Item 20 - Solid Waste Services Proposers

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RFP No. 20-097 - Collection and Handling of Solid Waste Generated, Produced and/or Accumulated in the City of Santa Ana 28 (new section) 9.4.C – Subcontractor Insurance Requirements In connection with a request by Contractor to utilize a Subcontractor performing work in the City or for the City, City and Contractor agree to negotiate in good faith as part of the Subcontractor approval process with respect to appropriate insurance coverages and coverage amounts, giving consideration to the nature of the work in the City, the potential risk to City, and any prior arrangements between the proposed Subcontractor and City. Notwithstanding the above, the foregoing requirement shall not apply to Subcontractors whose work is not performed within the physical boundaries of the City. Rationale: Uniform coverage requirements are not appropriate for all subcontractors, some of which undertake activities that pose substantially less risk to the City (e.g. diversion outreach consultant). Unreasonably high limits could also deter the ability of otherwise qualified subcontractors to be able to provide services at a reasonable cost due to their inability of obtaining such levels of insurance coverage. This new subsection is designed to tailor subcontractor insurance requirements to the actual risk to the City. An example of adjusted insurance requirements can be seen in the recent franchise agreement adopted by the City of Mission Viejo for the purpose of the proposed outreach consultant and street sweeper. Section 11.1.N, (first paragraph) – Diversion Requirement N. Diversion Requirement. If Contractor does not reach Diversion requirement of % of all tonnage Collected by Contractor under this Agreement per Section 4.6.1 for two three consecutive Rate Years. Rationale: This proposed revision assumes that City rejects Contractor’s proposed revisions to Section 4.6.1. If so, this revision is designed to align the opportunity for an adjustment to the diversion requirement with the potential for termination. Section 11.1, (last paragraph) – Opportunity to Cure For other actions not listed above, or included in 11.2 below, City will provide Contractor with a written notice setting forth the nature of the breach or failure and the actions, if any, required by Contractor to cure such a breach or failure. Contractor shall be deemed in default where: (1) breach or failure can be cured but Contractor fails to cure within thirty (30) days or, 2) if Contractor cannot reasonably correct or remedy the breach within thirty (30) days, Contractor does not commence to correct or remedy such violation within thirty (30) days and take diligent actions to complete the cure. Rationale: As acknowledged in Section 11.1.I, it is not always possible to fully complete a cure within thirty days despite good faith efforts, due to, for example, the need for physical improvements or regulatory approvals. Section 11.4.A and B – Liquidated Damages A. General. City finds, and Contractor agrees, that as of the time of the execution of this Agreement, it is impractical, if not impossible, to reasonably ascertain the extent of damages which shall be incurred by City as a result of a breach by Contractor of certain specific obligations under this Agreement. The factors relating to the impracticability of ascertaining damages include, but are not limited to, the fact that: (i) substantial damage results to members of the public who are denied services or denied quality or reliable service; (ii) such breaches cause inconvenience, anxiety, frustration, and deprivation of the benefits of the Agreement to individual members of the general public for whose benefit this Agreement exists, in subjective ways and in varying degrees of intensity which are incapable of measurement in precise monetary terms; (iii) that the services that are the subject of this Agreement might be available at substantially lower costs than alternative services and the monetary loss resulting from denial of services Attachment 6 6 - 13