universal Waste does not
include waste generated in the course of operating a business at a Single or Multi-Family
Dwelling or waste otherwise generated from operating a business.
SECTION 3.
GRANT OF EXCLUSIVE FRANCHISE
3.1 Scope of Franchise
Except as hereinafter expressly set forth, City hereby grants to Contractor and Contractor
hereby accepts from City, for the Term hereof, the exclusive contract, right, and privilege to
Collect, transport, and dispose of all Solid Waste generated or accumulated within the Franchise
Area. The exclusive franchise, right and privilege to provide Solid Waste Handling Services
within City granted to Contractor by this Agreement shall be interpreted to be consistent with all
applicable state and federal laws, now in effect and adopted during the Term of this Agreement,
and the scope of this Agreement shall be limited by all applicable current and developing laws
and regulations. In the event that future interpretations of current law or future enactments limit
the ability of City to lawfully grant Contractor the scope of services as specifically set forth
herein, Contractor agrees that the scope of this Agreement will be limited to those services and
materials which may be lawfully provided, and that City shall not be responsible for any lost
profits claimed by Contractor as a result thereof.
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3 .2 Matters Exc.luded from Scope of Franchise
Notwithstanding any other provisions set forth in this Agreement to the contrary, the
exclusive franchise granted herein shall exclude the Collection, transportation, recycling, and
disposal of:
(A) any Solid Waste otherwise within the scope of this Agreement which is
transported by a Self Hauler as that term is used in the Municipal Code, or any other City
ordinance, resolution, regulation or policy, as such may be adopted or amended from time
to time;
(B) the sale or donation of Recyclable Material by the person or entity that
generated such Recyclable Material (the "Generator 11
) to any Person or entity other than
Contractor; provided, however, to the extent permitted by law, if the Generator is
required to pay monetary or non-monetary consideration for the Collection,
transportation, transfer, or processing of Recyclable Material to any Person or entity other
than Contractor, the fact that the Generator receives a reduction or discount in price (or in
other terms of the consideration the Generator is required to pay) shall not be considered
a sale or donation;
(C) any Solid Waste otherwise within the scope of this Agreement which is
Collected or transported to a disposal or recycling facility by City employees in the
course and scope of their employment ·with City;
(D) the Collection, transportation, or disposal of Hazardous Waste; Universal
Waste; E-Waste; biohazardous waste; untreated medical waste; infectious waste; Animal
Waste; used cooking fats, oils , grease and similar waste; or other materials which do not
constitute Solid Waste;
(E) the Collection, transportation, and disposal of Construction and
Demolition Waste by a contractor, handyman, repairman, or other similar service
provider, using its own equipment, as an incidental part of the services provided to its
customers, rather than as a hauling service, provided that such waste is not Collected or
transported by a third party hired for the primary purpose of Collecting and transpm1ing
said materials;
(F) the Collection, transportation, and disposal of Green Waste and related
Solid Waste by a gardener, or landscaper, as an incidental part of the gardening or
landscaping services provided to its customers, rather than as a hauling service provided
that such Solid Waste is not Collected or transported by a third party hired for the
primary purpose of Collecting and transporting said materials;
(G) Solid Waste Handling Services provided by any Person having a legal
right to continue doing so, pursuant to Public Resources Code Section 49520, et. seq., or
otherwise, as long as and to the extent such legal right continues to exist; except that to
the degree any territory in which Contractor has a franchise granted by another
governmental entity is annexed into City during the Term, Contractor agrees the
provisions of this Agreement shall apply to such territory and further acknowledges that
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this Agreement constitutes any notice required by the Public Resources Code m
connection therewith.
SECTION 4.
ENFORCEMENT OF EXCLUSIVITY
Contractor shall be responsible for enforcing the exclusivity of this Agreement. City
shall reasonably assist Contractor in its efforts to enforce the exclusivity hereof. In addition,
City shall adopt such ordinances or other regulations as it deems to be necessary or desirable to
protect the exclusive rights granted herein. City shall have the right, but not the obligation, to
enforce the exclusivity hereof, including by instituting appropriate legal proceedings, and/or to
request that Contractor do so. Contractor shall have an affirmative obligation to enforce such
exclusivity provisions when requested to do so by City.
SECTION 5.
ACCEPTANCE; WAIVER
Contractor agrees to be bound by and comply with all the requirements of this
Agreement. Contractor waives Contractor's right to change the terms of this Agreement under
federal, state, or local law, or administrative regulation. Contractor waives any right or claim to
serve the City or any part of the City under any prior grant of franchise, contract, license, or
permit issued or granted by any governmental entity including any right under Section 49520 of
the Public Resources Code. Additionally, by and upon the effectiveness of this Agreement,
Contractor agrees to the termination of the Prior Agreement as of the Effective Date, agrees to
waive any and all rights under the Prior Agreement, and agrees to release and hold the City
harmless from any of the City's obligations thereunder, excepting, however, the right to
compensation for services provided at the rates approved by City as of the Effective Date and the
right to be credited for services already provided (such as situations where the maximum calls
for Bulky Item services have been reached by a Customer; provided, however, nothing contained
in this provision is intended to or shall relieve Contractor from any obligation existing under the
Prior Agreement pertaining to insurance, indemnification, or other legal obligations to City or
Customers (as opposed to obligations to provide service pursuant to the terms thereof), or from
any obligation set forth in the Prior Agreement which are called out as surviving the termination
thereof, and all such obligations, including specifically those indemnification obligations relating
to Environmental Laws, general liability, and AB 939 shall survive the termination of the Prior
Agreement.
SECTION6.
TERM
The term of this Agreement (the "Term") shall be for the period of time commencing on
February 18, 2014, and ending at midnight on June 30, 2020, unless this Agreement is
terminated sooner pursuant to Section 18 hereof, or otherwise.
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SECTION 7.
CONDITIONS TO EFFECTIVENESS OF AGREEMENT
The satisfaction of each and all of the conditions set out below, each of which may be
waived in whole or in part by City in writing, is a condition precedent to the effectiveness of this
Agreement, and a condition of Contractor's continued right to the benefits conveyed herein:
7 .1 Accuracy of Representation
All representations and warranties made by Contractor and set forth in this Agreement
shall be accurate, true, and correct on and as of the Effective Date of this Agreement.
7.2 Ab sence of Litigation
There shall be no litigation pending in any court challenging the award of this exclusive
franchise for Solid Waste Handling Services to Contractor or the execution of this Agreement or
seeking to restrain or enjoin its performance.
7.3 F urnishing oflnsur ance, Bond. and Letter of Credit
Contractor shall have furnished evidence of the insurance and Surety required by
Sections 14 and 15 hereof, and shall comply with all ongoing requirements relating thereto.
7.4 Effectiveness of City Council Action
The City Council's Resolution approving this Agreement shall have become effective
pursuant to California law .
7.5 Payment of Fe es and Costs
Contractor shall have made payment to City of all fees, costs and other payments due as
provided in the Prior Agreement and more fully set forth in Section 11.
SECTION 8.
SOLID WASTE HANDLING SERVICES
PROVIDED BY CONTRACTOR
8.1 General
8.1.1 Equipment
Contractor shall furnish all labor, superv1s1on, materials, supplies, and equipment
necessary to provide for all services required by the terms of this Agreement.
8.1.2 Performance Standards
Contractor shall perform Solid Waste Handling Services as required hereunder in a
workmanlike manner consistent with good housekeeping standards and all relevant provisions of
Applicable Law.
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8.1.3 Noise and Disruption
Contractor shall perform Solid Waste Handling Services as required hereunder in such a
manner as to minimize noise and other disruptive impacts including, without limitation, those
upon traffic. Contractor shall use its best efforts to coordinate its Collection schedules such that
street sweeping on any given street shall occur the business day following Collection of Solid
Waste by Contractor.
8.1.4 Collection Tim es
Contractor shall not commence Collection of Solid Waste for Customers at Commercial
Premises (excepting Multi-Family Dwellings) until 6:00 a.m. and for Customers at Residential
Premises and at Multi-Family Dwellings until 7:00 a.m., nor shall such activities occur after 7:00
p.m. for all Customers. The City Manager may require Contractor to comply with time frames
applicable to Residential Premises in connection with Collection of Solid Waste for Customers at
Commercial Premises whose Premises are in close proximity to Residential Premises . Solid
Waste Collection at Single Family Dwellings shall not occur on Saturdays; excepting Temporary
Services and Collection occurring on Saturdays following such holidays as may be approved by
the City Manager. Except as noted herein, no Solid Waste Collection shall occur on Saturdays or
Sundays at Single Family Dwellings, or on Sundays at Multi-Family Dwellings or Commercial
Premises, except in exceptional circumstances for which specific approval is given by the City
Manager.
8.1.5 Collection Schedule
Contractor shall establish Collection routes and a Collection schedule which shall be
approved by the City Manager such that Customers at all Residential and Commercial Premises
within the City will have not less than one established Collection day each week. Contractor
shall provide notice to each Customer of its established Collection day(s), and shall provide at
least one week's notice to Customers of any change in their established Collection day(s).
Notwithstanding any provision herein to the contrary, should any established Collection day fall
on a legal holiday, or on any other holiday which is observed by either a landfill or other lawful
disposal or diversion site to which Solid Waste is taken for disposal or diversion, Contractor
shall provide for Collection one (1) day later during the pick-up week, and the regular Collection
schedule shall be resumed the following week. A pick-up week shall be defined as Monday
through Saturday. Contractor may not change its established Collection schedules without
obtaining the prior written consent of the City Manager. Contractor may charge Customers for
emergency Collection services, where the emergency Collection is not required as a result of a
missed pickup as set forth in Section 8.1.9, at rates which do not exceed the maximum rates set
forth on Exhibit A.
8.1.6 Commingling o f Routes
Contractor shall not during its Collection process commingle Solid Waste Collected
hereunder with Solid Waste Collected in any other City, or on behalf of any other entity
operating or existing within City that is not subject to this Agreement, and is specifically
prohibited from combining Collection routes related to services provided pursuant to this
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Agreement with Collection routes for other jurisdictions it may service. Notwithstanding the
foregoing, source separated Recyclable Materials Collected by Contractor may be commingled
with such materials Collected in other jurisdictions provided Contractor maintains a method of
allocating tonnage between jurisdictions that is satisfactory to the City Manager.
8.1.7 R eplac,ement ofConta·ine rs
Contractor shall, whenever possible, place Carts in the street gutter, adjacent to the curb,
upon completing Collection. Contractor shall replace all Bins in the location upon the property
of each Customer utilizing Bins designated for storage of Bins, and shall secure gates, doors,
and/or enclosures when applicable.
8 .1. 8 Contractor's Containers
(A) Contractor's Containers shall meet the minimum standards set forth on the
attached Exhibit B.
(B) Contractor shall provide three sizes of Carts (small, medium and large)
having capacities of approximately 35 gallon, 64 gallon and 96 gallon. Notwithstanding
the foregoing, the Parties recognize that different vendors provide Carts of slightly
different dimensions, and hence the capacity of each of the three Cart sizes Contractor is
to provide (i.e., small, medium and large) may vary slightly, but in no case by more than
10% of the capacities noted above.
(C) Contractor shall be responsible to maintain and replace, as necessary, all
of its Containers.
(D} All Contractor's Containers shall be maintained by Contractor in good
repair, and any question as to the meaning of this standard shall be resolved by the City
Manager.
(E)
charge.
Contractor shall deliver Containers to each Customer at no additional
(F) Contractor shall ensure it maintains an accurate list that contains the total
number of Carts at each service address. Contractor is endeavoring to implement a
system whereby "bar codes" are affiliated with each Cart in use, and at such time as (if)
such a system is implemented the bar code data for each Cart shall be included in the
aforementioned list. Contractor shall keep this list up to date at all times, provide it to
City upon request, and shall include a current updated list with each annual report as set
forth in Section 23.3.
(G) All Carts shall be maintained by Contractor in a watertight condition, as
shall all Bins which are used primarily for the disposal of Solid Waste containing liquids.
(H) Within twenty-four (24) hours after notification (Sundays and holidays
excepted), Contractor shall repair and maintain, remove graffiti from, and replace lost,
stolen or damaged Carts at no charge to Customers. However, Contractor shall be
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entitled to charge Customers for the replacement of any Cart that has been damaged by a
Customer's willful neglect or abuse, ordinary wear and tear excepted, with such charges
being subject to the City Manager's approval and at a fee no higher than Contractor's
actual cost of repair and replacement. Notwithstanding the above, upon request and up to
one time per calendar year, Contractor shall exchange a Customer's Cart for a new or
"like new" Cart at no additional charge.
(I) Contractor shall at Customer's request annually refurbish, replace, and
steam clean as necessary all Bins and Contractor provided Rolloff Boxes at no charge to
Customers; provided, however, City may require the steam cleaning or replacement of
Bins utilized at restaurants, bars and grocery stores/markets more frequently if it
determines such action is needed to protect public health and safety. Additional steam
cleaning shall be provided to any Customers who request it at a charge not to exceed the
maximum rate set forth in Exhibit A hereto, or alternatively Contractor shall provide a
replacement Bin/Rolloff Box to Customers at no charge. Contractor may charge
Customers for damaged Bins at rates that do not exceed the maximum rate set forth in
Exhibit A.
(J) All Bins and Rolloff Boxes shall be kept freshly painted in a unifonn
fashion and shall be identified with Contractor's name and phone number in letters not
less than three inches high on its exterior so as to be visible when the Container is placed
for use.
(K) At a Customer's request, Contractor shall provide Bins with locking lids
and locks and may charge rates to Customers for locking Bins which do not exceed the
maximum rates set forth on Exhibit A.
8.1.9 Missed Pick-ups
In case of a missed pick-up called in by a Customer, Contractor shall Collect Solid Waste
and Recyclable Material from such Customer no later than the next day of the pick-up week
following the date of the call. Records of the addresses of all missed pick-ups shall be
maintained by Contractor, and shall be reported to City upon request. If Contractor demonstrates
to the satisfaction of the City Manager a pattern of ongoing late "set-outs" or wrongful Customer
notifications by any given Customer, missed pick-ups resulting from late set-outs by that
Customer shall not be counted as missed pick-ups in evaluating Contractor's performance
hereunder. The Customer service phone system required by Section 10.7.2 hereof is intended,
among other things, to serve as a "hotline" for Customers to call in the· event Solid Waste placed
for Collection is not Collected by Contractor and to facilitate having such Solid Waste Collected
as soon as reasonably possible, and in no event later than as required by the provisions hereof.
8.1.10 Record of Non-collection
As more fully set forth herein, Contractor shall Collect all Solid Waste placed for
Collection by Customers in Containers, excepting materials that do not meet the definition of
Solid Waste (such as hazardous materials). Whenever Contractor determines not to Collect any
Solid Waste deposited for Collection, Contractor shall leave a tag at least 2" by 6" in size,
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indicating the reason for Contractor's refusal to do so. This information may be either
handwritten or left by means of a check system (i.e., checking off boxes on a preprinted form).
The tag shall provide Contractor's business name and its local telephone number and shall be
securely fastened to the Container or the article refused. Contractor shall maintain a record of all
such taggings at its place of business. Such record shall contain the date of such notice, street
address, reason for non-collection, and a summary of any communications between Contractor
and the Customer involved. Such notice shall be retained so that it may be inspected by
representatives of City upon request.
8.2 Residential Solid Waste Handling Service
8.2.1 Single Family Dwellings -Automated Coll ect ion
Contractor shall provide each Customer at a Single Family Dwelling with one Cart
designated for the Collection of mixed Solid Waste (a Refuse Cart), and Customer shall be
entitled to choose between either a 35 gallon, 64 gallon or 96 gallon Refuse Cart (subject to the
provisions of Section 8.1.8(B)). Contractor shall Collect all Solid Waste placed out for
Collection in a Refuse Cart by each Customer at a Single Family Dwelling not less than once per
week using an automated Collection system at rates that do not exceed the maximum rates set
forth in Exhibit A. Contractor may charge Customers for additional Collection in excess of once
per week at rates that do not exceed the maximum rates set forth in Exhibit A. Upon request
from any Customer at a Single Family Dwelling, Contractor shall provide such Customer with
one or more additional Refuse Carts, and shall Collect all Solid Waste placed for Collection in
such additional Refuse Carts at rates that do not exceed the maximum rates set forth in Exhibit
A. Wherever feasible, Customers shall be directed by Contractor to place Carts for Collection
either in the street gutter, against the curb, in front of their Premises, or adjacent to their Premises
in the alley or easement in the rear of their Premises. If a Customer and Contractor cannot agree
upon a Collection location, or if City determines the selected location may cause safety or other
concerns, City may make the final determination of the Collection location. It is the intent of the
parties that the services provided under this Agreement will result in an automated Collection
system that includes source separation of Recyclable Material. Accordingly, if Solid Waste is
routinely placed for Collection other than in a Refuse Cart, Contractor shall work with the
Customer involved to determine if the Customer is in need of additional or larger Refuse Carts.
The City Manager is authorized to require Contractor to deliver additional Refuse Carts to any
such Customers or to require such other action of Contractor as is reasonably deemed necessary
to ensure the Collection system, including specifically the recycling programs, contemplated by
this Agreement are achieved.
8.2.2 Walk-Out Service
Contractor shall provide eligible Customers with "walk-out service" as set forth in this
Section at no additional charge. This service shall require Contractor to use its own forces to
bring a Customer's Carts from a Customer's backyard, side yard, or such other location at which
the Customer's Containers are regularly stored, to Contractor's Collection Vehicle; and, after
disposal of the contents thereof, returning said Containers to the location where they are
regularly stored. To be eligible for this service a Customer shall have a DMV issued disabled
person placard/license plates, and provide a letter to Contractor from a physician confirming the
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Customer is unable to move his/her Carts to the curb, and that to the best of the physician's
knowledge there is no other capable persons living in the Customer's household to provide this
service. Contractor may require each eligible Customer to provide a new letter from a physician
on an annual basis in order to maintain eligibility for walk-out service. Any dispute regarding a
Customer's eligibility for walk-out service shall be resolved by the City Manager. Contractor
may provide Customers who are not eligible for free walk-out service pursuant to the forgoing
with walk-out service at a rate which shall not exceed the maximum rate set forth in Exhibit A.
Contractor may require as a condition of walk-out service that a Customer sign a standardized
agreement, the terms of which shall be subject to City's approval, which authorizes entry onto the
Customer's property and holds Contractor harmless from liability (including specifically liability
related to pets escaping) associated with Contractor providing such service.
8.2.3 Recycling Program for Single Family Dwellings Using Carts
Contractor shall provide each Customer at a Single Family Dwelling with a Cart of the
same size as the Customer's Refuse Cart (subject to the provisions of Section 8.1.8(B))
designated for the Collection of Recyclables (a Recycling Cart). Upon request by a Customer
using a 3 5 or 64 gallon Refuse Cart, Contractor shall provide a Recycling Cart that is larger than
the Customer's Refuse Cart (i.e., either a 64 or 96 gallon Recycling Cart, as applicable).
Contractor shall Collect all Recyclable Material placed out for Collection in a Recycling Cart by
each Customer at a Single Family Dwelling not less than once per week using an automated
Collection system at rates that do not exceed the maximum rates set forth in Exhibit A. Upon
request from any Customer at a Single Family Dwelling, Contractor shall provide such Customer
with one additional Recycling Cart at no additional charge; and, further shall provide such
Customers, upon request, with additional Recycling Carts at rates that do not exceed the
maximum rates set forth in Exhibit A corresponding to the size of Recycling Carts provided.
The maximum rate set forth on Exhibit A applicable to Customers whose Recycling Carts are
larger than their Refuse Cart shall be based on the maximum rate applicable to the size of Refuse
Cart provided; however, as noted above, the maximum rate set forth on Exhibit A applicable to
additional Recycling Carts shall be that set forth on Exhibit A corresponding to the size of the
Recycling Cart provided. Contractor shall Collect Recyclable Material placed in Recycling
Carts for Collection from each Customer at a Single Family Dwelling on the same day as such
Customer's Refuse Cart is Collected, utilizing an automated Collection process. Customers shall
be directed to place Recycling Carts in the same location for Collection as Refuse Carts. At a
minimum the following materials shall be allowed to be deposited by Customers for Collection
in Recycling Carts aluminum cans; glass jars and bottles; bi-metal, and tin cans; empty aerosol
containers; polyethylene terephthalate plastic ("PET"); high density polyethylene plastic
("HDPE"); plastics types 3 -7; plastic bags, shrink wrap, plastic toys and tools, and other plastic
materials (if readily identifiable as being recyclable); coat hangers and metal foil; newspaper;
mixed paper (e.g., ledger, computer, junk mail, magazines, paperback books cereal boxes,
envelopes, paper shopping bags and non-metallic wrapping paper); corrugated cardboard; and
telephone books.
8.2.4 Green Waste Collection for Single Family Dwellings
Contractor shall provide Customers at Single Family Dwellings with a Cart of the same
size as the Customer's Refuse Cart (subject to the provisions of Section 8.1.8(B)), designated for
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Collection of commingled Green Waste (a "Green Waste Cart"). Upon request by a Customer
using a 35 or 64 gallon Refuse Cart, Contractor shall provide a Green Waste Cart that is larger
than the Customer's Refuse Cart (i.e., either a 64 or 96 gallon Green Waste Cart, as applicable).
Contractor shall Collect all Green Waste placed out for Collection in a Green Waste Cart by each
Customer at a Single Family Dwelling not less than once per week using an automated
Collection system at rates that do not exceed the maximum rates set forth in Exhibit A. Upon
request from any Customer at a Single Family Dwelling, Contractor shall provide such Customer
with additional Green Waste Carts at rates that do not exceed the maximum rates set forth in
Exhibit A corresponding to the size of Green Waste Carts provided. The maximum rate set forth
on Exhibit A applicable to Customers whose Green Waste Carts are larger than their Refuse Cart
shall be based on the maximum rate applicable to the size of Refuse Cart provided; however, as
noted above, the maximum rate set forth on Exhibit A applicable to additional Green Waste
Carts shall be that set forth on Exhibit A corresponding to the size of the Green Waste Cart
provided. Contractor shall Collect Green Waste placed in Green Waste Carts for Collection
from each Customer on the same day as such Customer's Refuse Cart is Collected, using an
automated Collection process. Customers shall be directed to place Green Waste Carts in the
same location for Collection as Refuse Carts. Notwithstanding the foregoing, Customers whose
Premises do not generate Green Waste materials need not be provided with a Green Waste Cart.
Any ambiguity or dispute as to whether the foregoing provision applies shall be resolved by the
City Manager whose decision shall be final.
8.2.5 City Manager Authority to Oversee Encoura gement of Recycling
The flexibility provided to Customers pursuant to Sections 8.2.3 and 8.2.4, enabling them
to request Recycling and Green Waste Carts which vary in size from their Refuse Cart size, is
intended to benefit Customers and encourage them to participate as fully as possible in available
recycling programs. However, if Solid Waste is routinely placed by Customers in Recycling
Carts or Green Waste Carts such so as to undermine the intent of allowing varying Cart sizes, the
City Manager may require Contractor to deliver additional or different size Refuse Carts to any
such Customers, to require Contractor to only provide such Customers with uniform Cart sizes,
or to require such other action of Contractor as is reasonably deemed necessary to ensure the
Collection system, including specifically the recycling programs, contemplated by this
Agreement are achieved.
8.2.6 Multi-Family DwelJing Customers
Contractor shall comply with all requirements applicable to Commercial Customers, set
forth below, in connection with Multi-Family Dwellings, and further shall comply with the
specific provisions contained herein related to such Dwellings. Customers at Multi-Family
Dwellings shall be provided sufficient services by Contractor to enable them to comply with AB
341. Towards this end, all such Customers shall be provided with Mixed Waste Bins, which
shall be processed as described below. Notwithstanding the forgoing, as an alternative, such
Customers may participate in the Source Separated Collection Program described below, if they
participate in such program in a manner by which a 50% diversion rate is achieved in connection
with the Solid Waste they generate.
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8.2.6.l Mixed Waste Bins
Except as otherwise set forth herein, Contractor shall provide all Customers at Multi-
Family Dwellings with Bins meeting the minimum standards set forth in Exhibit B for the
Collection of mixed Solid Waste ("Mixed Waste Bins"), and shall Collect all Solid Waste placed
therein for Collection not less than once per week, at rates that do not exceed the maximum rates
set forth in Exhibit A. Contractor shall deliver all Solid Waste Collected in Mixed Waste Bins to
an appropriately permitted processing facility where such Solid Waste is to be processed with the
goal of achieving a diversion rate from such processing of not less than 50%. Contractor shall
provide Customers requesting Mixed Waste Bin service a number of Bins reasonably needed for
Solid Waste Collection at each Premises at which Multi-Family Dwellings exist bearing in mind
both the number of Dwellings and space limitations. Mixed Waste Processing Bins are intended
to allow Multi-Family Dwellings the availability of a method by which Customers at such
Dwellings can attain the 50% diversion goal of AB 939.
The size of Mixed Waste Bins utilized, and the frequency of their Collection, shall be
mutually agreed upon by Contractor and its Customers, except that Collection shall occur not
less than one time per week and City shall have the right to impose minimum requirements for
Bin sizes and more frequent Collection should it determine such action is needed to protect
public health, safety and welfare. In the event of any dispute as to the adequacy of the number of
Bins at any given Multi-Family Dwelling, the City Manager shall have the ability to approve the
number of Mixed Waste Bins used at such location. In the event extra pickups are required at a
Multi-Family Dwelling in any given month, Contractor may charge the Person who manages or
owns the Multi-Family Dwelling for such pickups an amount that does not exceed the maximum
rate for "extra dumps" as set forth in the attached Exhibit A.
8.2.6.2 Source Separated Collection Program
As an alternative to providing Mixed Waste Bins as set forth above, Contractor may
provide all Customers at Multi-Family Dwellings the option of participating in a Source
Separated Collection Program meeting the requirements set forth below through a combination
of Bins, meeting the minimum standards set forth in Exhibit B, some of which are designated for
the Collection of Solid Waste ("Refuse Bins"), and others designated for the Collection of
Recyclable Material ("Recycle Bins"). Customers at Multi-Family Dwellings may only
participate in the Source Separated Collection Program if they participate in the program in a
manner by which a 50% diversion rate is achieved for the Solid Waste they generate.
(A) Re fuse Bins and Carts:
Contactor shall provide all Customers participating in the Source Separated Collection
Program with the number of Refuse Bins reasonably needed for Solid Waste Collection at each
Premises at which Multi-Family Dwellings exist, bearing in mind both the number of Dwellings
and space limitations, and shall Collect all Solid Waste placed therein for Collection not less than
once per week, at rates that do not exceed the maximum rates set forth in Exhibit A. If
warranted by specific circumstances, and upon written approval of the City Manager, at any
given Multi-Family Dwelling Refuse Carts may be utilized instead of Refuse Bins. The size of
Refuse Bins utilized, and the frequency of their Collection, shall be mutually agreed upon by
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Contractor and its Customers (except that Collection shall occur not less than one time per
week), and City shall have the right to impose minimum requirements for the number of Refuse
Bins, Refuse Bin sizes and more frequent Collection should it determine such action is needed to
protect the public health, safety and welfare. In the event of any dispute as to the adequacy of
the number of Refuse Bins at any given Multi-Family Dwelling, the City Manager shall have the
ability to approve the number of Refuse Bins used at such location. In the event extra pickups
are required at a Multi-Family Dwelling in any given month, Contractor may charge the Person
who manages or owns the Multi-Family Dwelling for such pickups an amount that does not
exceed the maximum rate for "extra dumps" as set forth in the attached Exhibit A.
(B) Recycle Bins and Carts:
Contactor shall provide all Customers participating in the Source Separated Collection
Program with the number of Recycle Bins reasonably needed for Recyclable Material Collection
at each Premises at which Multi-Family Dwellings exist, bearing in mind both the number of
Dwellings and space limitations, and shall Collect all Recyclable Material placed therein for
Collection not less than once per week, at rates that do not exceed the maximum rates set forth in
Exhibit A. If warranted by specific circumstances, and upon written approval of the City
Manager, at any given Multi-Family Dwelling, Recycling Carts may be utilized instead of
Recycle Bins. The size of Recycle Bins utilized, and the frequency of their Collection, shall be
mutually agreed upon by Contractor and its Customers (except that Collection shall occur not
less than one time per week), and City shall have the right to impose minimum requirements for
the number of Recycle Bins, Recycle Bin sizes and more frequent Collection should it determine
such action is needed to protect the public health, safety and welfare. In the event of any dispute
as to the adequacy of the number of Recycle Bins at any given Multi-Family Dwelling, the City
Manager shall have the ability to approve the number of Recycle Bins used at such location. In
the event extra pickups are required at a Multi-Family Dwelling in any given month, Contractor
may charge the Person who manages or owns the Multi-Family Dwelling for such pickups an
amount that does not exceed the maximum rate for "extra dumps" as set forth in the attached
Exhibit A. At a minimum, Contractor shall allow the materials identified in Section 8.2.3 above
to be placed for Collection in Recycle Bins or Recycling Carts utilized in connection with the
Source Separated Collection Program. Should such Recycle Bins and/or Recycling Carts be
contaminated with materials not permitted to be placed therein for Collection, Contractor may
charge the responsible Customer a rate that does not exceed the maximum rate set forth in
Exhibit A for contaminated loads.
8.2.7 Bulky Item Service for Single Family Dwellings
Contractor shall provide Bulky Item Collection services to residents living at all Single
Family Dwellings in City at no charge on an on-call basis. The no-charge Bulky Item Collection
service set forth in this Section shall only apply with respect to Bulky Items generated at the
Dwelling Unit at which the Customer calling for service resides and is limited to up to four (4)
items or up to 20 bags of Green Waste per scheduled pick up and four (4) pickups per calendar
year. Bulky Items Collected pursuant to this Section shall occur on the same day as the
Customer's regularly scheduled Collection day. In order to receive such service, residents shall
provide Contractor with at least forty-eight (48) hours notice by phone of the number and type of
Bulky Items to be Collected. Contractor shall produce, keep current, and provide public
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information specifically outlining its Bulky Item Collection service, which shall specifically
include the annual publication and distribution of a brochure describing this service to residents
of all Single Family Dwellings in City. Contractor may charge rates for the Collection of each
Bulky Item in excess of the above limits that do not exceed those set forth on Exhibit A.
8.2.8 Bulky Item Service for Multi-Family Dwelling
Residents at Multi-Family Dwellings shall receive the same Bulky Item Collection
services as Commercial Premises as set forth in Section 8.3.4.
8.2.9 Targeted Neighborhood Abandoned Items Sweep
Contractor shall provide an abandoned items sweep program for targeted neighborhoods
(the "Abandoned Items Sweep") as may be identified by the City Manager, with the intent that
this provision will apply to neighborhoods that might otherwise have a disproportionate
concentration of abandoned Bulky Items as compared to the rest of the City. The Abandoned
Items Sweep shall occur on the same day that refuse Collection occurs for the targeted
neighborhood. Contractor shall Collect all Bulky Items and other items abandoned in said
targeted neighborhoods during the Abandoned Items Sweep. If over I 0% of the Customer
accounts in a targeted neighborhood are delinquent, Contractor may suspend the Abandoned
Items Sweep for that area. Contractor shall produce, keep current, and provide public
information specifically outlining its Abandoned Items Sweep, which shall specifically include
the annual publication and distribution of a brochure describing this service to Customers in the
City targeted neighborhoods.
8.2. l 0 Bulky llem Diversion
Bulky Items Collected pursuant to this Agreement may not be landfilled until the
following hierarchy of diversion efforts has been followed by Contractor:
a. Reuse as is (if energy efficient);
b. Disassemble for reuse or Recycling;
c. Recycle, Transformation, or other means of diversion; and
d. Disposal.
This hierarchy is intended to preclude the use of front or rear loading packer vehicles for Bulky
Items unless the compaction mechanism is not used to compact the Bulky Items. The disposition
of Bulky Items shall be tracked by Contractor and this information shall be included in
Contractor's quarterly reports to City.
8.2.11 Proper Handling of Bulky Items
Contractor shall properly handle all materials required to be Collected as Bulky Items,
including specifically items that require special handling pursuant to the Environmental Laws,
such as materials that constitute "Universal Waste" and/or "e-waste."
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8.2.12 Residential Drnp Off of Household Sharps Waste
Contractor shall endeavor to establish a location(s) in or near City at a pharmaceutical
establishment or other facility approved by City, where any resident of the City may drop off
Household Sharps Waste. City facilities shall not be used as a drop off location.
8.2.13 Residential Drop-Off of Universal Waste
Contractor shall develop and implement a Universal Waste drop-off program where, at
City's request, Contractor shall provide up to six (6) public or private locations (including City
Hall), subject to City approval, for residents of the City to drop-off Universal Waste. Contractor
shall properly handle and dispose of, or provide a third party approved by the City Manager to
handle and dispose of, all Universal Waste in accordance with all Applicable Law and, to the
extent legally possible, follow the hierarchy of diversion efforts set forth in Section 8.2.10.
8.2.14 Curbside Household Hazardous Waste Collection
If requested to do so by City, Contractor will implement a program, which shall meet the
reasonable satisfaction of the City Manager, to Collect Household Hazardous Waste from
Residential Premises on an on call basis at rates that do not exceed the maximum rates set forth
in Exhibit A.
8.3 Commercial Solid Waste Hand)jng Services
8.3.1 Commercial Bins and Rolloff Boxes
Contractor shall provide all Customers at Commercial Premises ("Commercial
Customers") with at least one Bin and/or Rolloff Box for Collection of mixed Solid Waste, and
shall Collect all Solid Waste placed therein for Collection not less than once per week, at rates
that do not exceed the maximum rates set forth in Exhibit A. Contractor shall provide additional
Containers to Customers and shall provide additional Collections upon request, or as may be
required by City's Municipal Code, health and safety requirements, or by the City Manager, and
may charge rates for such services which do not exceed the maximum rates set forth in Exhibit
A. Bins and Rolloff Boxes shall be Collected by Contractor from the location upon each
Customer's property designated for their storage, and replaced to that location with gates and/or
doors secured, as applicable, after Collection is completed, unless different arrangements are
agreed upon by the Customer and Contractor. Notwithstanding anything set forth herein to the
Contrary, Contractor need not provide Containers to Customers who chose to utilize their own
Rolloff Box compactors; and further, Contractor may lease Rolloff Box compactors to
Customers at rates that it sets, which rates shall not be regulated by this Agreement. Contractor
shall provide Solid Waste Handling Services in connection with Rolloff Box compactors at rates
that do not exceed the maximum rates set forth in Exhibit A.
8.3.2 Commercial Carts
As an alternative to the requirements of Section 8.3.1, Contractor shall offer Collection in
sixty-four (64) or ninety-six (96) gallon Refuse Carts (subject to the provisions of Section
8.1.8(B)) to Commercial Premises where the Customers do not have space for, or do not generate
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enough waste to require the use of Bins for Collection. Rates for Customers at Commercial
Premises (excepting Multi-Family Dwellings) receiving such service shall not exceed the
maximum rates set forth on Exhibit A for Commercial Refuse Carts; provided, however, rates for
Customers at Multi-Family Dwellings receiving such service shall not exceed the maximum rates
set forth on Exhibit A for Residential Cart Service. If Contractor and Customer have a
disagreement as to whether a Refuse Cart is appropriate, or if City determines the Collection in a
Refuse Cart causes health and safety or other concerns, City shall make the final determination
as to whether Collection in a Refuse Cart may occur.
8.3.3 Commercia l Recycling Services
Commercial Customers shall be provided services by Contractor sufficient to enable
them to comply with AB 341. Towards this end, the Solid Waste Collected in all Containers
provided to such Customers shall be processed in the manner set forth Section 8.2.6.l related to
Mixed Waste Bins, and all other provisions set forth above related to Customers at Multi-Family
Dwellings participating in the Mixed Waste Bin service shall apply, including that Contractor
may charge Customers rates for Collection of Solid Waste from Mixed Waste Bins that do not
exceed the maximum rates set forth in Exhibit A. As an alternative, Commercial Customers may
be permitted to participate in the Source Separated Collection Program described in Section
8.2.6.2 above if they participate in the program in a manner by which a 50% diversion rate is
achieved for the Solid Waste they generate. Contractor shall provide Commercial Customers
participating in the Source Separation Collection Program with Recycle Bins or Recycling Carts,
in addition to Refuse Bins or Carts, pursuant to the provision of Section 8.2.6.2, and all
provisions of Section 8.2.6.2 shall apply including that Contractor may charge Commercial
Customers rates that do not exceed the maximum rates set forth in Exhibit A for such services.
8.3.4 Commercial Bulky Item Service
Contractor shall provide unlimited Bulky Item Collection services to Commercial
Premises (excepting Multi-Family Dwellings) on an on-call basis. Contractor may charge rates
for such services which shall not exceed the maximum rates set forth in the attached Exhibit A.
Bulky Item Collection service calls shall be responded to within a reasonable time but not longer
than seven (7) days from the date of the Customer's call for service. Contractor shall produce,
keep current, and provide public information specifically outlining the Bulky Item pick-up
service. Bulky Items Collected pursuant to this Section are subject to the diversion and handling
requirements set forth in Sections 8.2.9 and 8.2.10.
8.3.5 Food Waste Collection Services
Contractor shall provide Customers at Commercial Premises (excepting Multi-Family
Dwellings) the option to have a separate 64 gallon Cart (subject to the provisions of Section
8. 1.8(B)) for the Collection of Food Waste ("Food Waste Cart"). Contractor may charge rates
for the Collection of Food Waste Carts which shall not exceed the maximum rates set forth in the
attached Exhibit A. The frequency of Collection of Food Waste Carts shall be mutually agreed
upon by Contractor and its Customers (except that Collection shall occur not less than one time
per week), and City shall have the right to impose minimum requirements for more frequent
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Collection should it determine such action is needed to protect the public health, safety and
welfare.
8.3.6 Monitoring and Cleaning of Bjn Enclosures
Contractor shall work with the City Manager in identifying and resolving continual
problems with overflowing Bins or Bin enclosures, and/or other unsanitary conditions caused by
Customers. Contractor shall clean out any overflowing Bins or Bin enclosures within City
within twenty-four (24) hours of notification by City (Sundays and holidays excepted).
Contractor shall create a specific work order in response to each call received from City and shall
provide City with an annual "Summary of Clean Out Item Work Orders Completed." Such
summary shall include, but not be limited to, the date, time, hours spent, and types of items
Collected.
8.4 Other Collection Programs As May Be Required by Law
In the event CalRecycle, or any federal, state, or local law or regulation, imposes upon
City or Contractor a requirement for the implementation of any program for the Collection of
any waste material (whether or not meeting the definition of Solid Waste hereunder) not already
covered by this Agreement, whether Commercial or Residential in nature, Contractor shall
design and present a program to City to comply with such requirement, which program shall
meet the City Manager's reasonable approval. Except with respect to programs which are
required due to Contractor's failure to achieve the diversion requirements set forth herein (which
programs are subject to Section 8.8.5), at such time as (if) any such program is implemented,
Contractor and City shall meet and confer in good faith to determine a fair and reasonable
adjustment to the maximum rates set forth on Exhibit A in order to compensate Contractor for
implementing such a program.
8.5 Roll Out Service
Certain Premises within the City Limits require Contractor to move a Bin in order to
service the Bin ("Roll Out Service"). Contractor may charge said Premises for the Roll Out
Service where Contractor is required to move a Bin more than twenty-five (25) feet. Contractor
may charge rates for such Roll Out Service which shall not exceed the maximum rates set forth
in the attached Exhibit A.
8.6 Manure Collection
Contractor shall provide any Customer, who so requests, with Rolloff Boxes, Bins or
Carts, as appropriate, for the Collection of horse manure and bedding at rates that do not exceed
the maximum rates set forth on Exhibit A, and shall Collect all such materials placed therein for
Collection not less than once per week. The size of Containers utilized, and the frequency of
their Collection, shall be mutually agreed upon by Contractor and its Customers (except that
Collection shall occur not less than one time per week), and City shall have the right to impose
minimum requirements for the number of Rolloff Boxes, Bins, or Carts, as well as their sizes,
and more frequent Collection should it determine such action is needed to protect the public
health, safety and welfare.
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8. 7 Temporary Services
Contractor shall provide Temporary Services on an on call basis to any Customer
requesting such service pursuant to the following conditions:
(A) Bins and Rolloff Boxes utilized in connection with Temporary Services
shall meet the minimum standards set forth herein and Containers shall be delivered
within twenty-four (24) hours of a call for such service, excepting Sundays and holidays.
(B) No charges excepting rates not exceeding the maximum rates set forth in
the attached Exhibit A related to Bins or Rolloff Boxes utilized in connection with
Temporary Services shall be imposed by Contractor, unless approved in accordance with
Section 8.10 (Special Services).
(C) Bins used for Temporary Service shall not be placed in any public rights-
of-way unless an encroachment permit is first obtained from City pursuant to Section 4-
6.1003 of the Municipal Code (as it may be amended from time to time), and in no case
may they be placed in any public rights-of-way so as to create a safety hazard or so as to
block any right-of-way to a degree that it is not reasonably usable. Bins placed in City's
rights-of-way shall be subject to such requirements as may be imposed by City, and at a
minimum shall be equipped with reflectors, reflective tape, reflective paint, or other
reflective devices which, to the satisfaction of the City Manager, make such Bins
reasonably visible to vehicle traffic at night.
(D) City has in place an ordinance regulating the recycling and disposal of
construction and demolition waste, and Contractor agrees to comply with all applicable
provisions thereof.
(E) In addition to complying with any other requirements of the City's
ordinance regulating construction and demolition waste, Contractor shall make all
reasonable efforts to recycle all construction and demolition waste it Collects, especially
to the degree such loads contain clean inert materials. Towards this end, Contractor shall
make available to Customers involved in construction separate Containers within which
to Collect different types of marketable materials, such as dirt, steel, concrete and wood.
8.8 Recycling Obligations and Public Education Program
8.8.1 Minimum Requirements for Collection of Recyclable Material, Green Waste and
Rolloff Boxes
Contractor shall utilize a truck dedicated for the purpose of Collecting Green Waste from
Customers, such that Green Waste which has been separated prior to Collection, once Collected,
is not commingled with other Solid Waste (including Recyclable Material). Similarly,
Contractor shall utilize a truck dedicated for the purpose of Collecting Recyclable Material, such
that Recyclable Material Collected in Recycling Carts or Recycling Bins, once Collected, is not
commingled with other Solid Waste (including Green Waste). All material Collected by
Contractor in Recycling Carts or Bins pursuant to this Agreement shall be delivered to a properly
permitted facility for recycling and reuse purposes. All Green Waste separated prior to
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Collection and thereafter Collected by Contractor pursuant to this Agreement (including
specifically materials Collected in Green Waste Carts and Holiday Trees) shall be delivered to a
properly permitted facility for recycling, mulching, composting, or alternative uses for which
diversion credit is provided as may be approved by CalRecycle. Contractor shall be responsible
for implementing programs which will divert Recyclable Material and Green Waste from
disposal in order to meet the diversion requirements of this Agreement. All Rolloff Boxes,
whether for Commercial Premises or Temporary Service shall be delivered to a properly
permitted facility for recycling and reuse purposes.
8.8.2 Extent of Applicable Frnnchise Rights
Nothing in this Agreement shall be construed as giving Contractor the right to Collect
Recyclable Material which has not been discarded and placed for Collection by Contractor in the
location designated for that purpose.
8.8.3 AB 939 and AB 341 Obligations, Guarantee, and Indemnification
8.8.3.1 Warranties and Representations
Contractor warrants and represents that it is aware of and familiar with City's Source
Reduction and Recycling Element (the "SRRE"), that it is familiar with City's waste stream, and
that it has the ability to and will provide sufficient programs and services to ensure City will
meet or exceed the diversion goals (including, without limitation, amounts of Solid Waste to be
diverted, time frames for diversion, and any other requirements) set forth in AB 939 and AB 341,
and all amendments thereto, and that it shall do so without imposing any costs or fees other than
those set forth on the attached Exhibit A (including if it implements new programs to achieve
such goals which are not called out herein). Stated otherwise, Contractor acknowledges that it is
responsible for ensuring that its various programs achieve the diversion requirements hereunder,
and that it may be required to modify its programs from time to time, at no additional cost to the
City or Customers, to meet such diversion requirements.
8.8.3.2 Mutual Cooperaticm
City and Contractor shall reasonably cooperate in good faith with all efforts by each other
to meet City's diversion and other compliance requirements imposed by AB 939, AB 341 and
other Applicable Law. In this regard, City's obligations shall include, without limitation, making
such petitions and applications as may be reasonably requested by Contractor for time extensions
in meeting diversion goals, or other exceptions from the terms of AB 939, AB 341 and other
Applicable Law.
8.8.3.3 Waste Reduction and Program Implementation
Contractor shall implement the programs identified in the SRRE and Household
Hazardous Wastes Element ("HHWE") immediately upon the Effective Date hereof, and will
implement any programs required by any amendments or modifications thereto. Contractor shall
employ a Person as a recycling coordinator whose responsibilities will be to implement the
programs identified in the SRRE and HHWE. Contractor shall provide City with monthly,
quarterly and annual written reports in a form adequate to meet City's AB 939 and AB 341
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related filing and reporting requirements to CalRecycle and to the County of Orange throughout
the Term of this Agreement wherein City's performance under the above programs shall be set
forth in detail. Contractor shall be responsible to prepare, or assist City with the preparation of,
all reports and other information as may be required by any agency, including specifically, the
State of California, in order to comply with AB 939 and/or AB 341.
8.8.3.4 Guarantee and Indemnification
Contractor warrants and guaranties that it will carry out its obligations under this
Agreement such that: (i) both it and City will at all times be in compliance with the requirements
of all Applicable Law including specifically AB 939 and AB 341, and (ii) City will meet or
exceed the diversion requirements (including, without limitation, amounts of Solid Waste to be
diverted, time frames for diversion, and any other requirements) set forth in AB 939, AB 341 and
all amendments thereto. In this regard, Contractor agrees that it will, in addition to any other
requirement contained herein, at its sole cost and expense:
(A) to the extent legally permitted, defend, with counsel approved by City,
indemnify, and hold harmless City and City's officials, employees, and agents from and
against all fines and/or penalties and other liabilities which may be imposed by
Cal Recycle or any other regulatory agency if: (1) Contractor fails or refuses to timely
provide information relating to its operations which is required pursuant to this
Agreement or any Applicable Law and such failure or refusal prevents or delays City
from submitting reports required by Applicable Law in a timely manner; or (2) the source
reduction and recycling goals, diversion goals, program implementation requirements, or
any other requirements of Applicable Law are not met with respect to the waste stream
Collected under this Agreement;
(B) assist City in responding to inquiries from CalRecycle;
(C) assist City in preparing for, and participating in, any review of City's
SRRE pursuant to Applicable Law;
(D) assist City in applying for any extension, including under Public
Resources Code Section 41820, if so directed by City;
(E) assist City in any hearing conducted by CalRecycle relating to City's
compliance with Applicable Law;
(F) assist City with the development of and implement a public awareness and
education program that is consistent with the City's SRRE and HHWE, as well as any
related requirements of Applicable Law;
(G) provide City with recycling, source reduction, and other technical
assistance related to compliance with the Applicable Law;
(H) defend, with counsel acceptable to City, City and City's officials,
employees, and agents against the imposition of fines and/or penalties, or any other
liabilities, issued by CalRecycle pursuant to AB 939 and AB 341;
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(I) be responsible for and pay any fees, penalties or other costs imposed
against the City by CalRecycle, and to extent legally permitted indemnify and hold
harmless City from and against any fines, penalties, or other liabilities, levied against it
for violation of AB 939's or AB 341 's diversion requirements, or violation of any other
provision of the Applicable Law, arising from or in any way related to Contractor's
performance of its obligations under this Agreement.
8.8.4 Waste Generation/Characterization Studies
Contractor acknowledges that City may be required to perform Solid Waste generation
and disposal characterization studies periodically to comply with the requirements of AB 939.
Contractor agrees to perform such studies if required by City and further to participate and
cooperate with City and its agents and to accomplish studies and data collection and prepare
reports, as needed and directed by City, to determine weights and volumes of Solid Waste
Collected and characterize Solid Waste generated, disposed, transformed, diverted or otherwise
handled/processed to satisfy the requirements of AB 939.
8.8.5 lmplementation of Additional Diversion Services
In the event City does not meet the current diversion goal of 50% imposed by AB 939
with respect to all waste generated in City, City may direct Contractor to perform additional
services (including the implementation of new diversion programs) or modify the manner in
which it performs existing services, and Contractor agrees to do so at no additional charge. Pilot
programs and innovative services which may entail new Collection methods and the use of new
or alternative waste processing and disposal technologies are included among the kinds of
changes which City may direct.
8.9 Additional Services
As part of the consideration for entering this Agreement, Contractor shall provide the
following additional services at no charge, and shall not adjust its rates to Customers to offset
costs incurred in providing any of the following services:
8.9.1 Public Service CaUs From City Departments
Contractor shall, free of charge, respond to calls from City's Maintenance and Code
Enforcement Divisions and from its Police Department, to provide Containers and dispose of
Bulky Items and other Solid Waste as a result of illegal or unauthorized dumping, or other Code
enforcement matters, occurring within City. Contractor agrees that if requested to provide such
services in connection with abatement activities for which reimbursement is sought from the
property owner by City through abatement liens or otherwise, Contractor will provide billing
information sufficient for City to include it in its liens, and Contractor will be paid at such time
as the abatement lien is paid, or reimbursement is otherwise obtained by City from the property
owner. Upon receipt of a call for service from City made pursuant to this Section, Contractor
shall advise City within four (4) hours as to when service will be provided, and unless otherwise
agreed by City service shall be provided within twenty-four (24) hours.
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8.9.2 Co ll ecti on at City Sponsored Ev ents
Contractor shall provide Solid Waste and Recyclable Material Collection at all City-
sponsored or supported non-profit events. The number, type and service requirements for these
events may vary from year to year. This service shall include providing, servicing and storing
Containers (cardboard boxes, Carts, Bins and/or Rolloff Boxes), and Collecting, processing and
Disposing of all Solid Waste Collected in a manner that complies with all other provisions of this
Agreement, and the Applicable Law, including those related to diversion. Contractor shall
provide these services for up to twenty (20) 36 cubic yard roll-offs per calendar year at no cost to
City or the event sponsors; provided, however, Contractor shall not be responsible for paying
landfill tipping or material recovery facilities handling fees associated with such services.
Billing for said fees shall be agreed upon prior to any event.
8.9.3 Recy cl in g Ass ista nce fo r Special Events
Contractor shall assist Persons designated by City (whether City employees or private
individuals) who are responsible for coordinating special events or events in large venues (such
as concerts or sporting events) in the implementation of recycling programs. Customer or event
planner, or upon request from either of them, Contractor, shall be responsible for preparing and
submitting to City a "waste reduction and recycling plan" prior to such events. Contractor shall
submit to Customer detailed reports within 30 days of the event outlining the Solid Waste
Collected, and diverted, and Contractor shall include this data in its Annual Reports to City.
Notwithstanding the foregoing, Contractor may charge for refuse boxes, recycle boxes, and box
liners Contractor provides for said special events at rates that do not exceed the maximum rates
set forth on Exhibit A.
8.9.4 Holid ay T rees
For the first two regularly scheduled pickup days after New Year's Day, Contractor shall,
free of charge, pick up all Holiday Trees placed out for Collection by Customers. Such trees
shall not be comingled with other Solid Waste and shall be delivered to a proper facility for
processing, rather than disposal, as required by the provisions hereof.
8.9.5 Services for Public Trash Cans Along Streets an d at Bus Sto ps
Contractor shall provide Solid Waste Handling Services to Containers for the Collection
of Solid Waste at City bus stops, and public right-of-ways throughout City ("Public Trash
Cans"). Contractor shall, free of charge, provide Collection services for said Public Trash Cans
on a schedule to be submitted to the City Manager for approval. City may change the schedule
for the forgoing services to be provided at Public Trash Cans from time to time and may change,
increase or decrease the locations for Public Trash Cans.
8.9.6 Dirt Disposal
Contractor shall allow City to deliver clean (non-contaminated) dirt from City streets and
utility repair operations to Contractor's Material Recovery Facility. City shall be charged the
current processing rate for the facility for any load that has contaminated Solid Waste, concrete,
asphalt, wood or other materials other than clean dirt.
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8.9.7 Free Disposal and Processing of City Delivered Waste
Contractor shall provide City with free disposal and processing, at Contractor's south
Orange County Materials Recovery Facility, of waste generated within City Limits and delivered
from City owned and operated vehicles, or authorized contracted vehicles. This waste may
include Green Waste from City authorized Public Works operations, as well as street sweeping
debris from City's contracted services. Such waste shall be limited to 973 tons per year, plus an
additional 5% increase per year, at no charge to City. Contractor may reject loads or charge for
processing in the event current local, state, or federal regulations result in an increase in fees,
rates, or eventual uses of the delivered waste. Should such waste be prohibited from use as
alternative daily cover at local landfills at the current no charge rate, Contractor and City agree to
negotiate in good faith to determine an alternative use and corresponding cost of diversion or
reimbursement to Contractor for the end costs of the delivered waste.
8.10 Special Services
Contractor may provide special pickup procedures or services in addition to the services
described herein for Customers who request or require such services at reasonable rates
established by Contractor, which rates are subject to approval by the City Manager. Contractor
shall notify the City Manager of any such services prior to such time as they are provided in
order to allow the City an opportunity to conduct necessary inspections, review the proposed
rate, and impose appropriate regulations.
8.11 Non-Profit Assistance
Contractor shall provide Rolloffs or Bins to any qualified or certified non-profit group,
(e.g., Boy Scouts, Girl Scouts, Boys' and Girls' Clubs, churches, Earth Clubs, etc.). Contractor
shall not charge such groups rates in excess of Contractor's actual transportation costs incurred in
dropping off and picking up the Containers; provided, however, Contractor shall impose no
charge for this service unless the non-profit group receives a monetary payment from recycling
the materials Collected in the Containers and such proceeds exceed Contractor's actual
transportation costs. Contractor shall appropriately dispose of or divert any Solid Waste or
Recyclable Material Collected pursuant to this Section and shall pay non-profit organizations the
prevailing market rate for any Recyclable Material Collected from the provided Containers.
SECTION 9.
MINIMUM STANDARDS FOR CONTRACTOR'S SOLID
WASTE HANDLING SERVICE COLLECTION VEHICLES
9.1 General
Contractor shall provide vehicles for the Collection of Solid Waste ("Collection
Vehicles") that are sufficient in number and capacity to efficiently perform the work required by
this Agreement in strict accordance with its terms. Contractor is expressly obligated to provide
such Collection Vehicles and routes as are required to meet the service standards set forth herein.
Contractor shall have available on Collection days sufficient back-up vehicles for each type of
Collection Vehicle used to respond to complaints and emergencies. Upon or prior to the
Effective Date of this Agreement and prior to the start of any extension period of this Agreement
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pursuant to Section 6, Contractor shall provide City with a report containing the information
required under South Coast Air Quality Management District's Rule 1193(d)(7).
9.2 Air Quality/Fuel Requirements
Contractor's Collection Vehicles shall comply with all rules and regulations of the South
Coast Air Quality Management District, the Air Resource Board, and any other regulatory body
that may be in effect during the Term of this Agreement, as well as other federal, state and local
laws and regulations that may be enacted during the Term of this Agreement. Contractor's
Collection Vehicles shall meet br exceed such air quality standards as may be adopted by the
forgoing regulatory bodies during the Term. Contractor's Collection Vehicles shall comply with
the requirements in the South Coast Air Quality Management District's Rule 1193.
9.3 Specific Requirements
Each Collection Vehicle utilized by Contractor in the performance of this Agreement
shall meet the following minimum standards:
(A) Each Collection Vehicle shall be registered with the California
Department of Motor Vehicles.
(B) Each Collection Vehicle shall be inspected regularly by Contractor, and
not less than once every other year, to ensure it meets the requirements of the California
Vehicle Code and the California Highway Patrol. Contractor shall provide copies of its
Biannual Inspection of Terminal ("BIT") inspection reports to City within 30 days of its
receipt of such reports and shall make all records related to its Collection Vehicles,
including Contractor's maintenance records, available to City upon request by the City
Manager. It is the intention of this provision that all Collection Vehicles be inspected at
least once per year --every other year through a BIT inspection, and in alternative years
at least once (if not more often) by Contractor.
(C) Each Collection Vehicle shall be equipped with devices capable of
covering every open section of the Collection Vehicle in which Solid Waste may be
placed and, while operating upon the public rights-of-way, shall be covered so as to
prevent any Solid Waste from falling or being blown or otherwise dislodged from the
Collection Vehicle.
(D) Each Collection Vehicle shall be continuously maintained so as to both:
(1) meet the highest industry standards with regards to efforts to prevent liquid from
leaking and to the degree possible ensure each Collection Vehicle is "watertight" and
"leak-proof' and, (2) at all times comply with the provisions of all laws and regulations
including the Vehicle Code and any applicable NPDES permit, with regard to materials
leaking from Collection Vehicles. Contractor shall be responsible to promptly clean any
spillage or Solid Waste that leaks or otherwise escapes the Collection Vehicle.
(E) Each Collection Vehicle shall be painted periodically, which shall include
all necessary body work, and shall be regularly cleaned, so that such Collection Vehicles
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do not become unsightly, as determined by the City Manager. Each Collection Vehicle
shall be painted with Contractor's colors and identifying information as required herein.
(F) Contractor's name, local or toll free telephone number, and a Collection
Vehicle number shall be visibly printed or painted in letters not less than three inches in
height on both sides of each Collection Vehicle. Any other information or signage
printed, painted, or displayed on Contractor's Collection Vehicles, when such Collection
Vehicles are providing Collection services within City Limits, shall be subject to
approval by City.
(G) Each Collection Vehicle shall be maintained in a clean and sanitary
condition, both inside and out and shall be washed at least once every seven (7) calendar
days.
(H) Each Collection Vehicle shall carry a broom, shovel, and operable fire
extinguisher, and shall be equipped with a communication device sufficient to allow the
driver to communicate directly with Contractor's dispatcher and/or main office.
(I) Each Collection Vehicle shall be kept in good repair and working order,
and shall be equipped with appropriate safety equipment, including any new safety
related technologies that become standard in the waste industry, and at a minimum shall
have a video monitor based back-up system, or its equivalent. Contractor shall keep a
sufficient supply of replacement parts and equipment on hand to ensure adequate vehicle
maintenance and timely and continuous performance of the services contemplated by this
Agreement.
(J) Each Collection Vehicle shall be equipped with the so called "Smart
System Technology" whereby Contractor can track the location of and services provided
by each Collection Vehicle with a computer based monitoring system. Upon request
from City, Contractor shall provide any available data from this system, such as route
tracking information and similar data that may be useful in investigating Customer
complaints.
(K) Contractor shall inspect each Collection Vehicle daily to ensure that all
equipment is operating properly. Collection Vehicles which are not operating properly
shall be removed from service until repaired and operating properly. Contractor shall
perform all scheduled maintenance functions upon Collection Vehicles in accordance
with the manufacturer's specifications and schedule. Contractor shall repair, or arrange
for the repair of, all of its Collection Vehicles and equipment for which repairs are
needed because of accident, breakdown or any other cause so as to maintain all
equipment in a safe and operable condition. Contractor shall keep accurate records of all
Collection Vehicle maintenance and repair, recorded according to date and mileage,
including signed verifications that repairs and maintenance has been properly performed,
and shall make such records available to City upon request.
(L) No Collection Vehicle shall be utilized if it is leaking brake, hydraulic, or
other fluids, and Contractor shall clean up any leaks or spills from their Collection
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Vehicles per the NPDES permit in effect at the time. No fluids shall be washed into
storm drains at any time. All NPDES dry-cleaning measures shall be complied with. All
Collection Vehicles must be equipped with absorbent for such cleanup efforts.
(M) Upon request, Contractor shall furnish City a written inventory of all
equipment, including Collection Vehicles, used in providing service pursuant to this
Agreement. This inventory shall list all equipment by manufacturer, ID number, date of
acquisition, type and capacity.
(N) Contractor shall utilize Collection Vehicles of a size, weight, nature, and
type so as to not be unreasonably intrusive on the community with respect to noise,
emissions, maneuverability, safety, and other factors and to avoid or minimize pavement
damage and wear and tear of the street or adjacent properties, as approved by the City
Manager.
(0) Contractor sh.all not load Collection Vehicles in excess of the
manufacturer's recommendations or limitations imposed by state or local laws or
regulations. Noise levels of equipment used for Collection shall not exceed 7Sdb
(seventy-five decibels) when measured at a distance of twenty-five (25) feet from the
Collection Vehicle, five (5) feet from the ground.
9.4 Cosls of Operation and Damages
Contractor shall be responsible for any costs incurred in connection with ensuring all
Collection Vehicles comply with all Applicable Law, including without limitation, any such laws
and regulations that may now exist or hereinafter be adopted relating to noise, fuels, emission
standards, or weight limits.
9.5 City Inspection .
City may cause or require any Collection Vehicle used in performance of this Agreement
to be inspected and tested at any time and in such manner as may be appropriate to determine
that the Collection Vehicle is being maintained in compliance with the provisions of this
Agreement.
9.6 Correction of Defee.ts and Removal of Vehicles from Use within City
Contractor agrees to immediately remove from service, and replace or repair, to the City's
satisfaction, any Collection Vehicle which City determines to be of unsightly appearance, unsafe,
unsanitary, leaking, out of compliance with any law or regulation or this Agreement, or
otherwise in an unsatisfactory operating condition; and any such Collection Vehicle shall not be
returned to service until the City Manager gives his written consent for its return.
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SECTION 10.
CONTRACTOR'S SOLID WASTE HANDLING
SERVICE PERSONNEL
10.1 Uniforms
Each of Contractor's Collection employees shall wear a clean uniform bearing
Contractor's name.
10.2 Identification of Employees
Contractor shall provide business cards or similar devices, for all of its employees, and all
authorized subcontractors, who may make personal contact with Customers. City may require
Contractor to notify Customers yearly of the form of said identification.
10.3 Driver's License
Each employee operating a vehicle as part of his or her duties shall, at all times, carry a
valid operator's license for the type of vehicle he or she is operating. All employees who may
have contact with Customers in the course of performing their duties shall possess the ability to
communicate effectively with Customers.
10.4 Screening of Field Employees
Contractor shall make reasonable efforts to determine if its employees working in the
field (i.e., drivers of Collection Vehicles, and employees otherwise involved in Collection at
Customer Premises) have been convicted of a felony, and shall identify any such employees
known to it to City. City shall have the ability to require that any employee so identified by
Contractor not work in the field within City.
10.5 Discontinued Use of Unsatisfactory Employees
No employee shall continue to have any involvement whatsoever with regard to any work
in anyway relating to or arising from this Agreement if City gives notice to Contractor that such
employee is determined by City to be discourteous, disorderly, inefficient, or otherwise
objectionable (provided the term "otherwise objectionable" shall not permit City to "ban" an
employee for reasons that violate public policy; and, further, City shall give a reason for
requesting the "ban" of any employee from engaging in work related to this Agreement).
10.6 Training and Legal Compliance
Contractor shall provide operating and safety training that meets minimum CalOSHA
standards for all personnel, and shall comply with all laws and regulations applicable to its
employees and personnel.
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10.7 Customer Service
10.7.l Office Hours
Contractor shall maintain an office for communication with the public that at a minimum,
will be open from 8:00 a.m. to 5:00 p.m. Monday through Friday and from 8:00 a.m. to 12:00
noon on Saturdays. At least one responsible and qualified representative of Contractor, capable
of communicating in English and Spanish, shall be present and available during all times that an
office is required to be open as noted above ("Office Hours"), for personal communication with
the public regarding Billing, the payment of Bills, complaints, customer service inquiries, etc.,
and a similarly qualified Person shall be available for communication with the public by phone
during any times other than Office Hours when Collection is occurring.
10.7.2 Telephone Customer Service Requirements
10.7.2.1 Toll Free Number
Contractor shall maintain a toll free telephone number that rings at an office within
Orange County at all times during Office Hours. Both English and Spanish speaking personnel
will be available during Office Hours to assist Customers with telephonic inquiries. Contractor
shall have the ability (through the use of outside resources or otherwise) to communicate with
Customers who only speak Spanish to ensure their inquiries, questions, complaints and other
matters are dealt with in a reasonably timely fashion. All such persmmel shall be polite and
responsive, and shall be sufficiently knowledgeable, and have the authority to respond and/or
advise Customers seeking assistance. Contractor's telephone system shall be adequate to handle
the volume of calls typically experienced on the busiest days. Contractor shall provide City with
a 24-hour emergency number to a live Person, not voice-mail.
10. 7 .2.2 Call Responsiveness
Contractor shall make reasonable attempts to answer all phone calls within five (5) rings.
If a call has been placed on hold for three (3) minutes, the caller will either be switched to a
message center which shall be responsible to obtain the caller's address and phone number, or a
Customer service representative will obtain the Customer's address and a number at which the
call can be returned. Contractor shall make at least three attempts within the next twenty-four
(24) hour period to return the call, with the first such attempt not more than one (1) hour after the
caller leaves the message. If Contractor is unsuccessful in contacting the Customer after
following this procedure, it shall send a letter to the caller indicating its efforts.
10.7.3 Complaint Documentation
All service complaints shall be directed to Contractor. Contractor shall log all complaints
received and said log shall include the date and time the complaint was received, the name,
address and telephone number of the complaining party, a description of the complaint, the name
of the employee recording the complaint and the action taken by Contractor to respond to and
remedy the complaint. All written Customer complaints and inquiries shall be date-stamped
when received. All complaints shall be initially responded to within one (1) business day
(Monday through Friday) of receipt. Contractor shall log action taken to respond to and remedy
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the complaint. Daily logs of complaints shall be retained for a minimum of twenty-four (24)
months. All Customer service records and logs kept by Contractor shall be available to City
upon request. City shall, at any time during regular Office Hours, have access to Contractor's
Customer service department for purposes that may include monitoring the quality of Customer
service or researching Customer complaints. Contractor shall provide to City on a monthly,
quarterly, and annual basis, a complaint log, in a form satisfactory to the City, that includes all of
the complaints logged pursuant to this Section, the complainant and the resolution.
10. 7.4 Resolution of Customer Compla ints
Disputes between Contractor and its Customers regarding the services provided in
accordance with this Agreement may be resolved by the City. The City's decision shall be final
and binding. Should Contractor and Customers not be able to establish a mutually acceptable fee
to be charged for special services as set forth in Section 8 .10, the matter shall be dealt with
pursuant to this Section, be determined by the City, and the City's decision shall be final.
Intervention by the City is not a condition precedent to any rights or remedies third parties might
otherwise have in any dispute with Contractor. Nothing in this Section is intended to affect the
remedies of third parties against Contractor.
10.7.5 Government Liaison
Contractor shall designate in writing a "Government Liaison" who shall be responsible
for working with City and/or City's designated representative(s) to resolve Customer complaints.
City shall have the right to approve Contractor's choice for a liaison.
10.8 Education and Public Awareness
10.8.1 General
Contractor acknowledges and agrees that education and public awareness are critical, key
and essential elements of any efforts to achieve the requirements of AB 939. Accordingly,
Contractor agrees to exploit opportunities to expand public and Customer knowledge concerning
needs and methods to reduce, reuse and recycle Solid Waste and to cooperate fully with City in
this regard.
10. 8 .2 Wr itten Program Materials
Contractor shall maintain a program of providing information relevant to the need and the
methods to reduce, reuse and recycle Solid Waste, and Contractor upon request from City, may
include such information along with Bills provided to Customers. All public education materials
shall be approved in advance by City. Contractor shall keep a record of all promotional and
public education materials utilized, and shall provide quarterly reports summarizing its public
outreach and education efforts.
10.8.3 Public Outreach
At a minimum, Contractor shall conduct school assemblies and promote recycling
through presentations and educational materials to the Chamber of Commerce, homeowners
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associations, construction contractors and other civic groups. Contractor shall also provide
articles on recycling for local newsletters.
10 .8.4 On-goin g Education RequiJe ments
In order to promote public education, in addition to any other materials it develops,
Contractor shall create the following public education materials and programs at its expense,
which will be distributed as indicated below. All of these materials and programs shall be
produced and/or available in both English and Spanish languages, and all written materials shall
be approved by City in advance of distribution, and shall bear the City seal, unless otherwise
approved by the City.
10.8.4.1 Annua l Notices
Not less than once each year during the Term of this Agreement, Contractor shall prepare
and distribute to each Customer a brochure providing relevant information about Contractor's
services, including, at a minimum : information regarding access to and use of available services;
Collection schedules; holiday Collection schedules; Contractor's Customer service numbers;
procedures to begin and terminate services; and information promoting and explaining available
programs, such as Mixed Waste, Recycling, Green Waste, Holiday Tree and Bulky Item
Collections, the availability of Household Hazardous Waste and e-waste Collection, and the
proper handling and disposal of such wastes.
10.8.4.2 How-To Brochure
Contractor will prepare and distribute a brochure packet to new Customers when they
start service. This packet will contain updated information on how to use the Contractor-
provided Carts, when, where and how to place Solid Waste for Collection, and who to contact
with service or Billing questions.
10.8.4.3 Corrective Ac tion N otice
Contractor shall develop a corrective action notification form for use in instances where a
Customer sets out inappropriate materials for Collection, that explains the appropriate manner
for disposal of such items.
10.8.4.4 Contractor Re presentative
Contractor shall retain on its staff an individual who shall as part of his or her job
function routinely visit civic groups, school assemblies, and homeowners' associations, to
promote and explain the Recycling options and other programs that Contractor offers, and
participate in demonstrations and civic events.
10 .8.4.5 Web Site Page
Contractor shall dedicate one page of its web site to City services, which shall include at
least the following information: a listing of contact numbers for Customer Service; infonnation
on Bulky Items Collection; Collection schedules, including holiday schedules; and the
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procedures to begin and terminate services. During the first six months following the
implementation of new services hereunder, this web page shall also provide information
explaining the new service, and the proper use of Carts.
10.8.5 Public Education Fund
Contractor shall maintain a Public Education Fund ("Public Education Fund") for the sole
purpose of supplying public education and information about source reduction, recycling, and
composting. Contractor shall only spend monies from the Public Education Fund for programs,
materials, or other matters approved by the City Manager. The Public Education Fund shall be
funded from two sources, as discussed herein. First, Contractor shall deposit an amount equal to
$0.09 multiplied by the number of all Customers at Residential Premises receiving service via
Carts each month. Secondly, Contractor shall deposit an amount equal to that noted on the
following Table 1 associated with each 3 yard and 4 yard Refuse Bin or Mixed Waste Bin in use
at every Commercial Premises each month, and depending on the frequency of service for each
such Bin:
Table 1:
Monthly Public Education Fund Calculation For Commercial Premises
Frequency of Service for 3yd and 4yd Public Education Fund Payment Amount
Refuse or Mixed Waste Bins
1 x p/wk $1.42/month
2 x p/wk $2.22/month
3 x p/wk $2.92/month
4 x p/wk $3.81/month
5 x p/wk $4.63/month
6 x p/wk $5.45/month
The above amounts shall be deposited in the Public Education Fund monthly on or before the
thirtieth (30th) day of each month, and be based on the total number of (as applicable) Customers
or Bins in service in the preceding month. Should any deposit due date fall on a weekend or
holiday, the deposit shall be due on the first business day thereafter. Concurrent with the Public
Education Fund deposits, Contractor shall provide a statement to City, certified by an officer of
Contractor, attesting to the accuracy of the amounts deposited, and setting forth the basis for
their calculation in a manner acceptable to City. Deposits shall occur into an interest bearing
bank account, subject to approval by the City Manager, separate from other funds utilized by
Contractor. All interest earned on the Public Education Fund shall remain as part of the Public
Education Fund. All records related to the Public Education Fund shall be made available to
City for audit review upon request.
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SECTION 11.
CONTRACTOR'S CONSIDERATION
In addition to any other consideration set forth herein, as part of its consideration for
entering this Agreement, and for the exclusive franchise, right and privilege to provide Solid
Waste Handling Services within City as specified herein Contractor shall provide the following:
11.1 Reimbursement ofNegotiation Costs
Contractor shall pay to City a one-time lump sum payment to reimburse the City for its
out-of-pocket costs (including specifically consultant and legal fees) incurred in connection with
the negotiation and ultimate award of this Agreement. City shall provide an invoice to
Contractor for the amount due pursuant to this Section and the outstanding amount shall be paid
by Contractor within thirty (30) days of being invoiced by City
11.2 Administrative Cost Reimbursement
On or before July 1, 2014, and on or before July 1 each year thereafter, Contractor shall
make a payment to City in the amount more fully set forth in this paragraph intended to defray its
administrative costs related to this Agreement (the "Administrative Cost Reimbursement"). The
amount of the annual Administrative Cost Reimbursement shall be Thirty Thousand Dollars
($30,000.00) [adjusted annually by the change in the Consumer Price Index for the 12 month
period ending the preceding December 31, for All Urban Consumers, CUURA421SAO not
seasonally adjusted, all items index (CPI-U) -Los Angeles County, Riverside County, Orange
County average]. If any Administrative Cost Reimbursement payment is not timely paid by
Contractor, and in addition to any other remedy provided by law, Contractor shall pay to City a
penalty in an amount equal to ten percent (10%) per month, or portion thereof, of the amount
owing until paid.
11.3 Franchise Fee
11.3.1 Monthly Franchise Fee
Contractor shall pay to City, a franchise fee equal to five percent (5%) of Contractor's
annual Gross Receipts each year, or portion thereof, during the entire Term of this Agreement
(the "Franchise Fee"). Said Franchise Fee shall be paid to City monthly on or before the thirtieth
(30th) day of each month. Should any such due date fall on a weekend or holiday in which the
City's business offices are closed, payment shall be due on the first day thereafter in which the
City's business offices are open. The amount of each payment shall be equal to five percent
(5%) of Contractor's Gross Receipts in the calendar month preceding the date payment was due.
The Franchise Fee due hereunder shall apply to Gross Receipts of Contractor collected after the
expiration of the Term hereof relating to Contractor's performance during the Term hereof.
Franchise Fees shall be accompanied by a statement certified by an officer of Contractor
attesting to the accuracy of the amounts paid, and setting forth the basis for their calculation in a
manner acceptable to City.
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11.4 Services al City Facilities
Contractor shall provide Solid Waste Handling Services (including specifically
Collection, disposal and processing) at all Premises owned and/or operated by the City at no cost
to City, and shall provide Containers for such service as City deems appropriate for each of its
various Premises (i.e., Carts, Bins or Rolloff Boxes). Such services shall be provided for all
existing City facilities, as they may be expanded from time to time, as well as all new or
additional facilities acquired/constructed during the Term hereof at no additional cost.
Contractor shall carry out its obligations pursuant to this provision in a manner, and to a degree,
approved by the City Manager.
SECTION 12.
CHARGE FOR LATE PAYMENTS
In the event Contractor fails to timely make any of the payments provided for in this
Agreement (whether reimbursements, Franchise Fees, payments of funds collected in connection
with Billing services, or otherwise), Contractor shall pay to City, as additional consideration, a
sum of money equal to five percent (5%) of the amount due. This amount is required in order to
defray those additional expenses and costs incurred by City by reason of the delinquent payment
including, but not limited to, the cost of administering, accounting for, and collecting said
delinquent payment and the cost to City of postponing services and projects necessitated by the
delay in receiving the revenue. In addition, any amounts not paid to City by Contractor within
sixty (60) days of the due date shall be subject to interest in the amount often percent (10%) per
annum, calculated on a daily basis for each day such sums remain past due.
SECTION 13.
CONTRACTOR'S BILLING SERVICES AND SYSTEMS
13.1 Billing
Contractor shall provide services pursuant to this Agreement at rates it sets, charges to,
and collects from Customers; provided, however, Contractor's rates shall not exceed those set
forth in the attached Exhibit A, which sets out the maximum rates that may be charged by
Contractor for the various different service options that may occur hereunder, as such maximum
rates may be adjusted from time to time pursuant to the terms hereof. Contractor shall provide
all Customers with itemized Bills, detailing charges for all services, including charges for late
payments, as well as the period of service to which the Bill applies. Contractor acknowledges
that it, and not Customers, is to pay a Franchise Fee, and the other fees noted herein to City as
consideration for this Agreement. Accordingly, Contractor's Bills shall not include separate
itemization of a "Franchise Fee," or other similar designation relating to fees which Contractor is
required to pay to City. Contractor shall reproduce and include in any Billing, at no additional
cost, one page informational "inserts" provided by City.
Billings may be made on a quarterly basis in advance of services being provided for all
Customers at Single Family or Multi-Family Dwellings utilizing Carts for Collection, and on a
monthly basis in advance for all other Customers. Premises ordering service after the first of the
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month or canceling service prior to the end of the month shall be charged on a prorated per-
pickup basis.
13.1.1 Suspension of Service Due to Non-Payment
Contractor may discontinue service to any Customer as set forth in this Section.
Customers may be advised that account payments are due within thirty (30) days after the date of
Billing. Contractor may notify Customers, using a form approved by the City Manager, that
accounts are past due thirty-five (35) days after the initial invoice date, and thereafter may send a
final reminder notice forty-five ( 45) days after the initial invoice date. Said forms shall contain a
statement that services may be discontinued sixty ( 60) days from the date of the initial invoice if
payment is not made before that time. If payment is not made by the expiration of said sixty (60)
day period, Contractor may discontinue service to that Customer upon the expiration of said
sixty (60) day period. Contractor shall resume Solid Waste Collection on the next regularly
scheduled Collection day for any Customer whose service is discontinued upon receipt of
payment of delinquent fees and any related service restart charges in accordance with the
maximum rates set forth in Exhibit A, or at such sooner time as directed to do so by City.
Contractor may not charge for service during any period in which service was suspended. Any
delinquent fees or service charges to be imposed in connection with delinquent accounts shall not
exceed the maximum rates set forth in Exhibit A. A deposit equal to the maximum rate for one
month's service as set forth on Exhibit A, as such rates may be amended from time to time, may
be required of accounts which have been discontinued for non-payment prior to re-instituting
service at such accounts. Notwithstanding the above, in the event of a Billing dispute and/or to
avoid negatively impacting public health or safety, Contractor shall not suspend service to any
Customer without the City's prior consent, and shall continue to provide service to any Customer
if directed to do so by City without regard to the status of said Customer's account. Any
deviation from this sample procedure shall be submitted for approval to the City Manager.
13.1.2 Unoccupied Premises
During any time when Contractor is made aware that a Premises is unoccupied for more
than forty-five (45) days, and Collection services are not provided by Contractor, Contractor
shall not Bill such Premises for Solid Waste Collection. Contractor may remove its Containers
from any Premises after being notified by a Customer that service is to be cancelled as a result of
the Premises being unoccupied. The Customer at any such Premises shall be responsible to
provide notice to Contractor to cease service due to a vacancy, as well as reasonable evidence
pursuant to such guidelines as the City Manager is hereby authorized to develop, demonstrating
the Premises was vacant for the period in question. Such Customers shall be entitled to a refund
from Contractor for any amounts paid to Contractor for each thirty (30) day period during which
the vacancy exists. Any Customer grievance regarding a claim that a Premises was unoccupied
and received no service, and hence should not be Billed for a given period pursuant to this
Section, may be appealed by the Customer to the City Manager whose decision shall be final. It
is the intent of the Parties that a Contractor shall not be entitled to charge for services which are
not needed or used. Accordingly, the time frame set forth in this Section is not intended to
suggest that Contractor may Bill Customers for up to 45 days of service in situations in which no
service is needed or used due to a vacancy.
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13 .2 Minimum Requirements for Billing tatements
In addition to any other pertinent data, Billing statements mailed by Contractor shall be
printed to contain the following information, and the language contemplated for compliance with
this requirement shall be subject to the City Manager's approval:
(A) A "statement date" indicating the date the Bill is generated and mailed.
(B) For Residential Cart service: the service address associated with the
account, the Billing address, an itemized quantity of each type of service the Customer
receives, the maximum rate charged for each type of service, and the bar code associated
with any Carts located at the address when (if) available. Customers should be able to
determine from the Bill the types of services they are receiving and the rates charged for
each individual service.
(C) A notice to Customers that payments are due upon receipt of the Bill, and
considered delinquent if not paid on or before the 30th days following the invoice date,
an advisement of the date and time by which payments must be received in ord er to avoid
delinquent fees (i.e., 4:00 p.m. on the 601h day following the statement date), and a
notification of the amount of fees that will be imposed and the potential for service
interruptions if payments are not received by the specified date and time.
(D) An advisement to Customers that payments can be made in the following
manner:
(1) by mailing payment to Contractor at such address as Contractor may
designate; or
(2) by automatic withdrawal from a checking account; or
(3) by major credit card on-line (i.e., via the Internet).
(E) An advisement that inquiries relating to Solid Waste Collection should be
directed to Contractor, including an address, phone number and internet site, for such
inquiries.
13.3 Billing System
13.3.1 Computerization of Account Info1mation
Contractor shall provide and maintain, at its expense, computer equipment sufficient to
operate pertinent computer programs and otherwise provide the services required by this Section.
Contractor shall create, at its own expense, computer programs sufficient to operate a
computerized Billing system, permanently maintain all account records and otherwise meet the
requirements of this Section.
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13.3.2 Minimum Computer Programming Requirements
In addition to any other requirements set forth herein, the programs created by Contractor
to operate and maintain the Billing system shall at a minimum be able to perform the following
functions:
(A) create a permanent record of any adjustment to a Customer's account;
(B) work in connection with a backup system such that all Customer account
data and records is protected from a computer failure and permanently preserved on not
less than a daily. basis;
(C) allow Customers to make payments on-line (i.e., via the Internet) by a
major credit card.
13.3.3 Billing Inquiries
All Billing inquiries shall be entered into the computerized Billing system. Contractor's
computer programs shall keep a permanent record of all Billing inquiries and all adjustments to
Customer Bills resulting therefrom.
13 .3 .4 Distribution of Public Information
If requested to do so by City, and at no charge to City, Contractor shall insert any printed
material prepared by City into its Billing statements for delivery to its Customers. City shall not
request Contractor to include any printed material in its Bills if such material is of a size, shape,
or weight that would increase Contractor's postage costs or if such material does not fit into the
envelopes utilized by Contractor to mail the Bills. Any printed material to be included in the
Bills to be mailed by Contractor shall be provided to Contractor within a reasonable time in
advance of Contractor's scheduled mailing date, such that the insertion of such material into
Billing envelopes does not delay their scheduled mailing date.
13 .4 Payment, Accounting Systems
13 .4.1 Co llection and Processi11g of Payments
13.4.1.1 Accounting and Deposit of Funds
All payments received by Contractor shall be appropriately credited to Customer
accounts, deposited in a bank account and accounted for in a businesslike manner utilizing
generally accepted accounting principles. To facilitate audits and record keeping Contractor
shall make all withdrawals from its bank accounts by check, ACH debit/credit or wire, regardless
of whether the withdrawal is to provide funds to City, Contractor, or any permissible
subcontractor of Contractor. Contractor may charge Customers for any returned checks at rates
that do not exceed the maximum rates set forth on Exhibit A.
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13 .4 .1.2 Allocation of Funds
With respect to payments received from each Customer, unless a Customer specifically
directs a different allocation, funds shall be allocated first to outstanding charges for Solid Waste
Collection, then to any related delinquency fees or other administrative charges, up to the amount
of any outstanding balance. Any overpayment shall be credited to future Bills in the same
sequence, or returned to Customers as appropriate. Contractor may charge Customers for any
refunds issued, where said refund is not due to errors in accounting by Contractor, at rates that do
not exceed the maximum rates set forth on Exhibit A.
SECTION 14.
FAITHFUL PERFORMANCE
14.1 Surety
Contemporaneously with execution of this Agreement, as security for Contractor's
faithful performance of all obligations of this Agreement, Contractor shall provide a surety
mechanism (the "Surety") as more fully defined below in the amount of One Hundred Thousand
Dollars ($100,000.00). The Surety may be comprised of either a performance bond or an
irrevocable letter of credit, or a combination of both. If a letter of credit is utilized to satisfy
some or all of the Surety requirement, it shall be drawn upon a financial institution of a financial
strength satisfactory to the City Attorney which has an office within one hundred (100) miles of
City and otherwise in a form acceptable to the City Attorney. The performance bond, if any,
shall be issued by a duly authorized corporate surety company authorized to do business in
California, and in a form acceptable to the City Attorney for the City. The cost of the Surety
shall be the sole responsibility of Contractor. The Surety shall be released within thirty (30) days
after both (i) the expiration of the Term of this Agreement and (ii) Contractor's satisfactory
performance of all obligations hereunder.
14.1.1 Forfeiture of Surety
In the event Contractor shall for any reason become unable to, or fail in any way to,
perform as required by this Agreement, City may declare a portion or all of the Surety, as may be
necessary to recompense and make whole the City, forfeited to the City. Upon partial or full
forfeiture of the Surety, Contractor shall restore the Surety to its original amount within thirty
(30) days of the City's notice to do so. Failure to restore the Surety to its full amount within
thirty (30) days shall be a material breach of this Agreement.
14. 1.2 Use of Surety by City
Notwithstanding any provision hereof to the contrary, thirty (30) days following City
providing Contractor with written notice of its failure to pay City any amount owing under this
Agreement, either the letter of credit or performance bond comprising the Surety may be utilized
by City for purposes including, but not limited to: (1) Payment of sums due under the terms of
this Agreement which Contractor has failed to timely pay to City, including specifically
liquidated damages; (2) Reimbursement of costs borne by City to correct violations of this
Agreement not corrected by Contractor.
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14.2 Replacement Letter of Credit
City may draw upon the entire letter of credit (if any) utilized to meet Contractor's
obligations pertaining to the Surety, and convert it to a cash deposit, if Contractor fails to cause
the letter of credit to be extended or replaced with another satisfactory letter of credit no later
than sixty (60) days prior to its expiration.
SECTION 15.
INSURANCE COVERAGE
Contractor shall procure and maintain during the entire Term of this Agreement the
following types of insurance, and shall maintain the following minimum levels of coverage,
which shall apply to any claims which may arise from or in connection with Contractor's
performance hereunder or the actions or inactions of any of Contractor's officers, agents,
representatives, employees, or subcontractors in connection with Contractor's performance. The
insurance requirements hereunder in no way limit Contractor's various defense and
indemnification obligations, or any other obligations as set forth herein.
15.1 Minimum Scope of Insurance
Coverage shall be at least as broad as:
1. The most recent editions of Insurance Services Office Commercial General
Liability coverage ("occurrence" form CG 00 01).
2. The most recent editions of Insurance Services Office form number CA 00 01
1001 covering Automobile Liability, code 1 "any auto".
3. Workers' Compensation insurance as required by the Labor Code of the State of
California and Employers Liability insurance.
15.2 Minimum Limits oflnsurance
Contractor shall maintain in force for the Term of this Agreement limits no less than:
15.2.1 Comprehensive General Liability
Ten Million Dollars ($10,000,000.00) limit aggregate and Ten Million Dollars
($10,000,000.00) limit per occurrence for bodily injury, personal injury and property damage.
Such limits can be achieved through a combination of primary and excess liability policies.
15.2.2 Automobile Liability
Ten Million Dollars ($10,000,000.00) limit aggregate and Ten Million Dollars
($10,000,000.00) limit per accident for bodily injury and property damage. Such limits can be
achieved through a combination of primary and excess liability policies.
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15.2.3 Workers' Compensation and Employers Liability
Workers' compensation limits as required by the Labor Code of the State of California
and Employers Liability limits of One Million Dollars ($1,000,000.00) per accident.
15.3 Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by City. If,
in the reasonable opinion of the City, Contractor does not have sufficient financial resources to
protect the City from exposure with respect to any deductibles or self-insured retentions
Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim
administration and defense expenses.
15 .4 Other Insurance Provisions
The policies are to contain, or be endorsed to contain, the following provision:
15.4.1 General Liability and Automobile Liabmty Coverage
City and its elected and appointed officials, officers, employees, agents and volunteers
shall be named as additional insureds in connection with liability arising out of activities
performed by or on behalf of Contractor; Premises owned, leased or used by Contractor; and
vehicles owned, leased, hired or borrowed by Contractor. The coverage shall contain no special
limitations on the scope of protection afforded to City or its elected and appointed officials,
officers, employees, agents and volunteers. Contractor's insurance coverage shall be the primary
insurance for the City and its elected and appointed officials, officers, employees, agents and
volunteers in connection with the above enumerated categories. Any insurance or self-insurance
maintained by City or its elected and appointed officials, officers, employees, agents and
volunteers shall be in excess of Contractor's insurance and shall not contribute with it. Any
failure to comply with the reporting provisions of the policies shall not affect coverage provided
to City or its elected and appointed officials, officers, employees, agents and volunteers.
Coverage shall state that Contractor's insurance shall apply separately to each insured against
whom a claim is made or suit is brought, except with respect to the limits of the insurer's
liability.
15.4.2 Workers' Compensation and Employers Liability Coverage
The insurer shall agree to waive all rights of subrogation against City and its elected and
appointed officials, officers, employees, agents and volunteers for losses arising from work
performed by Contractor for City.
15.4.3 Enviromnental Pollution Control Insurance
Contractor shall maintain either an endorsement to its general liability policy, or a
separate policy of insurance covering enviromnental pollution and contamination that names the
City as an additional insured. Said coverage shall be in the amount of not less than Five Million
Dollars ($5,000,000) per occurrence, and Five Million Dollars ($5,000,000) in the aggregate, and
shall substantially comply with all other provisions set forth in Section 15 .4.1.
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15.4.4 All Coverages
Each insurance policy required by this clause shall be endorsed to state that coverage
shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except
after thirty (30) days' prior written notice by certified mail, return receipt requested, has been
given to City.
15.5 Acceptability of Insurers
The insurance policies required by this Section shall be issued by an insurance company
or companies authorized to do business in the State of California and with a rating in the most
recent edition of Best's Insurance Reports of size category VII or larger and a rating
classification of A or better, unless otherwise approved by the City Manager.
15 .6 Verification of Coverage
Contractor shall furnish City with certificates of insurance and with original
endorsements affecting coverage required by this Article. The certificates and endorsements for
each insurance policy are to be signed by a Person authorized by that insurer to bind coverage on
its behalf. The certificates and endorsements are to be on forms provided by or acceptable to
City and are to be received and approved by City before work commences. City reserves the
right to require complete, certified copies of all required insurance policies, at any time.
15. 7 Loss or Reduction in Insurance
In the event that Contractor fails to retain or maintain insurance with the scope and
amounts of coverage required hereunder, City shall have the right, but not the obligation to either
terminate this Agreement, or obtain insurance coverage as required herein on behalf of
Contractor and utilize funds from the Surety defined in Section 14 to pay the cost of providing
such coverage.
16.1 General
SECTION 16.
ASSIGNMENT, SUBLETTING, AND TRANSFER;
REQUIREMENTS AND LIMITATIONS
Contractor shall not assign its rights, nor delegate, subcontract or otherwise transfer its
obligations under this Agreement (collectively referred to as an "Assignment") to any other
Person without the prior approval by the City Council. The City Council has unfettered
discretion to approve or deny such an Assignment. Any such Assignment made without the
approval by the City Council shall be void and the attempted Assignment shall constitute a
material breach of this Agreement.
16.2 Assignment to be Broadly Interpreted
For purposes of this Section the term "Assignment" shall be given the broadest possible
interpretation and shall include, but not be limited to: (i) a sale, exchange or other transfer of
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substantially all of Contractor's assets dedicated to service under this Agreement to a third party;
(ii) a sale, exchange or other transfer of any membership interest of Contractor to a third party;
(iii) any dissolution, reorganization, consolidation, merger, re-capitalization, stock issuance or
re-issuance, voting trust, pooling agreement, escrow arrangement, liquidation or other transaction
which results in a change of ownership or control of Contractor; (iv) any assignment by
operation of law, including those resulting from mergers or acquisitions by or of Contractor or
any of its Affiliates, insolvency or bankruptcy, making assignment for the benefit of creditors,
writ of attachment for an execution being levied against this Agreement, appointment of a
receiver taking possession of Contractor's property, or transfer occurring in the event of a probate
proceeding; and (v) any combination of the foregoing (whether or not in related or
contemporaneous transactions) which has the effect of any such transfer or change of ownership,
or change or control of Contractor.
16.3 Nature of Agreement -Personal to Contractor
Contractor acknowledges that this Agreement involves rendering a vital service to City's
residents and businesses, and that City has selected Contractor to perform the services specified
herein based on ( 1) Contractor's experience, skill and reputation for conducting its Solid Waste
Handling Services in a safe, effective and responsible fashion, at all times in keeping with
applicable Environmental Laws, regulations and best Solid Waste management practices, and
(2) Contractor's financial resources to maintain the required equipment and to support its
indemnity obligations to City under this Agreement. City has relied on each of these factors,
among others, in choosing Contractor to perform the services to be rendered by Contractor under
this Agreement.
16.4 Procedure for Consideration of Assignment
If Contractor requests City's consideration of and consent to an Assignment, the City
Council may deny, approve or conditionally approve such request in its sole and absolute
discretion. Under no circumstances shall City be obliged to consider any proposed Assignment
if Contractor is in default at any time during the period of consideration. Should the City consent
to any Assignment request, such Assignment shall not take effect until all conditions relating to
the City's approval have been met. Any request for an Assignment shall be made in a manner to
be prescribed by the City Manager, and no request by Contractor for consent to an Assignment
need be considered by City unless and until Contractor has met (or with respect to matters that
would only occur upon completion of the Assignment if approved, made reasonable assurances
that it will meet) the following requirements:
(A) Contractor shall undertake to pay City its reasonable direct and indirect
expenses, including administrative, investigative, consulting, and attorneys' fees and costs
necessary to investigate the suitability of any proposed assignee, and to review and
finalize any documentation required as a condition for approving any such Assignment
(collectively the "Administrative Assignment Fee"). An advance non-refundable
payment in an amount to be determined by the City Manager towards the Administrative
Assignment Fee shall be paid to the City prior to City's consideration of any Assignment
request, although Contractor shall be responsible to pay all costs incurred by City in
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considering a request for Assignment, including those in excess of the aforesaid deposit
amount, regardless of whether City consents to the Assignment.
(B) If requested to do so, Contractor shall furnish City with audited financial
statements of the proposed assignee's operations for the immediately preceding three (3)
operating years.
(C) Contractor shall furnish City with satisfactory proof: (i) that the proposed
assignee has at least ten (10) years of Solid Waste management experience on a scale
equal to or exceeding the scale of operations conducted by Contractor under this
Agreement; (ii) that in the last five (5) years, the proposed assignee has not suffered any
significant citations or other censure from any federal, state or local agency having
jurisdiction over its Solid Waste management operations due to any significant failure to
comply with state, federal or local laws, including the Environmental Laws and that the
assignee has provided City with a complete list of such citations and censures; (iii) that
the proposed assignee has at all times conducted its operations in an environmentally safe
and conscientious fashion; (iv) that the proposed assignee conducts its Solid Waste
management practices in accordance with sound Solid Waste management practices in
full compliance with all federal, state and local laws regulating the Collection and
disposal of Solid Waste including Hazardous Substances; and, (v) of any other
information required by City to ensure the proposed assignee can fulfill the terms of this
Agreement in a timely, safe and effective manner.
(D) The proposed assignee shall execute an agreement assuming all of
Contractor's rights and liabilities under this Agreement.
SECTION 17.
REVIEW OF SERVICES AND PERFORMANCE
17 .1 Performance Hearing
(A) Commencing in or about July 2014, and on a biennial basis thereafter,
City may hold a hearing to review Contractor's Solid Waste Collection efforts, source
reduction, processing and other diversion services and overall performance under this
Agreement (the "Solid Waste Services and Performance Review Hearing"). The purpose
of the Solid Waste Services and Performance Review Hearing is to provide for a
discussion and review of technological, economic, and regulatory changes in Collection,
source reduction, recycling, processing and disposal to achieve a continuing, advanced
Solid Waste Collection, source reduction and recycling and disposal system; and to
ensure services are being provided by Contractor with adequate quality, effectiveness and
economy and in full compliance with the terms of this Agreement. Topics for discussion
and review at the Solid Waste Services and Performance Review Hearing shall include,
but shall not be limited to, services provided, feasibility of providing new services,
application of new technologies, Customer complaints, amendments to this Agreement,
developments in the law, new initiatives for meeting or exceeding AB 939's goals and
where applicable AB 341's goals, regulatory constraints and Contractor performance.
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City and Contractor may each select additional topics for discussion at any Solid Waste
Services and Performance Review Hearing.
(B) In addition to the Solid Waste Services and Performance Review Hearings
City may hold in accordance with the immediately preceding paragraph, if the number of
Customer complaints regarding Contractor's Solid Waste Collection are deemed by City
to be excessive, City may, at any time (subject to the paragraph immediately below), hold
a Solid Waste Services and Performance Review Hearing.
(C) City shall notify Contractor of its intent to hold a Solid Waste Services
and Performance Review Hearing at least ninety (90) days in advance thereof. The
notice will indicate whether the hearing will occur before City staff, the City Council, or
such other body as the City may designate in the notice. Forty-five (45) days after
receiving notice from City of a Solid Waste Services and Performance Review Hearing,
Contractor shall submit a report to City which may contain such information as it wished
to have considered, and shall contain the following:
(1) Current diversion rates and a report on Contractor's outreach activities for
the past year.
(2) Recommended changes and/or new services to improve the City's ability
to meet the goals of AB 939 and AB 341 and to contain costs and minimize impacts on rates.
(3) Any specific plans for provision of changed or new services by
Contractor.
(D) The reports required by this Agreement regarding Customer complaints
shall be used as one basis for review of Contractor's performance, and Contractor may
submit other relevant performance information and reports for consideration at the Solid
Waste Services and Performance Review Hearing. In addition to the above, City may
request Contractor to submit any other specific information relating to its performance for
consideration at the Solid Waste Services and Performance Review Hearing, and any
Customer may submit comments or complaints during or before the Hearing, either orally
or in writing. Contractor shall be present at and participate in the Solid Waste Services
and Performance Review Hearing.
SECTION 18.
CITY'S REMEDIES; DEFAULT AND TERMINATION
18.1 Notice of Default
If the City Manager determines that Contractor has defaulted in the performance of any
obligation hereunder, or that Contractor's performance pursuant to this Agreement with respect
to such matters has not been in conformity with reasonable industry standards which are obtained
in similar cities in Southern California, the provisions of this Agreement, the requirements of the
Municipal Code, the requirements of CalRecycle, including, but not limited to, requirements for
source reduction and recycling or any other applicable federal, state, or local law or regulation,
including but not limited to the laws governing transfer, storage, or disposal of Special Wastes,
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or Hazardous Waste, the City Manager may provide written notice to Contractor of such default.
The City Manager may, in such written notice, set a reasonable time within which correction of
such default shall be made. Unless a longer or shorter time is otherwise specified by the City
Manager, a reasonable time for correction shall be thirty (30) days from the date such written
notice is given.
18.2 Failure to Cure
If Contractor fails to correct, to the satisfaction of the City Manager, all deficiencies
contained in the written notice thereof within the specified time, or if it is not reasonably possible
to correct such deficiencies within the specified time, and Contractor fails to commence to
correct or remedy such deficiencies within the specified time and diligently effect such
correction or remedy thereafter, then the City Manager may refer the matter to the City Council
for review, or review the matter himself.
18.3 Review by C ity Manager
If the City Manager reviews the matter and determines that Contractor has failed to
properly or adequately cure any default set forth above, the City Manager, in the exercise of his
discretion, may terminate this Agreement, or take such other action as he deems appropriate to
pursue any remedy available to City. A decision or order of the City Manager shall be final and
binding on Contractor unless Contractor files a "Notice of Appeal" with the City Clerk within
five (5) business days of the date the notice of the City Manager's decision is given. The City
Manager shall schedule any appeal for consideration by the City Council at the earliest feasible
City Council Meeting following the date a Notice of Appeal is given to City.
18.4 City Council Review
In the event an appeal of a decision of the City Manager is filed, or if the City Manager
refers the matter to the City Council without rendering a decision, the City Council shall set the
matter for consideration before the City Council as a regular agenda item. In reviewing the
matter the City Council may consider any information reported by the City Manager regarding
the deficiencies, and shall give Contractor, or its representatives and any other interested Person,
a reasonable opportunity to be heard. The City Council shall determine whether Contractor has
failed to properly or adequately perform as set forth above, and if so whether to terminate the
Agreement, or to pursue any other remedy available to City.
18.5 Performance During Reviews
Contractor's performance under this Agreement is not excused during any period of time
when its performance is under review as set forth above, including at any time prior to a final
decision as to whether such performance is deficient.
18.6 Termination without Right to Cure
The above right of termination as a result of Contractor's failure to timely cure any
deficiency is in addition to City's right to terminate this Agreement without affording Contractor
an opportunity to cure in circumstances where Contractor is determined by City to have
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materially breached this Agreement. City shall thus be afforded the right to terminate this
Agreement in the event of any material breach hereof by Contractor without affording Contractor
the right to cure as a result of any action, inaction or circumstance which is a legally defined
material breach, or is defined herein as a material breach, and/or under any of the following
circumstances which are hereby specifically defined as material breaches:
(A) If Contractor practices, or attempts to practice, any fraud upon City.
(B) If Contractor becomes insolvent, unable, or unwilling to pay its debts, or
upon listing of an order for relief in favor of Contractor in a bankruptcy proceeding.
(C) If Contractor willfully violates any orders or rulings of any regulatory
body having jurisdiction over Contractor relative to this Agreement. So long as City's
rights are not prejudiced during the pendency of any challenge to such orders or rulings
by Contractor, Contractor may contest any such orders or rulings by appropriate
proceedings conducted in good faith, in which case no material breach of this Agreement
shall be deemed to have occurred until a final ruling has been rendered.
(D) If Contractor ceases to provide Solid Waste Handling Services as required
under this Agreement over all or any portion of the Franchise Area for a period of seven
(7) days or more, for any reason not specified as a force majeure event hereunder.
(E) If Contractor fails to materially comply with any insurance or
indemnification requirement set forth in this Agreement.
(F) If City is required to pay any fine or penalty, which is not paid on its
behalf by Contractor or which Contractor fails, refuses, neglects or is unable to pay or
indemnify City against, relating to any diversion or other requirement of AB 939 and/or
AB 341.
(G) If Contractor, or any management level employee of Contractor is
convicted of a Criminal Matter (as defined herein). For purposes of this Section the term
Criminal Matter refers to any felony or misdemeanor offense having any relationship to
either Solid Waste Handling Services or public corruption (including, without limitation,
bribery, conflict of interest related allegations, vote selling, or any similar type charges).
18.7 Liquidated Damages
18. 7 .1 General
The City finds, and Contractor agrees, that as of the time of the execution of this
Agreement, it is impractical, if not impossible, to reasonably ascertain the extent of damages
which shall be incurred by City as a result of a breach by Contractor of certain specific
obligations under this Agreement. The factors relating to the impracticability of ascertaining
damages include, but are not limited to, the fact that: (i) substantial damage results to members
of the public who are denied services or denied quality or reliable service; (ii) such breaches
cause inconvenience, anxiety, frustration, and deprivation of the benefits of the Agreement to
individual members of the general public for whose benefit this Agreement exists, in subjective
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ways and in varying degrees of intensity which are incapable of measurement in precise
monetary terms; (iii) that the services that are the subject of this Agreement might be available at
substantially lower costs than alternative services and the monetary loss resulting from denial of
services or denial of quality or reliable services is impossible to calculate in precise monetary
terms; and (iv) the termination of this Agreement for such specific breaches, and other remedies
are, at best, a means of future correction and not remedies which make the public whole for past
breaches.
18.7.2 Service Performance Standards: Liquidated Damages for Failure to Meet
Standards
The parties further acknowledge that consistent, reliable Solid Waste Handling Service is
of utmost importance to City and that City has considered and relied on Contractor's
representations as to its quality of service commitment in entering this Agreement with it. The
parties further recognize that some quantified standards of performance are necessary and
appropriate to ensure consistent and reliable service and performance. The parties further
recognize that if Contractor fails to achieve the performance standards, or fails to submit
required documents in a timely manner, City and its residents will suffer damages and that it is
and will be impractical and extremely difficult to ascertain and determine the exact amount of
damages which City will suffer. Therefore, without prejudice to City's right to treat such
breaches as an event of default, the parties agree that the following liquidated damage amounts
represent a reasonable estimate of the amount of such damages for such specific breaches,
considering all of the circumstances existing on the date of this Agreement, including the
relationship of the sums to the range of harm to City that reasonably could be anticipated and the
anticipation that proof of actual damages would be costly or impractical. In placing their initials
at the places provided, each party specifically confirms the accuracy of the statements made
above and the fact that each party has had ample opportunity to consult with legal counsel and
obtain an explanation of the liquidated damage provisions at the time that the Agreement was
made.
Contractor ~
Initial Here
City \ //J
Initial Here ~
18.7.3 Ca lculations for Liquidated Damages
Contractor agrees to pay (as liquidated damages and not as a penalty) the amounts set
forth below for each type of action warranting such damages:
18. 7 .3 .1 Collection Reliability
(A) For each failure to commence service to a new Customer account within
seven (7) days after order, which exceed five (5) such failures annually: $150.00.
(B) For each failure, which exceeds ten (10) such failures annually, to Collect
Solid Waste from any established Customer on the scheduled Collection day and not
Collected within the period described in this Agreement: $150.00.
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(C) For each failure to Collect Solid Waste, which has been properly set out
for Collection, from the same Customer on two (2) consecutive scheduled pickup days:
$150.00.
18 .7.3.2 C oll e ction Qu a lity
(A) For each occurrence of failure to properly return empty Containers to avoid
pedestrian or vehicular traffic impediments or to place Containers upright with lids secured
which exceeds ten (10) such occurrences annually: $150.00.
(B) For each occurrence of excessive noise or discourteous behavior which exceeds
ten (10) such occurrences annually: $250.00.
(C) For each occurrence of Collecting Solid Waste during unauthorized hours which
exceeds five (5) such occurrences annually: $250.00.
(D) For each occurrence of damage to private property (unless considered
unavoidable damage) in an ' amount in excess of $1,000 which exceeds five (5) such occurrences
annually: $250.00.
(E) For each failure to clean up Solid Waste spilled from Containers, excepting
amounts that are so nominal in nature that they would not reasonably be expected to be noticed
by the driver of a Collection Vehicle, within 90 minutes that exceeds ten (10) such failures
annually: $150.00.
18.7.3.3 Customer Responsiveness
(A) For each failure to initially respond to a Customer complaint within one
(1) business day, which exceeds five (5) such occurrences annually, and for each
additional day in which the complaint is not addressed: $250.00.
(B) For each failure to process Customer complaints to City as required
herein, which exceeds five (5) such occurrences annually: $250.00 .
(C) For each failure to remove graffiti from Containers, or to replace with
Containers bearing no graffiti, within twenty-four 24) hours of a request from City:
$150.00.
18.7.3.4 T imeliness of Submissions t o C ity
(A) Any report shall be considered late until such time as a correct and
complete report is received by City. A ten day grace period shall apply for each report
following its due date, and thereafter for each calendar day a report is late, the daily
liquidated damage amount shall be:
(1) Monthly Reports: $100.00 per day
(2) Quarterly Reports: $250.00 per day
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(3) Annual Reports: $350.00 per day
18. 7.4 Process for Assessm ent of Liquidated Da mages
(A) City may determine the occurrence of events giving rise to liquidated
damages through the observation of its own employees or representative or investigation
of Customer complaints. It is the desire of the parties to work together to avoid the
imposition of liquidated damages and accordingly City will endeavor to timely
communicate to Contractor any information that it receives which might give rise the
imposition of liquidated damages in order to facilitate Contractor's ability to correct any
deficiency, or prevent the recurrence of any conduct for which liquidated damages might
eventually be imposed.
(B) Prior to assessing liquidated damages, City shall give Contractor notice of
its intention to do so. The notice will include a brief description of the incident(s)/non-
performance. Contractor may review (and make copies at its own expense) all
information in the possession of City relating to incident(s)/non-performance. Contractor
may, within ten (10) days after receiving the notice, request a meeting with City.
Contractor may present evidence in writing and through testimony of its employees and
others relevant to the incident(s)/non-performance. City will provide Contractor with a
written explanation of his or her determination on each incident(s)/non-performance prior
to authorizing the assessment of liquidated damages. The decision of City shall be final.
(C) City may assess liquidated damages for each calendar day or event, as
appropriate, that Contractor is determined to be liable in accordance with this Agreement.
18.7.5 T imin g of Pay men t
Contractor shall pay any liquidated damages assessed by City within ten (10) days after
they are assessed . If they are not paid within the ten (10) day period, City may proceed against
any security required by this Agreement to obtain payment, and/or find Contractor in default and
exercise its right to terminate this Agreement as set forth herein.
SECTION 19.
CONTRACTOR'S REMEDIES; ADMINISTRATIVE HEARING
19.1 Administrative Hearing
Should Contractor contend that City is in breach of any aspect of this Agreement, it shall
give notice to the City Manager requesting an administrative hearing on the allegation. The
hearing shall occur as soon as reasonably possible, or on such date as mutually agreed by the
parties, and shall be held before an impartial hearing officer to be determined by the City
Manager . The hearing officer shall make an advisory ruling on Contractor's allegations, and
suggest a remedy if a breach by City is determined to exist. The hearing officer's ruling and
recommendations shall become final and binding if the parties so agree in writing within thirty
(30) days of the date notice of the decision is given to both parties. Otherwise, the hearing
officer's ruling shall have no further force or effect.
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19.2 Other Remedies; Claims
Contractor shall be entitled to all available remedies in law or equity for City's breach of
this Agreement; provided, however, Contractor shall not file or otherwise commence any action
against City, in law or equity, in any court, until after an administrative hearing as set forth ahove
has been completed, and the above noted thirty (30) day period to accept the hearing officer's
decision has passed, or either City or Contractor has given timely written notice to the other that
it will not accept the hearing officer's decision.
19.3 Actions for Damages
As a prerequisite to the filing and maintenance of any action for damages by Contractor
against City arising out of this Agreement, Contractor shall present a claim to City, as required
by Government Code Section 910 et seq., within 30 days of the date of the occurrence giving rise
to the claim for damages.
SECTION20.
CITY'S ADDITIONAL REMEDIES
In addition to any other remedies set forth herein, City shall be entitled to any or all of the
following rights and remedies in the event of a breach of this Agreement by Contractor:
(A) The right to use Contractor's equipment for the purpose of Collecting,
transporting, and/or disposing o~ Solid Waste, including Recyclable Material, for a period
not to exceed six (6) months. In the case of equipment not owned by Contractor,
Contractor shall assign to City, to the extent Contractor is permitted to do so under the
instruments pursuant to which Contractor possesses such equipment, the right to use and
possess the equipment. If City exercises its rights under this Section, City shall pay to
Contractor the reasonable rental value of the equipment for the period of City's
possession thereof (although payment may, if appropriate, occur in the form of a setoff
against damages otherwise owed by Contractor pursuant to the terms hereof);
(B) The right to license others to perform the services otherwise to be
performed by Contractor hereunder, or to perform such services itself; and
(C) The right to obtain damages and/or injunctive relief. Both parties
recognize and agree that in the event of a breach of this Agreement by Contractor, City
will suffer irreparable injury and incalculable damages sufficient to support injunctive
relief, to specifically enforce the provisions of this Agreement, and to enjoin the breach
hereof.
SECTION 21.
RIGHTS OF CITY TO PERFORM DURING EMERGENCY
21.1 Provision of Service
Should Contractor, for any reason whatsoever, refuse or be unable to provide Solid Waste
Handling Services for a period of more than seventy-two (72) hours, and if as a result thereof,
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Solid Waste should accumulate in City to such an extent or in such a manner that the City
Manager finds that such accumulation endangers or menaces the public health, safety, or welfare,
City shall have the right, upon twenty-four (24) hours prior written notice to Contractor, during
the period of such emergency, to temporarily take possession of any or all equipment and
facilities of Contractor previously used in providing Collection, transportation, and disposal of
Solid Waste and provide, through its own forces or otherwise, Solid Waste Handling Services
which Contractor otherwise would be obligated to provide pursuant to this Agreement.
Contractor agrees that in such event it shall fully cooperate with City to affect such a transfer of
possession for City's use.
21.2 Possession of Equipment
Contractor agrees, that in the event of circumstances described in Section 21.1 above,
City may take temporary possession of and use all of said equipment and facilities without
paying Contractor any rental or other charge. Upon Contractor giving City notice that it is able
to resume its normal responsibilities under this Agreement City shall either relinquish possession
of all of the above mentioned property to Contractor.
21.3 E xclusions from Right to Possession of E qujpment without Compensation
Specifically excluded from the circumstances in which City may possess and utilize
Contractor's equipment without compensation are circumstances in which Contractor fails or
refuses to provide Solid Waste Handling Services hereunder for any reason which is not a force
majeure event as defined herein. In such circumstances City's right to utilize and possess
Contractor's equipment shall be subject to the provisions of the above Section 20.
SECTION22.
PRIVACY
Contractor shall strictly observe and protect the privacy rights of Customers. Information
identifying individual Customers or the composition or contents of a Customer's Solid Waste
stream, or any of the Billing information pertaining to any Customers, shall not be revealed to
any Person, governmental unit, private agency, or company, unless upon the authority of a court
of law, by statute, ordinance, or regulation of a governmental agency having jurisdiction, or upon
valid authorization of the Customer. This provision shall not be construed to preclude
Contractor from preparing, participating in, or assisting in the preparation of waste
characterization studies or waste audits which may be required by AB 939 or this Agreement.
Contractor shall not market or distribute, outside the normal course of its business, mailing lists
with the names and addresses of Customers. The rights afforded Customers pursuant to this
Section shall be in addition to any other privacy right afforded Customers pursuant to federal or
state law.
SECTION23.
REPORTS AND ADVERSE INFORMATION
The parties acknowledge that City will require reporting at various intervals by which
information important to City can be complied and analyzed. Throughout the Term the parties
agree to work together to address City's needs with respect to the information to be contained in
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reports prepared by Contractor. The following is intended as a starting point in order to have
established an objective baseline for reporting, but the frequency and content of the reports
called out below may be changed by agreement of the parties; provided any such change is
approved by the City Manager in writing. Records related to performance of this Agreement
shall be maintained by Contractor in forms and by methods that facilitate flexible use of data
contained in them to structure reports, as needed. The format of each report shall be approved by
City. Contractor agrees to submit all reports in an electronic format approved by the City,
compatible with City's software/computers at no additional charge. Monthly reports shall be
submitted within forty-five (45) calendar days after the end of the report month. Quarterly
reports shall be submitted within forty-five (45) calendar days after the end of the calendar
quarter.
23 .1 Monthly Reports
At a minimum, Contractor shall report the following to City on a monthly basis: Solid
Waste Collected by Contractor for each month, sorted by type of Solid Waste in ions broken
down at a level acceptable to City (which at a minimum shall include: refuse, Green Waste,
e-wasie and Universal Waste, types of Recyclables including PET, HDPE, mixed plastics,
aluminum, cardboard, mixed ·paper), as well as by Customer type (i.e., single family-curbside,
multi-family, commercial, roll-off, etc.); the facilities where all Solid Waste Collected was
processed or disposed; warning notices issued for contaminated Recycle and Green Waste
Containers; and a narrative summary of problems encountered (including scavenging) and
actions taken with recommendations for City, as appropriate.
23.2 Quartc;;rly Reports
At a minimum, Contractor shall report the following to City on a quarterly basis: the
information required in the monthly reports; the complaint summary for the quarter summarized
by nature of complaints; copies of promotional and public education materials sent during the
quarter; description of Contractor outreach activities conducted the previous quarter; and such
other information or reports that the City may reasonably request or require. Contractor shall,
upon demand by City, provide true and accurate copies of landfill tipping receipts, records
showing delivery at processing or reuse facilities, and similar such documents in order to enable
City to verify Contractor's quarterly reports.
23 .3 AIDlual Reports
Each year during the Term of this Agreement and within sixty (60) days following the
end of the Term, Contractor shall submit a written annual report, at its sole expense, in a form
approved by City, which includes, but is not limited to, the following information:
(A) A summary of the previous year's activities including, but not limited to,
services begun or discontinued during the reporting year, and the number of Customers
broken down on a monthly basis;
(B) A summary of the total tons of Solid Waste Collected in City in the
preceding year as well as a summary of the total tonnage diverted from the State's landfill
systems during that time frame;
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(C) Information and reports required by City to meet its reporting obligations
imposed by AB 939 and the regulations implementing AB 939, in a form and content
approved by the City Manager;
(D) A revenue statement, certified by the chief financial officer of Contractor,
setting forth Franchise Fee payments and Public Education Fund deposits, and the basis
for the calculation thereof, including specifically a breakdown of sources of revenue
included in Gross Receipts and the amount of revenue derived from each such source
comprising Gross Receipts as well as the number (as applicable) of Customers and Bins
used to calculate Public Education Fund deposit amounts;
(E) A list of stockholders or other equity investors holding five percent (5%)
or more of the interest in Contractor;
(F) A summary of the results from the annual residential audit conducted in
accordance with Section 28.3.2.;
(G) A list that contains the total number of Carts at each service address as
required by Section 8. l .8(F); and
(H) Any other information related to Contractor's performance of this
Agreement as may be requested by City.
23.4 Adverse Information
(A) Contractor shall provide City two copies of all reports and other material
adversely affecting this Agreement submitted by Contractor to the United States
Environmental Protection Agency, CalRecycle, the California Regional Water Quality
Control Board, and any other federal, state, regional, or local regulatory agency. Copies
shall be submitted to City simultaneously with Contractor's filing of such matters with
said agencies. Contractor's routine correspondence to said agencies need not be
automatically submitted to City, but shall be made available to City upon written request.
(B) Contractor shall submit to City copies of all pleadings, applications,
notifications, communications, and documents of any kind submitted by Contractor to, as
well as copies of all decisions, correspondence, and actions by, any federal, state, and
local courts, regulatory agencies, and other government bodies relating in any manner to
Contractor's performance of services pursuant to this Agreement. To the degree
authorized by law, any confidential data exempt from public disclosure shall be retained
in confidence by City and its authorized agents and shall not be made available for public
inspection.
(C) Contractor shall submit to City such other information or reports in such
forms and at such times as City may reasonably request or require.
(D) All reports and records required under this or any other Section hereof
shall be furnished at the sole expense of Contractor.
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23.5 Disaster Plan
Within 60 days from a request by City, Contractor shall prepare a draft disaster plan that
sets forth procedures for maintaining regular Collection service and Collection of debris
following a major natural disaster such as an earthquake, fire or other similar emergency event
(not including labor disputes). The disaster plan shall address arrangements to provide needed
vehicles and personnel, priorities for cleanup at critical facilities, and procedures for
reimbursement for costs, describe communication plans, list key contact persons, and provide
maps showing proposed sites for stockpiling of disaster debris that cannot be transported to the
landfill. Contractor shall coordinate the plan with City's emergency service teams. The draft
plan shall be presented to the City Manager for consideration and approval. The final plan shall
be distributed to those employees of Contractor and City who would have a role in implementing
it in the event of a disaster.
Jn addition, at City's request, Contractor shall assist the City with such emergency
Collection service and Collection of debris following a major natural disaster such as an
earthquake, fire or other similar emergency event. In the event of such a request, Contractor and
City shall meet and confer in good faith to determine a fair and reasonable rate to compensate
Contractor for providing such assistance.
23.6 Failure to Report
The refusal of Contractor to file any of the reports required, or the inclusion of any
materially false or misleading statement or representation made knowingly by Contractor in such
report, shall be deemed a material breach of this Agreement and shall subject Contractor to all
remedies, legal or equitable, which are available to City under this Agreement or otherwise.
SECTION 24.
COMPENSATION
24.1 Contractor Rates
Contractor shall provide services to Customers pursuant to this Agreement at rates it sets,
charges to, and collects from Customers, which rates shall not exceed those set forth in the
attached Exhibit A, which sets out the maximum rates that may be charged by Contractor, as
such maximum rates may be adjusted from time to time pursuant to the terms hereof. The
maximum rates set forth in Exhibit A are inclusive of all services to be provided, including
transportation, disposal, and Container costs, and no other charges shall be imposed by
Contractor for such services.
24.2 Resolution of Disputes Regarding Rate Adjustments
Any dispute regarding an adjustment to the maximum rates Contractor may charge, or the
computation thereof, shall be decided by the City Manager. The rates in effect at the time such
dispute is submitted to the City Manager shall remain in effect pending resolution of such
dispute. The effective date of the adjusted maximum rate following the resolution of any such
dispute, whether retroactive or prospective, shall be determined by the City Manager.
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24.3 Annual Consumer Price fndex Adjustments
Commencing on July 1, 2014, the maximum rates as set forth in Exhibit A shall be
adjusted, and such rates shall be adjusted annually thereafter on each subsequent July 1st during
the Term hereof (the "Adjustment Dates"), by multiplying each rate by a percentage equal to the
change in the Consumer Price Index ("CPI") for All Urban Consumers, CUURA421 SAO not
seasonally adjusted, all items index (CPI-U) -Los Angeles County, Riverside County, Orange
County average for the twelve (12) month period ending on the date of December 31
immediately prior to the applicable Adjustment Date. At least forty-five (45) days prior to
charging Customers any rate increased due to an increase in the CPI, Contractor shall obtain the
City Manager's approval to do so. The City Manager shall approve such a request unless it is
determined, based upon substantial evidence, that the requested adjustment to the maximum rate
does not meet the requirements as set forth herein.
24.4 Limitations to Annual CPl Adjustments
Notwithstanding anything to the contrary in Section 24.3 above, the maximum annual
adjustment occurring pursuant to Section 24.3 shall be limited by the provisions set forth below.
24.4.1 Four Percent (4%) Cap
Any maximum rate may not be increased in any given year by more than four percent
(4%) without regard to any higher increase which may otherwise be justified by the formula set
forth in Section 24.3.
24.4.2 Compliance with Agreement
No increase to the maximum rates shall occur if the City Manager determines that
Contractor did not fully comply with all terms of this Agreement in the Rate Year preceding the
increase, including without limitation, provisions hereof relating to reporting, diversion, and
Customer service standards.
24.5 Discretionary Adjustments
Contractor may request an adjustment to the maximum rates set forth in Exhibit A at
reasonable times other than as set forth in Section 24.3 for unusual changes in the cost of
providing service under this Agreement. For each request for an adjustment to the maximum
rates brought pursuant to this Section Contractor shall prepare a schedule documenting the
extraordinary costs. Such request shall be prepared in a form acceptable to City with support for
assumptions made by Contractor in preparing the estimate. City shall review Contractor's
request and, in the City Council's sole judgment and absolute, unfettered discretion, make the
final determination as to whether an adjustment to the maximum rates will be made, and, if an
adjustment is permitted, the appropriate amount of the adjustment. City may consider increases
or decreases in Contractor's total revenues and total cost of services when reviewing an
extraordinary rate adjustment request. Contractor may not request an extraordinary increase in
the maximum rates as a result of: changes in fees or taxes such as Social Security, disability or
income tax; changes in the market value of Recyclables or processing costs for Recyclables or
Green Waste; inaccurate estimates by Contractor of its cost of operations; or costs of compliance
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with South Coast Air Quality Management District and Air Resource Board rules and standards
for Collection Vehicles.
24.6 Grants
From time to time, federal, state or local agencies including the City may provide to
Contractor grants to assist in financing qualified programs provided by Contractor in the City
(including, without limitation, grants for diversion programs and related equipment, alternative
fuel vehicles and equipment, and Household Hazardous Waste Collection and Disposal).
Contractor shall notify City upon receipt of any such grant funds that may be used to fund
services provided pursuant to the terms of this Agreement. With the exception of grants already
received by Contractor as of the Effective Date, and grants for Collection Vehicles, any funds
received through grants for services directly benefiting the City are intended to benefit City and
its residents and businesses, and in essence are held by Contractor in trust on behalf of City.
Accordingly, Contractor agrees that the total amount of compensation it receives from
Customers hereunder, may be reduced by the amount of any such grant, unless the grant is used
to pay for services in City. The City Council shall determine whether the reduction in
Contractor's compensation shall be: (1) passed through to Customers designated by City as a
reduction to maximum rates; (2) as an offset to the next increase to maximum rates requested by
Contractor; (3) used for purposes of a new program not considered within the current rate
structure; ( 4) paid to City for use as City directs; or ( 5) applied in any combination of (1) through
(4).
SECTION25.
IDENTIFICATION OF CONTRACTOR
Contractor has agreed to use the name "CR&R Incorporated" and "CR&R Environmental
Services" to identify itself to the public as the specific organization that shall provide all services
under this Agreement. Unless otherwise approved in writing by City, this name shall be used for
all correspondence, Billing statements, directory listings, references, signs, and vehicle and Bin
identification.
SECTION26.
FLOW CONTROL; COUNTY AGREEMENT
(A) City shall have the option to direct and/or approve which Transformation
facility, recycling facility, material recovery facility, landfill, or other facility Contractor
shall use to retain, recycle, process, and dispose of Solid Waste and construction
materials generated within the Franchise Area as required to enable City to comply with
the County Agreement. Contractor expressly consents to City's ability to direct the
location for disposal of Solid Waste hereunder, and waives any and all rights to challenge
City's ability to do so, including without limitation any rights under the Commerce
Clause of the United States Constitution.
(B) Contractor expressly acknowledges its awareness of the County
Agreement which has been adopted and entered into by City. Moreover, Contractor
acknowledges that it has had an opportunity to review the County Agreement, and is
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aware of the provisions thereof that require all Solid Waste Collected in the City Limits
to be disposed of in the Orange County landfill system. Contractor further acknowledges
that the County of Orange is an intended third party beneficiary of Contractor's
obligations relating in any way to the disposal of Solid Waste pursuant to this Agreement
and the County Agreement. Contractor hereby adopts as its obligations hereunder such
provisions of the County Agreement that require action or inaction by it as City's Solid
Waste franchisee. Contractor represents and warrants that it can and will perform its
duties in connection with this Agreement in such a manner as to ensure that City does not
breach the terms of the County Agreement as a result of Contractor's actions or inactions.
(C) Upon the Effective Date of this Agreement, City is deemed to have
exercised its flow control option set forth hereinabove as to Solid Waste required to be
delivered to the Orange County landfill system pursuant to the County Agreement, by
virtue of the fact City has entered the County Agreement; and, further, City is deemed to
have exercised such option in a manner consistent with its obligations pursuant to the
County Agreement. At any time during the Term of this Agreement the City Manager
may notify Contractor in writing that City no longer desires to exercise its flow control
option hereunder. In the event City so notifies Contractor of its desire to cease exercising
its flow control option, Contractor shall have the absolute discretion to utilize any
Transformation facility, recycling facility, material recovery facility, landfill, or other
facility of its choosing to retain, recycle, process, and dispose of Solid Waste and
construction materials generated within the Franchise Area, provided such facility meets
all other requirements of this Agreement.
SECTION27.
INDEMNIFICATION
27.1 General
(A) Contractor hereby agrees to and shall indemnify and hold harmless City,
its elected and appointed boards, commissions, officers, employees, and agents
(collectively the "Indemnities") from and against any and all loss, liability, penalty,
forfeiture, claim, demand, action, proceeding or suit in law or equity of any and every
kind and description (including, but not limited to, injury to and death of any Person and
damage to property, or for contribution or indemnity claimed by third parties) arising out
of, resulting from, and/or in any way connected with this Agreement including: (1) the
negligence or willful misconduct of Contractor, its officers, employees, agents, and/or
subcontractors in performing services under this Agreement; (2) the failure of Contractor,
its officers, employees, agents, and/or subcontractors to comply in all respects with the
provisions of this Agreement, all Applicable Law (including, without limitation, the
Environmental Laws), ordinances and regulations, and/or applicable permits and licenses;
(3) the acts of Contractor, its officers, employees, agents, and/or subcontractors in
performing services under this Agreement for which strict liability is imposed by law
(including, without limitation, the Environmental Laws); and ( 4) any challenge to the
award of, or any provisions of this Agreement (including any claim that the application of
any provision hereof violates any provision of the California Constitution). The
foregoing indemnity and hold harmless provisions shall apply regardless of whether such
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loss, liability, penalty, forfeiture, claim, demand, action, proceeding, suit, injury, death or
damage is also caused in part by any of Indemnities' negligence, but shall not extend to
matters resulting from Indemnities' sole negligence, or willful misconduct. Contractor
further agrees to and shall, upon demand of City, at Contractor's sole cost and expense,
defend (with attorneys acceptable to City) City, its elected and appointed boards and
commissions, officers, employees, and agents against any claims, actions, suits in law or
equity or other proceedings, whether judicial, quasi-judicial or administrative in nature,
arising or resulting from any of the aforementioned events, and to reimburse City for any
and all costs and expenses City incurs in providing any such defense, either before,
during or after the time Contractor elects to provide such defense, including any and all
costs incurred in overseeing any defense to be provided herein by Contractor.
(B) Contractor, upon demand of City, made by and through the City Attorney,
shall protect City and appear in and defend City and its elected officials, officers,
employees and agents, in any claims or actions by third parties, whether judicial,
administrative or otherwise, including, but not limited to disputes and litigation over the
definitions of "Solid Waste" or "Recyclable Material," the scope of the rights granted
herein, conflicts between the rights granted herein and rights asserted by other Persons, or
the limits of City's authority with respect to the grant of licenses, or agreements,
exclusive or otherwise, asserting rights under the Dormant Commerce Clause or any
other federal or state laws to provide Collection services in the City.
(C) The provisions of this Section shall not terminate or expire, shall be given
the broadest possible interpretation, and shall survive the expiration or earlier termination
of this Agreement.
27.2 Hazardous Substances Indemnification
(A) Without regard to any insurance coverage or requirements, and without
limiting the above general indemnification obligation in any way, Contractor specifically
agrees to and shall, to the maximum extent permitted by law, defend (with counsel
acceptable to City) reimburse, indemnify, and hold City and its past and present officers,
council members, employees, consultants and agents (hereinafter "Indemnified Parties")
harmless from and against any and all claims, actions, liabilities, damages, demands,
judgments, losses, costs, liens, expenses, suits, actions, attorneys' fees, consultant fees,
penalties and any and all other losses, damages, fees and expenses of whatever kind or
nature ("Claims") (including but not limited to response costs, investigative costs,
assessment costs, monitoring costs, treatment costs, cleanup costs, removal costs,
remediation costs, and similar costs, damages and expenses) that arise out of or are
alleged to arise out of or in any way relate to any action, inaction or omission of
Contractor that:
(1) results in any demand, claim, notice, order, or lawsuit, asserting that any
Indemnified Party is liable, responsible or in any way obligated to investigate, assess, monitor,
study, test, treat, remove, remediate, or otherwise cleanup, any Hazardous Contaminant (as
defined herein); or
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(2) relates to material Collected , transported , recycled, processed, treated or
disposed of by Contractor.
(B) Contractor's obligations pursuant to this Section shall apply, without
limitation, to:
(1) any Claims brought pursuant to or based on the provisions of the
Environmental Laws, including without limitation the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. §9601 et seq., the Resource Conservation and
Recovery Act, 42 U.S.C. §6901 et seq., the Carpenter-Presley-Tanner Hazardous Substances
Account Act, California Health & Safety Code Section 25300 et seq., the California Hazardous
Waste Control Laws, California Health and Safety Code Section 25100 et seq., the California
Porter-Cologne Act, California Water Code Section 13000 et seq., and any and all amendments
and regulations thereto , and any other federal, state, regional or local environmental statutory or
regulatory provision;
(2) any Claims based on or arising out of or alleged to be arising out of the
ownership, use, lease, sale, design, construction, maintenance or operation by Contractor of any
facility;
(3) any Claims based on or arising out of or alleged to be arising out of the
marketing, sale, distribution, storage, transportation, disposal, processing or use of any materials
recovered by Contractor; and
( 4) any Claims based on or arising out of or alleged to be arising out of any
breach of any express or implied warranty, representation or covenant arising out of or in
connection with this Agreement.
(C) The foregoing indemnity and defense obligations shall apply irrespective
of the negligence or willful misconduct of Contractor or any Affiliate of Contractor.
(D) For purposes of this Agreement, the term "Hazardous Contaminant" shall
mean any "hazardous material," as that term is defined under California Health & Safety
Code Section 25501(0); any "hazardous substance," as that term is defined herein or
under California Health & Safety Code Sections 2528l(h), 2550l(p), 25501.1 and under
Title 42, Section 9601(14) of the United States Code; any "hazardous waste," as that term
is defined herein and under Title 42, Section 6903(5) of the United States Code and under
California Health & Safety Code Section 25501 ( q); any chemical which the Governor has
identified as a chemical known to the State to cause cancer or reproductive toxicity
pursuant to California Health & Safety Code Section 25249.8; any crude oil or refined or
unrefined petroleum product or any fraction or derivative thereof; and any asbestos or
asbestos-containing material. The term "Hazardous Contaminant" shall also include any
and all amendments to the above-referenced statutory and regulatory provisions made
before or after the date of execution of this Agreement.
(E) The provisions of this Section shall not terminate or expire, shall be given
the broadest possible interpretation, and shall survive the expiration or earlier termination
of this Agreement.
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SECTION 28.
CONTRACTOR'S BOOKS AND RECORDS; AUDITS
28.1 Maintenance and Jnspection of Records
Contractor shall maintain all records relating to the services provided hereunder,
including but not limited to Customer lists, Billing records, accounts payable records, maps, AB
939 compliance records, records reflecting the number and type of routes and route hours by
service category (such as residential, multi-family, commercial, roll-off, and special services),
records demonstrating facilities, equipment and personnel used to perform services, records
reflecting the number of mixed waste Containers, as well as, if applicable, recycling and Green
Waste Containers, in service by frequency of Collection for each Customer group (such as single
family, multi-family, commercial, roll-oft); records reflecting the number of roll-off box pulls,
and such other documents and materials which reasonably relate to Contractor's compliance with
the provisions of this Agreement (the "Records"), for the full Term of this Agreement, and an
additional period thereafter of not less than three (3) years, or any longer period required by law.
City shall have the right, upon five (5) business days advance notice, to inspect the Records.
Such Records shall be made available to City at Contractor's regular place of business, but in no
event outside the County of Orange.
28.2 CERCLA Defense Records
City views the ability to defend against the Comprehensive Environmental Response,
Compensation and Liability Act and related litigation as a matter of great importance. For this
reason, the City regards the ability to prove where Solid Waste Collected in the City was taken
for disposal, as well as where it was not taken, to be matters of concern. Contractor shall
maintain data retention and preservation systems which can establish where Solid Waste
Collected in the City was landfilled (and therefore establish where it was not landfilled) for not
less than five (5) years following the termination of this Agreement, and agrees to notify City's
Risk Manager, City Clerk and City Attorney before destroying such records thereafter. At any
time, including after the expiration of the Term hereof, Contractor shall provide copies of such
records to City. The requirements of this Section shall survive the expiration of the Term of this
Agreement.
28.3 Audits
28.3.1 Examination of Services
From time to time, anticipated to be at least once every other year, City may request
Contractor to make available any or all of its records related to performance hereunder available
to an independent auditor or examiner, to be selected by the City, for auditing and examination
purposes (a "Discretionary Audit"). City shall bear the cost of any Discretionary Audit except as
otherwise provided herein. Should any Discretionary Audit reveal an underpayment of any
Franchise Fee required pursuant to this Agreement, the amount of such underpayment shall
become due and payable to City not later than fifteen (15) days after written notice of such
underpayment is sent to Contractor by City, complete with any additional late charges as set
forth herein. If a Discretionary Audit reveals inaccuracies or inconsistencies in more than five
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percent (5%) of all Customer accounts, either with Contractor's operations or Billing systems, or
an underpayment of Franchise Fees of more than three percent (3%), Contractor shall bear the
entire cost of such Discretionary Audit.
28.3.2 Am1ual Residential Audit
Contractor shall annually complete an audit, at its own expense, of a minimum of ten (10%)
percent of Customers at Single Family and Multi-Family Dwelling which utilize Carts to
determine whether and to the extent (1) contamination of recycling Carts is occurring or (2)
Recyclable Materials are being deposited into non-designated Carts. This audit shall, at a
minimum, consist of Contractor inspecting said Carts and leaving notification tags on the Carts
to inform Customers of actions that can be taken to increase source separation. City must
approve the notification tags in advance and such tags shall leave a positive message regarding
how Customers can increase recycling efforts. Contractor shall also conduct follow up
inspections for Premises tagged in previous annual audits. Contractor shall include a report on
the results of each annual audit (including results from follow up inspections) in its annual report
required pursuant to Section 23.3.
SECTION 29.
TRANSITION OBLIGATIONS
At the end of the Term, or in the event this Agreement is terminated for cause prior to the
end of the Term, Contractor shall cooperate fully with City and any subsequent Solid Waste
enterprise it designates to assure a smooth transition of services. Contractor's cooperation shall
include, but not be limited to, providing route lists, Billing information and other operating
records needed to service all Premises covered by this Agreement. The failure to cooperate with
City following termination shall be conclusively presumed to be grounds for specific
performance of this covenant and/or other equitable relief necessary to enforce this covenant.
Contractor shall provide any new Solid Waste enterprise with all keys, security codes and
remote controls used to access garages, gates and bin enclosures. Contractor shall be responsible
for coordinating transfer immediately after its final Collection activities, so as to not disrupt
services. Contractor shall provide City with detailed route sheets containing service names and
addresses, Billing names and addresses, monthly rate and service levels (number and size of
Containers and pickup days) at least 90 days prior to the transition date, provide an updated list
two weeks before the transition, and a final updated list with any changes the day before the
transition. Contractor shall provide means of access to the new Solid Waste enterprise at least
one full business day prior to its first day of Collection, and within sufficient time so as to not
impede in any way the new Solid Waste enterprise from easily servicing all Containers.
SECTION30.
GENERAL PROVISIONS
30.1 Force Majeure
Contractor shall not be in default under this Agreement in the event that its ability to
provide Solid Waste Handling Services or Temporary Services, in compliance with its obligation
to do so hereunder, is temporarily interrupted or discontinued for any of the following reasons:
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riots, wars, sabotage, civil disturbances, insurrections, strikes or other labor disturbances lasting
5 days or less, explosion, natural disasters such as floods, earthquakes, landslides, and fires, or
"other catastrophic events" which are beyond the reasonable control of Contractor. The term
"other catastrophic events" does not include: (i) the financial inability of Contractor to perform;
(ii) failure of Contractor to obtain any necessary permits or licenses from other governmental
agencies; (iii) the failure to obtain the right, or the loss of the right, to use the facilities of any
public utility where such failure is due in substantial part to the acts or omissions of Contractor;
or (iv) strikes or other labor disturbances lasting longer than 5 days.
30.2 Independent Contractor
Contractor is an independent contractor and not an officer, agent, servant, or employee of
City. Contractor is solely responsible for the acts and omissions of its officers, agents,
employees, and subcontractors, if any. Nothing in this Agreement shall be construed as creating
a partnership or joint venture between City and Contractor. Neither Contractor nor its officers,
employees, agents, or subcontractors shall obtain any rights to retirement or other benefits which
accrue to City employees.
30.3 Pavement Damage
Contractor shall be responsible for the cost of repair of any extraordinary damage to the
public streets located within the City resulting from providing the services required hereunder.
30.4 Property Damage
Any physical damage caused by the negligent or willful acts or omissions of employees,
agents, or subcontractors of Contractor to private or public property shall be promptly repaired or
replaced at Contractor's expense.
30.5 Right ofEnt1y
Contractor shall not have the right, until Contractor receives perm1ss1on from the
property owner, to enter or drive on any private street, court, place, easement, or other private
property for the purpose of providing Temporary Services and/or Solid Waste Handling Services
pursuant to this Agreement.
30.6 Law to Govern; Venue
The laws of the State of California shall govern this Agreement. In the event of litigation
between the parties, venue in state trial courts shall lie exclusively in the County of Orange.
30.7 Amendment
This Agreement is intended to carry out City's obligations to comply with the provisions
of AB 93 9 and AB 341, as implemented by regulations of CalRecycle, as they from time to time
may be amended. In the event that, after the Effective Date of this Agreement, AB 939 or AB
341 is amended, or other state or federal laws or regulations are enacted and prevent or preclude
compliance with one or more provisions of this Agreement, such provisions shall be modified or
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suspended as may be necessary to comply with such state or federal laws or regulations. Except
as otherwise expressly stated herein, no other amendment of this Agreement shall be valid unless
it in writing and duly executed by the Parties.
30.8 Notices
All notices required or permitted to be given under this Agreement shall be in writing and
shall be personally delivered or sent by United States certified mail, postage prepaid, return
receipt requested, and addressed as follows:
To City:
To Contractor:
City of San Juan Capistrano
Attn: City Manager
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
CR&R Incorporated
Attn: President
P.O. Box 125
Stanton, CA 90680
Telephone: 877.728.0446
Telecopier: 714-890-6347
or to such other address as either party may from time to time designate by notice to the other
given in accordance with this Section. Notice shall be deemed given on the date served if served
personally between the hours of 8:00 a.m. to 5:00 p.m. on any regular business day for City's
business offices. If mailed, notice shall be deemed given three (3) business days from the date
such notice is deposited in the United States mail in the manner proscribed above.
30.9 Savings Clause
If any non-material provision of this Agreement is for any reason held to be invalid or
unenforceable, the invalidity or unenforceability of such provision shall not affect the validity
and enforceability of any of the remaining provisions of this Agreement.
30.10 Exhibits Incorporated
Exhibits A through B are attached to and incorporated in this Agreement by reference.
30.11 Joint Drafting
This Agreement shall be interpreted as if it were drafted jointly by the Parties to the
Agreement.
30.12 Attorneys ' Fees and Litigation Costs
In the event either party brings any action or proceeding to enforce or interpret the terms
or provisions of this Agreement, the prevailing party in any such action or proceeding shall be
entitled to recover its reasonable attorneys' fees and other litigation costs and expenses, including
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without limitation, expert witness fees, consultant fees and costs. Without limiting its scope in
any way, this provision is expressly intended to, and shall, apply to fees and costs incurred in any
appeal.
30.13 City's Authorized Agent
Notwithstanding anything contained herein to the contrary, and excepting amendments
hereto and such actions set forth herein specifically calling for City Council action or approval,
the City Manager is designated as the City's authorized agent to take any action with regard to
any matter, or enforce any right, set forth herein requiring action by the City.
30.14 Integrated Agreement
This Agreement contains the entire integrated agreement and understanding concerning
the subject matter herein and supersedes and replaces any prior negotiations, promises,
proposals, and agreements between the Parties, whether written or oral. The Parties
acknowledge this document has been executed with the consent and upon the advice of counsel.
Each of the Parties acknowledges that no party or agent or attorney of any other party has made
any promise, representation, or warranty, express or implied, not contained in this Agreement, to
induce the other party to execute this instrument.
30.15 Section Headings
The section headings in this Agreement are for convenience of reference only and are not
intended to be used in the construction of this Agreement nor to alter or affect any of its
provisions.
30.16 Compliance with Law
In providing the services required under this Agreement, Contractor shall at all times, at
its sole cost, comply with all Applicable Law, including the laws and regulations of the United
States, the State of California, the provisions of the Municipal Code, and any federal, state,
regional or local administrative and regulatory agencies, now in force and as they may be
enacted, issued or amended.
[SIGNATURES ON FOLLOWING PAGE]
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"City"
By: ___ _,__ ___ .,,__~-----
A. Patrick Munoz, As
"Contractor"
CR&R Incorporated ,.
B ~~V'·
Its: <.. ~ .>J \ 11.\~\\U.\ '3> t:: ~•
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EXHIBIT A
MAXIMUM RATE SCHEDULE FOR SOLID WASTE HANDLING SERVICES:
ATTACHED
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CITY OF SAN JUAN CAPISTRANO
EXHIBIT "A"
Maximum Rates for Services
Single Family Residential Cart Service (Monthly)
35-gallon carts
set of 2 (refuse & recycle)
set of 3 (refuse, recycle, green waste)
each additional refuse carts
each additional green waste carts
1st additional recycling cart
each additional recycling cart (2nd or above)
64-gallon carts
set of 2 (refuse & recycle)
set of 3 (refuse, recycle, green waste)
each additional refuse carts
each additional green waste carts
1st additional recycling cart
each additional recycling cart (2nd or above)
96-gallon carts
set of 2 (refuse & recycle)
set of 3 (refuse, recycle, green waste)
each additional refuse carts
each additional green waste carts
1st additional recycling cart
each additional recycling cart (2nd or above)
Walkout service for eligible customers
Walkout service for ineligible customers
Residential Additional Pick up
Single Family Dwelling Bulky Item On-Call Service
For each Bulky Item -up to four (4) items
For each Bulky Item -commencing with fifth (5th) item
Commercial Mixed Waste Bins: Rate Per Bin (Monthly)
1 x p/wk 2yd
2 x p/wk 2yd
3 x p/wk 2yd
4 x p/wk 2yd
5 x p/wk 2yd
6 x p/wk 2yd
Commerical Mixed Waste Bins: Rate Per Bin (Monthly)
1 x p/wk 3yd
2 x p/wk 3yd
Page 1of8
Maximum Rate
$15.95
$17.06
$3.42
$3.42
no charge
$3.42
$17.40
$18.44
$4.76
$4.76
no charge
$4.76
$19.06
$19.98
$6.10
$6 .10
no charge
$6.10
No Charge
$40.00/month
$17.58
No Charge
$10.56
$36.55
$73.07
$109.62
$146.15
$182.37
$219.22
$128.54
$212.46
CITY OF SAN JUAN CAPISTRANO
EXHIBIT "A"
Maximum Rates for Services
3 x p/wk
4 x p/wk
5 x p/wk
6 x p/wk
3yd
3yd
3yd
3yd
Commerical Mixed Waste Bins: Rate Per Bin (Monthly) -Locking
1 x p/wk 3yd Locking
2 x p/wk 3yd Locking
3 x p/wk 3yd Locking
4 x p/wk 3yd Locking
5 x p/wk 3yd Locking
6 x p/wk 3yd Locking
Commercial Compactor Mixed Waste Bins: Rate Per Bin (Monthly)
1 x p/wk 3yd Compactor
2 x p/wk 3yd Compactor
3 x p/wk 3yd Compactor
4 x p/wk 3yd Compactor
5 x p/wk 3yd Compactor
6 x p/wk 3yd Compactor
Commercial Mixed Waste Bins: Rate Per Bin (Monthly)
1x~wk 4~
2 x p/wk 4yd
3x~wk 4~
4 x p/wk 4yd
5 x p/wk 4yd
6 x p/wk 4yd
Commerical Mixed Waste Bins: Rate Per Bin (Monthly) -Locking
1 x p/wk 4yd Locking
2 x p/wk 4yd Locking
3 x p/wk 4yd Locking
4 x p/wk 4yd Locking
5 x p/wk 4yd Locking
6 x p/wk 4yd Locking
Commercial Compactor Mixed Waste Bins: Rate Per Bin (Monthly)
1 x p/wk 4yd Compactor
2 x p/wk 4yd Compactor
3 x p/wk 4yd Compactor
4 x p/wk 4yd Compactor
5 x p/wk 4yd Compactor
6 x p/wk 4yd Compactor
Commercial Refuse Bins: Rate Per Bin (Monthly)
1 x p/wk 2yd
Page 2 of 8
Maximum Rate
$289.05
$378.95
$460.63
$540.19
$140.42
$224.33
$300.70
$390.51
$472.09
$551.53
$238.14
$431.80
$617.93
$817.45
$1,008.73
$1,197.91
$168.89
$279.50
$380.78
$498.62
$605.50
$710.74
$180.73
$291.19
$392.34
$510.04
$616.76
$721.89
$315.07
$571.78
$819.26
$1,083.20
$1,335.00
$1,587.62
$64.76
CITY OF SAN JUAN CAPISTRANO
EXHIBIT "A"
Maximum Rates for Services
2 x p/wk
3 x p/wk
4 x p/wk
5 x p/wk
6 x p/wk
Commercial Refuse Bins: Rate Per Bin (Monthly)
1 x p/wk
2 x p/wk
3 x p/wk
4 x p/wk
5 x p/wk
6 x p/wk
2yd
2yd
2yd
2yd
2yd
3yd
3yd
3yd
3yd
3yd
3yd
Commercial Refuse Bins: Rate Per Bin (Monthly) -Locking
1 x p/wk 3yd Locking
2 x p/wk 3yd Locking
3 x p/wk 3yd Locking
4 x p/wk 3yd Locking
5 x p/wk
6 x p/wk
3yd Locking
3yd Locking
Commercial Compactor Refuse Waste Bins: Rate Per Bin (Monthly)
1 x p/wk 3yd Compactor
2 x p/wk 3yd Compactor
3 x p/wk 3yd Compactor
4 x p/wk 3yd Compactor
5 x p/wk 3yd Compactor
6 x p/wk 3yd Compactor
Commercial Refuse Bins: Rate Per Bin (Monthly)
1 x p/wk
2 x p/wk
3 x p/wk
4 x p/wk
5 x p/wk
6 x p/wk
4yd
4yd
4yd
4yd
4yd
4yd
Commercial Refuse Bins: Rate Per Bin (Monthly) -Locking
1 x p/wk 4yd Locking
2 x p/wk 4yd Locking
3 x p/wk 4yd Locking
4 x p/wk 4yd Locking
5 x p/wk 4yd Locking
6 x p/wk 4yd Locking
Page 3 of 8
Maximum Rate
$100.39
$131.33
$170.58
$204.65
$237.27
$99.02
$153.50
$200.45
$260.82
$312.97
$363.01
$110.94
$165.38
$212.27
$272.59
$324.70
$374.68
$149.58
$254.62
$352.13
$463.06
$565.75
$666.37
$129.51
$200.77
$262.66
$341.15
$409.28
$474.53
$141.42
$212.62
$274.43
$352.85
$420.91
$486.11
CITY OF SAN JUAN CAPISTRANO
EXHIBIT "A"
Maximum Rates for Services
Commercial Compactor Refuse Waste Bins: Rate Per Bin (Monthly)
1 x p/wk 4yd Compactor
2 x p/wk 4yd Compactor
3 x p/wk 4yd Compactor
4 x p/wk 4yd Compactor
5 x p/wk 4yd Compactor
6 x p/wk 4yd Compactor
Commercial Recycling Bins: Rate Per Bin (Monthly)
1 x p/wk
2 x p/wk
3 x p/wk
4 x p/wk
5 x p/wk
6 x p/wk
Contamination charge
Commercial Recycling Bins: Rate Per Bin (Monthly)
1 x p/wk
2 x p/wk
3 x p/wk
4 x p/wk
5 x p/wk
6 x p/wk
Contamination charge
2yd
2yd
2yd
2yd
2yd
2yd
3yd
3yd
3yd
3yd
3yd
3yd
Commercial Recycling Bins: Rate Per Bin (Monthly) -Locking
1 x p/wk 3yd Locking
2 x p/wk 3yd Locking
3 x p/wk 3yd Locking
4 x p/wk 3yd Locking
5 x p/wk 3yd Locking
6 x p/wk 3yd Locking
Contamination charge
Commercial Recycling Bins: Rate Per Bin (Monthly)
1 x p/wk
2 x p/wk
3 x p/wk
4 x p/wk
5 x p/wk
6 x p/wk
Contamination charge
4yd
4yd
4yd
4yd
4yd
4yd
Commercial Recycling Bins: Rate Per Bin (Monthly) -Locking
1 x p/wk 4yd Locking
2 x p/wk 4yd Locking
Page 4 of 8
Maximum Rate
$196.93
$335.59
$464.90
$610.79
$746 .34
$878.99
$40.13
$64.81
$95.98
$128.39
$160.48
$192.58
$46.46
$61.72
$98.76
$148.14
$197.52
$246.90
$296.28
$46.46
$73.70
$110.75
$160.12
$209.50
$258.88
$308.26
$46.46
$80.25
$129.61
$191.95
$256.77
$320.96
$385.16
$46.46
$92.21
$141.59
CITY OF SAN JUAN CAPISTRANO
EXHIBIT "A"
Maximum Rates for Services
3 x p/wk
4 x p/wk
5 x p/wk
6 x p/wk
Contamination charge
4yd Locking
4yd Locking
4yd Locking
4yd Locking
Commercial Recycling/Refuse Split Bins: Rate Per Bin (Monthly)
1 x p/wk 2yd each
2 x p/wk 2yd each
3 x p/wk 2yd each
4 x p/wk 2yd each
5 x p/wk 2yd each
6 x p/wk
Contamination charge
Bin Overflow Charge Per Occurance
Bin Extra Dumps
Locking Bins
Installation
Commercial Recycling Carts (must have commercial
refuse bin to qualify for this rate) (Monthly)
1 x p/wk
2 x p/wk
3 x p/wk
4 x p/wk
5 x p/wk
6 x p/wk
Contamination charge
Commercial Cart Service (Monthly)
64-gallon carts
set of 2 (refuse & recycle)
each additional refuse cart
each additional recycling cart
Contamination charge
2yd each
64-gal or 96-gal
64-gal or 96-gal
64-gal or 96-gal
64-gal or 96-gal
64-gal or 96-gal
64-gal or 96-gal
Page 5 of 8
Maximum Rate
$203.92
$268.75
$332.95
$397.15
$46.46
$104.89
$165.20
$227.31
$298.97
$365.13
$429.85
$46.46
$46.46
$46.46
$27.23
$18.51
$37.04
$55.55
$74.06
$92.59
$111.11
$20.00
$24.35
$14.11
$8.58
$20.00
96-gallon carts
CITY OF SAN JUAN CAPISTRANO
EXHIBIT "A"
Maximum Rates for Services
set of 2 (refuse & recycle)
each additional refuse cart
each additional recycling cart
Contamination charge
Food Waste
64-gallon carts (Per cart/per day of service, up to 3 days a week)
Commercial Rolloff Boxes Refuse Rates (rates are per
pull)
Drop-off box
Compactor
On-Call DOB (up to 10 tons)
On-Call Lowboy (up to 10 tons)
Ton over maximum (per ton over 10 ton max)
Clean-up Bin Daily
Clean-up Bin Weekly
Commercial Rolloff Boxes Mixed Waste Rates (rates are
per pull)
On-Call DOB (up to 10 tons)
On-Call Lowboy (up to 10 tons)
Ton over maximum (per ton over 10 ton max)
Clean-up Bin Weekly
Temporary Service
3 yd or 4 yd bin for 7 day period (rental)
3 yd or 4 yd bin after 7 days (rental)
3 yd or 4 yd bin trip charge
3 yd or 4 yd bin relocation
3 yd or 4 yd bin overweight fee
Rolloff for 7 day period (rental)
Rolloff after 7 days (rental)
Page 6 of 8
Maximum Rate
$27.46
$16.55
$8.81
$20.00
$18.51
179.37 plus
actual landfill
fee or
processing fee
192.71 plus
actual landfill
fee or
processing fee
$432.71
$512.75
$32.05
$53.54
$68.81
$648.05
$776.45
$54.07
$86.48
no charge
$5.45/day
$54.46
$54.46
$70.81
no charge
$10.89/day
CITY OF SAN JUAN CAPISTRANO
EXHIBIT "A"
Maximum Rates for Services
Rolloff trip charge
Rolloff trip relocation
Rolloff overweight fee
Manure Bins (Monthly)
1 x p/wk
2 x p/wk
3 x p/wk
4 x p/wk
5 x p/wk
6 x p/wk
Manure Carts (Monthly)
1 x p/wk
2 x p/wk
3 x p/wk
4 x p/wk
5 x p/wk
6 x p/wk
Additional Steam Cleaning
Bins
Rolloff Box -lowboy and DOB
Rolloff Box -compactors
Commercial Bulky Item Service
1st item
each additional item from same visit
MISCELLANEOUS FEES
Residential Restart Fee
Curbside Household Hazardous Waste (per collection)
Steam Cleaning Enclosures (per hour)
Redelivery Charges
Special Event Trash boxes
Special Event Recycle boxes
Special Event box liners (Case)
NSF -Returned Check
1.5yd
1.5yd
1.5yd
1.5yd
1.5yd
1.5yd
96-gal
96-gal
96-gal
96-gal
96-gal
96-gal
Page 7 of 8
Maximum Rate
. $81.71
$87.15
$450.00
$136.40
$199.34
$262.30
$325.26
$388.25
$451.22
$6.10
$12.20
$18.30
$24.40
$30.50
$36.60
$60.00
$150.00
$87.15
$49.02
16.34
$17.43
$75.00
$87.15
$55.00
$7.00
$7.00
$25.00
$25.00
Refund Fee
CITY OF SAN JUAN CAPISTRANO
EXHIBIT "A"
Maximum Rates for Services
Commercial Bin Exchange in excess of (1) per year
Commercial Bin Damage Charge
Emergency Collection, hourly rate for (1) crew and (1) vehicle
Roll out service 25' -50'
Roll out service 51' -75'
Roll out service 76' -100'
Late Fees (1.5% of balance) (Monthly)
Residential
Commercial
Temporary Service
Minimum
Balance
$15.00
$15.00
$15.00
Page 8 of 8
Maximum Rate
$1.50
$25.00
$163.40
$82.15
$25.00
$50.00
$75.00
Days
Dellquent
90
60
60
EXHIBITB
CONTAINER/BIN SPECIFICATIONS
• Contractor may use the Containers approved for use pursuant to the Prior Agreement. All
Containers utilized by Contractor shall meet the standards of the industry and shall perform
to the reasonable satisfaction of the City Manager in order to be utilized in City. Container
sizes specified within this Agreement may vary by manufacturer type and specifications up
to 10% more or less in volume than that identified.
• Each Mixed Waste Cart utilized by Contractor shall be labeled on the inside in English and
Spanish and with graphics so as to: (1) explain/depict the items for which it is designated to
Collect, and (2) identify the name of Contractor and Contractor's phone number for service
related issues, including complaints. In addition, each such Cart shall include information, in
a format acceptable to City (such as hot stamping or stickers), regarding Contractor's Bulky
Item service, and a phone number that Customers can call to access such service.
• Any Cart distributed by Contractor in City after the Effective Date shall be newly
manufactured and have never previously been used for the Collection of Solid Waste;
excepting that Carts which have been refurbished such that they are "like new" may be used
so long as their condition is satisfactory as determined by the City Manager.
• All Carts distributed pursuant to this Agreement shall have an identifying serial number hot
stamped into the Cart body, or otherwise have an individual identification demarcation
affixed to the Cart in a manner acceptable to the City Manager.
• Upon request of any Customer, Contractor shall provide Bins with lids that close securely
and which are capable of being locked at rates that do not exceed those set forth in Exhibit A.
32400 PASEO ADELANTO
SAN JUAN CAPISTRANO, CA 92675
(949) 493·1171
(949) 493· 1053 FAX
111w111 .• 1·a 1!i1w 11 capis 11·01 10. 01-g
TRANS MITT AL
TO:
CR&R Incorporated
Attn: Dean Ruffridge
Picked-up in Person
DATE: February 24, 2014
FROM: Christy Jakl, Deputy City Clerk (949) 443-6310
RE: Agreement for Solid Waste Handling Services
MEMBERS Of' Tl IE CITY COUNC IL
SAM ALLEVATO
ROYL. BYRNES , M.D .
LARRY KRAMER
DEHEK REEVE
JOHN TAYLOR .
P lea se be aware, Section 15. Insurance Coverage provides a minimum scop e of insurance
cove rage required. Mi nim um limits for Compreh ens ive General liability an d A utom obile
Liability are Ten Million Dollars ($10,000 ,000) per limit aggregate and per occurrence. Please
provide insurance documentation with minimum requirements as outlined in the agreement.
Please keep in mind this documentation must rE;lmain current with our office during the term of
the agreement. If you have questions related to insurance requirements, please call Christy
Jakl , Deputy City Clerk at (949) 443-6310.
If you have questions concerning the agreement, please contact Ziad Mazboudi, Senior Civil
Engineer -Environmental at (949) 234-4413
Enclosed is an original construct ion contract for your records.
Cc: Ziad Mazboudi, Senior Civil Engineer -Environmental
'" San Juan Capfa·trano: Preserving the Past tn Enhance the Future
~J P11n1cU on 100% H!Cyclcc.I pnpur
RU TAN Rutan & Tucker, LLP
611 Anion Blvd., Suite 1400
PO Box 1950
ORANGE COUNTY
RUTAN & TUCKER, LLP
Costa Mase, CA 92626-1950
PALO ALTO
(650) 320-1500
(714) 641-5100 Fax (714) 5'16-9035
www.rulan.com A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
VIA O VERNJTE E XPRESS
DATE:
TO:
February 19, 2014
Christy Jal<I, CMC
Deputy City Clerk
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
(949) 443-6310
CC: Ziad Mazboudi
FROM: Ann Levin
SUBJECT: Solid Waste Agreement
ATTACHED: 2 Original Agreements for Solid Waste Handling Services Between the
City and CR&R Incorporated
D Your immediate response is required D Please comment
D For your information D Please complete
~ For your files D Please review
D Please acknowledge receipt D Please sign
D Please handle D Please sign and return originals
D Please telephone me D In accordance with your request
~ Other: Please coordinate obtaining signatures from the City Clerk, Mayor, and
CR&R Incorporated and the delivery of a fully executed copy to CR&R
Incorporated.
2575/028428-0021
6702816. l a02/19/14
CITY OF SAN JUAN CAPISTRANO
PROFESSIONAL SERVICES AGREEMENT
SOLID WASTE FRANCHISE NEGOTIATION ASSISTANCE
This Agreement is made and entered into as of 1<0J£mbev S:, 2018, by and
between the City of San Juan Capistrano, a municipal corporation organized and operating under
the laws of the State of California with its principal place of business at 32400 Paseo Adelanto,
San Juan Capistrano, CA 92675 ("City"), and R3 Consulting Group Inc. a California corporation
(hereinafter referred to as "Consultant"). City and Consultant are sometimes individually referred
to as "Party" and collectively as "Parties" in this Agreement.
RECITALS
A. City is a public agency of the State of California and is in need of professional
services for the following project:
So li d Waste Franchise Negotiat ion Ass istance
(hereinafter referred to as "the Project").
B. Consultant is duly licensed and has the necessary qualifications to provide such
services.
C. The Parties desire by this Agreement to establish the terms for City to retain
Consultant to provide the services described herein.
AGREEMENT
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1. Services.
Consultant shall provide the City with the services described in the Scope of Services
attached hereto as Exhibit "A ."
2. Com pensation .
a. Subject to paragraph 2(b) below, the City shall pay for such services in
accordance with the Schedule of Charges set forth in Exhibit "B."
b. In no event shall the total amount paid for services rendered by Consultant
under this Agreement exceed the sum of sixty-nine thousand, four hundred ninety dollars
($69,490.00). This amount is to cover all printing and related costs, and the City will not pay any
additional fees for printing expenses . Periodic payments shall be made within 30 days of receipt
of an invoice which includes a detailed description of the work performed. Payments to Consultant
for work performed will be made on a monthly billing basis.
1
61147 .021Cl0\31575007 .I
ATTACHMENT 2
3. Additional Work.
If changes in the work seem merited by Consultant or the City, and informal consultations
with the other party indicate that a change is warranted, it shall be processed in the following
manner: a letter outlining the changes shall be forwarded to the City by Consultant with a
statement of estimated changes in fee or time schedule. An amendment to this Agreement shall
be prepared by the City and executed by both Parties before performance of such services, or
the City will not be required to pay for the changes in the scope of work. Such amendment shall
not render ineffective or invalidate unaffected portions of this Agreement.
4. Maintenance of Records.
Books, documents, papers, accounting records, and other evidence pertaining to costs
incurred shall be maintained by Consultant and made available at all reasonable times during the
contract period and for four (4) years from the date of final payment under the contract for
inspection by City.
5. Time of Performance.
Consultant shall perform its services in a prompt and timely manner and shall commence
performance upon receipt of written notice from the City to proceed ("Notice to Proceed").
Consultant shall complete the services required hereunder prior to December 31, 2019, unless
extended by the City in writing. The Notice to Proceed shall set forth the date of commencement
of work.
6. Delays in Performance.
a. Neither City nor Consultant shall be considered in default of this Agreement for
delays in performance caused by circumstances beyond the reasonable control of the non-
performing party. For purposes of this Agreement, such circumstances include but are not limited
to, abnormal weather conditions; floods; earthquakes; fire; epidemics; war; riots and other civil
disturbances; strikes, lockouts, work slowdowns, and other labor disturbances; sabotage or
judicial restraint.
b. Should such circumstances occur, the non-performing party shall, within a
reasonable time of being prevented from performing, give written notice to the other party
describing the circumstances preventing continued performance and the efforts being made to
resume performance of this Agreement.
7. Compliance with Law.
a. Consultant shall comply with all applicable laws, ordinances, codes and
regulations of the federal, state and local government, including Cal/OSHA requirements.
b. If required, Consultant shall assist the City, as requested, in obtaining and
maintaining all permits required of Consultant by federal, state and local regulatory agencies.
c. If applicable, Consultant is responsible for all costs of clean up and/ or removal of
hazardous and toxic substances spilled as a result of his or her services or operations performed
under this Agreement.
2
61147.02100\31575007 .1
8. Standard of Care
Consultant's services will be performed in accordance with generally accepted
professional practices and principles and in a manner consistent with the level of care and skill
ordinarily exercised by members of the profession currently practicing under similar conditions.
9. Assignment and Subconsultant
Consultant shall not assign, sublet, or transfer this Agreement or any rights under or
interest in this Agreement without the written consent of the City, which may be withheld for any
reason. Any attempt to so assign or so transfer without such consent shall be void and without
legal effect and shall constitute grounds for termination. Subcontracts, if any, shall contain a
provision making them subject to all provisions stipulated in this Agreement. Nothing contained
herein shall prevent Consultant from employing independent associates, and subconsultants as
Consultant may deem appropriate to assist in the performance of services hereunder.
10. Independent Consultant
Consultant is retained as an independent contractor and is not an employee of City. No
employee or agent of Consultant shall become an employee of City. The work to be performed
shall be in accordance with the work described in this Agreement, subject to such directions and
amendments from City as herein provided.
11. Insurance. Consultant shall not commence work for the City until it has provided
evidence satisfactory to the City it has secured all insurance required under this section. In
addition, Consultant shall not allow any subcontractor to commence work on any subcontract until
it has secured all insurance required under this section .
a. Commercial General Liability
(i) The Consultant shall take out and maintain, during the performance
of all work under this Agreement, in amounts not less than specified herein, Commercial General
Liability Insurance, in a form and with insurance companies acceptable to the City .
(ii) Coverage for Commercial General Liability insurance .shall be at
least as broad as the following:
(1) Insurance Services Office Commercial General Liability
coverage (Occurrence Form CG 00 01) or exact equivalent.
for the following:
61147 .021CKl\31575007 .l
(iii) Commercial General Liability Insurance must include coverage
(1) Bodily Injury and Property Damage
(2) Personal Injury/Advertising Injury
(3) Premises/Operations Liability
(4) Products/Completed Operations Liability
(5) Aggregate Limits that Apply per Project
(6) Explosion, Collapse and Underground (UCX) exclusion
deleted
(7) Contractual Liability with respect to this Contract
(8) Broad Form Property Damage
3
(9) Independent Consultants Coverage
(iv) The policy shall contain no endorsements or provisions limiting
coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured
against another; (3) products/completed operations liability; or (4) contain any other exclusion
contrary to the Agreement.
(v) The policy shall give City, its officials, officers, employees, agents
and City designated volunteers additional insured status using ISO endorsement forms CG 20 10
10 01 and 20 37 10 01, or endorsements providing the exact same coverage.
(vi) The general liability program may utilize either deductibles or
provide coverage excess of a self-insured retention, subject to written approval by the City, and
provided that such deductibles shall not apply to the City as an additional insured.
b. Automobile Liability
(i) At all times during the performance of the work under this
Agreement, the Consultant shall maintain Automobile Liability Insurance for bodily injury and
property damage including coverage for owned, non-owned and hired vehicles, in a form and with
insurance companies acceptable to the City.
(ii) Coverage for automobile liability insurance shall be at least as
broad as Insurance Services Office Form Number CA 00 01 covering automobile liability
(Coverage Symbol 1, any auto).
(iii) The policy shall give City, its officials, officers, employees, agents
and City designated volunteers additional insured status.
(iv) Subject to written approval by the City, the automobile liability
program may utilize deductibles, provided that such deductibles shall not apply to the City as an
a9ditional insured, but not a self-insured retention.
c. Workers' Compensation/Employer's Liability
(i) Consultant certifies that he/she is aware of the provisions of Section
3700 of the California Labor Code which requires every employer to be insured against liability
for workers' compensation or to undertake self-insurance in accordance with the provisions of
that code, and he/she will comply with such provisions before commencing work under this
Agreement.
(ii) To the extent Consultant has employees at any time during the term
of this Agreement, at all times during the performance of the work under this Agreement, the
Consultant shall maintain full compensation insurance for all persons employed directly by
him/her to carry out the work contemplated under this Agreement, all in accordance with the
"Workers' Compensation and Insurance Act," Division IV of the Labor Code of the State of
California and any acts amendatory thereof, and Employer's Liability Coverage in amounts
indicated herein. Consultant shall require all subconsultants to obtain and maintain, for the period
required by this Agreement, workers' compensation coverage of the same type and limits as
specified in this section .
d. Professional Liability (Errors and Omissions)
4
61147.02100\31575007 .1
At all times during the performance of the work under this Agreement the Consultant shall
maintain professional liability or Errors and Omissions insurance appropriate to its profession, in
a form and with insurance companies acceptable to the City and in an amount indicated herein.
This insurance shall be endorsed to include contractual liability applicable to this Agreement and
shall be written on a policy form coverage specifically designed to protect against acts, errors or
omissions of the Consultant. "Covered Professional Services" as designated in the policy must
specifically include work performed under this Agreement. The policy must "pay on behalf of' the
insured and must include a provision establishing the insurer's duty to defend.
e. Minimum Policy Li mits Required
(i) The following insurance limits are required for the Agreement:
Commercial General Liability
Automobile Liability
Employer's Liability
Professional Liability
Combined Sing le Lim it
$1,000,000 per occurrence/ $2,000,000 aggregate
for bodily injury, personal injury, and property
damage
$1,000,000 per occurrence for bodily injury and
property damage
$1,000,000 per occurrence
$1,000,000 per claim and aggregate (errors and
omissions)
(ii) Defense costs shall be payable in addition to the limits.
(iii) Requirements of specific coverage or limits contained in this
section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of
any coverage normally provided by any insurance . Any available coverage shall be provided to
the parties required to be named as Additional Insured pursuant to this Agreement.
f. Evidence Requ ired
Prior to execution of the Agreement, the Consultant shall file with the City evidence
of insurance from an insurer or insurers certifying to the coverage of all insurance required
herein. Such evidence shall include original copies of the ISO CG 00 01 (or insurer's equivalent)
signed by the insurer's representative and Certificate of Insurance (Acord Form 25-S or
equivalent), together with required endorsements. All evidence of insu~ance shall be signed by
a properly authorized officer, agent, or qualified representative of the insurer and shall certify the
names of the insured, any additional insureds, where appropriate, the type and amount of the
insurance, the location and operations to which the insurance applies, and the expiration date of
such insurance.
g. Pol icy Prov isi ons Requ ired
(i) Consultant shall provide the City at least thirty (30) days prior
written notice of cancellation of any policy required by this Agreement, except that the Consultant
shall provide at least ten ( 10) days prior written notice of cancellation of any such policy due to
non-payment of premium . If any of the required coverage is cancelled or expires during the term
5
6114702100\31575007.1
of this Agreement, the Consultant shall deliver renewal certificate(s) including the General
Liability Additional Insured Endorsement to the City at least ten (10) days prior to the effective
date of cancellation or expiration.
(ii) The Commercial General Liability Policy and Automobile Policy
shall each contain a provision stating that Consultant's policy is primary insurance and that any
insurance, self-insurance or other coverage maintained by the City or any named insureds shall
not be called upon to contribute to any loss.
(iii) The retroactive date (if any) of each policy is to be no later than the
effective date of this Agreement. Consultant shall maintain such coverage continuously for a
period of at least three years after the completion of the work under this Agreement. Consultant
shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced
past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the
policy is replaced by another claims-made policy with a retroactive date subsequent to the
effective date of this Agreement.
(iv) All required insurance coverages, except for the professional
liability coverage, shall contain or be endorsed to waiver of subrogation in favor of the City, its
officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or
others providing insurance evidence in compliance with these specifications to waive their right
of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and
shall require similar written express waivers and insurance clauses from each of its
subconsultants.
(v) The limits set forth herein shall apply separately to each insured
against whom claims are made or suits are brought, except with respect to the limits of liability.
Further the limits set forth herein shall not be construed to relieve the Consultant from liability in
excess of such coverage, nor shall it limit the Consultant's indemnification obligations to the City
and shall not preclude the City from taking such other actions available to the City under other
provisions of the Agreement or law.
h. Q ual ifyi ng In surers
(i) All policies required shall be issued by acceptable insurance
companies, as determined by the City, which satisfy the following minimum requirements:
(1) Each such policy shall be from a company or companies
with a current A.M. Best's rating of no less than A:Vll and admitted to transact in the
business of insurance in the State of California, or otherwise allowed to place insurance
through surplus line brokers under applicable provisions of the California Insurance Code
or any federal law.
i. Additional Insurance Provisions
6
61147 02100\31575007.1
{i} The foregoing requirements as to the types and limits of insurance
coverage to be maintained by Consultant, and any approval of said insurance by the City, is not
intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise
assumed by the Consultant pursuant to this Agreement, including but not limited to, the
provisions concerning indemnification.
{ii) If at any time during the life of the Agreement, any policy of
insurance required under this Agreement does not comply with these specifications or is
canceled and not replaced, City has the right but not the duty to obtain the insurance it deems
necessary and any premium paid by City will be promptly reimbursed by Consultant or City will
withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City
may cancel this Agreement.
{iii) The City may require the Consultant to provide complete copies of
all insurance policies in effect for the duration of the Project.
{iv) Neither the City nor any of its officials, officers, employees, agents
or volunteers shall be personally responsible for any liability arising under or by virtue of this
Agreement.
j. Subconsultant Insurance Requirements. Consultant shall not allow any
subcontractors or subconsultants to commence work on any subcontract until they have provided
evidence satisfactory to the City that they have secured all insurance required under this section.
Policies of commercial general liability insurance provided by such subcontractors or
subconsultants shall be endorsed to name the City as an additional insured using ISO form CG
20 38 04 13 or an endorsement providing the exact same coverage. If requested by Consultant,
City may approve different scopes or minimum limits of insurance for particular subcontractors
or subconsultants.
12. Indemnification.
a. To the fullest extent permitted by law, Consultant shall defend {with counsel
of City's choosing), indemnify and hold the City, its officials, officers, employees, volunteers, and
agents free and harmless from any and all claims, demands, causes of action, costs, expenses,
liability, loss, damage or injury of any kind, in law or equity, to property or persons, including
wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or
omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors,
consultants or agents in connection with the performance of the Consultant's services, the Project
or this Agreement, including without limitation the payment of all damages, expert witness fees
and attorney's fees and other related costs and expenses. Consultant's obligation to indemnify
shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials,
officers, employees, agents, or volunteers.
b. If Consultant's obligation to defend, indemnify, and/or hold harmless arises
out of Consultant's performance of "design professional" services {as that term is defined under
Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8,
which is fully incorporated herein, Consultant's indemnification obligation shall be limited to claims
that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the
Consultant, and, upon Consultant obtaining a final adjudication by a court of competent
jurisdiction, Consultant's liability for such claim, including the cost to defend, shall not exceed the
Consultant's proportionate percentage of fault.
7
61147 .02100\31575007 .1
13. California Labor Code Requirements .
a. Consultant is aware of the requirements of California Labor Code Sections
1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the
performance of other requirements on certain "public works" and "maintenance" projects
("Prevailing Wage Laws"). If the services are being performed as part of an applicable "public
works" or "maintenance" project, as defined by the Prevailing Wage Laws, and if the total
compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage
Laws. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and
agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any
failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon
the Consultant and all subconsultants to comply with all California Labor Code provisions, which
include but are not limited to prevailing wages (Labor Code Sections 1771, 177 4 and 1775),
employment of apprentices (Labor Code Section 1777 .5), certified payroll records (Labor Code
Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment
of contractors and subcontractors (Labor Code Section 1777.1). The requirement to submit
certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4
shall not apply to work performed on a public works project that is exempt pursuant to the small
project exemption specified in Labor Code Section 1771.4.
b. If the services are being performed as part of an applicable "public works"
or "maintenance" project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the
Consultant and all subconsultants performing such services must be registered with the
Department of Industrial Relations. Consultant shall maintain registration for the duration of the
Project and require the same of any subconsultants, as applicable. This Project may also be
subject to compliance monitoring and enforcement by the Department of Industrial Relations. It
shall be Consultant's sole responsibility to comply with all applicable registration and labor
compliance requirements. Notwithstanding the foregoing, the contractor registration
requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work
performed on a public works project that is exempt pursuant to the small project exemption
specified in Labor Code Sections 1725.5 and 1771 .1.
c. This Agreement may also be subject to compliance monitoring and
enforcement by the Department of Industrial Relations. It shall be Consultant's sole responsibility
to comply with all applicable registration and labor compliance requirements . Any stop orders
issued by the Department of Industrial Relations against Consultant or any subcontractor that
affect Consultant's performance of services, including any delay, shall be Consultant's sole
responsibility. Any delay arising out of or resulting from such stop orders shall be considered
Consultant caused delay and shall not be compensable by the City . Consultant shall defend,
indemnify and hold the City, its officials, officers, employees and agents free and harmless from
any claim or liability arising out of stop orders issued by the Department of Industrial Relations
against Consultant or any subcontractor.
14. Ve ri fic ation of Em ploym ent Elig ibilitv.
By executing this Agreement, Consultant verifies that it fully complies with all requirements
and restrictions of state and federal law respecting the employment of undocumented aliens,
including, but not limited to , the Immigration .Reform and Control Act of 1986, as may be amended
from time to time, and shall require all subconsultants and sub-subconsultants to comply with the
same.
B
61147.02100\31575007.1
15. Not Applicable
16. Laws and Venue.
This Agreement shall be interpreted in accordance with the laws of the State of California.
If any action is brought to interpret or enforce any term of this Agreement, the action shall be
brought in a state or federal court situated in the County of Orange, State of California.
17 Termination or Abandonment
a. City has the right to terminate or abandon any portion or all of the work
under this Agreement by giving ten (10) calendar days written notice to Consultant. In such event,
City shall be immediately given title and possession to all original field notes, drawings and
specifications, written reports and other documents produced or developed for that portion of the
work completed and/or being abandoned. City shall pay Consultant the reasonable value of
services rendered for any portion of the work completed prior to termination. If said termination
occurs prior to completion of any task for the Project for which a payment request has not been
received, the charge for services performed during such task shall be the reasonable value of
such services, based on an amount mutually agreed to by City and Consultant of the portion of
such task completed but not paid prior to said termination. City shall not be liable for any costs
other than the charges or portions thereof which are specified herein. Consultant shall not be
entitled to payment for unperformed services, and shall not be entitled to damages or
compensation for termination of work.
b. Consultant may terminate its obligation to provide further services under
this Agreement upon thirty (30) calendar days' written notice to City only in the event of substantial
failure by City to perform in accordance with the terms of this Agreement through no fault of
Consultant.
18 Documents. Except as otherwise provided in "Termination or Abandonment,"
above, all original field notes, written reports, Drawings and Specifications and other documents,
produced or developed for the Project shall, upon payment in full for the services described in this
Agreement, be furnished to and become the property of the City.
19. Organization
Consultant shall assign Richard Tagore-Erwin, Principal as Project Manager. The Project
Manager shall riot be removed from the Project or reassigned without the prior written consent of
the City.
20. Limitation of Agreement.
This Agreement is limited to and includes only the work included in the Project described
above.
21. Notice
9
61147.02100\31575007.1
Any notice or instrument required to be given or delivered by this Agreement may be given
or delivered by depositing the same in any United States Post Office, certified mail, return receipt
requested, postage prepaid , addressed to:
CITY:
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
CONSULTANT:
R3 Consulting Group, Inc.
1512 Eureka Road, Suite 220
Roseville, CA 95661
Attn: Steve May, Public Works & Utilities Attn : Richard Tagore-Erwin, Principal
Director
and shall be effective upon receipt thereof.
22. T h ird Party Righ ts
Nothing in this Agreement shall be construed to give any rights or benefits to anyone other
than the City and the Consultant.
23. Equal Opport un ity Em ployment.
Consultant represents that it is an equal opportunity employer and that it shall not
discriminate against any employee or applicant for employment because of race, religion, color,
national origin , ancestry, sex, age or other interests protected by the State or Federal
Constitutions . Such non-discrimination shall include, but not be limited to, all activities related to
initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or
termination .
24 . Entire Agreement
This Agreement, with its exhibits, represents the entire understanding of City and
Consultant as to those matters contained herein, and supersedes and cancels any prior or
contemporaneous oral or written understanding, promises or representations with respect to
those matters covered hereunder. Each party acknowledges that no representations,
inducements, promises or agreements have been made by any person which are not incorporated
herein, and that any other agreements shall be void . This Agreement may not be modified or
altered except in writing signed by both Parties hereto. This is an integrated Agreement.
25. Severabi lity
The unenforceability, invalidity or illegality of any provision(s) of this Agreement shall not
render the provisions unenforceable, invalid or illegal.
26. Su c cessors an d Ass igns
10
6114 7.02100\31575007. I
This Agreement shall be binding upon and shall inure to the benefit of the successors in
interest, executors, administrators and assigns of each party to this Agreement. However,
Consultant shall not assign or transfer by operation of law or otherwise any or all of its rights,
burdens, duties or obligations without the prior written consent of City. Any attempted assignment
without such consent shall be invalid and void.
27. Non-Waiver
None of the provisions of this Agreement shall be considered waived by either party,
unless such waiver is specifically specified in writing.
28. Time of Essence
Time is of the essence for each and every provision of this Agreement.
29. City's Right to Employ Other Consultants
City reserves its right to employ other consultants, including engineers, in connection with
this Project or other projects.
30. Prohibited Interests
Consultant maintains and warrants that it has not employed nor retained any company or
person, other than a bona fide employee working solely for Consultant, to solicit or secure this
Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any
company or person, other than a bona fide employee working solely for Consultant, any fee,
commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting
from the award or making of this Agreement. For breach or violation of this warranty, City shall
have the right to rescind this Agreement without liability. For the term of this Agreement, no
director, official, officer or employee of City, during the term of his or her service with City, shall
have any direct interest in this Agreement, or obtain any present or anticipated material benefit
arising therefrom.
[SIGNATURES ON FOLLOWING PAGE]
11
61147.02100\31575007.1
SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF SAN JUAN CAPISTRANO
AND R3 CONSULTING GROUP, INC.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first
written above.
CITY OF SAN JUAN CAPISTRANO
By:
Benjamin Siegel
City Manager
ATTEST:
By:
City Clerk
APPROVED AS TO FORM:
By:
City Attorney
61147.02100\10974777.2
Updated April 20 I 8
R3 CONSUL TING GROUP, INC.
By:
Its: 'Pr.e S id-enf
Printed Name: lZichl1-vd To..~ote-bYu..J1n
12
SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF SAN JUAN CAPISTRANO
AND RJ CONSULTING GROUP, INC.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date 1irst
written above.
CITY OF SAN JUAN CAPISTRANO R3 CONSULTING GROUP, INC.
By:
Its:
Printed Name : ________ _
ATIEST:
By'~~
12
01147.02100.31S7S007. I
EXHIBIT A
Scope of Services
The City of San Juan Capistrano (City) currently operates an exclusive franchise agreement for
the collection of residential and commercial solid waste with CR&R Incorporated (CR&R). The
City's current franchise agreement became effective on February 18, 2014, and will expire on
June 30, 2020. This project will require the Consultant to provide negotiation assistance to
develop a new agreement with CR&R in preparation for SB 1383 regulatory compliance and all
other current or pending waste management regulations. The Consultant's overall responsibility
·will be to provide technical assistance and recommendations to City staff and the City Council in
sole source negotiation of the City's solid waste contract and franchise agreement with CR&R
Inc. Proposed services also include development of written reports with recommendations to the
City Council, presentations at City Council meetings, and the development of the contract and
franchise agreement if the negotiations are successful. The Consultant may also recommend a
competitive procurement process in the event negotiations are problematic and delays would
impact the City's regulatory compliance position. The work schedule will begin upon notice to
proceed and all phases of the work shall be completed by December 31, 2019. A specific
schedule will be developed in consultation with the City.
The City is faced with the challenges to adequately meet the legislative mandates and provisions
of AB 939, AB 341, AB 1594, AB 1826, and pending requirements of SB 1383 as well as
addressing the recycling impacts of the China National Sword. The City is also unique as the
largest equestrian community in South Orange County . The horse manure and stable bedding
from twelve stables in the City represents a third of the waste stream and a challenge under SB
1383 as the product is classified as organic waste requiring diversion from the landfill. Previous
efforts to compost the horse waste have failed and no other composting sites or anaerobic
digesters can accommodate the large waste stream.
SB 1383
By January 1, 2022, a jurisdiction will be required to adopt enforceable ordinances or similarly
enforceable mechanisms to mandate that organic waste generators, haulers, and other entities
comply with the requirements of SB 1383 for organic waste reduction and edible food recovery
targets. Although the regulations will not take effect until 2022, CalRecycle will be adopting these
regulations in 2019, which will allow jurisdictions a three ·year period to plan and implement
necessary contractual and budgetary changes. By January 1, 2022, enforcement provisions,
including penalties for noncompliance issued by the state, will take effect. By January 1, 2024,
local jurisdictions may be required to take active enforcement provisions and impose penalties for
noncompliance on regulated entities subject to the jurisdictions authority.
'
Task 1.1: Analysis of Customer Service Rates
Consultant will analyze the City's customer service rates and rate structure, and compare them
to other nearby, similar municipalities. CR&R rate sheets will be provided to Consultant that
include the breakdown of customer service rate elements and the general rate structure. To be
effective, this analysis needs to "normalize" rates for differences in City fees, services and other
factors that affect the rates . Consultant shall provide an overview that presents the City's current
customer rates, rate structures, and solid waste service, along with a comparison of other
surveyed jurisdictions with adjustments to account for differences in services and fees.
Task 1.2: Analysis of Current Agreement and Services
13
61147.02100131575007 . I
The Consultant will review the City's current franchise agreement with CR&R in order to develop
an understanding of how the City's current solid waste collection programs and services,
performance standards and operational requirements, compare to solid waste industry standard
best practices. The Consultant will also review the Agreement's organizational structure and
formatting.
The review will include an analysis of the current franchise agreement with CR&R and particularly,
how it relates to recent State legislation, and additionally:
• Customer service practices;
• Disposal and processing facilities available currently and long-term;
• Reports submitted by the current contractor; and
• Any other relevant information provided by the City.
Task 1.3: Recommendations for New Agreement and Updates
Consultant will provide the City with a detailed electronic report outlining Consultant's
recommendations tied to specific sections/language in the current franchise agreement.
Consultant will provide the City with an update of recent legislation, including AB 341, AB 1826,
AB 939, AB 901·, AB 1594 and SB 1383, and how these should be addressed in the City's new
Agreement as well as short and long-term compliance with State laws. The memorandum will
include suggestions and/or recommendations for solid waste programs that the City may wish to
consider as part of the revised/new Agreement.
Best practices that may be considered as part of the Agreement updates, to be analyzed in further
detail as part of this task include key items which are not limited to the following:
• Term and extension provisions;
• Contamination and overage protocols;
• Vehicle and container replacement practices;
• Organics processing, including manure;
• Outreach programs;
• Rate-setting methodology and adjustments for changes in recyclables markets and
organics processing;
• Performance/contract compliance reviews;
• Reporting requirements related to State legislation (AB 341, AB 1826, AB 939, AB 901,
AB 1594, and SB 1383);
• Establishment of diversion requirements {e.g., residential, bulky waste collection,
commercial, organic materials);
• Incorporation of curbside oil/oil filter and battery collection, sharps, pharmaceuticals, E-
waste and/or U-waste collection options;
• Requiring the hauler to pay the City a Vehicle Impact Fee to compensate for road wear-
and-tear; and
14
61147 .02100\31575007 .1
• Other services realized during Task 1.2 to be valuable for inclusion in the Agreement.
Consultant will work with City Staff to develop a presentation to the City Council summarizing
market conditions analysis, legislative changes, and recommendations for short and long-term
changes to the City's franchised solid waste disposal services. Review and discussion with City
Manager may be requested prior to City Council presentation. Consultant shall prepare a
PowerPoint presentation covering the challenges facing the City and options for cost-effectively
addressing the challenges. Development of handouts may be requested by staff for distribution
at the City Council meeting. City staff reserves the discretion to solely present PowerPoint
findings/recommendations to City Council or request the assistance of Consultant. Consultant
will be available for questions at the City Council meeting.
Task 1 Deliverables
1. Electronic report summarizing the results of the customer service rate analysis, current
franchise agreement and services, and recommendations for updates/revisions to the
Agreement;
2. Meetings (phone and/or in-person) with City staff and Consultant to discuss the results of
analysis and Task 1 electronic report;
3. Summary of questions and concerns related to report and/or requests for additional
information/analysis;
4. PowerPoint presentation to the City Council;
5. Handout materials for the City Council meeting;
6. Attendance and presentation at one (1) City Council meeting; and
Meetings (phone and/or in-person) with City staff.
Task 2: Assist In Negotiation of a New Agreement with CR&R
Based on results of Task 1 and direction of the City Council, Consultant will proceed with
assistance to the City on specific agreement language for a new sole source agreement. The
new franchise agreement will provide services for a six (6) to eight (8) year period with an option
to extend additional years up to a maximum of ten (10) years total. Provisions will be in place to
amend as required to move the City into compliance with pending or future state legislative
mandates without altering rates established in initial agreement. A new agreement will provide
for implementation of any necessary modifications to current programs or customer rates that
may be necessary (e.g., manure & stable bedding processing/disposal, green waste composting,
improved organics provisions).
Task 2.1: Develop Deal Points for Revised/New Agreement
Consultant will work with City staff to develop "deal points" to guide the negotiation process with
CR&R. If requested by City staff, Consultant will present the deal points to the City Council for
their input and direction. The deal points will include but are not limited to the following outlined
issues:
• Estimated "value" to CR&R for extending the Agreement 6 to 8 years;
• Requested/desired concessions (programs, rates, franchise/pavement impact fee
payments, reimbursement for the negotiation process, etc .) to be provided by CR&R as a
condition of a new Agreement;
15
61147 .02)()0\31575007 .1
• Updated Agreement language to incorporate industry best practices and new legislative
requirements such as AB 1594, AB 1826, and SB 1383;
• Changing the compensation method for the hauler;
• Adding new/expanded recycling or organic waste programs; and
• Developing a new agreement or modifying the current agreement based on the outcome
of the negotiations.
Task 2.2: Conduct Negotiations with CR&R
Based on the results of Task 2.1 above, and direction from City staff and/or City Council,
Consultant will serve on the negotiation team throughout the negotiation process with CR&R. This
will include attending meetings with City staff, preparation of negotiation session agendas, and
attendance at negotiation sessions (phone and in-person). During the negotiation process,
Consultant will review and analyze cost and program data presented by CR&R. Written responses
will be prepared and presented by the Consultant. In addition, Consultant will maintain a journal
of items under discussion and items that have been agreed to. Consultant will also monitor and
track proposed changes to the Agreement in order to maintain an "audit trai.I."
Consultant will attend meetings (phone and/or in-person) with the City and CR&R to review and
discuss the proposed specific franchise language during the negotiation process. Consultant will
also meet separately with City Staff during the negotiation process for status updates and to
discuss the status of ongoing strategy. A final summary of all agreed upon modifications to the
proposed agreement language will be prepared for distribution to the City and CR&R for final
review and agreement.
Task 2.2: Prepare Revised/New Agreement
Based on the results of the negotiations, the Consultant will draft the revised/new Agreement for
review by the City and CR&R. The Agreement will utilize provisions of the current franchise
agreement but add a series of performance measures to provide the hauler and the City with clear
criteria to monitor hauler performance.
The performance requirements will establish minimum service standards for inclusion in the
Agreement that are both quantifiable and easily measured to verify compliance. Upon completion
by City staff and the Project Team, the performance requirements will be incorporated into the
draft Agreement. Performance requirements may include, but are not necessarily limited to, the
following:
• Disposal facility requirements;
• Minimum waste diversion requirements;
• Minimum transformation tonnage requirements;
• Collection vehicle emissions standards and requirements;
• Collection vehicle weight, size and noise limitations;
• Specifications for container size, color, and labeling;
• Public education program requirements (e.g ., quarterly newsletter, annual campaigns,
classroom presentations, etc.);
• Collection and recycling services to City offices, facilities and events;
16
61147.02100\31575007.1
• Collection service hours;
• Collection service quality standards; and
• Collection driver uniforms and identification badges
Task 2.4 : Present Revised/New Agreement to C ity Council
Consultant will work with City Staff to develop a PowerPoint presentation to the City Council that
summarizes the negotiation process and the revised/new Agreement that has resulted from
negotiations. Review and discussion with City Manager may be requested prior to City Council
presentation. Consultant may also be requested to develop any necessary handouts for provision
at the City Council meeting , at the direction of the City. City staff reserves the discretion to solely
present PowerPoint findings/recommendations to City Council or request the assistance of
Consultant. Consultant wilt be available for questions at the City Council meeting .
Task 2.5: Finalize Revised/New Agreement for City Council Approval
Based on direction from City Council and upon review by the City Attorney's Office, City Staff may
request Consultant to incorporate any program changes or options selected by City Council and
finalize the Agreement. This will include incorporating changes to the draft agreement through the
issuance of addenda by the City, any final program options selected during the selection process,
proposed rates, final work plans, exhibits, etc.
Task 2 Deliverables
• One (1) electronic memorandum including the recommended deal points, to be discussed
with the City prior to negotiations with CR&R;
• Memo outlining the rationale for the agreed-upon agreement language changes from
current agreement;
• A preliminary negotiation schedule;
• Attendance at and preparation for up to three (3) planning meetings with City staff;
• Attendance and moderation at up to four (4) negotiation sessions with CR&R;
• Draft and final agreement language (assumes 3 iterations);
• Negotiation session agendas and other applicable material for negotiations ;
• One (1) PowerPoint presentation of the revised/new Agreement to the City Council;
• Handout materials for the City Council meeting;
• Attendance and presentation at one (1) City Council meeting; and
• One (1) Finalized Agreement in electronic format.
17
61147.02100\31575007.1
EXHIBITB
Schedule of Charges/Payments
Consultant will invoice City on a monthly cycle. Consultant will include with each invoice a detailed
progress report that indicates the amount of budget spent on each task. Consultant will inform
City regarding any out-of-scope work being performed by Consultant. This is a time-and-materials
contract.
Consultant will complete the Scope of Work for a total, not-to-exceed amount of $69,490.00
(Table 1) based on the billing rates as listed in Table 2. Project cost includes labor, travel, and
project expenses, and includes the work and deliverables as listed in Tasks 1 and 2. Movement
of hours and costs between Tasks may be revised and shifted upon consultation with the City,
provided the total project cost does not exceed $69,825 .00 . ·
Table 1
Project Budget
Task Cost Hours
Taskl Compref'len,lve Analysis of City's Solld Waste Program and ~~IJmlnary
Recommendations for Agreement Upctates
1.1 Rate Evaluation $4,850 40
1.2 Solid Waste Program Analysis $3,180 24
1.3 Review Current FA and Services $2,640 34
Task2 Negotiations with CR&R
2.1 Develop Deal Points for Revised/New Agreement $13,920 80
2.2 Conduct Negotiations with CR&R $24,660 156
2.3 Prepare Revised/New Agreement $12,160 80
2.4 Present Revised/New Agreement to City Council $4,040 28
2.5 Finalize Revised/New Agreement for City Council Approval $4,040 28
18
61147.02100\31575007 .1
cate1ory
Table2
Bllllng Rates
R3 Consulting Group, Inc.
Principal I Project Director
Senior Project Manager
Project Manager
Senior Project Analyst
Project Analyst
Associate Analyst
Administrative Support
Principal
I
L___ Reimbursable Costs
Hourly Rate
------~-~ ......
$205 per hour
$185 per hour
$160 per hour
$145 per hour
$135 per hour
$120 per hour
$100 per hour
$185 per hour
Consultants/Subcontractors Cost plus 10% (included in project budget)
Lodging and meals
Travel -Private or company car
Travel -Other
Delivery and other expenses
61147.02HJ0\31S7S007 .I
19
No Charge
No Charge
No Charge
No Charge
AMENDMENT NO. 1
TO THE PROFESSIONAL SERVICES AGREEMENT
FOR SOLID WASTE FRANCHISE NEGOTIATION ASSISTANCE
BETWEEN
THE CITY OF SAN JUAN CAPISTRANO
AND
R3 CONSULTING GROUP, INC.
1. Parties and Date.
This Amendment No. 1 to the Professional Services Agreement for Solid Waste Franchise,
Negotiation Assistance is made and entered into as of this day of May, 2019, by and
between the City of San Juan Capistrano, a municipal organization organized under the laws of the
State of California with its principal place of business at 32400 Paseo Adelanto, San Juan
Capistrano, California 92675 ("City") and R3 Consulting Group, Inc. a California Corporation with
its principal place of business at 1512 Eureka road, Suite 220, Roseville, California 95661,
("Consultant"). City and Consultant are sometimes individually referred to as "Party" and
collectively as "Parties."
2. Recitals.
2.1 Consultant. The City and Consultant have entered into an agreement entitled "Solid
Waste Franchise Negotiation Assistance" dated November 5, 2018, ("Agreement") for the purpose
ofretaining the services of Consultant to provide Solid Waste Franchise Negotiation Assistance.
2.2 Amendment Purpose. The City and Consultant desire to amend the Agreement to
revise the scope of services and increase the not-to-exceed compensation amount.
2.3 Amendment Authority. This Amendment No. 1 is authorized pursuant to Sections 3
and 24 of the Agreement.
3. Terms.
3.1 Amendment. Section 1 of the Agreement is hereby amended in its entirety to read as
follows:
1. Services.
Consultant shall provide the City with the services described in the Scope of Services
attached hereto as Exhibits A and A-1. Services specified under Exhibit A-1 will extend to
conducting a limited competitive Request for Proposal (RFP) process for solid waste hauler
Page I of8
6114 7.02100\32043214.1 Attachment 3
1 of 8
services, evaluating proposals received, and negotiating terms with the top ranked proposer
as well as other tasks as directed by the City.
3.2 Amendment. Section 2 of the Agreement is hereby amended in its entirety to read as
follows:
2. Compen ation.
a. Subject to paragraph 2(b) below, the City shall pay for services specified in Exhibits
A and A-1 in accordance with the Schedule of Charges set forth in Exhibits B and B-1,
respectively.
b. In no event shall the total amount paid for services rendered by Consultant under this
Agreement exceed the sum of One Hundred Four Thousand Three Hundred Eighty Five
Dollars ($104,385). This amount is to cover all printing and related costs, and the City will
not pay any additional fees for printing expenses. Periodic payments shall be made within 30
days of receipt of an invoice which includes a detailed description of the work performed.
Payments to Consultant for work performed will be made on a monthly billing basis.
3.3 Amendment. Exhibits A-1 and B-1 attached hereto are hereby added as Exhibits A-1
and B-1 to the Agreement.
3.4 Continuing Effect of Agreement. Except as amended by this Amendment No. 1, all
other provisions of the Agreement remain in full force and effect and shall govern the actions of the
parties under this Amendment No. I. .From and after the date of this Amendment No. 1, whenever
the term "Agreement" appears in the Agreement, it shall mean the Agreement as amended by this
Amendment No. 1.
3.5 Adequate Consideration. The Parties hereto irrevocably stipulate and agree that they
have each received adequate and independent consideration for the performance of the obligations
they have undertaken pursuant to this Amendment No. 1.
3.6 Severability. If any portion of this Amendment No. 1 is declared invalid, illegal, or
otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall
continue in full force and effect.
3.7 ounterparts. This Amendment No. 1 may be signed in counterparts, each of which
shall constitute an original.
61147 .02100\32043214 . I
[Signatures on Next Page]
Page 2 of8
Attachment 3
2 of 8
SIGNATURE PAGE FOR AMENDMENT NO. 1 TO THE
SOLID WASTE FRANCHISE NEGOTIATION ASSISTANCE
PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF SAN JUAN CAPISTRANO
AND R3 CONSULTING GROUP, INC.
CITY OF SAN JUAN CAPISTRANO
Approved By:
R3 CONSULTING GROUP, INC.
Benjamin Siegel
City Manager
Date
Attested By:
Maria Morris, City Clerk
Approved As To Form:
City Attorney
61147.02100\32043214 .1
Signature
Name
Title
Date
Page 3 of8
Attachment 3
3 of 8
EXHIBIT A-1
Scope of Services
COMPETITIVE RFP PROCESS
R3 Consulting Group , Inc. has completed all of Task 1, Task 2.1, and began working with
City staff on Task 2.2 ; sole negotiations with the City's franchise solid waste hauler CR&R,
Incorporated per the terms of the original Agreement. The work to date has provided basic
contract terms and customer rates to consider in negotiations with CR&R for a revised
franchise agreement. Consultant is recommending a competitive procurement process
after reviews with City staff, other surrounding agencies, and inquiries from other solid
waste haulers.
A revised scope of work would involve new tasks to conduct a limited competitive
procurement process. The RFP process is to be completed by July 31, 2019, and
negotiations with selected vendor completed by August 30 , 2019.
3 . Preparing and issuing a limited Request for Proposals for solid waste franchise
services. Compile the RFP package, including drafting the program requirements,
the pricing options for different collection approaches , green waste, organics, and
recyclables collection, etc. Develop a mailing list of potential proposers and
minimum qualifications. Respond with written responses to questions submitted
regarding the RFP, and addenda as necessary.
4 . Evaluating proposals received, conducting interviews and clarifications with the top-
ranked proposers, and providing recommendations .
6. Negotiating the specific terms and conditions of the new (or revised) franchise
agreement with the top ranked proposer(s).
The remaining Tasks 2.3, 2.4, and 2 .5 in the original Scope of Work, Exhibit A would follow
the RFP bid award to the selected proposer. Those tasks are renumbered in Table 1 as
Task 5 and 7.
2 .3 (5) Prepare revised or new agreement.
2.4 (7) Present revised or new agreement to the City Council.
2.5 (7) Finalize revised or new agreement for City Council Approval.
Task 3: Prepare RFP Package
1. Consultant will take the findings and discussion with City staff in Task 1 to develop
an RFP package which this includes a finalized RFP, a draft Agreement, and cost
forms for proposers to complete . The RFP will specify minimum requirements and
qualifications and will require proposers to submit work plans that specify how they
will transition to new services, achieve diversion requirements, implement customer
Page 4 of8
6114 7 02100\32043214.l Attachment 3
4 of 8
service programs, and promote public education activities. Separate sections of the
RFP may include the following:
o Section 1: General Introduction to the RFP Document
D Section 2: Available Demographic and Service Account Data
D Section 3: Current Services and Requested Service Requirements
D Section 4 : Communication Protocol for Contractors and the City, Qualification
Requirements and the Required Submittal Format
D Section 5: Required Work Plans
D Section 6: Evaluation Criteria and Evaluation Process
D Section 7: Proposal Cost and Service Forms
D Section 8: Draft Agreement
Consultant will finalize the RFP package based on City direction and send to limited list of
eligible solid waste haulers.
Task 4: Evaluate Proposals Received
Consultant will assist the City with the evaluation of proposals received in response to the
RFP. The evaluation will include, but not be limited to, conducting an initial "pass-fail"
checklist against RFP minimum requirements, and evaluating the proposers' qualifications,
references, processing and disposal, facilities, approach to meeting the City's diversion
requirements, customer rates (prices), collection methods, customer service programs,
financial statements, transition experience and work plans. After the initial evaluation is
completed, Consultant will prepare any written requests for clarification to the haulers, as
necessary. In the event a proposal does not meet the minimum requirements of the RFP,
Consultant may recommend that the proposal be disqualified as non-compliant with the
RFP requirements . The Consultant's role in the evaluation process will also include
facilitating the evaluation meetings, and the proposer interviews, along with several
meetings with City staff and presentations to the City Manager or City Council to present
(1) a summary of the proposals received, and (2) the results of the evaluation process.
Task 6: Negotiate with Top Ranked Proposer(s)
Based on direction from City staff and/or City Council, the Consultant will participate in
Agreement negotiations with the top ranked proposer(s). Negotiations will focus on
clarifying the proposer's service and cost proposal, and incorporating any optional services
as may be selected by the City . This subtask will include meetings with the City beforehand
to confirm the approach for the negotiation .
Deliverables Tasks 3, 4, 6:
• One (1) finalized RFP package, in electronic format, that includes a background of
the service area, requested services, RFP preparation instructions, evaluation and
selection criteria, project schedule, draft Agreement, and all required cost and
supporting forms to be filled out by the proposers (for distribution to potential
proposers);
Page 5 of8
61147.02100\32043214.1 Attachment 3
5 of 8
• A mailing list of prospective proposers , for use in City's distribution of the RFP
package;
• Preparation of a notice of availability of the RFP document and how proposers may
• obtain copies;
• Preparation of all necessary addenda to the RFP ;
• Evaluation of the technical feasibility of each proposal received;
• Evaluation matrix to easily compare the proposed programs and rates for
each proposer;
• Preparation of any written request for clarification to the proposers, as necessary;
• Scheduling and conducting interviews with the top ranked proposers;
• Preparation of staff reports that summarize the proposals received;
• One (1) Draft Agreement in electronic format;
• Up to three (3) negotiation sessions with top ranked proposers;
• Preparation of a listing of outstanding service, cost, and Agreement issues to
be negotiated with the proposers;
• Revisions to the Agreement based on the results of the negotiation sessions;
• Preparation of a draft staff report to the City Council to support the staff
recommendation to execute an Agreement with the selected company;
• Up to three (3) presentations to City Council as follows (or as otherwise directed by
• City staff):
o One (1) presentation of the draft RFP documents to City Council;
o One (1) presentation of the results of the evaluation process to the City
Council; and
o One (1) presentation summarizing the results of the final negotiations and the
final Agreement to the City Council for approval.
Page 6 of8
61147.02100\32043214, I Attachment 3
6 of 8
EXHIBIT B-1
Schedule of Charges/Payments
Consultant will invoice City on a monthly cycle. Consultant will include with each invoice a detailed
progress report that indicates the amount of budget spent on each task. Consultant will inform City
regarding any out-of-scope work being performed by Consultant. This is a time-and-materials
contract.
Consultant will complete the Scope of Work for a total, not-to-exceed amount of $104,385 .00 (Table
1) based on the billing rates as listed in Table 2 . Project cost includes labor, travel, and project
expenses, and includes the work and deliverables as listed in Tasks 1 through 7. Movement of
hours and costs between Tasks may be revised and shifted upon consultation with the City,
provided the total project cost does not exceed $104,385.00.
1.
2.
3 .
4 .
5.
6 .
7 .
Table 1
Project Budget
Budget Augmentation Request
Task Budget
Comprehensive Analysis of City's Solid Waste
Program and Preliminary Recommendations for $10,670
Agreement Upd ates.
Sole Source Negotiations with CR&R. $58,820
Total Original Tasks $69,490
Preparing and issuing a limited Request for $5,950 Proposals fo r franchised services .
Evaluating proposals received, conducting
interviews/clarifications with the top ranked $18,120
proposers, an d providing recomm endations .
Developing a new (or revised) franchise agreement . $12,160
Negotiating the specific terms and conditions of the
new (or revi sed) franchise agreement with the top $21,320
ranked propose r (s).
Finalizing and presenting the franchise agreement $8,080 for City Council approval.
Total New Tasks $65,630
Net Augmentation Requested (augmentation minus remaining budget)
Total New Budget (original plus net augmentation)
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61147 .02100\32043214.1
Budget Spent Remaining Through
May 13, 2019 Budget
$10,670 -0-
$28,085 $30,735
$38,755 $30,735
N/A
$30,735
$34,895
$104,385
Attachment 3
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L
r
1-
,__ -
ategor
Table 2
Billing Rates
Hourly Rate
R3 Consulting Group, Inc.
Principal I Project Director $205 per hour ------
Senior Project Manager $185 per hour
-----
Project Manager $160 per hour
Senior Project Analyst $145 per hour
Project Analyst $135 per hour
Associate Analyst $120 per hour
Administrative Support $100 per hour
Integrated Waste Management Consulting
Principal $185 per hour
Reimbursable Costs
Consultants/Subcontractors Cost plus 10% (included in project budget)
Lodging and meals No Charge
I
1
-
Travel -Private or company car No Charge
Travel -Other
Delivery and other expenses
61147.02100\32043214 .1
No Charge
No Charge
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Attachment 3
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