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Home My WebLink About25N - AGMT - SOLID WASTE SRVSREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: AUGUST 16, 2016 TITLE: APPROVE AMENDED AND RESTATED SOLID WASTE SERVICES AGREEMENT WITH USA WASTE OF CALIFORNIA, INC. (DBA WASTE MANAGEMENT OF ORANGE COUNTY) (STRRA-TEE-G'IC PLAN NO. 4, 1) CITY MANAGgjr RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: ❑ As Recommended ❑ As Amended ❑ Ordinance on 1 " Reading ❑ Ordinance on 2 "6 Reading ❑ Implementing Resolutlon ❑ Set Public Hearing For CONTINUED TO Approve the proposed Amended and Restated Solid Waste Services Agreement with USA Waste of California, Inc. (dba Waste Management of Orange County). Authorize the City Manager to explore the pros and cons of a possible extension of the Solid Waste Services Agreement with USA Waste of California, Inc. (dba Waste Management of Orange County) for Council's future discussion and direction. DISCUSSION On June 30, 1993, at the completion of a Request for Proposals process, the City entered into an agreement with Great Western Reclamation for solid waste collection and handling. On June 1, 1996, the City approved an "Amended and Restated Agreement for Collection and Handling of Solid Waste Generated and /or Accumulated in the City of Santa Ana" to implement a new curbside service collection program and to extend the agreement to June 30, 2008. On June 19, 1997, the City entered into a "Second Amended and Restated Agreement for the Collection and Handling of Solid Waste Generated and /or Accumulated in the City of Santa Ana" with Great Western Reclamation, a division of Waste Management Collection and Recycling, Inc. (formerly Great Western Reclamation) to clarify the responsibilities associated with the collection, handling, and processing of solid waste collected by Waste Management. On April 3, 2006, the City approved an agreement entitled "Third Amended and Restated Agreement for the Collection and Handling of Solid Waste Generated and /or Accumulated in the City of Santa Ana" with USA Waste of California, Inc., dba Waste Management of Orange County (formerly Great Western Reclamation, a division of Waste Management Collection and Recycling, Inc.) in order to, among other things, recognize advancements in environmental stewardship and to extend the term of the Agreement to June 30, 2018. In December 2015, the City Council approved a consultant services agreement to analyze the City's waste services rates and level of service in comparison with comparable cities in Orange County. In addition to analyzing solid waste services, the consultant was also tasked with providing an analysis of the options for either a new or extended contract. During this process, the City Attorney recommended restating all amendments to the current solid waste services agreement into a single Amended and Restated Agreement ( "Proposed Agreement "), and clarifying the pass- through and impact fees, for 25N -1 Amended and Restated Agreement with USA Waste of California, Inc. (dba Waste Management of Orange County) August 16, 2016 Page 2 tracking and transparency purposes, as well as compliance with State legal requirements. The possibility of amending and restating the current agreement was discussed with Waste Management of Orange County ( "Waste Management ") and they agreed. However, they requested that the City explore the pros and cons of a possible extension of the current agreement for Council's future discussion and direction. The Proposed Agreement does not present any new terms or conditions, nor are there any customer rate changes. It is a consolidation of all of the previous amendments and agreements and identifies a single franchise fee to replace a number of miscellaneous charges and transfers to the City (i.e., Program Surcharge, Administrative, NPDES, and other fees added to the cost of services). All of the fees from residential, commercial, and industrial services will be consolidated and set forth as a single Franchise Fee of 26.15 percent. The City currently collects residential waste service charges and then remits payment for services to Waste Management. The City retains the portion of the service charges related to the City's refuse operation. Waste Management currently collects commercial and industrial waste service charges and remits the related fees to the City. Under the Proposed Agreement, total revenue collection will remain the same. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #4 — City Financial Stability, Objective #1 (maintain a stable, efficient and transparent financial environment). ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT Residential and non - residential solid waste revenues will continue to be deposited into the Refuse Enterprise Fund (Account No. 06917002 - various) for budgeted distributions to the Federal Clean Water Protection Enterprise (Account Nos. 05717002 -53723 and 05717002- 53724) and the General Fund (Account Nos. 01117002-50052 and 01117002- 57700). Ote Fred Mousavipour Executive Director Public Works Agency f S is Carvalho ity Attorney FM /MLM /ck APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Management Services Agency Exhibit: 1. Proposed Amended and Restated Agreement 25N -2 FOURTH AMENDED AND RESTATED AGREEMENT FOR COLLECTION AND HANDLING OF SOLID WASTES GENERATED, PRODUCED AND /OR ACCUMULATED IN THE CITY OF SANTA ANA by and between THE CITY OF SANTA ANA moo USA WASTE OF CALIFORNIA INC. EXHIBIT I 25N -3 TABLE OF CONTENTS Page RECITALS..................................................................................................... ............................... I I, GRANT OF CONTRACT: ................................................................................................ 2 2. TERM OF CONTRACT: .................................................................... ............................... 2 3. DEFINITIONS: ........ ......................................................................................................... 2 4. SCOPE OF SERVICE: ....................................................................... ............................... 6 5. COLLECTION HOURS: ................................................................................................... 6 6. HOLIDAYS: ....................................................................... .............................................. 7 7. FREQUENCY OF COLLECTIONS:.... ........................................................................... . 7 8. MAINTENANCE OF SCHEDULES: ............................................................................... 7 9. EXCLUSIVENESS OF AGREEMENT: ........................................................................... 7 10. SOLID WASTE FRANCHISE FEE: ... ...................... ...................................................... 8 11. AUTOMATED SYSTEM: ......................... ............................ .......... ................. ............ 9 (a) -(f) Intentionally Omitted (g) REPLACEMENT OF RESIDENTIAL AND COMMERCIAL COLLECTION VEHICLES ................................................... ............................... 9 12. COLLECTION POINTS AND REQUIREMENTS: ......................................................... 9 13, SERVICES TO BE PROVIDED BY CONTRACTOR TO CITY FOR CITY OPERATIONS: ................................................................................................................ 10 (a) CITY GOVERNMENT OPERATIONS .............................. ............................... 10 (b) STREET SWEEPING ........................................................... ............................... 10 (c) NEIGHBORHOOD CLEANUPS ......................................... ............................... 10 14. COLLECTION, RECYCLING, YARD WASTE DIVERSION AND DISPOSAL, REQUIREMENTS: .......................................................................................................... 11 (a) CURBSIDE SERVICE ......................................................... ............................... 11 (1) Non - Recyclable Solid Waste Collection and Recycling Plastic Carts.......................................................................... ............................... 11 (2) Recyclable Solid Waste Collection and Recycling Plastic Carts ............. 11 (3) Yard Waste Collection and Recycling Plastic Carts . ............................... 11 (b) BIN SERVICE ...................................................................... ............................... 11 (c) ROLL -OFF SERVICE .......................................................... ............................... 12 (d) TEMPORARY BIN SERVICE ............................................ ............................... 11 i 25N -4 TABLE OF CONTENTS (continued) Page (e) PARKWAY CLEAN -UP FOLLOWING GARAGE SALES 12 ffl ALLEY CLEAN -TIP FOLLOWING THE 1ST OF EACH MONTH ................ 12 28. SPECIAL BIN SERVICES AND CUSTOMER SERVICE REQUIREMENTS .......... 19 29. MINIMUM SERVICE LEVELS - MULTI - FAMILY RESIDENTIAL BUILDINGS: ................................................................................................................... 20 30. MINIMUM SERVICE LEVELS - COMMERCIALANDUSTRIAL BIN SERVICE AND ROLL -OFF SERVICES.. ...................................... 20 31, SERVICE STANDARDS: ............................................................................................... 21 ii 25N -5 (g) DISPOSAL ........................................................................... ............................... 12 15. [RESERVED] 16, CIWMA REPORTING REQUIREMENTS: ................................................................... 13 17. SRRE CONSULTANT: .................................................................................................... 13 18. PUBLIC EDUCATION SERVICES: .............................................................................. 14 19. STANDARDS FOR COLLECTION, EQUIPMENT AND NOISE: .............................. 15 20. MAINTENANCE OF BINS AND ROLL -OFF CONTAINERS :...... .............................15 21. COLLECTION OF SULKY ITEMS: ................. ........ .................................................. 16 22. CURBSIDE SERVICE PAYMENTS: ............................................................................ 17 23. RESIDENTIAL BIN SERVICE RATES: ........................................ ............................... 17 24. COMMERCIALANDUSTRIAL BIN SERVICE RATES: ............................................. 17 25. ROLL -OFF SERVICE RATES: ...................................................................................... 18 26. COMPENSATION FOR GRANTS: ............................................................................... 18 27. ADJUSTMENTS TO CHARGES: .... ......................................... ................................... 18 (a) HAULING AND PROCESSING CHARGES ...................... ............................... 18 (1) PRICE INDICES ...................................................... ............................... 18 (2) CURBSIDE SERVICE ............................................. ............................... 18 (3) BIN SERVICE AND ROLL -OFF SERVICE .......... ............................... I8 (b) GATE FEES .......................................................................... ............................... 19 (c) SOLID WASTE FRANCHISE FEE ..................................... ............................... 19 (d) SMART FEES... .......................................... I .................... ................. ................ 19 28. SPECIAL BIN SERVICES AND CUSTOMER SERVICE REQUIREMENTS .......... 19 29. MINIMUM SERVICE LEVELS - MULTI - FAMILY RESIDENTIAL BUILDINGS: ................................................................................................................... 20 30. MINIMUM SERVICE LEVELS - COMMERCIALANDUSTRIAL BIN SERVICE AND ROLL -OFF SERVICES.. ...................................... 20 31, SERVICE STANDARDS: ............................................................................................... 21 ii 25N -5 TABLE OF CONTENTS (continued) Page 32. SUPERVISION: .............................................................................................................. 21 33. TITLE TO SOLID WASTE: ........................................................................................... 21 34, FAILURE TO COLLECT: .............................................................................................. 21 35. DEFAULT, DAMAGES AND TERMINATION OF AGREEMENT: ......................... 22 36. LIQUIDATED DAMAGES:., . ........................................................................................ 24 37. USE BY CITY OF CONTRACTOR'S EQUIPMENT: .................................................. 25 38, COMPLAINTS: ....................................... ........................................ .............................. 25 39. COMPENSATION REDUCTION DURING STRII{E PERIOD: .................................. 25 40. FEES AND GRATUITIES: .............................................................................. .............. 26 41. LEGAL RELATIONS AND RESPONSIBILITIES: . ...................... ............................... 27 (a) Applicable Laws ................................................................... ............................... 27 (b) Personnel ................................................................................. .............................27 (c) Permits and Licenses ............................................................. ............................... 27 (d) Workers' Compensation Policy ............................................ ............................... 27 (e) Public Liability Insurance .................................................... ............................... 27 (t) insurance Responsibility for CITY Owned Solid Waste Collection and RecyclingVehicles ............................................................... ............................... 28 (g) Indemnification ....................................................................... .............................28 (h) Enforcement. of Scope of Services ........................................ ............................... 29 (i) Waivers ................................................................................... .............................29 42. SUBCONTRACTORS AND MANAGEMENT: ............................................................ 29 43. ACCOUNTING AND AUDITING: ...................................... ......................................... 29 44. BOND: ............................................................................................. ............................... 30 45. MEDIA RELATIONS: .................................................................................................... 30 46. NOTICES: ........................................................................................................................ 30 47. GENDER AND NUMBER: ............................................................................................ 31 48. VALIDITY: .......................................... ..................................................................... .... 31 49. ASSIGNABILITY: .......................................................................................................... 31 50. GOVERNING LAW: ........................... .................................................................... ...... 31 WASTE MANAGEMENT HOLDINGS INC. (WMH) GUARANTEE ..... ............................... 33 iii 25N -6 TABLE OF CONTENTS (continued) EXHIBIT "A" - SPECIFICATIONS ........... ............................... EXHIBIT "B" -- NOT REQUIRED EXHIBIT "C" _ RATES ....................... ............................... EXHIBIT "D" — NOT REQUIRED iv 25N -7 Page .......................... 36 ............................... 40 FOURTH AMENDED AND RESTATED AGREEMENT FOR COLLECTION AND HANDLING OF SOLID WASTE GENERATED AND /Olt ACCUMULATED IN THE CITY OF SANTA ANA This FOURTH AMENDED AND RESTATED AGREEMENT, made and entered into this 16th day of August, 2016 by and between the City of Santa Ana, a charter city and municipal corporation duly authorized under the Constitution and laws of the State of California (referred to herein as "City ")," and USA Waste of California Inc., a Delaware corporation dba Waste Management of Orange County, formally Great Western Reclamation, a division of Waste Management Collection and Recycling, Inc, a California corporation, hereinafter called, "CONTRACTOR," RECITALS 1. The Legislature of the State of California, by enactment of the California Integrated Waste Management Act of 1989, Division 30 of the California Public Resources Code, commencing with Section 40000 ( "CIWMA "), declares that it is within the public interest to authorize and require local agencies to make adequate provisions for Solid Waste handling within their jurisdictions. 2. In the opinion of the City Council of the City of Santa Ana, the public health, safety and wellbeing require that the collection, transportation, and recycling, diversion by means of composting, mulching and /or transforming, and disposal of Solid Waste, including, but not limited to, the frequency and means of such collection, transportation and recycling, yard waste diversion or disposal, and the charges and fees therefore, be provided by contract to a qualified contractor, 3. On June 30, 1993, CITY and CONTRACTOR entered into an agreement for such Solid Waste collection and handling (the "Original Agreement "). 4. Since the execution thereof, CITY and CONTRACTOR jointly concurred that it would be in the best interest of the CITY and the residents therein that the Original Agreement be revised to provide for Solid Waste collection, recycling and disposal of Curbside Service Units by means of automated Solid Waste collection vehicles and Solid Waste collection and recycling plastic Carts. 5. On June 1, 1996, CITY and CONTRACTOR entered into an agreement entitled "Amended and Restated Agreement for Collection and Handling of Solid Waste Generated and /or Accumulated in the City of Santa Ana" (hereinafter referred to as "Amended Agreement" to effectuate the new curbside service collection prograln. 6. On June 19, 1997, CITY and Contractor entered into an Agreement entitled "Second Amended and Restated Agreement for the Collection and Handling of Solid Waste Generated and /or Accumulated in the City of Santa Ana" to clarify the responsibilities associated with the collection, handling, and processing of solid waste collected by Contractor. 7. On April 3, 2005, CITY and CONTRACTOR entered into an Agreement entitled "Third Amended and Restated Agreement for the Collection and Handling of Solid Waste 1 25N -8 Generated and/or Accumulated in the City of Santa Ana" ("Third Amended Agreement"), in order to, among other things: (i) extend the term of the Agreement to June 30, 2018, (ii) incorporate new programs to increase recycling and reduce illegal disposal of used oil, as well as to reduce illegal dumping and litter throughout the City and (iii) include measures to ensure continued compliance with the 50% diversion requirements as imposed by the State of California. 8. The parties again desire to amend the Third Amended Agreement in its entirety to incorporate the provisions of previous amendments and to clarify, update and realign the financial provisions of the Agreement. The City Council of the City of Santa Ana., hereby desires that CONTRACTOR be engaged to provide for both the collection of Solid Wastes within the corporate limits of the City of Santa Ana and the transportation of such Solid Wastes to appropriate places of processing, recycling, yard waste diversion, and disposal, and to perform such services on the terms and conditions set forth in this Agreement. NOW, THEREFORE, for the reasons recited above, and in consideration of the respective and mutual covenants and promises hereinafter contained and made, and subject to all the terns and conditions hereof, the parties hereto do hereby agree as follows: 1. GRANT OF CONTRACT: CITY hereby grants to CONTRACTOR, for the term hereinafter set forth, the contract, right and privilege to collect, recycle, divert by means of composting, mulching, and/or transforming, dispose and transport, to appropriate facilities as set forth in this Agreement, all Solid Wastes (as herein defined and subject to the terms herein) generated, produced, kept and /or accumulated in the City of Santa Ana, and CONTRACTOR, subject to all of the terms hereof, hereby accepts and agrees to faithfully perform such contract and obligation. 2. TERM OF CONTRACT: The term of this Agreement shall begin upon execution of this Agreement and shall extend to June 30, 2018. 3. DEFINITIONS: As used in this Agreement, the following words and phrases shall have the meaning assigned in this section, unless the context at the point of usage clearly requires a different meaning. (1) Agreement shall mean this Amended and Restated Agreement, including the exhibits thereto and the documents incorporated herein by reference. (2) Auditor shall mean the certified public accountant firm retained by City for auditing services, (3) Bin Service shall mean all Solid Waste collection services provided by CONTRACTOR by means of front- loaded collection bins of various sizes. 2 25N -9 (4) California Integrated Waste Management Act ( "CIWMA ") shall mean that act codified by California Public Resources Code Sections 40000 et seq., and any subsequent amendments thereto. (5) California Integrated Waste Management Board shall mean the Board created by the California Integrated Waste Management Act, and any subsequent modifications thereto, and shall encompass any other agency which assumes the duties of this Board. (6) CITY shall mean the City of Santa Ana. (7) City Attorney shall mean the City Attorney of CITY. (8) City Council shall mean the City Council of CITY. (9) City Manager shall mean the City Manager of CITY. (10) Clerk of the Council shall mean the Clerk of the Council of CITY. (11) Code shall mean the Municipal Code of CITY, both codified and miscellaneous ordinances. (12) Commercial /Industrial Bin Service shall mean Bin Service which is provided by CONTRACTOR to commercial and /or industrial units. (13) Commercial Solid Wastes shall mean Solid Waste originating from stores, business offices, commercial warehouses, hospitals, educational, health care, military and correctional institutions, non - profit research organizations and government offices. (14) Compost means the product resulting from the controlled biological decomposition of 3 organic wastes that are source separated from the Solid Waste stream. (15) Composting means a method of waste treatment which produces a product meeting the definition of "compost" herein. (16) Composting Facility means a state permitted Solid Waste facility at which composting is conducted and which produces a product meeting the definition of compost. (17) Construction and Demolition Solid Waste includes Solid Wastes, such as building materials, and packaging and rubble resulting from construction, remodeling, repair and demolition operations on streets, pavements, houses, commercial buildings, and other structures, (18) Contract shall mean this Agreement, entered into between CITY and CONTRACTOR. (19) CONTRACTOR shall nn= USA Waste of California Inc., a California corporation, and shall also include the parent company Waste Management, Inc. (20) Curbside Service Unit shall mean each single family residence and duplex unit which receives curbside collection services provided by CONTRACTOR. This shall include 25N -10 commercial curbside users and any multi- family, business or professional user which does not require Bin Service as determined by the Executive Director. (21) Customer shall mean a user of CONTRACTOR's bin or roll -off container service. (22) Disposal Site shall mean any licensed landfill site permitted by the California Integrated Waste Management Board for the receipt and ultimate disposition of Solid Waste. (23) Executive Director shall mean the Executive Director of Public Works of CITY, or his or her designate. (24) Gate Fees shall mean those charges by a Disposal Site for Solid Wastes disposed of at said site. Gate Fees are also known as "tipping" fees and "landfill" fees. (25) Gross Receipts means and includes all revenues actually received by CONTRACTOR arising from, or attributable to, the services provided by CONTRACTOR to its Customers in the CITY pursuant to this Agreement. Gross Receipts include Gate Fees as defined herein. Gross Revenue does not include any revenue received by CONTRACTOR from the sale of Recyclable Solid Waste. Notwithstanding the above, "Gross Receipts" shall not include any SMaRT Fees collected by the CONTRACTOR from the customer as authorized by Section 7 of Exhibit "C" herein. (26) Hauling Charges shall mean those portions of the curbside, bin, roll -off and other rates provided for in this Agreement which compensate CONTRACTOR for the Solid Waste collection and transporting services required of CONTRACTOR under this Agreement. The parties have agreed upon the initial Hauling Charges as set forth hereinafter, and such charges are subject to adjustments as provided in this Agreement. (27) Hazardous Wastes are those wastes which, because of their physical or chemical characteristics, and are defined as a "hazardous substance" or "hazardous waste" pursuant to the Resource Conservation and Recovery Act" ( "RCRA" ), cannot be disposed of in a Class III landfill under the applicable laws and regulations of the State of California. (28) Industrial Solid Wastes means Solid Waste originating from mechanized manufacturing facilities, factories, refineries, and publicly operated treatment works, and /or Solid Wastes placed in bins and /or roll-off containers. (29) Licensed Equipment means the Solid Waste collection and Recycling vehicles and Solid Waste collection and Recycling plastic carts licensed by the CITY to the CONTRACTOR pursuant to Section 11 of this Agreement. (30) Materials Recovery Facility meats a facility permitted as a Solid Waste Facility by the California Integrated Waste Management Board for sorting, separating and processing of Recyclable Solid Wastes as well as the segregation and transportation of non - Recyclable Solid Wastes to a Disposal Site. 4 25N -11 (31) Permitted Solid Waste Facility means a Solid Waste facility for which there exists a Solid Waste Facilities Permit issued by the local enforcement agency and concurred in by the California Waste Management Board. (32) Person shall include, without limitation, associations, clubs, societies, firms, partnerships, sole proprietorships, corporations, schools; colleges and all governmental agencies and entities, as well as individuals, including the officers of such associations, corporations, etc. (33) Processing means the reduction, separation, recovery, conversion or Recycling of Solid Waste. (34) Processing Charges shall mean those portions of the curbside, bin, roll -off container and other rates provided for in this Agreement which compensate CONTRACTOR for Processing Solid Wastes collected by CONTRACTOR in the CITY and delivered by CONTRACTOR to a designated Materials Recovery Facility or Composting Facility, The parties have agreed upon the initial Processing Charges, as set forth hereinafter, and such charges are subject to adjustments as provided in this Agreement. The cost of transporting the residue of the CITY'S Solid Waste stream to a Disposal Site after Processing the Recyclable Solid Wastes therefrom and the cost of transporting Recyclable Solid Wastes to their ultimate destination shall be deemed part of this Processing Charge, but the gate fee charged at said Disposal Site for depositing said Solid Waste residue shall not be included in the Processing Charge. (35) Recyclable Solid Waste means and includes those Solid Wastes which may be sorted, cleansed, treated, processed and /or reconstituted for purposes of reuse. Recyclable Solid Wastes are not a separate category of materials, but merely an evolving portion of the entire stream of Solid Waste generated within the CITY. (36) Recycling means collecting, sorting, cleansing, treating, Processing and reconstituting Recyclable Solid Wastes for the purpose of reuse or sale. (37) Residential Bin Service shall mean Bin Service which is provided by CONTRACTOR to any and all residential users which request or require such services pursuant to this Agreement. (38) Residential Solid Waste means Solid Waste originating from single - family or multiple family dwellings. (39) Roll -Off Service shall mean Solid Waste collection from transportable containers of 10 cubic yards or larger which are dropped off at a residence, commercial or industrial establishment and later removed for collection of contents of said container. ROLL -Off Service includes compactors which may be used with roll -off containers. (40) Solid Waste shall mean all Solid Wastes, including, but not by way of limitation, Recyclable Solid Wastes, whether now recyclable or not, generated and /or accumulated by all residential, commercial and industrial sources, and at all construction and demolition sites within the CITY excluding that Solid Waste referred to in Section 9(a) herein; provided, however, that Solid Waste shall not be deemed, for purposes of this Agreement, to include any Hazardous Wastes as defined hereinabove. 25N -12 (41) Solid Waste Facility shall include a Composting Facility, Materials Recovery Facility or a transfer station. (42) Source Reduction and Recycling Element shall be the CITY'S plan for meeting the requirements of CIWMA. (43) Waste Type means identified wastes having the features of a group or class of wastes that are distinguishable from any other Waste Type, as identified by the CITY'S Source Reduction and Recycling Element. (44) Yard Waste means any wastes generated from the maintenance or alteration of public, commercial or residential landscapes including, but not limited to, leaves, yard clippings, tree trimming, brush, weeds and pruning. (45) Yard Waste Diversion shall mean the diversion from the waste stream of yard waste or organic waste and the composting, mulching, and /or transformation thereof. 4. SCOPE OF SERVICE: (a) CONTRACTOR shall furnish all labor, material, facilities acid equipment necessary, except for those vehicles and equipment which the CITY shall license to CONTRACTOR pursuant to Section I I herein, for the collection of all Solid Waste originating, generated and /or accumulated by any person within CITY boundaries, as they now exist or may hereafter exist, and shall transport, process, Recycle, divert by means of composting, mulching and/or transforming and /or dispose of said Solid Waste in compliance with the terms of this Agreement. (b) All Solid Waste collected by CONTRACTOR within the CITY shall not be commingled in equipment and /or vehicles used by CONTRACTOR, whether such equipment and vehicles are owned by or licensed to CONTRACTOR pursuant to Section 11 herein, with Solid Waste from any other jurisdiction or person from outside the CITY limits; however, in the event of an emergency vehicle breakdown, a vehicle from a neighboring jurisdiction may complete the route of the vehicle which broke down. In this case, the CONTRACTOR must notify the CITY in writing within twenty four (24) hours of such emergency breakdown and must also provide the CITY with the allocation of tonnages contained in the vehicle. 5. COLLECTION HOURS: (a) All collections from residential areas shall be made between the hours of 6:00 a,m. and 6:00 p.m. Collections from commercial and industrial locations greater than 100 feet from residential units may start at 3:00 a.m. and must terminate by 9:00 p.m., however, if complaints are received from such residential units, the Executive Director may direct that collections in such areas shall be made between the hours of 6:00 a.m. and 6:00 p.m. and in that event CONTRACTOR agrees to comply with such order. (b) Notwithstanding section (a) above, Solid Waste collected pursuant to Section 13 hereto shall be collected pursuant to the provisions contained therein. 25N -13 6. HOLIDAYS: Where, on a given route, the day of collection would be a legal holiday, CONTRACTOR shall collect along said route on the work day next following said legal holiday acid collection on each day during said holiday week shall be similarly delayed one day. Legal holidays for the purpose of this Agreement shall be New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Christmas Day and such other days as may be mutually agreed upon in advance by the parties, FREQUENCY OF COLLEC'T'IONS: The Contractor will collect all Solid Waste from all areas of the CITY at least once each week and in addition will provide more frequent service for those Customers using the Bin Services or Roll -Off Services supplied, by CONTRACTOR if requested by a Customer or if required by the CITY. Contractor shall provide additional collection services as set forth in Sections 14 (e) and (f), 8. MAINTENANCE OF SCHEDULES: Presently existing routes, schedules and times for collection of Solid Waste shall be maintained but may be changed by authorization of the Executive Director and at least one week's advance notification by CONTRACTOR to occupants of the buildings in the area where the changes are to be made. 9. EXCLUSIVENESS OF AGREEMENT: The CONTRACTOR shall have the exclusive duty, right and privilege to collect, transport, process, Recycle, divert by means of composting, mulching, and /or transforming, retain and dispose of all Solid Waste, as defined in this Agreement, generated and/or accumulated within the CITY, except as provided below, CONTRACTOR recognizes that this grant of exclusiveness is subject to the restraints provided in Public Resources Code Sections 49520 et seq. (a) The grant of exclusiveness shall not include Construction and Demolition Solid Waste which has accumulated and /or been generated at a temporary construction site and which is being disposed of in roll -off containers or in bins. (b) This Agreement shall not prohibit the persons who generate Solid Waste, or the persons who own the premises upon which solid waste has been generated or accumulated, from personally collecting, transporting and disposing of their own Solid Waste so long as they dispose of such Solid Waste at a site permitted by the California Integrated Waste Management Board in accordance with all governing laws and regulations. (c) This Agreement shall not prohibit the persons who generate Solid Waste, or the persons who own the premises upon which Solid Waste has generated or accumulated, from: (1) selling their Recyclable Solid Wastes, or, (2) donating their Recyclable Solid Wastes; provided, however, that in both instances: (a) the person must, on its premises, personally segregate (by Waste Type) from other Solid Waste the Recyclable Solid Waste to be sold or donated, and (b) the person may not pay the buyer or the donee any sums, consulting fees or other fees in lieu of 7 25N -14 charging for collection, or other tangible consideration for collecting, Processing or transporting such segregated Recyclable Solid Wastes. A person who simply receives a discount of, or reduction in, the collection and disposal service rates of its unsegregated Solid Waste shall not be deemed to be selling or donating Recyclable Solid Wastes for purposes of this exception. (d) This Agreement shall not prohibit a gardener, tree trimmer or person engaged in landscape maintenance who has a business license to operate in the CITY from collecting yard waste or other organic Solid Wastes which it generates as an incidental portion of providing its licensed services. Any yard waste or other organic Solid Waste collected pursuant to the exception provided by this subsection must be transported by the gardener, tree trimmer or person to a composting facility permitted by the California Integrated Waste Management Board in accordance with all laws and regulations. (e) This Agreement shall not prohibit collectors of Solid Waste originating outside the CITY from hauling such Solid Waste over CITY streets, provided such collectors comply with any governing laws or ordinances. (f) CONTRACTOR's right to collect and/or dispose of Solid Waste shall not be exclusive in the event of a failure to collect under Section 34 of this Agreement during which CONTRACTOR fails to maintain substantially complete regular collection services pursuant to this Agreement and the collection schedules then in effect, for any reason, including a strike by CONTRACTOR's employees or similar labor dispute. The CITY may provide for collection and/or disposal by persons other than CONTRACTOR during such periods and may permit the public to obtain collection and /or disposal services from persons other than CONTRACTOR during such periods, including CONTRACTOR's Bin and /or Roll -Off Service Customers. (g) CONTRACTOR shall not have the exclusive right to collect and dispose of Solid Waste by providing Bin and /or Roll-Off Service if the conditions stated in Section 28(c) are applicable. 10. SOLID WASTE FRANCHISE FEE: (a) CONTRACTOR shall pay to the CITY, as a franchise fee, twenty -six and fifteen - hundredths percent (26.15 %) of the Gross Receipts received by CONTRACTOR for each applicable period, This amount may be increased by resolution of the City Council and, whenever said franchise fee is increased by resolution of the City Council, CONTRACTOR shall be permitted to pass through to its , Bin Service Customers and Roll-Off Service Customers one hundred (100 %) percent of the amount of such increase. Payments to the CITY of said franchise fee shall be made to the CITY on a monthly basis and shall be due and payable on or before the last calendar day of the following month. Accompanying each payment will be a listing of the Gross Receipts for that corresponding month. CONTRACTOR shall, whenever requested to do so, make available such records to the Executive Director at any reasonable time. (b) Failure of CONTRACTOR to make any of the payments provided for in section (a) above on or before the dates due will result in a penalty of ten (10 %) percent per month to CONTRACTOR. 8 25N -15 11. AUTOMATED SYSTEM: (a) -(f) Intentionally Omitted (g) REPLACEMENT OF RESIDENTIAL AND COMMERCIAL COLLECTION VEHICLES: When any collection vehicles used by CONTRACTOR to provide services under this Agreement, have reached the end of their useful lives, the CONTRACTOR will provide at its expense, new low- emission collection vehicle replacements which meet or exceed the emission requirements of all Federal, State or Local air quality laws or regulations. All residential collection vehicles will display the City's recycling logo. The CONTRACTOR will also replace the Solid Waste collection and Recycling plastic cuts as described in Exhibit A with new carts as needed, All replacement vehicles and carts provided shall be owned and operated by the CONTRACTOR, 12. COLLECTION POINTS AND REQUIREMENTS: (a) CONTRACTOR shall not be required to collect Solid Waste from any Curbside Service Unit unless the same is placed on the curb along a public or private street, or along an alley having street access at both ends, and is placed in Solid Waste collection and Recycling plastic carts provided to the Curbside Service Unit by CONTRACTOR and is prepared for collection in a manner prescribed by the CITY'S regulations covering the same. Under no circumstances shall CONTRACTOR be required to pick up and collect any material or matter which is not Solid Waste as defined in this Agreement, or to pick up and collect any Solid Waste from Curbside Service Units which does not comply with the following standards and limitations: (1) All Solid Waste shall be placed in the Solid Waste collection and Recycling plastic carts provided by CONTRACTOR to each Curbside Service Unit pursuant to the following: (a) Non - Recyclable Solid Waste shall be placed in burgundy plastic carts provided by CONTRACTOR; (b) Recyclable Solid Waste shall be placed in grey plastic carts provided by CONTRACTOR; and, (c) Yard Waste shall be placed in green plastic carts provided by CONTRACTOR. (2) All non - Recyclable Solid Waste, Recyclable Solid Waste and Yard Waste shall be placed in the appropriate Solid Waste collection and Recycling plastic carts adequate to eliminate overflow or contamination of surrounding areas, Any non- Recyclable Solid Waste, Recyclable Solid Waste and/or Yard Waste which is not placed in a Solid Waste plastic cart which has been provided to the Curbside Service Unit will not be picked up; and, (3) Large, heavy items, including, without limitation, water heaters, couches, tables, refrigerators, stoves, and large pieces of furniture or household equipment shall be considered bully items which may be disposed of under the provisions of Section 21. 25N -16 (b) The aforementioned requirements to place non - Recyclable Solid Waste, Recyclable Solid Waste and Yard Waste in appropriate Solid Waste collection and Recycling plastic carts shall not apply to Christmas trees properly placed for collection. (c) Whenever any Solid Waste that does not comply with the above standards and limitations is not collected by CONTRACTOR, CONTRACTOR shall leave a notice, the format of which is subject to the approval of the CITY, indicating the reason for non- collection at such Curbside Service Unit. Said notice shall also contain the CONTRACTOR'S business name and his local telephone number. A copy of said notice shall be delivered, or sent via telephone facsimile, to the CITY upon request by the Executive Director and, if the reason for noncollection is not corrected within seven (7) days, CONTRACTOR shall notify the CITY as to this continued noncollection. 13. SERVICES TO BE PROVIDED BY CONTRACTOR TO CITY FOR CITY OPERATIONS: (a) CITY GOVERNMENT OPERATIONS: CONTRACTOR shall collect all Solid Waste and Construction and Demolition Solid Waste which is generated by CITY government operations at no cost to the CITY. The CITY shall provide CONTRACTOR with a list of locations of bins and/or roll -off containers from which such Solid Waste shall be collected. Said list may be modified by time to tune by the Executive Director, Solid Waste generated by such CITY operations shall be collected by CONTRACTOR per a schedule provided to CONTRACTOR by the Executive Director which schedule shall be approved between the CONTRACTOR and the Executive Director. (b) STREET SWEEPING: The CONTRACTOR will coordinate with the Executive Director to ensure that Solid Waste collection is compatible with the CITY'S street sweeping operations. CONTRACTOR will be required to complete their designated routes each day so as not to interfere with the CITY'S street sweeping operations. (c) NEIGHBORHOOD CLEANUPS: The Contractor shall supply rolloff containers for CITY sponsored neighborhood cleanups at no cost to the CITY. The number of roll off containers shall not exceed a maximum total number of three hundred (300) containers annually. Notwithstanding the above, at any time that the CITY determines that the number of collections and/or the number of roll -off containers provided for in section (c) is not adequately meeting the CITY'S needs, then the CITY and CONTRACTOR agree to meet and confer regarding these provisions, and may, by mutual agreement, modify the number of collections and /or roll -off containers. (d) The CONTRACTOR shall coordinate with the Executive Director to provide household hazardous waste collection events allowing residents to deliver their waste to a collection site for proper disposal by CONTRACTOR, (e) The CONTRACTOR shall administer a Residential Mail -Back Service, providing containers approved for safe disposal of used medical sharps by residents. When the container is full, the resident will mail it for incineration at an authorized facility. This program will be offered to residential customers who, for medical reasons, require the use of medical sharps. 10 25N -17 14. COLLECTION RECYCLING YARD WASTE DIVERSION AND DISPOSAL (a) CURBSIDE SERVICE: CONTRACTOR shall provide each Curbside Service Unit within the CITY with a minimum of three (3) Solid Waste collection and Recycling plastic carts, Any provision of less than three (3) such plastic carts to any Curbside Service Unit shall be approved by the Executive Director. Each Solid Waste plastic cart shall be a different color as described in Section 12 above. CONTRACTOR shall be required to collect contents of each Solid Waste plastic cart once per week and CONTRACTOR shall be required to process the contents of said plastic carts as follows: (1) Non - Recyclable Solid Waste Collection and Recycling Plastic Carts: Contents of plastic carts containing Solid Waste shall be hauled directly to a legally authorized Disposal Site pursuant to subsection (e) herein. (2) Recyclable Solid Waste Collection and Recycling Plastic Carts: The contents of containers containing Recyclable Solid Waste shall be hauled to a Material Recovery Facility ( "MRF "), which MRF shall be acceptable to the CITY, for Processing and diversion. All Solid Waste transported to said MRF shall be processed and the portion thereof which is recyclable shall be recycled by Waste Type in amounts so as to comply with CIWMA and the CITY'S Source Reduction and Recycling Element ( "SRRE "). In the event that the MRF approved by the CITY is not operated by the CONTRACTOR, CONTRACTOR will be responsible to subcontract for the use of such a facility so as to ensure the CITY'S compliance with CIWMA. (3) Yard Waste Collection and Recycling Plastic Carts: The contents of the plastic carts containing Yard Waste will be transported to a Composting Facility which meets all state, federal and local laws for Yard Waste Diversion and which is acceptable to the CITY. CONTRACTOR shall be responsible to ensure that the Yard Waste collected by CONTRACTOR is diverted in compliance with CIWMA and the CITY'S SRRE. (b) BIN SERVICE: CONTRACTOR shall operate a Recycling program as described herein for Bin Service. Stich Recycling program, shall require that CONTRACTOR take the Solid Waste in bins which have clean "dry" loads to a MRF which is acceptable to the CITY for Processing and diversion. CONTRACTOR shall guarantee that, at a minimum, fifty (SO%) percent of the tonnage of Solid Waste which is contained in bins and which is determined to have a high recyclable content will be transported to a MRF. All Solid Waste which is transported to said MRF shall be processed and the portion thereof which is recyclable shall be recycled by Waste Type in amounts so as to comply with CIWMA and the CITY'S SRRE. In the event that the MRF approved by the CITY is not operated by the CONTRACTOR, CONTRACTOR will be responsible to subcontract for the use of such a facility so as to ensure the CITY'S compliance with CIWMA, CONTRACTOR shall be permitted to transport directly to a legally authorized Disposal Site those bins which are determined to have limited Recycling potential due to food or other types of contamination. Any modifications to the above - referenced percentage shall be approved by the Executive Director and shall be based on the diversion realized. (c) ROLL -OFF SERVICE: CONTRACTOR shall process all Solid Waste collected from its Roll -Off Service in compliance with the CITY'S SRRE and CIWMA. CONTRACTOR 11 25N -18 shall transport all Solid Waste collected by the CONTRACTOR from roll -off service within the CITY boundaries to a state permitted MRF, as provided in, and in compliance with, CIWMA, which MRF shall be acceptable to the CITY. All Solid Waste transported to said MRF shall be processed and the portion thereof which is recyclable shall be recycled by Waste Type in amounts so as to comply with CIWMA and the CITY'S SRRE. In the event that the MRF approved by the CITY is not operated by the CONTRACTOR, CONTRACTOR will be responsible to subcontract for the use of such a facility so as to ensure the CITY'S compliance with CIWMA, (d) TEMPORARY BIN SERVICE: CONTRACTOR shall process all Solid Waste collected from temporary bins, not including Construction and Demolition Solid Waste, in compliance with the CITY'S SRRE and CIWMA. CONTRACTOR shall transport all Solid Waste collected by the CONTRACTOR from temporary bins within the CITY boundaries to a state permitted MRF, as provided in, and in compliance with, CIWMA, which MRF shall be acceptable to the CITY. All Solid Waste transported to said MRF shall be processed and the portion thereof which is recyclable shall be recycled by Waste Type in amounts so as to comply with CIWMA and dre CITY'S SRRE. In the event that the MRF approved by the CITY is not operated by the CONTRACTOR, CONTRACTOR will be responsible to subcontract for the use of such a facility so as to ensure the CITY'S compliance with CIWMA. (e) PARKWAY CLEAN -UP FOLLOWING GARAGE SALES' CONTRACTOR shall provide 2 employees in a "front - loader" vehicle that will devote 60 hours each six working days following the quarterly garage sales to canvass the City neighborhoods in order to remove debris left in the parkways after garage sales. CONTRACTOR shall transport all Solid Waste collected by the CONTRACTOR from Parkway Cleanups within the CITY boundaries to a state permitted MRF, as provided in, and in compliance with, CIWMA, which MRF shall be acceptable to the CITY. (f) ALLEY CLEAN -UP FOLLOWING THE 1sT OF EACH MONTH: CONTRACTOR shall provide 2 employees in a "front - loader" vehicle that will devote 60 hours each six working days following the first day of each month and six working days during the third week of the month to canvass the City neighborhoods in order to remove debris left in alleyways following relocations. CONTRACTOR shall transport all Solid Waste collected, by the CONTRACTOR from Alley Cleanups within the CITY boundaries to a state permitted. MRF, as provided in, and in compliance with, CIWMA, which MRF shall be acceptable to the CITY. (g) DISPOSAL: CONTRACTOR shall be required to dispose of any and all Solid Waste which is not recycled or diverted by means of composting, mulching and /or transforming pursuant to the terms of this Agreement, at a legally authorized Disposal Site(s) as designated by the CITY. If CONTRACTOR is directed to dispose of said Solid Waste at a location other than the County of Orange's Disposal Sites, both parties agree to meet and confer regarding any potential rate adjustments which may be necessitated thereby. Should Disposal Sites become unavailable in Orange County at any time during the term of this Agreement, CONTRACTOR hereby guarantees disposal at another Disposal Site owned and operated by CONTRACTOR or an affiliate, and both parties agree to meet and confer regarding any potential rate adjustments which may be necessitated thereby. Additionally, CONTRACTOR hereby agrees and guarantees to the CITY that the CITY will be indemnified for CERCLA liability for any Solid Waste collected by the CONTRACTOR in the CITY which is delivered to CONTRACTOR's 12 25N -19 (h) CONTRACTOR will act as the contracting body and lead agency with the MRF and Composting Facility with respect to this Agreement and shall be responsible for, and insure that, both facilities act so as to meet the requirements of both this Agreement and CIWMA. (i) CONTRACTOR hereby agrees and guarantees to the CITY that CONTRACTOR will do each, every and all things required to ensure that all Solid Waste generated, produced or accumulated in the CITY which is collected by CONTRACTOR will at all times be in full compliance with all of the provisions of the CITY'S SRRE, CIWMA, and amendments thereto adopted hereafter, and will protect, indemnify, pay, save, defend, and hold the CITY harmless from any and all loss, expense, damage, fines, penalties and liability of every kind and nature whatsoever by virtue of any non - compliance with such CITY and statutory requirements, provided, however, that CONTRACTOR shall not be responsible to the extent Solid Waste is generated in the CITY and collected, processed or disposed of, by other than CONTRACTOR. Further, CONTRACTOR agrees to protect, defend, with counsel approved by the CITY, and indemnify CITY against any and all fines and/or penalties imposed by the California Integrated Waste Management Board in the event that the diversion quantities contained in the CITY'S SRRE, or any other requirement of CIWMA, are not met. 15. [RESERVED] 16. CIWMA REPORTING REOUIREMENTS: CONTRACTOR shall prepare and submit to the CITY, on forms previously approved by the CITY, all monthly or annual reports required of the CITY pursuant to the CIWMA. In addition thereto, within sixty (60) days after the end of each calendar year, the CONTRACTOR shall provide to the CITY an annual report which; (a) provides a collated summary of all the information contained in the monthly reports referred to above; (b) provides a narrative description of all public awareness activities of CONTRACTOR during the past one year which may have impacted Recycling participation; and (c) provides a discussion of Recycling Mid source reduction program highlights and difficulties. CITY may require additional reports from CONTRACTOR should the reports requested, or submitted, pursuant to this section not satisfactorily fulfill the CITY' S requirements. 17. SRRE CONSULTANT: (a) CONTRACTOR shall provide consultant services as necessary to modify the CITY'S SRRE as required by either the County of Orange AB 939 Local Task Force and/or the State of California, The consultant to perform such services shall be approved by the CITY. Such consultant services shall be provided upon request by the CITY and shall be subject to final approval of the CITY, The CONTRACTOR shall be responsible for a maximum cost for such services of twenty thousand ($20,000.00) dollars per fiscal year, Any costs incurred by the CONTRACTOR for services approved by the CITY which exceed twenty thousand ($20,000.00) dollars per fiscal year shall be the responsibility of the CITY as provided in section (b) below, (b) CONTRACTOR shall submit a monthly report showing consultant services performed for the preceding month. Subject to the approval of the Executive Director, any costs for approved services which exceed twenty thousand, ($20,000.00) dollars per fiscal year shall be 13 25N -20 made by the CITY within thirty (30) days of receipt of said report for work satisfactorily performed. 18. PUBLIC EDUCATION SERVICES: The CONTRACTOR shall be responsible for the provision of public education services as provided in the CITY'S SRRE. These services shall include, but are not limited to, the following items: (a) the production and distribution of a pamphlet containing trash regulations and holidays to all Customers and Curbside Service Units on a yearly basis and to all new service starts at service initiation; (b) the production and distribution to all Customers and Curbside Service Units every year of pamphlets concerning source reduction, Recycling and /or Yard Waste Diversion on an annual basis and to all new service starts at service initiation; (c) the performance, as needed, of community presentations on source reduction, Recycling and Yard Waste Diversion, including the production of all presentation materials; (d) the provision, as necessary, of technical assistance in the areas of source reduction, Recycling and Yard Waste Diversion; (e) the establishment and maintenance of a telephone hotline to receive calls from the public and provide iunfortnation concerning integrated waste management; (f) cooperation in the production of an integrated waste management video for use by the CITY; and, (g) development and. management of grants pursuant to the regulations contained in the CIWMA and/or adopted by the California Integrated Waste Management Board including the Department of Conservation and other governmental agencies that offer grants related to collection and recycling services provided under the Agreement. Contractor shall be compensated $75.00 per hour for grant administrator's time to development and administer the grant programs. Annually, on July 1, or as soon thereafter as the CIWMB determines the level of funding to be provided to City, the City and CONTRACTOR will set the compensation and level of service for collection of used oil containers and filters, This Section may be reasonably modified from time to time as deemed necessary and appropriate by the Executive Director, including increased grant compensation paid to Contractor upon a writing executed by the Executive Director. The CONTRACTOR shall be required to work with the Executive Director in the preparation and production of the services listed and to proceed in the rendering of such services as the CITY dictates. Any services required hereunder shall require the Executor Director's approval prior to the execution thereof. 14 25N -21 19. STANDARDS FOR COLLECTION, EOUIPMENT AND NOISE: (a) Equipment and vehicles used by CONTRACTOR, whether owned by or licensed to CONTRACTOR, for the collection and hauling of Solid Waste shall be used so as to assure, in the reasonable opinion of the Executive Director, that adequate standards of collection will be maintained, All loads in CONTRACTOR's vehicles shall be kept completely covered at all times except when material is actually being loaded or unloaded. or where the vehicles are on route in the process of collection. The collection equipment must be designed and operated in such a manner as to prevent Solid Waste from escaping the vehicle. Any spillage of materials which occurs during the collection process shall be immediately cleaned up by the CONTRACTOR at its expense. Further, all vehicles used by the CONTRACTOR pursuant to this Agreement which are not owned by the CITY shall be registered by CONTRACTOR with the Department of Motor Vehicles of the State of California, The CONTRACTOR's vehicles and equipment shall be subject to inspection by the CITY. (b) It is the declared interest of the CITY that the CONTRACTOR be able to provide a variety of sizes of bin and roll -off containers to meet the capacity requirements of commercial and residential bin and roll -off container users. No material shall be permitted to leak, fall or be spilled on CITY streets, alleys or highways. Any such leakage or spills occurring shall be immediately corrected and the area cleaned at the CONTRACTOR's expense. The equipment used must be maintained in good mechanical condition and must employ adequate safety conditions for the operating personnel. (c) All collections shall be made as quietly as possible and no unnecessarily noisy trucks or equipment shall be used. Employees of the CONTRACTOR who are unnecessarily noisy or who violate the provisions of the State Motor Vehicle Code and /or any applicable CITY ordinance in the collection of said materials shall be disciplined pursuant to CONTRACTOR'S performance standards. (d) CONTRACTOR shall equip all Solid Waste collection and Recycling vehicles which collect Solid Waste within the CITY with informational displays. The CITY shall advise CONTRACTOR as to the messages which should be displayed while said vehicles are operating for the CITY. The CITY may, at its option, have the messages to be displayed changed once per year. 20. MAINTENANCE OF BINS AND ROLL -OFF CONTAINERS: (a) Bins and roll-off containers provided by CONTRACTOR shall be of a design and size to contain, at all times, the contents therein in such a manner as to promote best possible housekeeping conditions. Bins and roll -off containers supplied by the CONTRACTOR shall, at all times, be maintained by it in a well -kept appearance and shall be marked with reflectorized material where such bins and/or roll -off containers are or may reasonably be expected to be located in the public right-of-way, Customers shall be responsible for the cleanliness, sanitation and deodorizing of such bins and roll -off containers; provided, however, CONTRACTOR shall provide in its agreements with its Customers for a bin or roll -off container cleaning service, including painting either as needed, at the request of the Customer or at the request of the CITY, for a fee of twenty five ($25.00) dollars. 15 25N -22 (b) Curbside Service Units shall be responsible for the cleanliness and sanitation of the Solid Waste collection and Recycling plastic carts provided to such units. (c) CONTRACTOR shall cause to have graffiti removed from bins within two (2) business days and from roll -off containers within five (5) business days of a request by CITY to do so. Failure to remove the graffiti within the required two (2) business days for bins and five (5) business days for roll -off containers, excluding holidays, shall result in the assessment of a two hundred dollar ($200.00) fine to the CONTRACTOR, CONTRACTOR may charge the user of a bin or roll -off container which requires such graffiti removal a charge of twenty five ($25.00) dollars per incident. (d) The Solid Waste collection and Recycling plastic carts receiving curbside service shall be replaced where found by CONTRACTOR. The CITY reserves the right, upon submission of proof by the Curbside Service Unit, to withhold sufficient compensation under this Agreement to adjust and pay any claim for Solid Waste collection and Recycling plastic carts damaged by the willful or careless acts of the employees of the CONTRACTOR, Repairs and replacement costs for said plastic carts shall be borne by CONTRACTOR; provided, however, that such repairs and/or replacements costs shall not be borne by CONTRACTOR when caused by the wanton or intentional destruction thereof by the Curbside Service Unit. Curbside Service Units shall be billed by CONTRACTOR for replacements caused by intentional or wanton destruction. 21. COLLECTION'_ OF BULKY ITEMS: In order to promote public sanitation and reduce fire hazards, CONTRACTOR shall provide to all Curbside Service Units the service of curbside collection of bulky items such as couches, refrigerators, rugs, water heaters, and other items of Solid Waste, which CONTRACTOR is not required to collect under Section 12 because of size or weight, as follows: (a) Upon request by a Curbside Service Unit within the CITY, CONTRACTOR shall provide no more than two at- demand bulky item collections per year per Curbside Service Unit at no additional cost, Each such Curbside Service Unit is limited to a maximum of four (4) bulky items (or twenty (20) bags of yard waste) per pick -up request. Such collection services shall provide the opportunity of having large objects, and other Solid Waste which is not required to be picked up pursuant to this Agreement, picked up and processed properly. Requests by Curbside Service Units for such collections shall be made directly to the CONTRACTOR who shall provide satisfactory telephone message receiving, transmitting and response procedures and who shall be responsible for maintaining a log of such large item collections. At demand pick ups shall be responded to by CONTRACTOR within a reasonable time but no more than five (5) working days after such a request is received. Requests for more than two (2) at -demand collections per year shall cost thirty ($30.00) dollars per collection and shall be billed to the Curbside Service Unit requesting the additional collection by the CONTRACTOR. (b) CONTRACTOR shall provide assistance of removal of bulky items on private property to senior citizens and the disabled at no cost. (c) CONTRACTOR shall provide for the collection and recycling of televisions, computer monitors and computer laptops as part of the Bulky Item collection program. 16 25N -23 (d) CONTRACTOR shall provide on- request bulky item collection for commercial and residential bin service customers, as set forth in subsection 21. (a), above, Each such request for Residential/Commercial bulky item pick up shall cost forty -two dollars and eighty cents ($42.80) per collection and shall be billed to the residential /commercial bin service customer requesting the additional collection by CONTRACTOR. 22. CURBSIDE SERVICE PAYMENTS: (a) The CONTRACTOR shall establish rates for its provision of curbside services pursuant to this Agreement. Such rates shall in no case exceed those set forth on Exhibit "C" attached hereto and incorporated herein by this reference. The City shall collect on behalf of the CONTRACTOR the rates established by the CONTRACTOR for said services. Rates collected and paid to the CONTRACTOR shall be based on the total number of Curbside Service Units billed by the CITY for curbside service during that month. CITY shall make billing records available to CONTRACTOR upon reasonable notice for the purpose of auditing such records, (b) Remittance to the CONTRACTOR of payments collected by the CITY for curbside service shall on a monthly basis. (c) Payments to be made to the CONTRACTOR shall be reduced each month by an amount equal to the total monthly payment on the C.O.P.s. A monthly payment schedule of the maximum amount of monthly payments on the C.O.P.s will be attached as Exhibit "D" once they are issued. The payments to be made to CONTRACTOR shall not be reduced to the extent of any credits against installment payments received by the CITY pursuant to Section 4.01 of the IPC. 23. RESIDENTIAL BIN SERVICE RATES: (a) The CONTRACTOR shall receive compensation for supplying Bin Service to residential bin users by direct billing of the Customers receiving such service by means of separate agreements entered into between the CONTRACTOR and each Residential Bin Service Customer. A copy of every such agreement shall be made available to the Executive Director by CONTRACTOR. (b) Rates for Residential Bin Service, including Gate Fees, Hauling Charges, Processing Charges and any Recycling and Yard Waste Diversion, shall be established by the CONTRACTOR and shall not exceed those set forth on Exhibit "C" attached hereto and incorporated herein by reference. CONTRACTOR shall make records containing Residential Bin Service available to the Executive Director at any reasonable time. 24. COMMERCIAL /INDUSTRIAL BIN SERVICE RATES: (a) The CONTRACTOR shall receive compensation for supplying Bin Service to commercial /industrial bin users by direct billing of the Customers receiving such service by means of separate agreements entered into between the CONTRACTOR and each such Bin Service Customer. A copy of every such agreement shall be made available to the Executive Director by CONTRACTOR. 17 25N -24 (b) Rates for Commercial /Industrial Bin Service, including Gate Fees, Hauling Charges, Processing Charges and any Recycling and Yard Waste Diversion, shall be established by the CONTRACTOR and shall not exceed those set forth on Exhibit "C" attached hereto. CONTRACTOR shall make records containing Commercial /Industrial Bin Service available to the Executive Director at any reasonable time. 25. ROLL -OFF SERVICE RATES: (a) The CONTRACTOR shall receive compensation for supplying Roll -Off Service by direct billing of the Customers receiving such service by means of separate agreements entered into between the CONTRACTOR and each such Customer copy of every such agreement shall be made available to the Executive Director by CONTRACTOR. Roll -off Service shall be provided at a minimum of three (3) durnps per month per Customer. (b) Rates for Roll -Off Services, including container delivery, collection, hauling and transportation, shall be established by the CONTRACTOR and shall not exceed those set forth on Exhibit "C" attached hereto, CONTRACTOR shall make records containing Roll -Off Service available to the Executive Director at any reasonable time. 26. COMPENSATION FOR GRANTS: CONTRACTOR shall be permitted to obtain compensation in an amount approved by the Executive Director for the management of grants pursuant to Section 18(g) herein, 27. ADJUSTMENTS TO CHARGES: (a) HAULING. AND PROCESSING CHARGES: (1) PRICE INDICES: The two indices which will be used for determining adjustments to Hauling and Processing Charges shall be the December Consumer Price Index ( "CPP') for All Urban Consumers (base years 1982 -1984 = 100) for Los Angeles-Anaheim- Riverside CMSA, published by the United States Department of Labor, Bureau of Labor Statistics and the December Producer Price Index ( "PPI "), Diesel Fuel 42 (9057303). When both indices are to be used to determine an adjustment to the Hauling and Processing Charges, then the adjustment formula shall be as follows: the CPI shall be weighted at ninety (90 %) percent and the PPI shall be weighted at ten (10 %) percent, (2) CURBSIDE SERVICE: The Hauling Charges and Processing Charges for curbside service shall be adjusted annually, using the CPI and PPI adjustment formula set forth in subsection (a)(1) above without limitation; provided, however, that adjustments permitted to the Hauling and Processing Charges during this time period shall be calculated at seventy five (75 %) percent of the CPI.with a five (5 %) percent maximum adjustment and a zero 0% percent minimum adjustment per year. (3) BIN SERVICE AND ROLL -OFF SERVICE: From July 1, 1997 until the termination of this Agreement, the Hauling and Processing Charges for Bin Service and Roll -Off Service shall be adjusted in accordance with the CPI and PPI adjustment formula set forth in subsection (a)(1) above. Adjustments to the Hauling and Processing Charges for Bin Service and 18 25N -25 Roll -Off Service shaft be calculated at seventy five (75 %) percent of the CPI with a five (5 %) percent maximum adjustment and a zero 0% percent minimum adjustment per year. (b) GATE FEES: Should any increase or decrease in the Gate Fees charged by a Disposal Site occur during the term of this Agreement, CONTRACTOR shall be permitted to pass through to both its Bin Service Customers and its Roll -Off Service Customers and CITY shall pass through to its Curbside Service Units one hundred (100 %) percent of such increase or decrease in the Gate Fees for that portion of the Solid Waste which is taken to the Disposal Site. CITY shall pass through to CONTRACTOR such increase or decrease in its curbside service payments to CONTRACTOR. Should a change in Gate Fees become effective on July 1st of any year, the parties agree to utilize the tonnages from the previous calendar year to determine the percentage of Solid Waste that is taken to the Disposal Site. (c) SOLID WASTE FRANCHISE FEE: Should any increase or decrease in the Hauling and Processing Charge or the Gate Fees occur during the tern of this Agreement, CONTRACTOR shall be permitted to pass through to Bin Service Customers and its Roll -Off Service Customers the corresponding increase or decrease incurred by CONTRACTOR for the Solid Waste franchise fee which CONTRACTOR is required to pay to the CITY pursuant to Section 10 herein. (d) SMART FEES: Notwithstanding any provision of this Section 27 to the contrary, the SMART Fees (as defined in Section 7 of Exhibit "C" herein), shall not be subject to adjustment by CPI, PPI or any other index. Rather, the Smart Fees may be adjusted annually, in accordance with the SMaRT Program, not to exceed a maximum amount of five (5 %) percent per arum. 28. SPECIAL BIN SERVICES AND CUSTOMER SERVICE REQUIREMENTS: (a) The CONTRACTOR may enter into agreements with Bin Service Customers for special collection services different from, in addition to, or greater than the minimum collection services required by this Agreement. The special fees which CONTRACTOR may charge Bin Service Customers are set forth on attached Exhibit "C." (b) CONTRACTOR shall not be permitted to charge a special fee for moving a bin from between buildings, other than the fees permitted as set forth on attached Exhibit "C ". Further, CONTRACTOR may not charge a fee when it is required to move its vehicles in reverse for purposes of emptying a bin. Circumstances not covered by any of the above or on attached Exhibit "C" shall require an inspection by the CITY prior to a determination of Ole charges which may be imposed, The decision of the Executive Director in respect to these charges shall be final. A brief explanation of each special service charge must be included on every Customer's billing. (c) In the event the CONTRACTOR is unable to provide temporary service to any Customer within five (5) calendar days after receipt of a call by such Customer, the Executive Director may permit any other licensed hauler to provide temporary service to such Customer if, but only if, CONTRACTOR has not provided such service within twenty -four (24) hours after reasonable notification by the Executive Director to CONTRACTOR. 19 25N -26 29. MINIMUM SERVICE LEVELS - MULTI - FAMILY RESIDENTIAL BUILDINGS: (a) CITY shall require that all residential buildings with three or more dwelling units be served by Bin Service, except that CITY may waive such requirement for any residential buildings with four (4) or more units existing on January 1, 1972 and for any residential buildings with three (3) units existing on February 23, 1983, upon a determination that no lawfully usable space is available for such container within the boundary lines of the subject property, The CONTRACTOR shall provide bin containers of such capacity and collections of such frequency for residential buildings required to have Bin Service by this section as to provide for Solid Waste collection of not less than one-half (1/2) of one (1) yard of Solid Waste collection per dwelling unit per week. In all cases, collections shall be made at least once per week. CONTRACTOR shall comply with any request by the Executive Director to change the scheduled collection days for Residential Bin Service Customers, which is designed to promote conformity of Bin Service collections in any specified area of the CITY to improve sanitation or reduce noise. (b) In the event that Solid Waste being disposed of at a Residential Bin Service building exceeds the bin capacity for such building, CONTRACTOR shall notify the Executive Director who shall cause an inspection to be made of the premises. If the Executive Director determines that there is insufficient bin capacity at said location, he shall cause written notification to be given to the property owner and /or person in possession of the property. Said notification shall contain the date of the reported overflow of Solid Waste from the bins. The notice shall also inform the property owner and /or person in possession of the property that should another incident of overcapacity occur within thirty (30) days following the date of the original incident, the property owner and/or person in possession of the property will be required to increase the number of bins, the size of the bin, or the frequency of collections, up to the equivalent of two (2) cubic yards per dwelling unit per week. In the event that this should occur, the Executive Director shall determine whether to increase the number of bins or the frequency of collections and CONTRACTOR shall furnish such additional services and shall be entitled to compensation from the Customers to the same extent as if the Customer requested such additional collections from the CONTRACTOR. 30. MINIMUM SERVICE LEVELS - COMMERCIAL/INDUSTRIAL BIN SERVICE AND ROLL -OFF SERVICES City shall require that all commercial and/or industrial units and /or buildings be served by Bin Service or Roll -Off Service; provided, however, that this requirement may be waived by the Executive Director, In the event that Solid Waste being disposed of at a commercial/industrial bin or roil -off container unit exceeds the bin or roll -off container capacity for such building, CONTRACTOR shall notify the Executive Director who shall cause an inspection to be made of the premises. If the Executive Director determines that there is insufficient bin or roll -off container capacity at said location, he shall cause written notification to be given both to the business and the property owner. Said notification shall contain the date of the reported overflow of Solid Waste from the bin or roll -off container. The notice shall also inform the business and property owner that should another incident of overcapacity occur within thirty (30) days following the date of the original incident, the business and/or property owner will be required to increase the number of bins or roll -off containers, or the frequency of collections. In the event that this should occur, the Executive Director shall determine whether to increase the number of bins or roll -off containers, the size of the bin or roll -off container, or the frequency of collections and CONTRACTOR shall 20 25N -27 furnish such additional services and shall be entitled to compensation from such Customers to the same extent as if the Customer requested such additional collections from the CONTRACTOR, 31. SERVICE STANDARDS: (a) The CONTRACTOR's office shall be accessible by a local or toll -free telephone number. The CONTRACTOR's office hours .shall be open at a minimum from 8:00 a.m, to 5:00 p.m. Monday through Friday and from 8:00 am, to noon on Saturdays. CONTRACTOR's offices shall be closed on Sundays and holidays. The CONTRACTOR shall have an answering machine in operation after normal business hours, and on Sundays and holidays thus enabling the public to leave a message. The CONTRACTOR shall have the capability of responding to the public in English and Spanish during office hours, (b) CONTRACTOR may charge a delinquency fee of not more than ten (10 %) percent per month on accounts which have not remitted required payments within 30 days after the date of billing, Should payment not be received within 45 days of billing, CONTRACTOR shall notify said Customer on forms approved by the CITY that services may be discontinued 15 days from the date of the notice if payment is not made before that time, Upon payment of the delinquent fees, CONTRACTOR shall resume collection on CONTRACTORS next regularly scheduled collection day. CONTRACTOR shall provide the CITY with a bi- weekly list indicating the Customers which have had service ceased due to nonpayment, 32. SUPERVISION: Performance of each of the provisions of this Agreement shall be under the direction and supervision of the Executive Director. The CONTRACTOR shall furnish the Executive Director every reasonable opportunity of ascertaining whether or not the work is performed in accordance with the requirements of this Agreement. The CONTRACTOR shall designate a person to serve as agent and liaison between its organization and the CITY and shall maintain a telephone and a means for contact at all times during periods of strike or other emergencies. The Executive Director may inspect the CONTRACTOR's operations, facilities and equipment at any reasonable time and the CONTRACTOR shall admit him to make such inspections at any reasonable time and place. 33. TITLE TO SOLID WASTE: Title to all Solid Waste collected pursuant to this Agreement shall be vested in CONTRACTOR upon being placed at the curb for collection, or placed in a bin or roll -off container for collection. CONTRACTOR expressly hereby reserves and is granted the right to retain, dispose of and otherwise use such Solid Waste, or any part thereof, in any fashion and for any lawful purpose desired by CONTRACTOR and to retain any benefit or profit resulting there from provided, however, that CONTRACTOR first complies with this Agreement, the CITY'S SRRE and CIWMA. 34. FAILURE TO COLLECT: (a) Should the CONTRACTOR materially and substantially fail to collect and recycle, divert by means of composting, mulching and/or transforming or dispose of Solid Waste in accordance with this Agreement and the collection schedules then in effect pursuant to Section 8, 21 25N -28 the CITY, after prior written notice of not less than forty eight (48) hours to the CONTRACTOR, may collect, recycle, divert and /or dispose of all or any part of such Solid Waste, or initiate services to cause or promote its collection, Recycling, Yard Waste Diversion and /or disposal, using CITY employees and/or independent contractors, and the CONTRACTOR shall be liable for all reasonable expenses thereby incurred by the CITY. (b) The CITY may give such notice for any specified individual omission by CONTRACTOR in which event CONTRACTOR shall be allowed a reasonable time of not less than forty eight (48) hours to remedy such omission. In the event of substantial nonperformance by CONTRACTOR for any reason, including a strike of CONTRACTOR's employees, the notice shall continue in effect with respect to Solid Waste originating thereafter as long as the omission continues, In addition to any other lawful means of effecting reimbursement from the CONTRACTOR, such expenses may be deducted by the CITY from money due or which may become due the CONTRACTOR. In addition, CITY shall be permitted to take control and possession of the Licensed Equipment it owns pursuant to Section 11 herein and shall be allowed to use, without charge, any of CONTRACTOR's other collection vehicles, containers, and other equipment not then in actual use by CONTRACTOR which CITY shall deem necessary to provide collection, Recycling, Yard Waste Diversion and/or disposal services pursuant to this section. The right of the CITY to enter upon and use facilities and equipment as specified herein shall extend for a period of ninety (90) days. (c) Should CONTRACTOR fail to collect, recycle, divert by means of composting, mulching and /or transforming, and /or dispose of Solid Waste in accordance with this Agreement, CONTRACTOR shall be deemed to be in material default in the performance of its obligations of this Agreement, In the event of such a material default, the reasonable time for correction pursuant to Section 35 herein shall be seven (7) days. 35. DEFAULT DAMAGES AND TERMINATION OF AGREEMENT: (a) In the event CONTRACTOR defaults in the performance of any of the obligations, covenants or agreements to be kept, done or performed by it under the terns of this Agreement, or any other applicable Federal, State, or local law or regulation, the CITY shall notify CONTRACTOR in writing of the nature of such default. (b) The Executive Director may, in such written instrument, set a reasonable time within which correction of all such deficiencies is to be made. Unless otherwise specified, a reasonable time for correction shall be thirty (3 0) days from the receipt by the CONTRACTOR of such written notice, If the CONTRACTOR cannot reasonably correct or remedy the breach within the time set forth in such notice, CONTRACTOR shall still be required to commence to correct or remedy the violation within such time as set forth in the notice and shall be required to diligently achieve such correction or remedy as soon thereafter as possible. (c) The Executive Director shall review the CONTRACTOR's response to the notice of deficiencies and shall either decide the matter and notify the CONTRACTOR of that decision in writing, or, refer the matter to the City Council. A decision or order of the Executive Director shall be final and binding on CONTRACTOR if the CONTRACTOR fails to file a "Notice of Appeal" with the City Clerk within 10 days of receipt of the Executive Director's decision. Within 22 25N -29 thirty working days of receipt of a Notice of Appeal, the City Clerk shall refer the appeal to the City Council for proceedings in accordance with Chapter three of the Santa Ana Municipal Code. (d) In such case, the City Council may set the matter for hearing. The City Clerk shall give CONTRACTOR written notice of the time and place of the hearing. At the hearing, the City Council shall consider the report of the Executive Director indicating the deficiencies, and shall give the CONTRACTOR a reasonable opportunity to be heard. (e) Based on the evidence presented at the public hearing, the City Council shall determine by Resolution whether this Agreement should be terminated. If, based upon the record, the City Council determines that the performance of CONTRACTOR is in breach of any material term of this Agreement or any material provision of any applicable Federal, State, or local statute or regulation, the City Council, in the exercise of its sole discretion, may terminate forthwith the Agreement. The decision of the City Cormcil shall be final and conclusive, CONTRACTOR's performance under the Agreement is not excused during the period of time prior to the City Council's final determination as to whether such performance is deficient. (f) The rights of termination or imposition of liquidated damages, as set forth in Section 36 hereof, are in addition to any other rights of CITY upon a failure of CONTRACTOR to perform its obligations under this Agreement. The CITY further reserves the right to terminate CONTRACTOR's Agreement or impose liquidated damages in the event of any of the following; (1) If the CONTRACTOR practices, or attempts to practice, any fraud upon the CITY; (2) If the CONTRACTOR becomes insolvent, unable, or unwilling to pay its debts, or upon listing of an order for relief it) favor of CONTRACTOR in a bankruptcy proceeding; (3) If the CONTRACTOR fails to provide or maintain in full force and effect the workers' compensation, liability or indemnification coverage as required by this Agreement; (4) If the CONTRACTOR willfully violates any orders or rulings of any regulatory body having jurisdiction over the CONTRACTOR relative to this Agreement, provided that the CONTRACTOR may contest any such orders or rulings by appropriate proceedings conducted in good faith, in which case no breach of this Agreement shall be deemed to have occurred; (5) If the CONTRACTOR willfully fails to make any payments required under the Agreement and /or refuses to provide the CITY with required information and/or reports in a timely manner as provided in this Agreement; or, (6) Any other act or omission by the CONTRACTOR which materially violates the terns, conditions, or requirements of this Agreement, CIWMA, as it may be amended from time to time, or any order, directive, rule, or regulation issued thereunder and which is not corrected or remedied within the time set in the written notice of the violation. (g) In addition to the remedies set forth herein, the CITY shall have the right to obtain damages and /or injunctive relief. Both parties recognize ,aid agree that in the event of a breach 23 25N -30 nmder the tenns of this Agreement by CONTRACTOR, the CITY may suffer irreparable injury and incalculable damages sufficient to support injunctive relief, to enforce the provisions of this Agreement and to enjoin the breach thereof. (h) If CONTRACTOR claims default by the CITY in the payment of any money due or alleged to be due to CONTRACTOR pursuant to this Agreement, CONTRACTOR shall not be entitled to cancel this Agreement if the CITY, within seven (7) days after receipt of notice of the claimed default, deposits the amount in controversy into an interest bearing account in a commercial bank or lending institution and maintains such deposit until such time as a final judicial decision or agreement between the parties determines the rightful disposition of the said amount in controversy; provided that CONTRACTOR shall be deemed to have waived all claims to the said amount if no agreement is reached nor any legal proceeding initiated within ninety (90) days of the CONTRACTOR's service of written notice of default on the CITY, 36. LIQUIDATED DAMAGES: (a) The CITY finds, and the CONTRACTOR agrees, that as of the time of the execution of this Agreement it is impractical, if not impossible, to reasonably ascertain the extent of damages which shall be incurred by the CITY as a result of a breach by CONTRACTOR of its obligations under this Agreement. The factors relating to the impracticability of ascertaining damages include, but are not limited to, the fact that: (i) substantial damage results to members of the public who are denied Solid Waste collection services or denied quality or reliable collection service; (ii) such breaches cause inconvenience, anxiety, frustration, and deprivation of the benefits of this Agreement to individual members of the general public for whose benefit this Agreement exists, in subjective ways and in varying degrees of intensity which are incapable of measurement in precise monetary terms; (iii) that the monetary loss resulting from denial of services or denial of quality or reliable services is impossible to calculate in precise monetary terms; and, (iv) the tenmination of this Agreement for such breaches, and other remedies are, at best, a means of future correction and not remedies which make the public whole for past breaches. (b) Accordingly, the CITY may, in its discretion but after complying with the notice and hearing procedures set forth in Section 35, assess liquidated damages of Five Hundred Dollars ($500.00) per day, for each calendar day that collection service is not provided by CONTRACTOR in accordance with this Agreement, The amount of the liquidated damages shall be subject to an annual CPI adjustment computed at one hundred (100 %) percent of the CPT for All Urban Consumers (base years 1982 -1984 = 100) for Los Angeles- Anaheim - Riverside CMSA, published by the United States Department of Labor, Bureau of Labor Statistics. (c) The CITY finds, and the CONTRACTOR acknowledges and agrees, that the above described liquidated damages provisions represent a reasonable sum in light of all of the circumstances. Said liquidated damages sums shall be applicable to each calendar day of delay during which CONTRACTOR has been found by the CITY to be in default after having been given the proper notice and hearing set forth in Section 35 of this Agreement. The CONTRACTOR shall pay any liquidated damages assessed by the CITY within ten (10) calendar days after they are assessed. If they are not paid within the ten (10) day period, the CITY may order the termination of this Agreement. 24 25N -31 37. USE BY CITY OF CONTRACTOR'S EOUIPMENT: Upon cancellation of this Agreement by either party for any reason prior to the end of the period specified herein as the term of this Agreement, the CITY shall take possession and control of all vehicles and equipment which it has licensed to CONTRACTOR pursuant to Section I I herein and CITY shall also have the exclusive right to rent or lease and operate any or all trucks, trailers, tractors and other items of equipment used by CONTRACTOR in the performance of the work specified in this Agreement, Further, the City shall have access to the MRF and composting facilities used by the CONTRACTOR for the Processing, Recycling and Yard Waste Diversion of Solid Waste produced or accumulated within the CITY. The right of the CITY to enter upon and use facilities and equipment as specified herein shall extend following the date of cancellation of this Agreement for a period of ninety (90) consecutive calendar days, The rental prices to be paid the CONTRACTOR under this section shall be such to adequately reflect the most current rental prices prevailing in the County of Orange at the date of termination. Any moneys due the CONTRACTOR for rental of the equipment under the provisions of this section may be withheld by the CITY and used by it for the purpose of paying any outstanding liens or payments due and unpaid upon the said equipment. 38. COMPLAINTS: (a) The CITY shall record all complaints and communications received by the CITY from persons and businesses being served under the provisions of this Agreement and all other incidents of failure to perform in accordance with this Agreement noted by the CITY. The CONTRACTOR shall be responsible to resolve such complaints within two (2) business days of receipt thereof. CONTRACTOR shall likewise record all complaints received by CONTRACTOR in a daily log which shall include the complaint, the communication, the date, time, complainant's name and address if provided, and the nature, date and manner of resolution of the complaint. A copy of said log shall be delivered to the Executive Director on a quarterly basis; however, the Executive Director reserves the right to require the CONTRACTOR to deliver, or send via telephone facsimile, such records to the Executive Director within twenty four (24) hours of receipt thereof. (b) The failure of the CONTRACTOR to pick up Solid Waste which has been set out in the proper manner shall be considered a missed pick -up, and the CONTRACTOR shall collect the material from the service recipient within twenty-four (24) hours of the CONTRACTOR's receipt of notification of the missed pick -up. If the CONTRACTOR is notified of a missed pick- up by 9:00 a.m. the following business day, the missed pick -up will be collected that same day. The CONTRACTOR shall maintain a written record of all calls related to missed pick -ups and the service response provided by the CONTRACTOR. Such records shall be made available for inspection upon request by the Executive Director, 39. COMPENSATION REDUCTION DURING STRIKE PERIOD: In the event that there occurs any period in which CONTRACTOR fails to maintain substantially complete regular collection services pursuant to this Agreement and the collection schedules then in effect, by reason of a strike or CONTRACTOR's failure to pay his employees, 25 25N -32 and only if such period includes more than ten (10) normal collection days (weekdays), then the following shall apply. (a) The City Council may assess damages against the CONTRACTOR in an amount which does not exceed the sum of the following: (1) The expenses incurred by the CITY in providing collection, Recycling, Yard Waste Diversion and /or disposal services pursuant to Section 34; and, (2) Fifty percent (50 %) of the amount by which CITY revenue from fees collected for curbside service by the CITY from the public is reduced due to any reduction or refund of such fees granted by the City Council to compensate such fee payers for the inconvenience experienced by them due to CONTRACTOR's failure to furnish fall performance during such period. (b) In assessing damages, the City Council shall take into account the CONTRACTOR's efforts to mitigate the inconvenience to the public receiving curbside service. In particular, CONTRACTOR shall be given credit for Curbside Service Unit collections made by CONTRACTOR by having damages assessed, subject to the above said maximum, in approximately the same proportion to the compensation due CONTRACTOR for curbside service during the subject period as the number of Curbside Service Unit collections which CONTRACTOR failed to make bears to the total number of Curbside Service Unit collections which should have been made pursuant to this Agreement. (c) In addition to any other lawful means of effecting recovery of the damages assessed against CONTRACTOR the amount thereof may be deducted by CITY from money due or which may become due to the CONTRACTOR either in single sum or in installments. In the event CONTRACTOR objects to such assessment or set -off, it shall nevertheless maintain full performance under this Agreement, reserving all rights to subsequently litigate the propriety or amount of the damages assessed. (d) Refunds or reduction of payments of CONTRACTOR's Customers shall be the sole responsibility of CONTRACTOR. CONTRACTOR covenants for the benefit of each such Customer to grant a reasonable and fair refund or reduction or compensatory service; provided, however, that the CONTRACTOR may condition such refunds or reductions or compensatory service upon the Customer's filing of a claim for the same with the CONTRACTOR, To the extent Bin or Roll -Off Service collections are made at CITY'S expense in the absence of CONTRACTOR's performance, CONTRACTOR shall be liable to CITY for a proportionate amount of the Customers' payments due to the CONTRACTOR„ 40. FEES AND GRATUITIES: CONTRACTOR shall not, nor shall it pennit any agent, employee or subcontractor employed by it to, request, solicit, demand, or accept, either directly or indirectly, any compensation or gratuity for the collection of Solid Waste otherwise required to be collected under this Agreement, except such compensation as is provided for in this Agreement. However, CONTRACTOR may make available to Bin Service users special services as provided for in Section 28 hereof, CONTRACTOR may make a direct charge in each instance for such service 26 25N -33 under a written agreement which shall be subject to the approval of the Executive Director and at such rates as are reasonable, just and uniform for all persons requesting such additional services. All such charges shall be collected by CONTRACTOR. Nothing in this section or in this Agreement shall be construed, however, to require CONTRACTOR to render services of any kind to any person to the extent such services are not specifically required by the provisions of this Agreement, or to require that CONTRACTOR having rendered special or additional services not provided for herein to one or more persons, to offer or render the same services to any other person or entity. 41. LEGAL RELATIONS AND RESPONSIBILITIES: (a) Applicable Laws: CONTRACTOR shall at all times comply with all applicable provisions of the Code, as now in effect or hereafter enacted, as well as all other applicable County, State and Federal laws and regulations; provided, however, no amendment of the Code shall operate to change CONTRACTOR's right to decline to pick up and collect any material or matter which is not Solid Waste as defined in this Agreement or to decline to pick up and collect Solid Waste which does not comply with the standards and limitations set forth in this Agreement, or otherwise operate to materially impair the rights and privileges of CONTRACTOR hereunder, Should any state or federal laws become effective after the date of execution of this Agreement which require modifications to the terms hereof, the parties agree to meet and confer regarding any such modifications. (b) Personnel: No employee of CONTRACTOR shall continue to be employed on any work under this Agreement who is intemperate, discourteous, disorderly, inefficient or unduly noisy. (c) Permits and Licenses: CONTRACTOR shall obtain all permits and licenses required of it by City, County, State and Federal agencies. (d) Workers' Compensation Policy: CONTRACTOR shall maintain in full force and effect during the term of this Agreement, a workers' compensation policy in accordance with the provisions and requirements of the Labor Code of the State of California and such other forms of insurance as shall be required by law. The policy providing coverage shall provide that the insurance shall not be suspended, voided, canceled, or reduced in coverage or in limits except after thirty (30) days prior written notice by certified mail has been given to the CITY. Waivers of Subrogation shall be in effect for any claims asserted against the CITY which arise out of CONTRACTOR's operations and CONTRACTOR shall have this clause endorsed on their Workers' Compensation policies. (e) Public Liability Insurance: CONTRACTOR shall obtain, at its sole cost, and file with the City Cleric of CITY, prior to exercising any right or performing any obligation pursuant to this Agreement, and maintain for the period covered by this Agreement, a policy or policies of liability insurance satisfactory to the City Attorney of CITY, naming CITY, its officers, agents and employees, as insured or additional insured, which provides coverage for liability for any and all claims and suits for damages or injuries to persons or property resulting from or arising out of the performance by CONTRACTOR its officers, agents, or employees, or by CITY', its officers, 27 25N -34 agents, or employees pursuant to Section I of this Agreement, of CONTRACTOR's covenants hereunder, or any failure or omission thereof Said policy or policies of insurance shall provide coverage for both bodily injury and property damage in not less that the following minimum amount: One Hundred Million Dollars ($100,000,000.00) combined single limit and, in addition, Ten Million Dollars ($10,000,000.00) of Environmental Impairment Liability coverage for bodily injury, property damage and cleanup costs as it relates to the transportation of Solid Waste. Said insurance shall protect CONTRACTOR and CITY from any claim for damages for bodily injury, including accidental death, as well as from any claim for property damage which may arise from operations perfonned pursuant to this Agreement, whether such operations be by CONTRACTOR itself, or by its agents, employees, and/or subcontractors. Such policy or policies shall contain severability of interests clauses so that the rights and duties of the CITY are clearly separate from CONTRACTOR's interests. Said policy or policies shall also contain a provision that no termination, cancellation or change of coverage of insured or additional insured shall be effective until after thirty (30) days prior written notice by certified mail thereof has been given to CITY. CONTRACTOR shall give CITY prompt and timely notice of any claim made or suit instituted, (f) Insurance Responsibility for CITY Owned Solid Waste Collection and Recycling Vehicles: This Agreement expressly and absolutely transfers the entire responsibility for any and all damage to the CITY owned Solid Waste collection and Recycling vehicles, and any and all liability arising out of the use of such vehicles, directly and completely to CONTRACTOR. This same transfer includes the requirement that CONTRACTOR has expressly agreed to be contractually, fully and completely responsible for complying with all of the State of California's Motor Vehicle Insurance laws, rules and regulations. To be more specific, this includes having CONTRACTOR insure each and every CITY Solid Waste collection and Recycling vehicle for auto liability and physical damage, including both collision and comprehensive insurance, The amount of auto liability insurance shall be not less than One Hundred Million Dollars ($100,000,000.00) combined single limit, covering auto bodily injury and property damage for owned, non -owned and hired vehicles. Collision and Comprehensive coverage shall be insured on an actual cash value basis. If the physical damage insurance is insured on a loss -limit basis, the toss limit shall be equal to or exceed the actual cash value of all of the CITY Solid Waste collection and Recycling vehicles. Insurers shall be currently rated by A.M. Best Company with a minimum rating at A VII. The policy or policies shall contain severability of interest clauses so that the right and duties of the CITY are clearly separate from CONTRACTOR's interests. The CITY, its officers, agents and employees shall be additional insureds. CONTRACTOR will verify to CITY that adequate funds are available to pay any liability Self- Insured Retention, collision and comprehensive deductibles, or other self - insurance plans approved by the CITY. Ninety (90) days or more of prior notice for material change in coverage, exclusions and conditions or cancellation will be endorsed onto CONTRACTOR's policies in favor of the CITY. Loss Payee endorsements or similar clauses will be endorsed onto CONTRACTOR's property insurance policies protecting the CITY'S Solid Waste collection and Recycling vehicles. Endorsements to all policies with policy declaration pages will be required. Certificates of Insurance shall be provided prior to receiving insurer policy endorsements. (g) Indemnification: CONTRACTOR shall indemnify and save harmless CITY, its officers and employees, against any and all damages to property or injuries to or death of any 28 25N -35 person or persons, including property and employees or agents of CITY and shall defend, indemnify and save harmless CITY, its officers and employees, from any and all claims, demands, suits, actions or proceeding of any kind or nature, including, but not by way of limitation, workers' compensation claims, of or by anyone whomsoever, directly or indirectly caused by, or arising out of a breach of a requirement of this Agreement by the CONTRACTOR or any negligent or willful act or omission of CONTRACTOR or any negligent or willful act or omission of the CONTRACTOR its employees or subcontractors in the performance of this Agreement. CONTRACTOR shall procure and maintain, at its own cost and expense, any additional kinds and amounts of insurance which, in its own judgment, may be necessary for its proper protection in the performance of the work. Insurance coverage specified in this Agreement shall in no way lessen or limit the terms of this indemnification, (h) Enforcement of Scope of Services: CONTRACTOR shall reimburse the CITY for any costs incurred by the CITY in enforcing and potentially defending any challenges by any and all school and college districts regarding the Solid Waste collection regulations contained herein. (i) Waivers: No acquiescence, failure or neglect of either of the contracting parties to insist on strict performance of any or all of the terms hereof shall be considered as or constitute a waiver or any term or condition of this Agreement or any performance required thereunder, or any remedy, damage or other liability arising out of such refusal, neglect or inability to perform at any time. 42. SUBCONTRACTORS AND MANAGEMENT: (a) The CONTRACTOR shall not subcontract this Agreement nor any part hereof without first obtaining the consent of the City Council. (b) CONTRACTOR shall designate the person to be in charge of administering this Agreement. The CITY retains the right to reject said person at any time during the term of this Agreement upon reasonable grounds. Should the CITY require the replacement of any person so designated by CONTRACTOR, the CONTRACTOR shall have thirty (30) days within which to designate, with the CITY'S approval, a new person. (c) The CITY may cancel this Agreement pursuant to Section 35 or in the event of a breach of the covenants in subsections (a) and (b) hereinabove. 43. ACCOUNTING AND AUDITING: (a) The CONTRACTOR shall maintain financial records in accordance with generally accepted accounting principles, (b) CONTRACTOR shall make its records, reports, and methods of accounting available to the CITY'S designated representative during normal business hours to allow the such person to review and verify the information reported pursuant to this Agreement including, but not limited to, the information reported pursuant to Section 16 hereof, the information reported pursuant to Sections 22 through 25 including, but not limited to, the tonnages reported therein, and the Gross Receipts reported pursuant to Section 10 hereof 29 25N -36 (c) CITY shall make its billing records available to CONTRACTOR upon reasonable notice for the purpose of auditing such records. 44. BOND: The CONTRACTOR shall, prior to the initial date of the term of this Agreement, execute and file with the City Clerk a surety bond in the penal sum of Two Million Dollars ($2,000,000,00) conditioned upon the faithflxl performance of this Agreement by the CONTRACTOR and its subcontractors, if any. Said bond may be written for a term of one year, and may thereafter be renewed by certificate, provided however, that the CONTRACTOR agrees to maintain such bond or bonds in force for the complete tenn of this Agreement. 45. MEDIA RELATIONS: The CONTRACTOR shall notify the CITY by facsimile of all requests for news media interviews related to the CITY'S Solid Waste collection program within twenty -four (24) hours. Before responding to any inquiries involving controversial issues, CONTRACTOR will discuss the proposed response with the CITY. Copies of draft news releases or proposed trade journal articles shall be submitted to CITY for prior review and approval at least two (2) working days in advance of release. Copies of articles resulting from media interviews or news releases shall be provided to the CITY within five (5) days after publication. 46. NOTICES: Any notice required by this Agreement shall be sufficiently served if personally delivered or if deposited into the U.S. Mail, postage prepaid, and if addressed as follows: If served by CONTRACTOR upon CITY: Executive Director of Public Works Public Works Agency City of Santa Ana 20 Civic Center Plaza M -21 Santa Ana, California 92701 If served by CITY upon CONTRACTOR: Public Sector Manager Waste Management 1800 South Grand Santa Ana, California 92705 30 25N -37 With a courtesy copy to: West Group General Counsel Waste Management, Inc, 7025 N Scottsdale Road, Suite 200, Scottsdale, AZ 85253 47. GENDER AND NUMBER: As used herein, the masculine gender shall include the feminine and neuter, and the singular shall include the plural. 48. VALIDITY: The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of the other provisions of this Agreement. 49. ASSIGNABILITY: CONTRACTOR may not assign or transfer any rights, interests or duties or obligations of performance iander this Agreement, whether by assignment or novation, without the prior written consent of the CITY; provided, however, that claims for money due or to become due to the CITY under this Agreement may be assigned to a bank, trust company or other financial institution, or to a trustee in bankruptcy, without such approval, This section shall not prohibit the assignment, merger or transfer of any rights or interests herein to any other wholly owned subsidiary of Waste Management, Inc. Notice of any assignment, merger or transfer shall be ftunished to the CITY in writing within seven (7) calendar days of such assignment, merger or transfer. 50. GOVERNINGLAW: This Agreement shall be governed by and construed in accordance with the laws of the State of California. 31 25N -38 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first hereinabove written. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: S I R. CARVALHO A Attorney CITY OF SANTA ANA DAVID CAVAZOS City Manager USA Waste of California, Inc. By: FRED MOUSAVIPOUR Executive Director, Public Works Agency Title: 32 25N -39 WASTE MANAGEMENT HOLDINGS INC. (WMH) GUARANTEE Name of Underlying Contract: Fourth Amended and Restated Agreement for Collection and handling of Solid Waste Generated and /or Accumulated in the City of Santa Ana Date of Underlying Contract: June 19,1997 Beneficiary: CITY OF SANTA ANA, a municipal corporation of the State of California Address: 20 Civic Center Plaza, Santa Ana, CA 92701 WMH Contracting Company: USA Waste of California, Inc., a Delaware corporation TO THE BENEFICIARY IDENTIFIED ABOVE: With respect to that certain underlying contract identified above (hereinafter the "Agreement ") dated as of the above specified date by and between the WMH Contracting Company identified above (the "Contractor ") and the beneficiary identified above (the "Beneficiary "), and subject to the terms of this letter agreement (the "Guarantee "), Waste Management Holdings Inc., a Delaware corporation (hereinafter "WMH "), hereby irrevocably and unconditionally guarantees to the Beneficiary the performance of all obligations and the due and punctual payment of all amounts payable by the Contractor to the Beneficiary under the Agreement when the same shall become due and payable in accordance with the terms of the Agreement. Upon failure of the Contractor punctually to perform or pay any such amounts, and upon written demand by the Beneficiary to WMH at its address set forth below (or to such other address or person as WMH may specify in writing), WMH agrees to perform or cause to be performed and to pay or cause to be paid such amounts. Notwithstanding the foregoing, WMH's obligations hereunder as to any claim, suit, proceeding, event or other matter in respect of which the Beneficiary at any time shall be seeking payment hereunder (referred to herein as "Guarantee Events ") shall be subject to the preconditions that (i) the Beneficiary shall have given written notice of such Guarantee Event to the Contractor promptly after learning thereof, (ii) in the case of any failure by the Contractor to perform any obligation under the Agreement, shall have afforded WMH a reasonable opportunity to cure such failure, and (iii) there shall not have occurred and be continuing any material breach by the Beneficiary of its obligations under the Agreement. WMH hereby agrees that, except as expressly provided herein, its obligations hereunder will be unconditional and will not be discharged except by complete payment or other lawful discharge (other than by operation of Bankruptcy law) of the amounts due under the Agreement, irrespective of any claim as to the lack of authority of the Contractor to execute or deliver the Agreement, the absence of any action to enforce the Agreement, the failure to obtain any judgment against the Contractor, the failure to commence any action to enforce a judgment against the Contractor under the Agreement or any similar circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor generally. Except as set forth above, WMH hereby waives diligence, presentment, demand on the Contractor for payment, filing of claims, requirement of a prior proceeding against the Contractor 33 25N -40 and protest or notice, except as provided for in the Agreement with respect to amounts payable by the Contractor. If at any time payment under the Agreement is rescinded or must be otherwise restored or returned by the Beneficiary upon the insolvency, bankruptcy, or reorganization of the Contractor or WMH or otherwise, WMH's obligations hereunder with respect to such payment shall be reinstated upon such restoration or return being made by the Beneficiary. WMH represents the Beneficiary as of the date hereof that: (1) it is duly organized and validly existing under the laws of the jurisdiction of its incorporation and has fall corporate power and legal right to execute and deliver this Guarantee and to perform the provisions of this Guarantee on its part to be performed; (2) its execution, delivery, and performance of this Guarantee have been and remain dully authorized by all necessary corporate action and do not contravene any provision of its certificate of incorporation or by -laws or any law, regulation, or contractual restriction binding on it or its assets; and (3) this Guarantee is its legal, valid and binding obligation enforceable against it in accordance with its terms except as enforcement hereof may be limited by applicable bankruptcy, insolvency, reorganization, or other similar laws affecting the enforcement of creditors' rights or by general equity principles. By accepting this Guarantee and entering into the Agreement, the Beneficiary agrees that WMH shall be subrogated to rights of the Beneficiary against the Contractor in respect of any amounts paid by WMH pursuant to the Guarantee. WMH acknowledges that the Contractor is a direct or indirect subsidiary of WMH and that WMH will receive substantial benefit from the performance of the Agreement, Neither this Guarantee nor the Agreement may be amended without the advance written consent of WMH and the Beneficiary. No amendment shall be effective unless set forth in a written instrument so executed. If WMH shall default in the performance of its obligations hereunder, WMH shall pay to the Beneficiary all costs incurred by the Beneficiary in enforcing its rights hereunder against WMH, including reasonable attorney fees and court costs. Any notice or other communication required or permitted by the terms hereof shall be in writing and shall be given in a commercially reasonable manner to WMH at 1001 Fannin, 40`l' Floor, Houston TX 77002, Attention: General Counsel, or to such other address as WMH shall specify in writing to the Beneficiary at its above - specified address or such other address as the Beneficiary shall notify to WMH as provided herein. This Guarantee shall be governed by and construed in accordance with the internal laws of the State of Delaware applicable to contracts made to be performed therein. The Beneficiary's receipt and acceptance of this Guarantee shall constitute the Beneficiary's acceptance of and agreement to each and every term hereof. 34 25N -41 WASTE MANAGEMENT HOLDINGS, INC. RECEIVED AND ACCEPTED: By: By: Its: Its: (Beneficiary) 35 25N -42 EXHIBIT "A" SPECIFICATIONS Solid Waste collection and Recycling plastic carts ( "carts ") for curbside service, City of Santa Ana, California Desch Size A: 35 gallon Depth: 23.75 inches maximum (including handles) Width: 19 inches maximum Height: 35 inches maximum (to body rim) Size B: 64 gallon Depth: 27 inches maximum (including handles) Width: 24 inches maximum Height: 39 inches maximum (to body rim) Size C: 96 gallon Depth: 34.5 inches maximum (including handles) Width: 26 inches maximum Height: 43 inches maximum (to body rim) All three sizes must be available in green, grey and burgundy. Technical Requirements 1. Body: Carts shall be injection molded of virgin high density polyethylene plastic. The body of the cart shall be molded to present a smooth interior and exterior surface. The body of the cats shall have a minimum wear strip under the floor of `A inch (protecting the floor from abrasive contact with the street surface). 2. Material: Recyclable polyethylene, U.L, approved with a rating of FIB or better. Average Wall Thickness: Size A: Not less than .140 inch Size B: Not less than .160 inch Size C: Not less than .165 inch Carts shall be suitable for use in temperature of >1200 F to -200F. All plastic and component parts used in the construction of the carts shall be recyclable into other polyethylene products. Crosslink resin is not acceptable. All carts shall be manufactured with a minimum of 20% post consumer recycle content. Carts shall be manufactured with a UV stabilizer. The UV stabilizer shall be added in the solution during the polymerization, prior to pelletizing, compounding and molding. 36 25N -43 Independent laboratory tests of the carts bid must accompany bid samples certifying compliance as specified in part 2 of the detailed specifications, 3. Wheels: Two (2) wheels with self - lubricating bearings with a minimurn load rating of 120 lbs. per wheel. Wheels shall be attached to the axle via a tamper resistant snap -on method which contains no metal components. No cotter pins, "Pal nuts" or similar restraining devices shall be utilized to attach the wheel. All wheels shall be 1.75 inches wide. Wheels shall be easily removed for replacement with a non - commercially available tool, Wheel Sizes: Size A: 8 inches Size B: 10 inches Size C: 12 inches 4. Axles: Axles shall be solid steel and electro- plated with black zinc for durability and long life, Carts should be designed in such a way as to prevent the axle from popping out, An axle, which is only press fitted and not secured in some additional manner will not be acceptable. Axle Sizes: Size A: 5/8 inch Size B: 6/8 inch Size C: 7/8 inch 5. Lids: Lids shall be molded of the same material as the cart body and shall be permanently attached to the cart body with plastic hinge(s). Metal fasteners are not acceptable. Lids shall be watertight and slightly domed to facilitate run -off of rainwater. The lid shall be designed to fold over parallel to the back side of the cart when fully opened. Lids shall be factory assembled. 6. Locking Bar: The semi- automated lifting area shall be integrally molded with the body of the cart. The locking bar shall be able to rotate a fall three - hundred sixty (360) degrees and shall be constructed of zinc-coated steel to prevent rust and corrosion, Plastic locking bars are unacceptable. Certification by a certified independent laboratory shall be required of the following minimum standards and quality assurance measurements: 7.1 Drop Impact Test - material and weight shall be cold soaked at a temperature of not less than -20 F for 24 hours and dropped within 60 seconds of leaving the cold chamber, Carts shall remain watertight after a minimum drop height of 15 feet. Test loads are as follows: Size A: 120 lbs. distributed Size B: 160 lbs. distributed Size C: 180 lbs. distributed 7.2 Lift and Dump Test - shall verify the cart's compatibility with approved, commercially available, standard dumping equipment. Test shall be performed at room temperature with a cycle time that simulates lift, dump and return of 6 37 25N -44 seconds. Carts shall remain watertight and functional beyond 6,000 cycles. Test loads are as follows: Size A: 160 Ibs. distributed Size B: 250 Ibs. distributed Size C: 350 lbs. distributed 7.3 Wheel/Axle Test - shall verify the combined durability of the wheels, axle and cart axle supports lmder fully loaded conditions, The two cycle tests shall be performed at room temperature as follows: Cycle 1 - with a rolling length of 75 feet and a 5" curb drop. Cart shall continue to roll freely and be watertight after 1,000 drops. Cycle 2 - repeated with a 55' stair drop. Cart shall continue to roll freely and be watertight after 1,000 drops. Test loads shall be as follows: Size A: 125 lbs. distributed Size B: 200 lbs. distributed Size C: 350 lbs. distributed 7.4 Salt Spray - ASTM B117 -90 corrosion tests shall be applied to the lift bracket for a minimum of 96 hours and to the axle for a minimum of 500 hours. Bracket and axle shall remain corrosion free. 8. Serial Number /Manufacture Date: Each cart shall be hot stamped with a seven digit, 1 -1 /2" high alpha/mimeric identification number on the front of the cart. An in- molded year /month date wheel identification will be located on the bottom of the cart. 9. Markings: Each cart lid shall be clearly and permanently marked with the cart's size or volume capacity. 9.1 Precautionary instructions shall be molded into the lids in English and Spanish as follows: Size A: Cart Capacity 35 Gallons Do not overload or you may have difficulty controlling the cart. Do not roll cart with lid open, Do not put sand, soil, rocks or concrete in cart. Maximum load 125 pounds. Do not put anything hot such as ashes in the cart, Do not put paints, solvents, gasoline, oil, etc. in cart. 38 25N -45 Size B: Cart Capacity 64 Gallons. Do not overload or you may have difficulty controlling the cart. Do not roll cart with lid open. Do not put sand, soil, rocks or concrete in cart. Maximum load 200 pounds. Do not put anything hot such as ashes in the cart. Do not put paints, solvents, gasoline, oil, etc. in cart. Size C: Cart Capacity 96 Gallons. Do not overload or you may have difficulty controlling the cart, Do not roll cart with lid open. Do not put sand, soil, rocks or concrete in cart. Maximum load 250 pounds. Do not put anything hot such as ashes in the cart. Do not put paints, solvents, gasoline, oil, etc. in cart. 9.2 The hot stamp text area size shall be as follows: Size A: 21/2" x 14" Size B: 342" x 18" Size C: 4%2" "x 19" 10. References: Each bid shall include references of communities which have purchased like sizes and quantities of carts. For each reference, carts shall currently be in service for a minimum of years. 11. Warranty: Each cart must be covered by a minimum 10 year warranty against materials and manufacturing defects. The first five years (1 through 5) shall be with fall warranty, years 6 through 10 shall be prorated. 39 25N -46 1. 2. EXHIBIT "C" Rates Effective , 2016 CURBSIDE SERVICE Subject to the provisions of this Agreement, the City shall collect the rate of $20.03 on behalf of the Contractor for curbside service. The City shall collect the rate of $17.69 on behalf of the CONTRACTOR for all qualifying senior citizen and mobile park curbside service units. Rates for each additional solid waste collection and recycling plastic cart shall be no greater than $2.00 per month. RESIDENTIAL BIN SERVICE RATES Subject to the provisions of this Agreement, the CONTRACTOR may charge no more than the following rates for Residential Bin Service: Monthly Rate I YARD BIN X 1/WEEK $102.52 1 YARD BIN X 2 /WEEK $184.24 1 YARD BIN X 3 WEEK $265.94 1 YARD BIN X 4 /WEEK $347.74 1 YARD BIN X 5 /WEEK $429.39 1 YARD BIN X 6 /WEEK $531.97 2 YARD BIN X MEEK $111.61 2 YARD BIN X 2 /WEEK $202.44 2 YARD BIN X MEEK $293.30 2 YARD BIN X 4/WEEK $384.12 2 YARD BIN X 5/WEEK $474.94 2 YARD BIN X 6/WEEK $565.76 3 YARD BIN X 1/WEEK $162.18 3 YARD BIN X 2 /WEEK $282.91 3 YARD BIN X 3 /WEEK $403.51 3 YARD BIN X 4 /WEEK $524.35 3 YARD BIN X 5 /WEEK $645.04 3 YARD BIN X 6 /WEEK $817.63 4 YARD BIN X 1/WEEIC $192.07 4 YARD BIN X 2/WEEK $332.29 4 YARD BIN X 3 /WEEK $472.43 4 YARD BIN X 41WEEK $612.68 40 25N -47 4 YARD BIN X 5 /WEEK 4 YARD BIN X 6/WEEK $752.79 $965.58 CONTRACTOR may offer a discount in the Residential Bin rates to a Residential Bin Service Customer if said Customer regularly segregates Recyclable Solid Waste and /or Yard Waste by Waste Type in separate bins. 3. 4. COMMERCIAL/INDUSTRIAL BIN Subject to the provisions of this Agreement, the CONTRACTOR may charge no more than the following rates for Commercial /Industrial Bin Service: Monthly Rate 1 YARD BIN X 1 /WEEK $81.94 1 YARD BIN X 2 /WEEK $143.06 1 YARD BIN X 3 /WEEK $204.30 1 YARD BIN X 4 /WEEK $265.57 1 YARD BIN X 5 /WEEK $326.74 1 YARD BIN X 6/WEEK $408.64 2 YARD BIN X I/WEEK $91.22 2 YARD BIN X 21WEEK $161.79 2 YARD BIN X 3/WEEK $232.28 2 YARD BIN X 4 /WEEK $302.74 2 YARD BIN X 5 /WEEK $373.25 2 YARD BIN X 6 /WEEK $474.86 3 YARD BIN X I /WEEK $131.69 3 YARD BIN X 2/WEEK $242.67 3 YARD BIN X 3/WEEK $353.59 3 YARD BIN X 4/WEEK $464.52 3 YARD BIN X 51WEEK $575.45 3 YARD BIN X 6 /WEEK $738.18 4 YARD BIN X 1 /WEEK $172.17 4 YARD BIN X 2 /WEEK $313.11 4 YARD BIN X 3 /WEEK $454.11 4 YARD BIN X 4 /WEEK $595.20 4 YARD BIN X 5 /WEEK $736.20 4 YARD BIN X 6 /WEEK $949.80 CONTRACTOR may offer a discount in the commercial/industrial bin rates to a Commercial /Industrial Bin Service Customer if said Customer regularly segregates Recyclable Solid Waste and/or Yard Waste by Waste Type in separate -bins - - - - -- -- ROLL -OFF SERVICE RATES 41 25N -48 5. Subject to the provisions of this Agreement, the CONTRACTOR may charge no more than the following rates for Roll -Off Services: Container Size Haul Rate 10 Cubic yard $194.04 20 Cubic yard $194.04 40 Cubic yard $194.04 Additional Fee for Combactor $40.43 $40.43 $40.43 In addition to the Roll -Off Service rates set forth above, CONTRACTOR may charge the Roll -Off Service Customer for the actual Gate Fees paid at the Disposal Site or fees charged at the Materials Recovery Facility. SPECIAL BIN SERVICE RATES Subject to the provisions of this Agreement, the CONTRACTOR may charge no more than the following rates for Special Bin Services: (A) A bin which needs to be moved in excess of twenty -five (25) feet in order to be emptied may be assessed no more than the following fees: (1) Moving of bins 25 to 50 feet: $1.49 per month times the number of times emptied each week, (2) Moving of bins 51 to 75 feet: $2.92 per month times the number of times emptied each week. (B) A bin which possesses casters may be assessed a caster charge of no more than $3,63 per bin per month. (C) CONTRACTOR may apply a surcharge to bin Customers who use trash compactors of not to exceed a multiplier of 1.5 times the normal bin rate for said service. (D) CONTRACTOR may charge a special service charge of no more than $2.92 a month times the number of times a week a bin is emptied for moving a bin out of an enclosure. (E) CONTRACTOR may charge a fee of no more than $84.48 per bin for an additional bin pickup when such pickup is requested by a Customer. (F) CONTRACTOR may charge a fee of no more than $2.92 per month to a Customer who requests a bin with a lock. (G) CONTRACTOR may charge a reasonable fee for six (6) cubic yard Bin Service, (H) CONTRACTOR may charge a reasonable fee for a plastic injection molded two (2) cubic yard container. 42 25N -49 (I) CONTRACTOR may charge a fee of no more than $85.68 per bin to persons who need temporary use of a three (3) cubic yard bin. (J) CONTRACTOR may charge a reasonable fee for collection of Solid Waste on difficult to service streets. (K) CONTRACTOR may charge a fee of no more than $42.80 per occurrence for overflowing bins. (L) CONTRACTOR may charge a restart fee of $20.01 to restart commercial and roll off service when a permanent account has been terminated for non-payment, (M) CONTRACTOR may charge a bin exchange fee of $57.04 for each of two or more bin exchanges in a twelve (12) month period, due to bin size change. (N) CONTRACTOR may charge a trip charge of $68.43, per scheduled visit when the roll -off is not serviceable. (0) CONTRACTOR may charge a return to service fee of $68.43 per call, for two or more calls in a one -month period, by a commercial /residential bin service customer to return to provide service. (P) CONTRACTOR may charge a fee of $7.12 per bin., times the number of service visits per month, when stinger service is required for a commercial /residential bin service customer. (Q) CONTRACTOR may charge a customer a fee of $1.49 each for copies of disposal tickets. 6. EMERGENCY SERVICES (A) The rate per vehicle hour with a two (2) person crew providing emergency Roll - Off Service on an on -call basis shall be no more than sixty dollars ($60.00) for the term of this Agreement. (13) The rate per vehicle hour with a two (2) person crew providing emergency Bin Services on an on -call basis shall be no more than sixty five dollars ($65.00) for the term of this Agreement. 7. INCORPORATION OF A6SMART" PROGRAM IMPACT FEES INTO REFUSE SERVICE RATES (A) As of the date of this Agreement, the City is considering adoption of the "Sustainable Mobility and Roadway Transformation (SMaRT)" Program. The primary purpose of the SMaRT Program is to provide funding for necessary improvements to the City's streets to offset the "wear and tear" impact of heavy vehicle travel thereon. 43 25N -50 (B) As part of the SMaRT Program, the City commissioned a study to assess the impact heavy vehicles travelling within the City have on City streets. The study concluded that approximately 38.1% of the impact is due to refuse trucks and similar heavy vehicles travelling on City streets. As such, the study concluded that the costs of maintaining City streets to offset these impacts may be fairly apportioned to the cost of providing refuse service. (C) Therefore, should the City Council establish the SMaRT Program and should it apportion an amount of street maintenance costs to CONTRACTOR as part of providing refuse service, those additional costs, as established by ordinance or resolution (the "SMaRT Pees "), may be added as a separate line item by the CONTRACTOR to the customer's service rates and charges, in addition to those authorized herein. 44 25N -51 25N -52