HomeMy WebLinkAboutC27410 - Solid Waste Agmt (Burrtec) Contract No. C27410
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Staff Report
REQUEST: APPROVAL OF BURRTEC WASTE AND RECYCLING, LLC
SOLID WASTE AGREEMENT WITH THE CITY OF PALM
DESERT
SUBMITTED BY: Frankie Riddie, Director of Speciat Programs
DATE: May 21, 2009
CONTENTS: Burrtec Waste and Recycling Solid Waste Agreement
RECOMMENDATION:
By Minute Motion, approve Solid Waste Agreement between the City of Palm Desert and
Burrtec Waste and Recycling, LLC, for a term of six years and an option for a four-year
extension.
BACKGROUND:
The City's Franchise Agreement with Burrtec Waste and Recycling expired on February 28,
2009. However, the City Council approved two extensions which continued the franchise to
May 30, 2009, to allow staff adequate time to negotiate a new agreement with Burrtec.
DISCUSSION:
Staff has met with representatives of Burrtec Waste and Recycling Company (BWRC) several
times in the last three months to prepare a new solid waste franchise agreement which meets
the current needs of the City as well as anticipated future needs. While much of the language in
the agreement remains the same, some of it required modification to bring it into compliance
with State and Federal law as well as expanded needs for our community.
BWRC came to the table requesting a ten-year agreement and the offer to establish the
following new programs:
1. No Rate Increase for 2009-2010. Any rate increase for future years would
require presentation to the City Council for its approval.
2. At-Home HHW Program. This would expand the City's existing program for
collection of Household Hazardous Waste from Burrtec's facility on Cook Street
to home pickup upon request. The existing facility would be phased out as the
new program is implemented. The cost of the program will be paid for tnrough
grant monies, and expenditures over grant funds will be split $30,000 by the City
and $30,000 by Burrtec for a total of$60,000. Any expenditures over$60,000 will
be negotiated.
City Council Staff Report
May 21, 2009
3. Pilot Restaurant Food Waste Diversion Program. BWRC will implement this
program upon written direction from the City for a three-month pilot program, and
it will be provided at no additional charge to the City or customers. Upon
completion of the program, the City and BWRC may agree to extend it or
implement a program City-wide based on information obtained from the pilot
program. The establishment of any rates for a future program will be subject to
City Council approval.
4. Development of a Material Recovery Facility (MRF). BWRC will build and
construct a MRF in the City of Palm Springs which will handle source separated
comingled recycling and inert materials such as concrete, asphalt, rock, dirt, and
bricks. Development of this station will eliminate 50 truck trips a day to its Palm
Desert facility and has the potential of collecting 210 tons a day of recyclable
material.
5. Permanent Reliable Greenwaste, Wood Waste, and Food Waste Processing
Facility. BWRC is pursuing a permanent processing facility which would be a
true sustainability project where locally produced greenwaste and food waste will
be pracessed into a high-grade compost product for distribution back to the
community for agricultural/landscaping purposes.
In response to the City's concerns and requirements for a new franchise, the fottowing major
issues were negotiated:
1, Relocation of Company Yard. By May 31, 2011, BWRC will be required to add
additional infrastructure to its Coachella operatiohs to house the City of
LaQuinta's colle�tion vehicles (13-15). This is in addition to the 40 vehicles
which have already been relocated in the last 20 months. BWRC will also
relocate the operation of the transloading of recycling vehicles. This eliminates a
very significant number of trips in and out of the City as, currently, all recycling is
delivered to the Cook Street facility and then transported out.
2. Disaster Preparedness Plan. BWRC shall prepare and submit a plan
addressing how major disasters or emergencies would be handled. Said plan
would require City Council approval.
3. Term. BWRC brought forward a request for a ten-year agreement which staff did
not recommend bringing forward. Instead, a six-year agreement with an option
for an additional four years was negotiated as a mutual recommendation. BWRC
has two years in which to fu�ill the relocation issues of pressing concern to the
City. Meeting that requirement and fulfilling the requirements of the franchise for
the first six years would make them eligible for a four-year extension. The option
for the four-year extension would require a staff recommendation to the City
Council for its consideration and approval.
Page 2 of 5
City Council Staff Report
May 21, 2009
The remaining issues were dealt with in the modification and/or addition of language in the
franchise, and those are outlined as follows:
• New Rates Structures/Fees:
Section 6.4 Method of Adjustments. Annual adjustment change from 50% of
Producer Price Index to 100% of Producer Price Index (PPI).
Section 4.3.3 (Exhibit 3) Automated Curbside Greenwaste Collection.
Proposed rate increase #rom the $1.14 to an approved rate established July 1,
2010 for residential.
Section 4.6.5 (Exhibit 3) Roll-Off Box Greenwaste Collection. Greenwaste
Roll-off Box charge shall be the standard pull charge plus disposal and initial
delivery charges for greenwaste processing.
Section 4.6.3 (Exhibit 3) Temporary Bins and Roll-off Box Service/Rate.
Customers are entitled to retain bin or roll-off for seven (7) business days. After
seven days, additional fees may be due based on demurrage charges for use.
The fee will be the same as Section 4.6.5 above (See Exhibit 3).
• Section 2.7 Limitations on Scope of Franchise. Deleted the provision that allowed
an exclusion for the collection of greenwaste during the scalping season from
Septembe� 1 through November 30 each year. At the time of the original Agreement,
Waste Management of the Desert did not have su�cient trucks to provide needed
service during the scalping season; however, Burrtec is now able to provide this service.
This does not include landscapers/gardeners servicing single family residents and
commercial businesses.
• Section 4.16 Dedicated Routes. Within eighteen (18) months of the effective date of
this Agreement, Company shall collect refuse, recycling, greenwaste, and other
materials from residential, commercial, construction, industrial or other customers so as
not to commingle materials from collection vehicles from other jurisdictions, except Bulky
Items and Used Motor Oil. All routes shall be dedicated exclusively to Palm Desert.
• Section 4.3.2 Automated Curbside Recyclables Collection: Bag-in-Bag Program.
Residents collect plastic grocery bags, place all of them within one bag, and then place
that bag within the recycle cart for easy removal during sorting.
• Section 4.5.2 On-Call Bulky Items Collection. Extended to multi-family complexes.
Units with more than four units are atlowed to place up to four items at a cost of$50.
• Section 4.6.4 Recyclable Materials Bin Service: Free Commercial Recycle
Program. The City currently offers Free Commercial Recycling. This section allows
Burrtec to annually request the approval of a fee for this service or at the time that the
City approves a Sustainability Plan or the State approves Green Building Standards.
• Section 4.7.3 City Sponsored Events. The Company shall provide solid waste and
recycling services and portable toilet and sink service at up to five (5) individual City-
sponsored, not for profit events each year.
Page 3 of 5
City Council Staff Report
May 21, 2009
• Section 4.7.5 Construction and Demolition Waste Recycling. The Company shall
divert a minimum of 75% of all construction and demolition waste collected by the
Company.
• Section 4.7.6 Shred It Recycle Program. The Company shall create and implement a
Shred It Program that will be available to Palm Desert residents and commercial
customers during normal Burrtec business hours at its facility. Also, Company to
operate two (2) drop-in shredding events for residents.
• Section 4.7.7 Sharps Recycle Program. The Company shall expand the existing
Sharps Program that is part of the City's HHW Facility to include mail-in option.
Company to work with local nursing homes, pharmacies, assisted living facilities, and
other businesses that wish to participate.
• Section 4.7.11 Diversion. The minimum amount of diversion from recycling,
greenwaste collection, and transformation is 50% of the total waste stream. The City
may require Company to increase diversion to 75% at the time of approval of the City's
Sustainability Plan or State approval of the Green Building Standards.
• Section 5.2.6 On-line Customer Account Viewing Capabilities. The Company shall
provide all customers with on-line access to their account and the ability to make
payments on-line. Company to provide City with customer billing data upon written
request.
• Section 5.3 Education and Public Awareness: Company Website. The Company
website to have page dedicated to City of Palm Desert services.
• Section 5.3.2 Use of Advertising Agency. The Company may hire an advertising
agency to assist in the development of certain public education materials. If approved in
advance by City, Company may use intemal resources rather than an outside agency. If
City requires Company to hire an advertising agency, the City and Company will in good
faith negotiate cost to both parties up to an amount not exceeding $50,000.
• Section 6.3 Schedule of Future Adjustments. Beginning July 1, 2010, and for all
subsequent rate years, the Company may request an annual adjustment to the
established rate schedule. (No rate change until July 1, 2010.)
• Section 8.2.7 Scope and Cost of Audit City may conduct an audit of Company every
finro years. Company to reimburse for audit up to $7,500. This amount in subsequent
years shall be increased based on the Producer Price Index (PPI) for all Urban
Consumers in Los Angeles, Riverside, Orange County as calculated in Section 6.4.
Page 4 of 5
City Council Staff Report
May 21, 2009
• Section 12.5 Assignment. The Company proposed wording change to the term
"Change of Control of Company" means that the Company's present members shall
cease to own, individually or collectively, either directly or indirectly through one or more
Affiliates or one or more trusts as to which one or more of such individuals is or becomes
a trustee, more than forty-nine (49) percent of the voting membership interests in
Company.
Dave Erwin, City Attorney, reviewed Article 9, Indemnification, Insurance, and Bond section and
Article 12, Other Agreements of the Parties. Recommended changes were inserted into the
proposed Final Agreement.
Throughout the process, the City has used the services of Hilton, Farnkoph & Hobson (HF&H),
its consultant for solid waste franchise issues. The final version presented to the City Council
has been signed off by this firm.
Staff recommends that City Council approve the Agreement as presented.
Submitted By: Approval:
Fran ' Riddle hn M. Wohlmuth
Director of Special Programs ity Manager
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' � CITY COUNCILA ION
APPROVED .,_._.DFNTF.D
- Sheila R. illigan RECEIVED OTHER
ACM of Community S ice MEETING DA � — "��
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NOES:
ABSENT: ���- . .
ABSTAIN: �
VERIFIED BY: �
Originat on File with City C k's Office
* Approved the subject Agreement as revised to
include two shredding events throughout the year.
In addition, Agreement to include a 5z cap on
the Producer Price Indeg (PPI). 5-0
Page 5 of 5
Contract No. C27410
FRANCHISE
CONTRACT
BETWEEN
Ci�rx oF PALM DESERT
AND
BuRRTEc WasTE AND RECYCLING SERVICES, LLC
FOR
INTEGRATED SOLID WASTE
MANAGEMENT SERVICES
� � �
May 5, 2009
FRANCHISE
CONTRACT
BETWEEN
CITY OF PALM DESERT
AND
BURRTEC WASTE AND RECYCLING SERVICES, LLC
FOR
INTEGRATED SOLID WASTE
MANAGEMENT SERVICES
TABLE OF CONTENTS
Pa�e
RECITALS.................................................................................................................................................1
ARTICLE1.................................................................................................................................................3
DEFINITIONS..........................................................................................................................................................................3
1.1 AB 939......................................................................................................................................................................3
1.2 AFFILIATE...............................................................................................................................................................3
1.3 BILLINGS.................................................................................................................................................................4
1.4 BIN............................................................................................................................................................................4
1.5 BULKY ITEMS..........................................................................................................................................................4
1.6 CAN..........................................................................................................................................................................4
1.7 CART........................................................................................................................................................................5
1.8 CITY..........................................................................................................................................................................5
1.9 COLLECT/COLLECTION.......................................................................................................................................5
1.10 CITY FACILITY.......................................................................................................................................................5
1.11 COMMERCIAL PREMISES......................................................................................................................................5
1.12 COMPANY..............................................................................................................................................................6
1.13 COMPANY COMPENSATION...............................................................................................................................6
1.14 CONSTRUCTION AND DEMOLITION(C&D)WASTE......................................................................................6
1.15 CONTAINERS.........................................................................................................................................................6
1.16 CONTRACT.............................................................................................................................................................6
1.17 CUSTOMER.............................................................................................................................................................6
1.18 DISPOSAL................................................................................................................................................................6
1.19 DISPOSAL COST.....................................................................................................................................................7
1.20 DISPOSAL SITE(S)...................................................................................................................................................7
1.21 DIVERSION SITE.....................................................................................................................................................7
1.22 ENVIRONMENTAL LAWS.....................................................................................................................................7
1.23 FACILITY.................................................................................................................................................................7
1.24 FRANCHISE.............................................................................................................................................................8
1.25 FRANCHISE FEE.....................................................................................................................................................8
1.26 GREENWASTE........................................................................................................................................................8
1.27 GROSS RECEIPTS....................................................................................................................................................8
1.28 HAZARDOUS SUBSTANCE...................................................................................................................................8
1.29 HAZARDOUS WASTE............................................................................................................................................9
1.30 HOUSEHOLD HAZARDOUS WASTE(HHW).....................................................................................................9
1.31 MASTER-BILLED ACCOUNTS...............................................................................................................................9
1.32 PERSON...................................................................................................................................................................9
1.33 PREMISES..............................................................................................................................................................10
1.34 RATE YEAR...........................................................................................................................................................10
1.35 RECYCLING..........................................................................................................................................................10
1.36 RECYCLING FEE...................................................................................................................................................10
1.37 RECYCLABLE MATERIALS..................................................................................................................................10
1.38 REFUSE..................................................................................................................................................................10
1.39 RESIDENTIAL PROPERTY....................................................................................................................................10
1.40 ROLL-OFF BOX.....................................................................................................................................................11
1.41 SOLID WASTE.......................................................................................................................................................11
1.42 STATE....................................................................................................................................................................i l
1.43 TRANSFER STATION............................................................................................................................................11
1.44 TRANSFORMATION.............................................................................................................................................11
1.45 UNIVERSAL WASTE.............................................................................................................................................11
ARTICLE2...............................................................................................................................................13
GRANT AND ACCEI''I'ANCE OF FRANCHISE.............................................................................................................13
2.1 GRANT AND ACCEPTANCE OF FRANCHISE....................................................................................................13
2.2 EXCLUSIVE NATURE OF FRANCHISE................................................................................................................13
2.3 EFFECTIVE DATE..................................................................................................................................................13
2.4 TERM OF CONTRACT,EXTENSION OPTION....................................................................................................13
2.5 CONDITIONS TO EFFECTIVENESS OF CONTRACT..........................................................................................14
2.6 DELEGATION OF AUTHORITY...........................................................................................................................15
2.7 LIMITATIONS ON SCOPE OF FRANCHISE.........................................................................................................15
2.8 CITY'S RIGHT TO DIRECT CHANGES.................................................................................................................17
2.8.1 General.......................................................................................................................................................17
2.8.2 New Diversion Programs..........................................................................................................................17
2.8.3 Cit�'s Right to Acquire Services...............................................................................................................18
2.9 OWNERSHIP OF SOLID WASTE..........................................................................................................................18
2.10 COMPANY STATUS..............................................................................................................................................19
2.11 COMPANY AUTHORIZATION............................................................................................................................19
2.12 ANNEXATIONS....................................................................................................................................................19
2.13 MANDATORY SERVICE.......................................................................................................................................19
2.14 RELOCATION OF COMPANY YARD..................................................................................................................20
ARTICLE3...............................................................................................................................................21
FRANCHISE&ADMINISTRATIVE FEE.........................................................................................................................21
3.1 FRANCHISE,RECYCLING,AND ADMINISTRATIVE FEE.................................................................................21
3.1.1 Franchise Fee Amount...............................................................................................................................21
3.1.2 Rec�cling Fee Arraourit...............................................................................................................................21
3.1.3 Refilse Vejiicle Impacts .............................................................................................................................21
3.1.4 Time and Method of Pa�ment...................................................................................................................21
3.1.5 Documentation of Fee Pa�ritents...............................................................................................................22
3.2 BUSINESS LICENSE...............................................................................................................................................22
3.3 OTHER FEES..........................................................................................................................................................22
ARTICLE4...............................................................................................................................................23
DIRECTSERVICES...............................................................................................................................................................23
4.1 COLLECTION SERVICES......................................................................................................................................23
4.2 DETERMINATION OF RESIDENTIAL COLLECTION METHOD........................................................................23
4.2.1 Homeowner Association Customers in Gated Cornmunities.....................................................................23
4.2.2 Iridividuall�Serviced Dwelling Units.......................................................................................................23
4.2.3 Apartment Complex Custorriers................................................................................................................24
4.3 AUTOMATED COLLECTION SERVICES.............................................................................................................24
4.3.1 Autornated Refuse Services........................................................................................................................24
4.3.1.1 Refuse Cart Sizes...............................................................................................................................24
4.3.1.2 Cart Exchange...................................................................................................................................24
4.3.2 Automated Curbside Rec�clables Collection..............................................................................................25
4.3.3 Automated Curbside Greeriwaste Collectiori.............................................................................................26
4.3.4 Automc�ted Cart Walk-In Service..............................................................................................................26
4.4 MANUAL COLLECTION SERVICES....................................................................................................................26
4.4.1 Marival Curbside Refuse Collection...........................................................................................................26
4.4.2 Manual In-Grourid Refuse Collection.......................................................................................................27
4.5 OTHER RESIDENTIAL SERVICES........................................................................................................................27
4.5.1 Anrival Neighborhood Clean-up Event.....................................................................................................27
4.5.2 On-Call Bulk�Item Collection..................................................................................................................27
4.5.3 Christmas Tree Collection Prograrrt..........................................................................................................28
4.5.4 Used Motor Oil and Filter Rec�cling........................................................................................................28
4.6 COMMERCIAL SERVICE.......................................................................................................................................29
4.6.1 Refuse Bin Service.....................................................................................................................................29
4.6.2 Cart Service...............................................................................................................................................29
4.6.3 Temporan�Bins and Roll-off Box Service..................................................................................................29
4.6.4 Rec�clable Materials Bin Service...............................................................................................................30
4.6.5 Rolloff Boxes Greenwaste Collection..........................................................................................................31
4.6.6 Cornmercial Site Visits..............................................................................................................................31
4.6J Overflowing Commercial Containers and Enclosure Clean-Outs.............................................................31
4.6.8 Pilot Restaurant Food Waste Diversion Program.....................................................................................32
4.6.9 Compactor Seraice.....................................................................................................................................35
4.7 CITY SERVICES AND OTHER REQUIREMENTS.................................................................................................36
4.7.1 Cit�Facilities' Collection..........................................................................................................................36
4.7.2 Abandoned Item Collection........................................................................................................................36
4.7.3 Cit�Sponsored Events...............................................................................................................................36
4.7.4 Greenwaste Drop-off Site...........................................................................................................................37
4.7.5 Construction and Demolition Waste Rec�cling........................................................................................37
4.7.6 Shred-It Rec�cle Program..........................................................................................................................38
4.7.7 Sharps Rec�cle Program............................................................................................................................38
4.7.8 Warning Notice.........................................................................................................................................38
4.7.9 Marketing and Sale of Rec�clable Materials..............................................................................................39
4.7.10 End Uses for Greenwaste...........................................................................................................................39
4.7.11 Diversion Requirements............................................................................................................................39
4.7.12 Development of a Diversian Facilit�.........................................................................................................40
4.7.13 Waste Characterization Studies.................................................................................................................41
4.7.14 CNG Fueling Station Discount.................................................................................................................41
4.7.15 Household Hazardous Waste Services.......................................................................................................41
4.8 OPERATIONS.............................................:..........................................................................................................45
4.8.1 Schedules...................................................................................................................................................45
4.8.2 Veliicles......................................................................................................................................................46
4.8.3 Containers..................................................................................................................................................SO
4.8.3.1 Cart Design Requirements....................................................................................................................50
4.8.3.1.1 Capacit�......................................................................................................................................SO
4.8.3.1.2 Cart Handles...............................................................................................................................SO
4.8.3.1.3 Cart Lid.......................................................................................................................................SO
4.8.3.1.4 Cart Colors................................................................................................................................S11
4.8.3.1.5 Cart Idenentification Markirigs................................................................................................S11
4.8.3.2 Cart Performance Requirements...........................................................................................................52
4.8.3.2.1 Cart Load Capacit�.....................................................................................................................52
4.8.3.2.2 Cart Durabilit�...........................................................................................................................52
4.8.3.2.3 Chemical Resistant.....................................................................................................................53
4.8.3.2.4 Stabilit�and Manei�verabilit�...................................................................................53
4.8.3.2.5 Lid Perforrriance..........................................................................................................................53
4.8.3.2.6 Reparabilit�................................................................................................................................54
4.8.3.2.7 Cart Replacemerit......................................................................................................................544
4.8.3.3 Cart Ownership and Maintenance Responsibilities...........................................................................544
4.8.3.4 Bins.....................................................................................................................................................544
4.8.4 Litter Abatement........................................................................................................................................SS
4.8.5 Personnel.................................................................................................................................................566
4.8.6 Identifi'cation Required............................................................................................................................577
4.8.7 Fees and Gratuities..................................................................................................................................577
4.8.8 Non-Discrimination................................................................................................................................577
4.8.9 Coordination With Street Szveeping Services..........................................................................................577
4.8.10 Change in Collection Schedule...................................................................................................................57
4.8.11 Report of Acci�mulation of Solid Waste; Unauthorized Dumping............................................................58
4.9 TRANSPORTATION OF REFUSE..........................................................................................................................58
4.10 PROCESSING OF SOLID WASTE.........................................................................................................................59
4.11 DISPOSAL OF REFUSE.........................................................................................................................................59
4.12 STATUS OF DISPOSAL SITE.................................................................................................................................60
4.13 ROUTE AUDIT....................................................................................................................................................600
4.14 SERVICE EXCEPTIONS;HAZARDOUS WASTE NOTIFICATIONS.................................................................622
4.15 DISASTER PREPAREDNESS PLAN....................................................................................................................622
4.16 DEDICATED ROUTES.........................................................................................................................................633
ARTICLE5.............................................................................................................................................644
OTHERSERVICES..............................................................................................................................................................644
5.1 SERVICES AND CUSTOMER BILLING...............................................................................................................644
5.1.1 Service Description..............................................................................................................................644
5.1.2 Billing...................................................................................................................................................644
5.1.3 Review of Billings...................................................................................................................................66
5.2 CUSTOMER SERVICE..........................................................................................................................................666
5.2.1 Office Hours.........................................................................................................................................666
5.2.2 Complaint Docurrtentation...................................................................................................................677
5.2.3 Missed or Requested Pick-ups..............................................................................................................677
5.2.4 Resolution of Customer Corrtplaints.......................................................................................................68
5.2.5 Government Liaison...............................................................................................................................68
5.2.6 On-line Customer Account Viewing Capabilities..................................................................................68
5.3 EDUCATION AND PUBLIC AWARENESS...........................................................................................................69
5.3.1 General...................................................................................................................................................69
5.3.2 Use of Advertising Agenc�....................................................................................................................71
5.3.3 Commitnit�Events..............................................................................................................................711
5.3.4 Field Representative.............................................................................................................................711
5.3.5 Rec�cling Coordinator.........................................................................................................................722
5.4 WASTE GENERATION/CHARACTERIZATION STUDIES...............................................................................722
ARTICLE6.............................................................................................................................................733
COMPANYCOMPENSATION AND RATES...............................................................................................................733
6.1 GENERAL.............................................................................................................................................................733
6.2 INITIAL RATES....................................................................................................................................................733
6.3 SCHEDULE OF FUTURE ADJUSTMENTS..........................................................................................................733
6.4 METHOD OF ADJUSTMENTS..............................................................................................................................74
6.4.1 General.....................................................................................................................................................74
6.4.2 Cartsrrc Cans and Bin Rates.....................................................................................................................74
6.4.3 Roll-off Box Rate......................................................................................................................................75
6.5 EXTRAORDINARY ADJUSTMENTS...................................................................................................................755
6.6 SUPPORTING INFORMATION...........................................................................................................................766
6.7 GRANTS...............................................................................................................................................................766
ARTICLE7...............................................................................................................................................78
REVIEW OF SERVICES AND PERFORMANCE............................................................................................................78
7.1 PERFORMANCE HEARING..................................................................................................................................78
ARTICLE8...............................................................................................................................................79
RECORDS,REPORTS AND INFORMATION REQUIREMENTS..............................................................................79
8.1 GENERAL...............................................................................................................................................................79
8.2 RECORDS...............................................................................................................................................................79
8.2.1 General.....................................................................................................................................................79
8.2.2 Financial Records...................................................................................................................................811
8.2.3 Solid Waste, Rec�cling, and Greenwaste Service Records.....................................................................811
8.2.4 CERCLA Defense Records.....................................................................................................................811
8.2.5 Disposal Records......................................................................................................................................82
8.2.6 Other Programs' Records......................................................................................................................822
8.2.7 Scope and Cost of Audit.........................................................................................................................822
8.2.8 Pa�ments and Refitnds..........................................................................................................................822
8.3 REPORTS..............................................................................................................................................................833
8.3.1 Report Formats and Schedule................................................................................................................833
8.3.2 Monthl�Reports....................................................................................................................................844
8.3.3 Quarterl�Reports..................................................................................................................................855
8.3.4 Annual Report.......................................................................................................................................855
8.3.5 AB 939 Reports........................................................................................................................................86
8.3.6 Financial Report.....................................................................................................................................866
8.4 ADVERSE IIVFORMATION .................................................................................................................................866
8.5 RIGHT TO INSPECT RECORDS..........................................................................................................................877
ARTICLE9...............................................................................................................................................88
INDEMNIFICATION,INSURANCE AND BOND.........................................................................................................88
9.1 INDEMNIFICATION..............................................................................................................................................8 8
9.2 HAZARDOUS SUBSTANCES INDEMNIFICATION.............................................................................................89
9.3 AB 939 INDEMNIFICATION AND GUARANTEE...............................................................................................90
9.4 INSURANCE........................................................................................................................................................911
9.5 FAITHFUL PERFORMANCE BOND.....................................................................................................................96
9.6 FORFEITURE OF PERFORMANCE BOND .........................................................................................................966
9.7 PERFORMANCE SECURITY BEYOND SERVICE TERM....................................................................................966
ARTICLE10.............................................................................................................................................97
CITY'S RIGHT TO PERFORM SERVICE.........................................................................................................................97
10.1 GENERAL..........................................................................................................................................................97
10.2 BILLING AND COMPENSATION TO THE CITY DURING THE CITY'S POSSESSION..................................98
10.3 CITY'S RIGHT TO RELINQUISH POSSESSION ...............................................................................................99
10.4 CITY'S POSSESSION NOT A TAKING.............................................................................................................99
10.5 DURATION OF THE CITY'S POSSESSION.......................................................................................................99
ARTICLE11...........................................................................................................................................100
DEFAULT,REMEDIES AND LIQUIDATED DAMAGES..........................................................................................100
11.1 EVENTS OF DEFAULT...................................................................................................................................100
11.2 CRIMINAL ACTIVITY OF COMPANY..........................................................................................................102
11.3 RIGHT TO TERMINATE UPON DEFAULT...................................................................................................102
11.4 LIQUIDATED DAMAGES...............................................................................................................................102
11.5 EXCUSE FROM PERFORMANCE...................................................................................................................108
11.6 ARBITRATION................................................................................................................................................109
11.7 ASSURANCE OF PERFORMANCE ................................................................................................................110
ARTICLE12...........................................................................................................................................111
OTHER AGREEMENTS OF THE PARTIES...................................................................................................................111
12.1 RELATIONSHIP OF PARTIES.........................................................................................................................111
12.2 COMPLIANCE WITH LAW............................................................................................................................111
12.3 GOVERNING LAW.........................................................................................................................................111
12.4 JURISDICTION................................................................................................................................................112
12.5 ASSIGNMENT.................................................................................................................................................112
12.6 AFFILIATED COMPANIES.............................................................................................................................115
12.7 CONTRACTING OR SUBCONTRACTING.....................................................................................................115
12.8 BINDING ON ASSIGNS..................................................................................................................................116
12.9 TRANSITION TO THE NEXT COMPANY.....................................................................................................116
12.10 PARTIES IN INTEREST...................................................................................................................................116
12.11 WAIVER..........................................................................................................................................................116
12.12 THE COMPANY'S INVESTIGATION.............................................................................................................117
12.13 CONDEMNATION..........................................................................................................................................117
12.14 NOTICE...........................................................................................................................................................117
12.15 REPRESENTATIVES OF THE PARTIES..........................................................................................................118
12.16 CITY FREE TO NEGOTIATE WITH THIRD PARTIES...................................................................................118
12.17 COMPLIANCE WITH MUNICIPAL CODE....................................................................................................119
12.18 PRIVACY.........................................................................................................................................................119
12.19 COOPERATION FOLLOWING TERMINATION............................................................................................119
12.20 COMPLIANCE WITH IMMIGRATION LAWS...............................................................................................120
12.21 PROPRIETARY INFORMATION,PUBLIC RECORDS...................................................................................120
12.22 GUARANTEE OF CONTRACTOR'S PERFORMANCE..................................................................................120
12.23 ATTORNEY'S FEES.........................................................................................................................................121
ARTICLE13...........................................................................................................................................122
MISCELLANEOUSAGREEMENTS................................................................................................................................122
13.1 ENTIRE CONTRACT.......................................................................................................................................122
13.2 SECTION HEADINGS.....................................................................................................................................122
13.3 REFERENCES TO LAWS AND OTHER CONTRACTS..................................................................................122
13.4 INTERPRETATION..........................................................................................................................................122
13.5 CONTRACT.....................................................................................................................................................122
13.6 SEVERABILITY................................................................................................................................................123
13.7 EXHIBITS.........................................................................................................................................................123
13.8 NON-WAIVER PROVISION...........................................................................................................................123
Exhibits
1. City Facilities
2. Public Education Plan
3. Initial Rates
4. Rate Adjustment Formula
5. Corporate Guarantee
6. Company Faithful Performance Bond
7. Notary Certification
RECITALS
This Franchise Contract (Contract) is entered into this 1 day of une 2009, by and
between the City of Palm Desert (City) and (Company).
WHEREAS, the Legislature of the State of California, by enactment of the California
Integrated Waste Management Act of 1989 ("AB 939") (California Public Resources
Code Section 40000 et seq. ), has declared that it is in the public interest to authorize and
require local agencies to make adequate provisions for Solid Waste handling within
their jurisdictions to meet the goals and requirements of AB 939; and,
WHEREAS, pursuant to California Public Resources Code Section 49300 and 49500-
49500, the City of Palm Desert has determined that the public health, safety, and well-
being require that an exclusive Franchise be awarded to a qualified company for the
Collection, transportation, Recycling, processing, and Disposal of Solid Waste and other
services to meet the goals and requirements of AB 939; and,
WHEREAS, the current Solid Waste Franchise Contract will expire on May 31, 2009; and,
WHEREAS, Company has provided solid waste services to the City, as Burrtec Waste and
Recycling, LLC. since 2006 the City Council of City has decided to renew its relationship
with Company and award it the franchise set forth in this Contract, subject to the rights
and limitations of this Contract; and
WHEREAS, the Company agrees to and acknowledges that it shall properly dispose of all
Solid Waste collected in the City pursuant to this Contract;
WHEREAS, City and Company are mindful of the provisions of the laws governing the
safe collection, transport, recycling, processing and disposal of solid waste, including
AB 939, the Resource Conservation and Recovery Act ("RCRA"), and the
Comprehensive Environmental Response, Compensation and Liability Act
("CERCLA"). City and Company desire to leave no doubts as to their respective roles
and to memorialize that by entering into this Agreement, City is not thereby becoming
an "arranger" or a "generator" as those terms are used in CERCLA, and that it is
Company, not City, who is "arranging for" the collection from residences in the City,
City of Palm Desert Page 1 5/15/2009
transport for disposal, composting or other processing, and recycling of municipal solid
waste which may contain hazardous substances; and further to confirm that as a
material inducement to City entering into this Agreement, Company has agreed to fully
indemnify City in connection with any claims, losses, liabilities, lawsuits or actions
relating to the inadvertent or intentional collection, transportation and/or disposal of
hazardous materials that may occur in connection with Company's performance under
this Agreement, and
WHEREAS, the City and the Company (Parties) hereto desire to enter into this Contract,
NOW, THEREFORE, in consideration of the Premises above stated and the terms,
conditions, covenants and agreements contained herein, the Parties do hereby agree as
follows:
City of Palm Desert Page 2 5/15/2009
ARTICLE 1
DEFINITIONS
Whenever any term used in this Contract has been defined by the provisions of Sections
8.16.010 and 8.17.010 of the Palm Desert City Code or by Division 30, Part 1, Chapter 2
of the California Public Resources Code, the definitions in the City Code or the Public
Resources Code shall apply unless the term is otherwise defined in this Contract, in
which case this Contract shall control.
Except as provided in Article 1, words beginning with lower case letters are being used
with their common ordinary meanings, not as defined terms. Otherwise, the following
capitalized words and terms shall have the following meanings:
1.1 AB 939
"AB 939" means the California lntegrated Waste Management Act of 1989 (California
Public Resources Code Section 40000 et seq.), as it may be amended from time to time.
1.2 Affiliate
"Affiliate" means all businesses (including corporations, limited and general
partnerships and sole proprietorships) which are directly or indirectly related to the
Company by virtue of direct or indirect ownership interest or common management
shall be deemed to be "Affiliated with" the Company and included within the term
"Affiliates" as used herein. An Affiliate shall include a business in which the Company
owns a direct or indirect ownership interest, a business which has a direct or indirect
ownership interest in the Company and/or a business which is also owned, controlled
or managed by any business or individual which has a direct or indirect ownership
interest in the Company. For purposes of determining whether an indirect ownership
interest exists, the constructive ownership provisions of Section 318(a) of the Internal
Revenue Code of 1986, as in effect on the date of this Contract, shall apply; provided,
however, that (i) "ten percent (10%)" shall be substituted for "fifty percent (50%)" in
Section 318(a)(2)(C) and in Section 318(a)(3)(C) thereof; and (ii) Section 318(a)(5)(C) shall
be disregarded. For purposes of determining ownership under this paragraph and
constructive or indirect ownership under Section 318(a), ownership interest of less than
ten percent (10%) shall be disregarded and percentage interests shall be determined on
City of Palm Desert Page 3 5/15/2009
the basis of the percentage of voting interest or value which the ownership interest
represents, whichever is greater.
1.3 Billings
"Billings" means any and all statements of charges for services rendered, howsoever
made, described or designated by the City or the Company, or made by others for the
City or the Company, to Persons responsible for arranging for Solid Waste removal.
1.4 Bin
"Bin" means a metal Container with hinged lids and wheels serviced by a front-end
loading truck with a capacity of 1.5 to 8 cubic yards.
1.5 Bulky Items
"Bulky Items" means Solid Waste that cannot and/or would not typically be
accommodated within a Cart including specifically: furniture (including chairs, sofas,
mattresses,); appliances (including refrigerators, ranges, washers, dryers, water heaters,
dishwashers, plumbing, small household appliances and other similar items, commonly
known as "white goods"); electronic equipment (including stereos, televisions,
computers and monitors, including laptops, VCRs, microwaves and other similar items
commonly known as "brown goods" and "e-waste"); universal waste (vacuum cleaners,
phones, cell phones, etc.), and clothing. Bulky Items do not include car bodies,
Construction and Demolition Waste. Other items not specifically included or excluded
above will be Collected provided that they are not more than eight feet in length, four
feet in width, or more than 150 pounds. In the event a question ever arises as to
whether a specific item or category of items meets the definition of Bulky Items, City
shall be responsible to determine whether said definition shall apply, which
determination shall be final and binding on the Parties. Exclusion from the Bulky Items
are materials from renovation/additions to homes that are considered Construction and
Demolition materials.
1.6 Can
"Can" means a Solid Waste receptacle provided by the Customer and serviced by
manual Collection.
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1.7 Cart
"Cart" means a plastic Container with a hinged lid and wheels serviced by an
automated or semi-automated side-loading truck with a capacity of no less that 30 and
no greater than 101 gallons.
1.8 City
"City" means the City of Palm Desert, a municipal corporation, and all the territory
lying within the municipal boundaries of the City as presently existing or as such
boundaries may be modified during the term of this Contract.
1.9 Collect/Collection
"Collect" or "Collection" means to take physical possession, transport, and remove Solid
Waste within and from the City.
1.10 City Facility
City Facility means any building, park or other site owned, leased, or used regularly
and significantly by City for public purposes and not operated as a City
enterprise.1.11 Commerc ial
"Commercial" refers to services performed at or for Commercial Premises.
1.11 Commercial Premises
"Commercial Premises" means Premises upon which business activity is conducted,
including but not limited to retail sales, services, wholesale operations, manufacturing
and industrial operations, but excluding Residential Premises upon which business
activities are conducted when such activities are permitted under applicable zoning
regulations and are not the primary use of the property. For purposes of this
Agreement, Premises upon which the following uses are occurring shall be deemed to
be Commercial Premises: Assisted Living Facilities, Convalescent Homes, Dormitories,
Extended Stay Motels, Group Residential Facilities, Group Care Facilities, Hotels, and
Motels.
City of Palm Desert Page 5 5/15/2009
1.12 Company
"Company° means Burrtec Waste and Recycling Services, LLC, a limited liability
company organized and operating under the laws of the State of California and its
officers, directors, employees, agents, companies, and subcontractors.
1.13 Company Compensation
"Company Compensation" means the revenue received by the Company from Billings
in return for providing services in accordance with this Contract and any amendments
to this Contract.
1.14 Construction and Demolition (C & D)Waste
"Construction and Demolition Waste" means used or discarded construction and
demolition materials removed from a Premises during the construction or demolition of
a structure.
1.15 Containers
"Containers" means any and all types of Solid Waste receptacles, including Cans, Carts,
Bins, Roll-off Boxes, and receptacles provided by Customers.
1.16 Contract
"Contract" means this Franchise Contract between the City and the Company for the
Collection, transportation, Recycling, processing and Disposal of Solid Waste, and other
services related to meeting the goals and requirements of AB 939, including all exhibits
and attachments, and any amendments thereto.
1.17 Customer
"Customer" means the Person having the care and control of any Premises in the City
who receives Refuse Collection service from the Company.
1.18 Disposal
"Disposal" means the ultimate disposition of Solid Waste Collected by the Company at a
landfill in full regulatory compliance.
City of Palm Desert Page 6 5/15/2009
1.19 Disposal Cost
"Disposal Cost" means the portion of the fee charged to the Customer that represents
the cost of final Disposal of the Refuse Collected.
1.20 Disposal Site(s)
"Disposal Site(s)" mean the Solid Waste handling Facility or Facilities utilized for the
ultimate Disposal of Solid Waste Collected by the Company.
1.21 Diversion Site
"Diversion Site" means a facility duly licensed and permitted to receive and process
source-separated or mixed materials for reuse or for further processing so as to prevent
the materials from being landfilled at a Disposal Site.
1.22 Environmental Laws
"Environmental Laws" means all federal and state statutes, county, local and the City
ordinances concerning public health, safety and the environment including, by way of
example and not limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 USC �9601 et seq.; the Resource
Conservation and Recovery Act,42 USC �6902 et se .; the Federal Clean Water Act, 33
USC �1251 et seq.; the Toxic Substances Control Act, 15 USC �1601 et seq.; the
Occupational Safety and Health Act, 29 USC �651 et se .; the California Hazardous
Waste Control Act, California Health and Safety Code �25100 et seq.; the California
Toxic Substances Control Act, California Health and Safety Code �25300 et seq.; the
Porter-Cologne Water Quality Control Act, California Water Code �13000 et seq.; the
Safe Drinking Water and Toxic Enforcement Act, California Health and Safety Code
�25249.5 et seq.; as currently in force or as hereafter amended, and all rules and
regulations promulgated thereunder.
1.23 Facility
"Facility" means any plant or site, owned or leased and maintained, operated or used by
the Company for purposes of performing under this Contract.
City of Palm Desert Page 7 5/15/2009
1.24 Franchise
"Franchise" means the exclusive right granted by the City to provide Solid Waste
services within the City.
1.25 Franchise Fee
"Franchise Fee" means the fee paid by the Company to the City, or retained by the City
from service fees remitted to the City, for the right to hold the Franchise granted by this
Contract.
1.26 Greenwaste
"Greenwaste" means leaves, grass, weeds, and wood materials from trees and shrubs
(not more than six (6) inches in diameter or 48 inches in length) and similar materials
generated at the Premises.
1.27 Gross Receipts
"Gross Receipts" means any and all revenues, receipts, or compensation in any form
received by the Company or its subsidiaries, parent companies or other Affiliates of the
Company, for the Collection and transportation of Solid Waste pursuant to this
Contract, in accordance with Generally Accepted Accounting Principles (GAAP),
including, but not limited to, monthly Customer fees for Collection of Solid Waste,
without subtracting Franchise Fees, Recycling Fees or any other cost of doing business.
Sales revenue from the sale of Recyclable Material is excluded from Gross Receipts for
purposes of calculating Franchise Fees and Recycling Fees.
1.28 Hazardous Substance
"Hazardous Substance" shall mean any of the following: (a) any substances defined,
regulated or listed (directly or by reference) as "Hazardous Substances", "hazardous
materials", "Hazardous Wastes", "toxic waste", "pollutant" or "toxic substances" or
similarly identified as hazardous to human health or the environment, in or pursuant to
(i) the Comprehensive Environmental Response, Compensation and Liability Act of
1980, 42 USC §9601 et seq.(CERCLA); (ii) the Hazardous Materials Transportation Act,
49 USC §1802, et se .; (iii) the Resource Conservation and Recovery Act, 42 USC §6901
et seq•; (iv) the Clean Water Act, 33 USC §1251 et seq•; (v) California Health and Safety
City of Palm Desert Page 8 5/15/2009
Code §§25115-25117, 25249.8, 25281, and 25316; (vi) the Clean Air Act, 42 USC §7901 et
se .; or (vii) California Water Code �13050; (b) any amendments, rules or regulations
promulgated thereunder to such enumerated statutes or acts currently existing or
hereafter enacted; and (c) any other hazardous or toxic substance, material, chemical,
waste or pollutant identified as hazardous or toxic or regulated under any other
applicable federal, state or local Environmental Laws currently existing or hereinafter
enacted, including, without limitation, friable asbestos, polychlorinated biphenyl's
("PCBs"), petroleum, natural gas and synthetic fuel products, and by-products.
1.29 Hazardous Waste
"Hazardous Waste" means all substances defined as Hazardous Waste, acutely
Hazardous Waste, or extremely Hazardous Waste by the State of California in Health
and Safety Code �25110.02, �25115, and §25117 or in the future amendments to or
recodifications of such statutes or identified and listed as Hazardous Waste by the US
Environmental Protection Agency (EPA), pursuant to the Federal Resource
Conservation and Recovery Act (42 USC §6901 et seq.), all future amendments thereto,
and all rules and regulations promulgated thereunder.
1.30 Household Hazardous Waste (HHV�
"Household Hazardous Waste" means Hazardous Waste generated at Residential
Premises.
1.31 Master-Billed Accounts
"Master-Billed Accounts" means those accounts billed for Collection services from more
than one Dwelling Unit.
1.32 Person
"Person" means any individual, firm, association, organization, partnership,
corporation, business trust,joint venture, the United States, the State of California, the
County of Riverside, town, city, or special purpose district.
City of Palm Desert Page 9 5/15/2009
1.33 Premises
"Premises" means any land, or building in the City where Solid Waste is generated or
accumulated.
1.34 Rate Year
"Rate Year" means the twelve month period from July 1 to June 30, for each year of the
Contract.
1.35 Recycling
"Recycling" means any process by which materials which would otherwise become
Solid Waste are Collected (source-separated, co-mingled, or as "mixed waste"),
separated and/or processed and returned to the economic mainstream in the form of
raw materials or products or materials which are otherwise salvaged or recovered for
reuse.
1.36 Recycling Fee
"Recycling Fee" means the fee paid by the Company to the City to fund the City's costs
of Solid Waste Management.
1.37 Recyclable Materials
"Recyclable Materials" means Residential, Commercial or industrial Source Separated
by-products of some potential economic value, set aside, handled, packaged, or offered
for Collection in a manner different from Refuse.
1.38 Refuse
"Refuse" means putrescible and non-putrescible Solid Waste or debris, except sewage,
and recyclable materials, whether combustible or non-combustible.
1.39 Residential Property
"Residential Property" means property used for Residential purposes, including both
single-family and apartment dwelling units, irrespective of whether such dwelling units
are rental units or are owner-occupied.
City of Palm Desert Page 10 5/15/2009
1.40 Roll-off Box
"Roll-off Box" means an open-top metal Container serviced by a roll-off truck with a
capacity of 10 to 50 cubic yards.
1.41 Solid Waste
"Solid Waste" means all putrescible and non-putrescible Residential Refuse, Recyclable
Material, and Greenwaste, and as otherwise defined in Public Resources Code §40191.
Any material that a Customer pays to be hauled away shall be defined to be Solid
Waste and not a Recyclable Material.
1.42 State
"State" means the State of California.
1.43 Transfer Station
"Transfer Station" means that Solid Waste handling facility and facilities used by
company to receive refuse, temporarily store and to transfer the refuse directly from
smaller to larger vehicles for transport to a disposal site.
1.44 Transformation
"Transformation" means incineration, pyrolysis, distillation, gasification, or biological
conversion other than composting. "Transformation" does not include composting.
1.45 Universal Waste
"Universal Waste" means a category of hazardous wastes that includes batteries
(rechargeable and single use, except automobile batteries), fluorescent lamps and tubes,
themostats, electronic devices (televisions, computer monitors, computers, printers,
video cassette recorders, cell phones, telephones, and radios), electrical switches (from
chest freezers, pre-1972 clothes washers, sump pumps, electric space heaters, clothes
irons, silent light switches, automobile hood and trunk lights, and ABC brakes), pilot
lights sensors (found in gas appliances such as stoves, ovens, clothes dryers, water
heaters, furnaces, and space heaters), mercury gauges (barometers, manometers, blood
pressure, and vacuum gauges), mercury added novelties (musical greeting cards, pre-
City of Palm Desert Page 11 5/15/2009
1997 athletic shoes with flashing lights, mercury maze games), mercury thermometers,
non-empty aerosol cans containing hazardous materials.1.42 Residential
"Residential" refers to services performed at or for Residential Premises.
City of Palm Desert Page 12 5/15/2009
ARTICLE 2
GRANT AND ACCEPTANCE OF FRANCHISE
2.1 Grant and Acceptance of Franchise
Subject to the terms and conditions of this Contract, the City hereby grants to the
Company a Franchise to Collect, transfer, transport, recycle, process, and dispose of
Solid Waste accumulating in the City that is required to be accumulated and offered for
Collection to the Company in accordance with this Contract.
The Company hereby accepts the Franchise on the terms and conditions set forth in this
Contract.
2.2 Exclusive Nature of Franchise
During the term of this Contract, except as otherwise provided in Section 2.7 below, or
as may otherwise be provided by federal or state law, the rights granted to the
Company under this Contract shall be exclusive to the Company. The City will not let
any contract to, or enter into any agreement with, any other Person for the performance
of the services herein required to be performed by the Company.
The City shall protect the Company's exclusive rights by proper ordinances, and by
reasonable enforcement of those ordinances. Should the City be required to take
administrative, law enforcement, or other legal action against any Person that infringes
on the Company's exclusive rights, the Company shall reimburse the City for its
reasonable administrative, law enforcement, or other legal costs related to any such
action. Nothing herein shall preclude Company from taking such legal action against
third parties as it deems appropriate to protect the exclusive nature of its Franchise.
2.3 Effective Date
The effective date of this Contract shall be_lune 1, 2009, ("effective date").
2.4 Term of Contract, Extension Option
The term of this Contract shall be six (6) years, commencing at midnight June 1, 2009,
and expiring at midnight May 31, 2015.
City of Palm Desert Page 13 5/15/2009
City may extend the term for an additional four (4) years to midnight May 31, 2019,
provided that Company has fully complied with the requirements of Section 2.14 of this
Contract. Said option will not be unreasonably withheld by the City.
This extension option shall expire at midnight May 31, 2011, unless extended by City
upon Company's satisfactory demonstration that a delay in complying with Section 2.14
of this Contract was due to circumstances beyond the control of the Company. The
determination as to whether such a delay was beyond the control of the Company shall
be made by the City Council. In making such determination, City may consider that
recycling transloading operations will be relocated to the Palm Springs Material
Recovery Facility, for which at the time of this Contract is entered into, a land use
permit has been granted, but which must undergo final engineering, financing and
construction before the agreed relocation of transloading operations can occur.
2.5 Conditions to Effectiveness of Contract
The obligation of the City to permit this Contract to become effective and to perform its
undertakings provided for in this Contract is subject to the satisfaction of each and all of
the conditions set out below, each of which may be waived in whole or in part by the
City.
a) Accuracy of Representations. Representations and warranties made by the
Company throughout this Contract are accurate, true and correct on and as of
the effective date of this Contract.
b) Absence of Litigation. There is no litigation pending in any court challenging the
award of this Franchise to the Company or the execution of this Contract or
seeking to restrain or enjoin its performance.
c) Furnishing of Insurance and Bonds. The Company has furnished evidence of the
insurance and bonds required by Article 9.
d) Effectiveness of the City Council Action. The City's Resolution approving this
Contract shall have become effective pursuant to California law prior to the
effective date of this Contract.
City of Palm Desert Page 14 5/15/2009
2.6 Delegation of Authority
The administration of this Contract by the City shall be under the supervision and
direction of the Director of Special Programs, and the actions specified in this Contract,
unless otherwise stated, shall be taken by Director of Special Programs or the Director's
designee.
2.7 Limitations on Scope of Franchise
The Franchise granted to the Company shall be exclusive except as to the categories of
Solid Waste listed in this Section. The granting of this Franchise shall not preclude the
categories of Solid Waste listed below from being delivered to and Collected and
transported by others provided that nothing in this Contract is intended to or shall be
construed to excuse any Person from obtaining any authorization from the City which
is otherwise required by law:
a) Recyclable Materials source separated from Solid Waste by the Customer that is
Collected at no cost to the Customer or for which Customer sells or is otherwise
compensated by other Persons in a manner resulting in a net payment to the
Customer;
b) Solid Waste, including Recyclable Materials and Greenwaste, which is removed
from any Premises by the Customer, and which is transported personally by the
Customer of such Premises (or by his or her full-time employees) to a processing
or Disposal Facility;
c) Recyclable Materials and Greenwaste which are source separated at any
Premises by the Customer and donated to youth, civic, or charitable
organizations) Containers delivered for Recycling under the California Beverage
Container Recycling Litter Reduction Act, Section 14500, et. seq., California
Public Resources Code;
d) Property owners may self-haul their own waste and recyclables when
undertaking special project or have excess waste materials; however, property
owners must maintain regular solid waste and recycling services through City's
Franchised hauler.
City of Palm Desert Page 15 5/15/2009
e) Greenwaste removed from Premises by a gardening, landscaping, or tree
trimming Company utilizing its own equipment as an incidental part of a total
service offered by the Company rather than as a hauling service;
f) Construction and Demolition Waste that is incidentally removed by a duly
licensed construction or demolition company or by the City, where the licensed
company utilizes its own equipment and employees;
g) Animal waste and remains from slaughterhouse or butcher shops for use as
tallow;
h) By-products of sewage treatment, including sludge, sludge ash, grit and
screenings;
i) Hazardous Waste and radioactive waste, regardless of its source;
j) The casual or emergency Collection, removal, Disposal or diversion of Solid
Waste by the City through the City officers or employees in the normal course of
their employment; and,
The Company acknowledges and agrees that the City may permit other Persons besides
the Company to Collect any or all types of the Solid Waste listed in this Section 2.7,
including Recyclable Materials, without seeking or obtaining approval of the Company
under this Contract.
This grant to the Company of an exclusive Franchise, right and privilege to Collect,
transport, or process and Dispose of Solid Waste shall be interpreted to be consistent
with state and federal laws, now and during the term of the Franchise, and the scope of
this exclusive Franchise shall be limited by current and developing state and federal
laws with regard to Solid Waste handling, exclusive Franchise, control of Recyclable
Materials, Solid Waste flow control, and related doctrines. In the event that future
interpretations of current law, enactment or developing legal trends limit the ability of
the City to lawfully provide for the scope of Franchise services as specifically set forth
herein, the Company agrees that the scope of the Franchise will be limited to those
services and materials which may be lawfully provided for under this Contract, and
that the City shall not be responsible for any lost profits claimed by the Company to
arise out of further limitations of the scope of the Contract set forth herein. In such an
City of Palm Desert Page 16 5/15/2009
event, it shall be the responsibility of the Company to minimize the financial impact to
other services being provided as much as possible.
2.8 City's Right to Direct Changes
2.8.1 General
The City may direct the Company to perform additional services (including new
diversion programs, etc.) or modify the manner in which it performs existing services or
bills for services. Pilot programs and innovative services which may entail new
Collection methods, different kinds of services and/or new requirements for
Customers, and alternative rate structures are included among the kinds of changes
which the City may direct. The Company shall be entitled to an adjustment in its
Company Compensation based on its reasonable costs for providing such additional or
modified services, as agreed between the City and the Company. If the Company and
the City cannot agree on terms and conditions of such additional or expanded services
within ninety (90) days from the date when the City first requests the Company to
perform such services, the Company acknowledges and agrees that the City may permit
Persons other than the Company to provide such services.
2.8.2 New Diversion Programs
The Company shall present, within 30 days of a request to do so by the City, a proposal
to provide additional or expanded diversion services. The proposal shall contain a
complete description of the following:
• Collection methodology to be employed (equipment, manpower, etc.).
• Equipment to be utilized (vehicle number, types, capacity, age, etc.).
• Labor requirements (number of employees by classification).
• Type of materials Containers to be utilized.
• Provision for program publicity/education/marketing.
• Projection of the annual financial results of the program's operations in an operating
statement format including documentation of the key assumptions underlying the
projections and the support for those assumptions.
City of Palm Desert Page 17 5/15/2009
2.8.3 City's Right to Acquire Services
The Company acknowledges and agrees that the City may permit other Persons besides
the Company to provide additional Solid Waste services not otherwise contemplated
under this Contract. If pursuant to Section 2.8.2, the Company and the City cannot
agree on terms and conditions of such additional or expanded diversion services within
ninety (90) days from the date when the City first requests a proposal from the
Company to perform such services, the Company acknowledges and agrees that the
City may permit Persons other than the Company to provide such services. In the
event that City exercises its right to permit third party Persons to provide such services,
and if such a decision reduces or eliminates Company's costs to provide Collection
services as contemplated under Company's Proposal and Article 4 of this Contract,
Company agrees to reduce its Billings proportionately.
2.9 Ownership of Solid Waste
Once Solid Waste is placed in Containers and properly placed at the designated
Collection location, ownership and the right to possession shall transfer directly from
the Customer to the Company by operation of this Contract. Subject to the Company's
objective to meet the Source Reduction and Recycling goals which apply to the City and
the City's right to direct the Company to process and dispose of Solid Waste at a
particular licensed Solid Waste Facility or to dispose of Solid Waste at a particular
licensed Disposal Site, if and only if the City exercises such right by providing specific
written direction to the Company, the Company is hereby granted the right to retain,
Recycle, process, Dispose of, and otherwise use such Solid Waste, or any part thereof, in
any lawful fashion or for any lawful purpose desired by the Company. Subject to the
provisions of this Contract, the Company shall have the right to retain any benefit
resulting from its right to retain, Recycle, process, Dispose of, or reuse the Solid Waste,
Greenwaste, and Recyclable Materials which it Collects. Solid Waste, Greenwaste, and
Recyclable Materials, or any part thereof, which is disposed of at a Disposal Site or Sites
(whether landfill, Transformation Facility, Transfer Station or Processing Facility) shall
become the property of the Owner or operator of the Disposal Site(s) once deposited
there by the Company. The City may obtain ownership or possession of Solid Waste
placed for Collection upon written notice of its intent to do so, however, nothing in this
Contract shall be construed as giving rise to any inference that the City has such
ownership or possession unless such written notice has been given to the Company.
City of Palm Desert Page 18 5/15/2009
2.10 Company Status
The Company represents and warrants that it is duly organized, validly existing and in
good standing under applicable laws. It is qualified to transact business in the State of
California and has the power to provide services as required by this Contract.
2.11 Company Authorization
The Company has the authority to enter into and perform its obligations under this
Contract. The Board of Directors or partners of the Company (or the shareholders, if
necessary) have taken all actions required by law, its articles of incorporation, its bylaws
or otherwise to authorize the execution of this Contract. The Persons signing this
Contract on behalf of the Company have authority to do so. Company shall authorize
one employee for the City as a single point of contact for issues arising under this
Contract. City may accept that this employee's actions are taken on behalf of and with
the full approval of the Company.
2.12 Annexations
This Contract extends to any territory annexed to the City during the term of this
Contract except to the extent that Collection by the Company within that annexed
territory would violate the provisions of Public Resources Code Section 49520. In such
event, this Contract shall become effective as to such area at the earliest possible date
permitted by law, and the City agrees that it shall cooperate with the Company to fulfill
any requirement necessary for the Company to serve the annexed area consistent with
this paragraph.
2.13 Mandatory Service
It is understood and agreed that trash Collection service from Company is a mandatory
service of all premises within the City of Palm Desert. City agrees to assist Company in
enforcing the mandatory service requirement of this Contract through the
implementation of mandatory Collection and mandatory billing for delinquent accounts
by utilizing tax roll billing. It is the responsibility of the Company to establish a plan
and an implementation schedule for mandatory trash Collection service that meets the
City's approval.
City of Palm Desert Page 19 5/15/2009
2.14 Relocation of Company Yard
Not later than May 31, 2011, or other date mutually agreed by the parties hereto,
Company agrees to relocate from its Palm Desert faicilty: (i) the maintenance and
overnight storage of the City of La Quinta's Refuse and Recycling Collection vehicles
currently at thirteen (13) vehicles, and (ii) the operation of all transloading of source-
separated Residential and Commercial Recycable Materials Collected in all jurisdictions
serviced by Company (the term "transloading" means off-loading materials from route
collection vehicles to larger capacity containers and vehicles for transport to a distant
processing facility).
City of Palm Desert Page 20 5/15/2009
ARTICLE 3
FRANCHISE & ADMINISTRATIVE FEE
3.1 Franchise, Recycling, and Administrative Fee
3.1.1 Franchise Fee Amount
In consideration of the exclusive Franchise granted pursuant to this Contract, the
Company shall pay to the City a Franchise Fee equal to eight percent (8%) of the
Company's Gross Receipts collected under this Contract net of Disposal and Recycling
Fees. The Company shall remit to the City this eight percent (8%) of all Gross Receipts
net of Disposal and Recycling Fees received by the Company under this Contract
according to section 3.1.4 below.
3.1.2 Recycling Fee Amount
The Company shall pay to the City a Recycling Fee equal to $8.25 per ton for each ton of
Refuse Collected from within the City and disposed. The Company shall remit to the
City this Recycling Fee according to section 3.1.4 below. The Recycling Fee may be
adjusted by the City, and in such case rates charged to Customers shall be adjusted up
or down by a corresponding amount. Any such adjustment shall be considered in
adjustments to the Company rates as described in Section 6.4.2.
3.1.3 Refuse Vehicle Impacts
City may instruct Company to compensate City annually for the costs of maintaining
and repairing roads attributed to Solid Waste Collection Vehicles. If a fee is imposed,
the City and Company shall negotiate associated costs and fee.
3.1.4 Time and Method of Payment
Company shall remit the Franchise Fee and Recycling Fee payments on or before the
thirtieth (30th) day following the end of each quarter, during the term of this Contract as
provided in Sections 3.1.1 and 3.1.2. If the Franchise Fee and/or the Recycling Fee is not
paid on or before the thirtieth (30�) day following the end of the quarter, the Company
shall pay to the City a service charge, and not as interest, in an amount equal to ten
City of Palm Desert Page 21 5/15/2009
percent (10%) of the amount owing for that quarter. The Company shall pay an
additional ten percent (10%) service charge on any unpaid balance for each additional
thirty (30) day period the Franchise Fee and/or Recycling Fee remains unpaid. Late
payment service charges shall not be included in any revenue requirement. The
Company agrees that the service charges contemplated by this Section 3.1.4 reasonably
reflect the cost to the City to process any delinquency calculations and notices, and to
monitor the Company's services, all in an effort to collect the delinquent Franchise Fees
and/or Recycling Fees which, together with all other remedies afforded City under this
Contract (including any award of attorney's fees and costs), and in accordance with
applicable laws, are intended to compensate City in any collection efforts in the event of
Company's default in the payment of Franchise Fees and/or Recycling Fees. Company
shall continue to remit Franchisee Fees and/or Recycling Fees to the City after the term
of this Contract expires so long as the Company continues to collect receipts from
Customers that were billed for services during the Contract term.
3.1.5 Documentation of Fee Payments
Along with fee payments, Company shall submit documentation of the prior quarter's
Gross Receipts, and tonnage Collected and Disposed, by line of service (Residential,
Commercial, Roll-off), identifying the Disposal Cost and Recyclables processing fee
components. This documentation is due by the 30� day following the end of each
quarter and must be complete and accurate to be considered received by the City.
3.2 Business License
The Company and any subcontractors shall annually obtain a City of Palm Desert
Business License. No contracts for services provided in the City shall be awarded to
any vendor until such business license has been obtained, and all fees paid therefore, by
the vendor and the subcontractors.
3.3 Other Fees
The City shall reserve the right to set other fees, as it deems reasonably necessary. The
amount, time and method of payment and adjustment process will be set similar to
Section 3.1.4 above.
City of Palm Desert Page 22 5/15/2009
ARTICLE 4
DIRECT SERVICES
4.1 Collection Services
The work to be done by the Company pursuant to this Contract shall include, but not be
limited to, the furnishing of all labor, supervision, equipment, materials, supplies, and
all other items necessary to perform the services required. The enumeration of, and
specification of requirements for, particular items of labor or equipment shall not
relieve the Company of the duty to furnish all others, as may be required, whether
enumerated elsewhere in the Contract or not.
The work to be done by the Company pursuant to this Contract shall be accomplished
in a thorough and professional manner so that the residents within the City are
provided reliable, courteous and high-quality Solid Waste Collection at all times.
4.2 Determination of Residential Collection Method
All individually-serviced Residential Customers shall receive automated Collection
service using Carts provided by Company, or Bin service, unless City approves manual
service on a case-by-case basis. City shall make final determination as to the form of
Collection service a Customer shall receive: Cart, Bin or other.
4.2.1 Homeowner Association Customers in Gated Communities
Homeowner associations in gated communities shall have automated services
according to Section 4.3, unless City approves manual or other service on a case-by-case
basis .
4.2.2 Individually Serviced Dwelling Units
Individually Serviced Dwelling Unit Customers shall receive automated Cart service
per Section 4.3 once per week
City of Palm Desert Page 23 5/15/2009
4.2.3 Apartment Complex Customers
Apartment complex Customers have the option of receiving Bin service or automated
Cart services. Company shall work with property owners/managers to tailor a
Recycling program to meet the needs of each property. Recyclable Materials
Collection shall be offered at no additional charge.
4.3 Automated Collection Services
The following services shall be provided in accordance with who shall receive such
services under Section 4.2. However, no Customer may receive additional Refuse Carts
at the additional Cart rate unless the Customer is already paying for Cart service for
every dwelling unit.
4.3.1 Automated Refuse Services
4.3.1.1 Refuse Cart Sizes
Company will supply each Residential Customer that participates in the automated
Collection program with one 96-gallon, 64-gallon or 32-gallon Cart, with an option to
obtain additional Refuse Containers at the initial rates shown in Exhibit 3. The larger
Cart will be billed at the full service rate and the smaller at the additional Cart rate.
Company shall provide Refuse Collection services, not less than once per week.
4.3.1.2 Cart Exchange
Individually-billed Customers
Customers will be allowed to change Cart sizes (e.g., from a 96-gallon Refuse Cart to a
64-gallon or 35-gallon Refuse Cart) at no charge.
Rates for Master-Billed Customers
Individual Customers within a master-billed community may exchange Cart sizes (e.g.,
from a 96-gallon Refuse Cart to a 64-gallon or 35-gallon Refuse Cart) at no charge.
However, if the entire Master-billed community intends to exchange Cart sizes, Master-
billed Customers may exchange Refuse Cart sizes no more than once per year, at a cost
of$6.00 per Cart. Master-Billed Customers must initially negotiate the same size
container for all residents when implementing the automated collection system.
City of Palm Desert Page 24 5/15/2009
4.3.2 Automated Curbside Recyclables Collection
Company shall issue each automated Customer either a 96-gallon, 64-gallon or 32-
gallon Recycling Cart at no additional charge, depending on the Customer's preference.
Company will make available additional Recycling Carts to Customers who regularly
recycle more than will fit into their existing Recycling Cart(s). No extra fee may be
charged for additional Carts, and no discounts given for using smaller Carts or not
using Carts. Company shall Collect and remove all Recyclable Materials placed in
Recycling Carts at the curbside on the same day as Refuse Collection. Recyclable
Material Collection from automated Carts within the City shall be at least once each
week and, at a minimum, include, but not be limited to, the Collection of:
• Paper - all grades, including: newspaper, catalogs, magazines,junk mail including
envelopes, telephone books, cereal boxes, office paper (white, colored, computer &
envelopes), cardboard (all grades, including egg cartons);
• Empty aerosol cans;
• Glass - all colors, California Redemption Value and non-redemption value
• Aluminum - cans, foil and trays;
• Bi-metal, tin- cans, steel cans;
• Plastic bags; and,
• Plastics/resins of all grades, Nos. 1 through 7.
Company shall promote to Residential Customers a bag-in-bag program, whereby
Customers are instructed to collect all plastic grocery bags within one bag to be placed
in the Recycling Cart for easy removal during sorting.
Recyclable Materials are to be commingled in a single Recycling Cart. Residential
Recyclable Materials Collection shall be on the same day of the week as Refuse
Collection service.
City of Palm Desert Page 25 5/15/2009
4.3.3 Automated Curbside Greenwaste Collection
Company shall offer weekly automated curbside Collection of Greenwaste to
automated Customers on the same day as Refuse Collection for an additional charge
per Greenwaste Cart per month in accordance with the approved rate schedule.
Company shall issue to each Customer requesting Greenwaste service one or more 96-
gallon Greenwaste Carts. Company shall make available a smaller 64-gallon Cart for
space constrained Customers. The Greenwaste Cart charge is the same for either size
Cart. Company shall also Collect an unlimited amount of tied bundles of Greenwaste
from Customers who subscribe to automated Greenwaste service.
4.3.4 Automated Cart Walk-in Service
Company shall offer Walk-in Collection services to all automated Cart Customers for an
additional fee. Service will include retrieving Refuse, Recyclables, and Greenwaste
Carts from and returning Carts to the backyard, garage, or other enclosure of such
Customers. Disabled persons, identified as those meeting the DMV requirement for
N1-Permanent disabled parking placard, shall receive such service for no additional
charge. The walk-in service surcharge for able-bodied customers choosing to pay for
such service will include the walk-in of one Refuse Cart and one Recycling Cart. The
walk-in of additional Refuse, Recycle or Greenwaste Carts may be charged an
additional walk-in fee for individual carts.
4.4 Manual Collection Services
The following services shall be provided only until such Customers have been
transitioned to automated, once per week service. Customers receiving manual Refuse
Collection service shall not receive separate Recyclables or Greenwaste Collection.
4.4.1 Manual Curbside Refuse Collection
Company shall manually Collect Refuse delivered for Collection at the curbside in
Customer-provided Cans weighing no more than 601bs., not less than once per week
and only until such Customers have been transitioned to automated.
City of Palm Desert Page 26 5/15/2009
4.4.2 Manual In-Ground Refuse Collection
For an additional charge per dwelling unit, Company will Collect Refuse from in-
ground Cans from all Customers with in-ground Cans installed and only until such
Customers have been transitioned to automated. In-ground Can Collection requires
manually lifting a Can from special silos below ground level, and returning the Can to
the silo and closing its lid.
4.5 Other Residential Services
4.5.1 Annual Neighborhood Clean-up Event
Company shall Collect and Recycle or Dispose of all items, including tires (limited to
one-40 yard roll-off), electronic waste, and other universal wastes, placed curbside at all
Residential Properties, both Single and Multi-Family as well as at designated locations
throughout the City, on a pre-set Collection day. This event shall take place once
annually in the Spring. Date shall be approved by the City. The City shall be
responsible for identifying specific locations, proper traffic designation, and on-site
oversight of the operation. Burrtec to man the event including assisting those that
require assistance in placing materials in bins, when needed. Company shall have the
right and duty to reasonably screen customers using drop-off locations for proof of
residenty and non-residential refuse and to turn away non-residents and non-
residential refuse.
4.5.2 On-Call Bulky Item Collection
The Company shall provide Bulky Item pickup service to all residential customers (both
Single, multi-family, and gated communities). Homeowner association customers and
single-family dwelling init customers will be entitled to unlimited pickups, with a
maximum of four items per pickup, for no additional charge. Other residential
customers, such as apartment buildings with more than four (4) units, will be entitled to
a set out up to four (4) at a cost of$50 per pickups. Customers will provide the
Company with 48 hours notice and the items will be Collected on the Customer's
regular Collection day. An additional fee per item may be charged for any item over
four items in one pick-up. Note: All multi-family residential complexes with four or
fewer units with central trash system shall still be serviced unlimited pickups of four (4)
items per unit at no charge.
City of Palm Desert Page 27 5/15/2009
The Bulky Items Collection Program shall include, but not limited to, solid waste that
cannot and/or would not typically be accommodated within a Cart including
specifically: furniture (including chairs, sofas, mattresses, etc. ); appliances (including
refrigerators, ranges, washers, dryers, water heaters, dishwashers, plumbing, small
household appliances and other similar items, commonly known as "white goods");
electronic equipment (including stereos, televisions, computers and monitors, including
laptops, VCRs, microwaves and other similar items commonly known as "brown
goods" and "e-waste"); universal items (vacuum cleaners, phones, cell phones, etc.),
and clothing. Bulky Items do not include car bodies, Construction and Demolition
Waste that is part of a remodel or new construction (items for disposal as a result of
minor home repair is acceptable). Other items not specifically included or excluded
above will be Collected provided that they are not more than eight feet in length, four
feet in width, or more than 150 pounds. In the event a question ever arises as to
whether a specific item or category of items meets the definition of Bulky Items, City
shall be responsible to determine whether said definition shall apply, which
determination shall be final and binding on the Parties. Exclusion from the Bulky Items
are materials from renovation/additions to homes that are considered Construction and
Demolition materials.
4.5.3 Christmas Tree Collection Program
Company shall operate an annual Christmas Tree Collection program. The program
shall include curbside Collection and a drop off site at the Company's operations yard
located in the City of Palm Desert, and shall target all Residential Properties in the City
(both Single and Multi-Family). The Company shall reasonably cooperate with the City
in the scheduling and operation of the Christmas tree Collection program.
4.5.4 Used Motor Oil and Filter Recycling
The Franchisee will be required to Collect and recycle all used motor oil and oil filters
from all Residential Properties. Residents without curbside Recyclables Collection, such
as apartments and condominiums, shall receive service on a call-in basis. Collection
from all other Residential Customers shall be provided on the same day as Recyclables
Collection.
City of Palm Desert Page 28 5/15/2009
4.6 Commercial Service
4.6.1 Refuse Bin Service
Company shall offer Bin service. Company shall Collect and remove all Refuse that is
placed in Bins from all Customers receiving Bin service at least once every week, or
more frequently if required to handle the Solid Waste stream of the Premises where the
Bins are located. Special consideration shall be given when determining the pick up
area to ensure that the flow of traffic is not impeded. No additional enclosure handling
fee may be charged for servicing enclosed Bins. Company is responsible for replacing
locks on Bin enclosures after Collection. Company shall not be responsible for the cost
of constructing Bin enclosures.
Company shall Collect and remove all Refuse that is placed into in-ground Bins in the
same manner at no additional charge. In-ground Bins are Bins set into a special silo
below ground level.
4.6.2 Cart Service
Company shall provide Cart service to low volume Commercial Customers requesting
such service. This service will be provided at the same rate as Residential Cart service,
but does not entitle Commercial Cart Customers to other Residential services such as
free Bulky Item Collection. Commercial Cart Customers are entitled to Commercial
Recycling services at no charge per Section 4.6.4.
4.6.3 Temporary Bins and Roll-off Box Service
The Company shall offer temporary Bin service and Roll-off Box and Compactor
services for the Collection of Refuse or Construction and Demolition Waste.
A. Condition of Equipment: Temporary Bins and Roll-off Boxes shall be free of
graffiti and in good repair, and must be clearly marked and identifiable as belonging to
the Company.
B. Location: Special consideration shall be given when determining the delivery
collection location for temporary Bins, Roll-off Box service to customers to ensure that
the flow of traffic is not impeded. The designated collection location, if disputed by the
Customer or the Company, shall be determined by the City. Additionally, if in the
City of Palm Desert Page 29 5/15/2009
City's opinion the location of an existing collection location is inappropriate for
aesthetic or safety reasons, the City may require the customer and/or company to
relocate the temporary bins or roll-off boxes to an alternate Collection location.
C. Arranging: The Compnay shall deliver and collect temporary bins and roll-off
boxes at the direction of the customer.
D. Time: The Customer is entitled to retain the bin or roll-off box(es) for seven (7)
business days. After the initial7 business days, additional fees may be due based on
demurrage charges for use beyond the seven (7) business days.
E. Charge: The Company may charge the established Temporary Bin and Roll-Off
Box Service rate as set in Exhibit 3.
4.6.4 Recyclable Materials Bin Service
Company shall collect and remove, for no additional charge, all recyclable materials
that is placed in recycling bins at least once every week, or more frequently if required
to handle the recyclable materials generated at the Premises where the Bins are located.
Company shall provide as many Bins as agreed upon between Company and customer
as necessary to accommodate all Recyclables generated on the Premises. If Customer
prefers, Company may provide Recycling Carts. If a Customer's Recyclables are
regularly contaminated, Company may remove that Customer's Bin. Company shall
collect the following materials:
• Residential Recycling (Apartment Complexes) - same materials as listed above in
Section 4.3.2.
• Commercial Recycling- Paper - all grades, Glass - all colors, California
Redemption Value and non-redemption value, Aluminum - cans, foil and trays,
Bi-metal/tin- cans, Plastics/resins - Nos. 1 through 6, Construction and
Demolition Waste - asphalt, concrete, wood, etc. The Company also agrees to
make programs available for all other materials for which it has established
markets. Construction and Demolition Waste and Greenwaste (see Section 4.6.5
below) shall each be Collected in separate Containers and not commingled with
other Recyclable Materials.
City of Palm Desert Page 30 5/15/2009
The City and Company may revisit the Free Commercial Recycle Program and the
possible fee assessment annually. The City and Company shall negotiate in good-faith
a fee at such time as the City or State mandates mandatory recycling.
4.6.5 Roll Off Boxes Greenwaste Collection
The Company shall offer Greenwaste Collection to Roll Off Customers. The Company
shall notify all of its Roll Off Refuse Customers of the availability of Greenwaste
Collection service at least once each year. For those Roll Off Customers who choose to
participate, the Company shall provide Greenwaste Collection using roll off boxes.
Additionally, Greenwaste Roll-off Box charge shall be no more than 100% of the
standard pull charge for a Roll-off Box plus the actual cost of Greenwaste processing at
the Greenwaste processing Facility.
4.6.6 Commercial Site Visits
Within twelve months of the execution of this Contract, Company shall contact each
Commercial Customer that does not aready participate in a Recycling program through
Company. The purpose of the contact shall be to establish Recycling programs. Within
thirty (30) days following the end of the twelve (12) month contract period, Company
shall provide City with a written record of such contacts, including contact name,
contact telephone number, form of contact (site visit, telephone, etc.), and details of
resulting new recycling program or reasons why one was not established. Contacts
should include a site visit unless a visit is specifically declined by the Customer.
4.6.7 Overflowing Commercial Containers and Enclosure Clean-Outs
Customers that regularly produce more Refuse than their current level of service can
accommodate may have their service level increased in accordance with the following
procedure:
First Incident in Three Month Period - If more material is placed for Collection than fits
in a Bin or Cart (unless Collection of the overage has been properly arranged under
Section 4.2.5), Company shall photograph the overflowing Container, Collect the Solid
Waste, and send to the Customer (at both the service and billing addresses) the picture
and a letter offering free Recyclables Collection and instructing that the next instance of
City of Palm Desert Page 31 5/15/2009
an overflowing Container may result in a charge, and possibly in an increase in the level
of service.
Second Incident in Three Month Period - Upon the second event of an overfilled
Container in a three-month period, if the Customer has not implemented a Recycling
program, Company shall photograph the overflowing Container, Collect the Solid
Waste, and send to the Customer the picture and a letter offering free Recyclables
Collection and instructing that a third incident in that same three month period may
result in an increase in the level of service. If a Bin overflowed sufficiently to require the
driver to leave the Collection vehicle to clean around the Bin, Company may charge the
Bin Overage Cleanup fee in the approved rate schedule. If Refuse was left beside a
Customer's Commercial Cart for Collection other than as permitted under Section 4.2.5,
Company may charge the Cart Overage Fee in the approved Rate Schedule.
If a Rec ��ng program had been implemented, Company will offer Customer assistance
in training staff to Recycle properly and, if warranted, provide additional Rec, cl� able
Container capacity to avoid future overflow issues. Third Incident in Three Month
Period - Upon the third event of an overfilled Container in a three-month period,
Company shall photograph the overflowing Container, Collect the Solid Waste, and
send to the Customer the picture and a letter requesting that Customer increase its
service level and/or implement a Recycling program that will lower the level of Refuse
Disposed. If the Customer declines, Company may petition City to permit Company to
increase the service level to accommodate the higher demand for service. If a Bin
overflowed sufficiently to require the driver to leave the Collection vehicle to clean
around the Bin, Company may charge the Bin Overage Cleanup fee in the approved
rate schedule. If Refuse was left beside the Cart for Collection other than as permitted
under Section 4.2.5, Company may charge the Cart Overage Fee in the approved Rate
Schedule.
4.6.8 Pilot Restaurant Food Waste Diversion Program
Upon written direction of the City Manager, Company shall implement a restaurant
food waste diversion pilot program within ninety (90) days of City's request. Pilot
program, including all Customer training, Collection services, Disposal, processing,
administration, and all other aspects, shall be provided by Company at no cost to the
City or participants. Company shall not be required to implement the pilot program if
City of Palm Desert Page 32 5/15/2009
there is not a properly permitted processing Facility to accept the food waste in the
Coachella Valley. This pilot program will be provided at no additional charge to City or
Customers.
Pilot program shall consist of the following:
A. Participants - Participants shall be restaurant customers receiving Commercial
Refuse service. Company shall identify at least five restaurant customers for
advance approval by City as program participants. Company shall accompany this
list of recommended participants with a complete restaurant Customer list that
includes: 1) restaurant Refuse Customer name, 2) Customer address, and 3) Solid
Waste Collection service level (number and size of Containers and frequency of
collection). City may instruct Company to select alternative participants.
B. Program Containers - Company shall provide each participant with 64-gallon
wheeled carts for the separation and collection of food waste. Each participant shall
be entitled to a sufficient number of carts to accommodate all food waste generated.
Pickup of food waste Containers shall be at least twice per week.
C. Training- Company shall conduct training for all participating restaurant staff.
Company shall provide training on site, at times coordinated with the restaurant
owners and operators. Company estimates training time of approximately thirty
(30) hours per restaurant.
D. Weighing and Monitoring of Tonna�- Prior to initiating pilot program, Company
shall weigh all of participants' Refuse Collected for a one-week period to calculate
the average weight per yard of Refuse Bin capacity. After the pilot program has
started, Company shall separately weigh all Refuse and food waste collected for a
one-week period once each quarter during the pilot program and report the results
to the City. Company shall be responsible for reporting weights for the five sample
periods, including the pre-implementation measurement and the four quarterly
post-implementation measurements.
E. Participant Service Levels - This pilot program is intended to reduce the quantity of
Refuse being collected from participants and sent to the landfill for Disposal. As a
result, participants may elect to reduce their Refuse Collection service levels by
City of Palm Desert Page 33 5/15/2009
requesting a smaller Refuse Container or reducing the frequency of collection.
Participants' Billings will be adjusted to reflect their lower service levels.
F. Reportin to City Prior to Implementation- Prior to commencing the restaurant
food waste diversion pilot program, Company shall submit the following
information to the City:
i. Name and address of each participant
ii. Each participant's Refuse service level prior to implementation of the food waste
program, including the number and size of Containers, and frequency of
collection for each wastestream (Refuse, Recycling)
iii. Each participant's Solid Waste Collection Billings (for the reported service levels
before implementation of the pilot food waste program)
iv. Initial Refuse tonnage weight measurements, as determined per section"d"
above
v. Name of Facility to be used for food waste processing and per ton gate fee to be
paid by Company
G. Monthly Reports During Pilot Program -Within 20 days of the end of each
calendar month, Company shall submit the following information:
i. Food waste tons collected and diverted
ii. Complaints and challenges encountered.
iii. Results of the most recent tonnage measurements, as conducted under section
"d" above, if performed that month
H. Final Report to City - 30 days after the completion of the pilot program, Company
shall submit to City:
i. Name and address of each participant
ii. A comparison of each participant's service level, including the number and size
of Containers, and frequency of collection type for each wastestream (Refuse,
City of Palm Desert Page 34 5/15/2009
Recycling, food waste) before and after implementation of the food waste
program
iii. A comparison of each participant's Solid Waste Collection Billings before and
after implementation of the food waste program
iv. Final tonnage weight measurements, per section"d" above
v. A proposed strategy to implement the food waste program City-wide, including
supporting calculations and assumptions.
I. Duration of Pilot Program - Company shall conduct the pilot program for a
minimum of three (3) months. City and Company may, by agreement, choose to
extend the program beyond the initial three-month period.
J. Implementation of City-Wide Restaurant Food Waste Diversion Program -The
purpose of the pilot program is to help evaluate the effectiveness of a City-wide
Restaurant Food Waste Program, and to provide guidance for an effective
implementation. Based upon City's goals and needs, and results of the pilot
program, City may request Company to implement a City-wide restaurant food
waste diversion program. A rate adjustment shall be permitted for a City-wide
program.
4.6.9 Compactor Service:
The Company shall offer stationary compactor services for the collection of commercial
refuse or recyclable material from high volume commercial customers from stationary
compactors and maintained by either customer or company as mutually agree.
A. Condition of Equipment: If provided by Company, compactors shall be free of
graffiti and in good repair, and must be clearly marked and identifiable as belonging to
the Company.
B. Location: The designated collection location shall be arranged by customer in
accordance with the requirements and design standards of City and with the prior
approval of the City. The selected location shall be subject to the prior written approval
of Company.
City of Palm Desert Page 35 5/15/2009
C. Arranging: The Company shall collect compactors at the direction of the
customer.
D. Charges: The Company may charge up to the maximum rate as established in
Exhibit 3.
E. Conditions: The compactor shall be compatible with Company's collection
equipment and procedures. The location, compactor and collection operation of the
compactor shall be approved in writing by Company before installation. The customer
shall be solely responsible for the safe operation of the compactor and for all repairs
that may be needed from time to time unless arranged to be performed by Company.
4.7 City Services and Other Requirements
4.7.1 City Facilities' Collection
Company shall provide, at no additional charge to City, containers for, and collection
and disposal of, all solid waste generated at premises owned and/or operated by the
City as designated in Exhibit 1 as well as new City facilities that may become part of the
City. City facilities (1) not operated for a public purpose or (2) operated as a City
enterprise shall pay for services at the rates and charges in effect at the time service is
rendered and under the same terms and conditions as any other commercial customer.
Collections shall be scheduled at a time mutually agreed upon by the Company and
City. Company may also provide separate containers appropriate for the type and
amount of materials on a facility-by-facility basis for commingled recycling of newprint,
mixed paper, corrugated cardboard, and glass, plastic and metal beverage containers
and for source-separated greenwaste and source-separated construction and demolition
materials (concrete and asphalt, woody waste, metals and sand, soil and sod.
4.7.2 Abandoned Item Collection
Company shall Collect, at no additional charge, abandoned items from public streets or
rights of way within 24 hours of notification by City staff.
4.7.3 City Sponsored Events
The Company shall provide Solid Waste and Recycling Collection service and portable
toilet and sink service at up to five (5) individual City-sponsored, not for profit events
City of Palm Desert Page 36 5/15/2009
each year. City shall designate the five (5) events. These services shall be provided at
no cost to the City or the event.
4.7.4 Greenwaste Drop-off Site
Company shall permit residents of City to drop-off unlimited Greenwaste at no charge
at Company's Palm Desert Facility, with the exception that landscapers and gardeners
shall be charged.
4.7.5 Construction and Demolition Waste Recycling
Company shall divert a minimum of 75% of all construction and demolition waste
collected by Company. All mixed construction and demolition waste shall be
processed. Divserion is subject to the following: A. Company's program shall
commence upon the effective date and continue during the City's continuation and
enforcement of:
a. City's comprehensive Construction and Demolition Waste Recycling Ordinance,
when approved, designed to divert a minimum of 75% of all construction and
demolition waste collected by Company, and
b. That there continuously exists in the Coachella Valley sufficient properly
licensed and permitted Construction and Demolition Waste Diversion Facilities
capable of accepting, processing and diverting at least 75% of the construction
and demolition waste generated within City and collected by Company.
(Current acceptable facilities and Burrtec's future facility(ies).)
Company's failure to divert a minimum of 75% of Construction and Demolition Waste
from landfill disposal shall not be subject Company to penalties or liquidated damages
provided that Company has made a good faith effort to implement City's Construction
and Demolition Waste Diversion Ordinance as described herein. In no event shall
Company's failure to divert a minimum of 75% of construction and demolition waste
generated within City and collected by Company shall result in a breach of Contract,
but may be considered in City Council's review of Agreement extension option.
Roll-off box collection service shall be charged on a "pull plus dump" basis, with one
service fee or "pull charge" plus a per ton fee component. The per ton component for
mixed construction and demolition debris loads shall be no more than the per ton rate
City of Palm Desert Page 37 5/15/2009
listed on the approved rate schedule. Such loads shall be processed to recover
recyclable debris. The per ton component for source separated loads (e.g., concrete,
dirt, asphalt, wood) shall be the actual per ton gate rate at the facility accepting the
material for diversion, but no more than the per ton rate for mixed loads.
4.7.6 Shred It Recycle Program
Company shall create and implement a Shred It Program that will be available to Palm
Desert Residents and Commercial Customers during normal Burrtec business hours
and located at 41-800 Corporate Way at no cost to City, residents, or commercial
customers.
Company shall operate two (2) drop-in document shredding events for Palm Desert
Residential Customers annually, one (1) in the second (2nd) calendar quarter of the year
and one (1) in the fourth (4�) calendar quarter of the year. The location of the document
shredding drop-in events shall be at a location approved in advance by the City.
Company shall advertise the event on its website and in newsletters, and in a display
advertisement published in a newspaper of general circulation in the City ten (10) days
prior to each drop-in document shredding event. Each event shall be at no cost to the
City, residents, or businesses. Commerical businesses may be limited to ten (10) boxes
per event.
4.7.7 Sharps Recycle Program
Company shall provide a mail-in program for the collection of used needles, with
program specifics to be approved by City, and shall accept sharps at its HHW center
and at other locations that may develop as a result of expansion of the program in the
City. Company shall be responsible to ensure that the Sharps Colleciton Programs
comply with all applicable laws and regulations. These programs shall be provided by
Company at no additional cost to resident but may be provided to non-residential
customers for a fee.
4.7.8 Warning Notice
The Company shall warn Customers who have non-recyclables in their Recycling
Container. Warning should notify Customer that Company may charge a Collection fee
for contaminated Recycling Containers in accordance with the approved rate schedule.
City of Palm Desert Page 38 5/15/2009
If after two sequential written warnings the Container continues to be contaminated,
the Company may remove the Recycling Container from Customers who fail to sort
properly and segregate Recyclable Materials. The Company shall report quarterly to
the City any warning notices issued as part of its quarterly reporting under Section
8.3.3(b). Removed Recycling Containers shall be returned to Customers under any of
the following circumstances:
a) Customer requests return of Recycling Containers and it has been at least three
months since the removal;
b) Occupant at location changes;
c) Company has reason to believe Customer will no longer contaminate Recycling
Container; or,
d) City requests Recycling Containers be returned.
4.7.9 Marketing and Sale of Recyclable Materials
The Company shall be responsible for marketing and sale of all Recyclable Materials
Collected pursuant to this Contract. Company shall retain proceeds from sales of
Recyclable Materials.
4.7.10 End Uses for Greenwaste
Company shall divert greenwaste materials collected through curbside collection,
commercial greenwaste collection program, and Christmas tree collection and dropped
off at Company site from Disposal through composting, mulching or other non-
landfilling method. The Company must provide end uses for Greenwaste that
maximize diversion credits for the City according to regulations established by the
California lntegrated Waste Management Board, and may use greenwaste as alternative
daily cover (ADC) so long as ADC is permitted as a diversion credit by the Board.
4.7.11 Diversion Requirements
The minimum amount that shall be diverted through Recycling, Greenwaste Collection,
and Transformation is 50% until such time as the City approves its Sustainability Plan
and/or the State approves the Green Building Standards at which time the diversion
City of Palm Desert Page 39 5/15/2009
rate will increase to 75% of the total waste stream Collected by Company during each
calendar year of this Contract. Transformation shall consist of a maximum of 10% of
the total waste stream.
Should the City not reach the AB 939 50% diversion goal or approved future State
mandate(s) for its entire waste stream, the Company agrees to make reasonable efforts
to implement programs and provide equipment necessary in order for the City to meet
the 50% diversion goal.
City may require Company to meet a higher diversion rate for Solid Waste collected by
Company. In the event the State increases minimum diversion goals above the 50%
required by AB939, Company shall ensure City will meet the higher diversion level,
with a rate adjustment equal to the reasonable, actual cost of such additional programs.
4.7.12 Development of Diversion Facility
Company intends to develop additional diversion facilities to augment City's diversion
goals. However, both parties recognize that having viable markets for diverted
products is an important ingredient in Company's decision to invest in technology and
facilities to divert construction and demolition debris and food waste as part of this
Contract.
Within the first two years of this Contract, Company will endeavor to develop, as part
of its planned material recovery facility, a site for sorting and consolidating mixed
construction and demolition debris for transfer to local processors for diversion.
Also, within the first two years of this Contract, Company will endeavor to develop, an
in-vessel organic composting facility for the conversion of food waste and greenwaste
into a beneficial soil amendment.
Once developed, Company guarantees City sufficient capacity in each program/project
to: 1) process all mixed construction and demolition debris generated within City and
hauled by Company, and 2) sufficient capacity to process all food waste generated by
commercial food establishments within City participating in Company's source
separated food waste collection.
This section ties to Section 2.4 Terms and 2.14 Relocation of Company Yard
City of Palm Desert Page 40 5/15/2009
4.7.13 Waste Characterization Studies
Company will conduct a waste characterization study at all City facilities within the
first three months of the new Contract.
4.7.14 CNG Fueling Station Discount
Company will allow City to use Company's public access CNG fueling station at the
pump price available to the general public.
4.7.15 Household Hazardous Waste Services
The Company shall convert the current Household Hazardous Waste service from a
part-time drop-off service to an on-going at-home collection service.
A. At-Home Collection Service: The Company shall provide all labor, equipment,
and services necessary to collect HHW from individual residential dwellings upon
request of the occupant. The service shall be operated according to the following
guidelines:
1. The service will be provided to any residential dwelling within five (5)
business days of a telephone or written request by the occupant.
2. Collections shall be made Monday through Friday during normal
business hours of 8:00 a.m. to 5:00 p.m.
3. Residents must store HHW materials in a secure location not accessible to
the general public until collected by Company.
4. The total amount of HHW materials collected from an individual dwelling
unit shall not exceed fifteen (15) gallons per pickup as regulated by State
regulations.
5. The number of collection at any dwelling shall be limited to four (4) in
each calendar year.
6. Materials to be collected must be presented for collection in spill and leak-
proof containers.
City of Palm Desert Page 41 5/15/2009
7. Prior to acceptance for collection, all materials shall be inspected by
Company's representative and only those materials that can be identified
by either their original container labeling or by sight recognition of a
trained technician will be accepted for collection.
8. The dwelling occupant or a responsible adult representative of the
dwelling must be present at the time of collection or the material must be
placed at a side gate or secure area. No items will be accepted at the
curbside of any residents.
9. The cost of the on-going at-home HHW collection service will be paid
through grant funding as outlined in Section D of this provision. The
Company will invoice the City a $18.00 service charge per -stop plus
actual disposal cost. The service charge will be subject to increases in
accordance with Article 6 of this Contract.
10. At such time as the City deems appropriate, City and Company will
negotiate in good faith a rate to be implemented with the annual rate
increase process.
At-home collection of HHW shall commence within sixty (60) days following the
issuance of the necessary permits and certifications by the California Environmental
Protection Agency Department of Toxic Substances.
B. Drop-Off Collection Facility: The Company shall operate part-time a
Household Hazardous Waste ("HHW") Facility located at 41-575 Eclectic Street, Palm
Desert, CA. Such operations include providing all labor and othe services necessary for
operation, and all aspects of acceptance, packing for transport and disposal of HHW.
Facility will be open to accept HHW every Saturday between the hours of 9:00 a.m. and
1:00 p.m., except Saturdays that immediately follow a holiday observed by the
Company, and from 9:00 a.m. to 1:00 p.m. for one week day to be agreed by the parties.
The City and all full-time and part-time residents of the City may use the Facility at no
charge. Company may require customers to produce reasonable evidence of residency
and may limit the quantity of HHW to no more than fifty (50) pounds of HHW per
household per week, all of which shall be contained for transport in spill and leak-proof
containers.
City of Palm Desert Page 42 5/15/2009
The HHW drop-off collection facility shall be closed 60 days after the implementation of
the HHW at-home collection service described in Part A of this Section.
C. Other Responsibilities of Company: Additional responsibilities of the
Company include:
1. A written operating plan for the HHW Facility and the HHW at-home
collection service;
2. The development, preparation, and distribution of public education
materials and participation in school education programs;
3. Maintenance of any required HHW Facility, handling of transportation
permits;
4. Selection of a permitted Hazardous Waste hauler (unless performed by
Company);
5. Management of the part-time HHW Facility when operated at Company's
yard; and
6. Assistance to City in the preparation of grant applications.
D. Grant Funding- The City shall serve as the "applicant" and "lead agency" for
any available grant funding and shall actively explore any and all available means of
grant funding. Company shall cooperate and assist in any grant funding application
and in reporting required for any grant received by City. All grant monies received by
City for the operation of HHW collection shall be remitted to the Company in an
amount up to Company's actuall HHW disposal and collection charges allocated to City
of Palm Desert customers on the basis of the number of users on a reimbursement basis.
In the event that grant monies are insufficient to offset the direct out-of-pocket costs of
operating the HHW operation including disposal, City and Company agree to share the
additional cost with the Company contributing up to $30,000 annually and the City
contributing up to an additional $30,000 annually, both amounts adjusted annually
when the Company's residential service rates are adjusted and in the same manner and
amount . If the actual direct out-of-pocket costs to operate the HHW collection exceeds
the grant funds plus the $60,000 combined additional shared costs of City and
City of Palm Desert Page 43 5/15/2009
Company as it may be adjusted in subsequent years, City and Company agree to
negotiate in good faith an alternate funding arrangement to keep the facility open as
contemplated in Section 4.7.14(A).
E. Annual Statement of Cost- The Company shall submit an annual statement to
the City by March 31St of each year for operations during the previous calendar year.
This report shall include the detailed costs and operating statistics (e.g. number of
Customers by jurisdiction and quantities by waste type for each jurisdiction) for the
part-time HHW Facility during the previous calendar year and At-Home Collection
Service.
F. Materials to be Accepted at Facility -The Company shall accept and remain
permitted to accept the following HHW that are defined as HHW, Electronic Waste,
and Universal Waste:
Acids Kerosene Other Household Flammable Liquids
Bases Lamp Oil Paint Strippers
Ethylene Glycol Latex Paint Pesticides and Herbicides
Fertilizers Lead Acid atteries Small Quantities of Mercury
Household Batteries Oil-based Paints Used Oil
Household Cleaners Old Gasoline Used Oil Filters
Sharps Electronic Wastes Universal Wastes
G. Household Hazardous Waste Facility Reporting-Company will submit a quarterly
report within 30 days of the end of each calendar quarter showing the following
information by month:
1. Drop-Off HHW Facility
• The number of vehicles that used the part-time HHW Facility by City origin.
• The average cost per vehicle paid to the HHW Facility operations subcontractor.
• The total monthly cost and year-to-date cost of operating the HHW Facility for Palm
Desert customers.
City of Palm Desert Page 44 5/15/2009
• Grant funds utilized during the month and year-to-date for the cost of the HHW
Facility operations subcontractor for Palm Desert customers, and remaining grant
funds for the balance of the calendar year.
• The quantity and type of materials disposed at the part-time HHW Facility.
2. At-Home HHW Collection Service
• The number and addresses of dwellings from which collections were made.
• The average cost per dwelling serviced.
• The total monthly cost and year-to-date for the cost of the HHW at-home collections
for Palm Desert customers
• The quantity and type of materials collected in the HHW at-home collection
program.
• The number of households that utilized the At-Home Collection Service.
4.8 Operations
4.8.1 Schedules
Solid Waste shall be Collected according to the City Code as follows:
Commercial:
a) Winter Months (October 1St through Apri130th) -between 6:00 a.m. and 6:00 p.m.;
b) Summer Months (May 1St through September 30�) -between 5:30 a.m. and 6:00 p.m.
Residential:
a) Winter Months (October 1St through Apri130th) - between 6:30 a.m. and 6:00 p.m.:
b) Summer Months (May 1St through September 30�)-between 5:30 a.m. and 6:00 p.m.
Solid Waste shall be Collected from Commercial zones Monday through Saturday, and
Residential zones Monday through Friday, unless Saturday Collection shall be
necessary due to holiday scheduling. If the regularly scheduled Collection day falls on
City of Palm Desert Page 45 5/15/2009
New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, or
Christmas Day, alternate Collection shall be performed on the following day, unless the
alternate day falls on Sunday. Alternate Collection shall then be performed on the
following Monday. All other Collection days falling on a legal holiday shall remain as
scheduled. Collections for the remainder of the week following a holiday shall be
delayed for one day.
The Company shall be prepared to review its operations plan outlining the Collection
routes, intervals of Collection and Collection times for all materials Collected under this
Contract with the City once annually upon 30-day written notice requesting said
review. More frequent reviews may be required if operations are not satisfactory based
on documented observations or reports of complaints. If the plan is determined to be
inadequate by the City, the Company shall revise its plan incorporating any changes
into a revised plan and review said revised plan with the City within thirty (30)
calendar days.
When notified of a missed pick-up, the Company shall Collect the Refuse, Recyclable
Materials, and/or Greenwaste within one (1) business day.
4.8.2 Vehicles
A. General. The Company shall provide Collection vehicles sufficient in number
and capacity to efficiently perform the work required by this Contract in strict
accordance with its terms as described in the Company's Proposal. Any additional
vehicles/routes that may be required to meet the service standards during the term of
this Contract, above the number included in the Company's Proposal shall be done so at
the Company's sole expense. The Company shall have available on Collection days
sufficient back-up vehicles for each type of Collection vehicle used to respond to com-
plaints and emergencies. Company shall provide electronic communication with the
route supervisor and Commercial and Residential Collection vehicles.
B. Specifications. All vehicles used by the Company in providing Refuse,
Recycling, and Greenwaste Collection services shall be registered with the California
Department of Motor Vehicles. All such vehicles shall have water- tight bodies
designed to prevent leakage, spillage or overflow.
City of Palm Desert Page 46 5/15/2009
C. Alternative Fuel Vehicles. The Company shall comply with the requirements of
the Southern California Air Quality Management District Rule No. 1193. Further, all
regular residential, commercial, and roll-off route trucks used by the Company to
collect refuse, recycling, and greenwaste generated within City shall be alternative fuel
vehicles. Qualifying vehicles include:
1) Compressed Natural Gas vehicles; and,
2) Liquefied Natural Gas vehicles
3) Other alternative fuel vehicles with similar emission performance standards if such
vehicles are approved in writing by the City in advance of implementation of such
vehicles.
D. Vehicle Identification. The Company's name, local telephone number, and a
unique vehicle identification number designed by the Company for each vehicle shall
be prominently displayed on all vehicles, in letters and numbers no less than (3) three
inches high. The Company shall not place the City's name and/or any City logos on
the Company vehicles.
E. Cleaning and Maintenance
1) The Company shall maintain all of its properties, vehicles, Facilities, and
equipment used in providing service under this Contract in a good, safe, neat,
clean and operable condition at all times.
2) Vehicles used in the Collection of Refuse, Recyclable Materials, and Greenwaste
shall be painted, thoroughly washed, and thoroughly steam cleaned on a regular
basis so as to present a clean appearance. The City may inspect vehicles at any
time to determine compliance with this Contract. The Company shall also make
vehicles available to the Riverside County Health Department for inspection, at
any frequency it requests. The Company agrees to replace or repair to the City's
satisfaction, any vehicle which the City determines to be of unsightly
appearance, leaking, or in unsatisfactory operating condition.
3) The Company shall repaint all vehicles used in the Collection of Refuse,
Recyclable Materials and Greenwaste within sixty (60) days' notice from the City,
if the City determines that their appearance warrants painting.
City of Palm Desert Page 47 5/15/2009
4) The Company shall inspect each vehicle daily to ensure that all equipment is
operating properly. Vehicles which are not operating properly, or vehicles in
such a condition as to be unsafe or excessively noisy, shall be removed from
service until repaired and operating properly. The Company shall reasonably
perform all scheduled maintenance functions in accordance with the
manufacturer's specifications and schedule. The Company shall keep accurate
records of all vehicle maintenance, recorded according to date and mileage (or
hours of operation) and shall make such records available to the City upon
request.
5) The Company shall repair, or arrange for the repair of, all of its vehicles and
equipment for which repairs are needed because of accident,breakdown or any
other cause so as to maintain all equipment in a safe and operable condition. If
an item of repair is covered by a warranty, the Company shall obtain warranty
performance. The Company shall maintain accurate records of repair, which
shall include the date and mileage (or hours of operation), nature of repair and
the verification by signature of a maintenance supervisor that the repair has been
properly performed.
6) Upon request by the City, the Company shall furnish the City a written
inventory of all Collection equipment, including vehicles and Containers used
in providing service, and shall update the inventory upon request, up to once
annually. The inventory shall list all equipment by manufacturer, ID number,
date of acquisition, type, and capacity.
F. Operation. Vehicles shall be operated in compliance with the California Vehicle
Code, and all applicable safety and local ordinances. The Company shall not load
vehicles in excess of the manufacturer's recommendations or limitations imposed by
state or local weight restrictions on vehicles.
Equipment shall comply with US EPA noise emission regulations, currently codified at
40 CFR Part 205 and other applicable noise control regulations, and shall incorporate
noise control features throughout the entire vehicle. In no event shall the noise level of
equipment used for Collection exceed 75 dba when measured at a distance of 25 feet
from the vehicle, five feet from the ground. The Company shall store all equipment in
safe and secure locations in accordance with the City's applicable zoning regulations.
City of Palm Desert Page 48 5/15/2009
Subject to Section 9.1, the Company shall be responsible for any damage resulting from
or directly attributable to any of its operations, and which it causes to: the City's
driving surfaces, whether or not paved; associated curbs, gutters and traffic control
devices; other public improvements; and private roads and alleys.
G. City Inspection Per Code. The City may cause any vehicle used in performance
of this Contract to be inspected and tested at any commercially reasonable time and in
such manner as may be appropriate to determine that the vehicle is being maintained in
compliance with the applicable provisions of the State Vehicle Code, including all
Vehicle Code Sections regarding smog equipment requirements. The City may direct
the removal of any vehicle from service if that vehicle is found to be in nonconformance
with applicable codes. No vehicle directed to be removed from service by the City shall
be returned to service until it conforms with, and its return to service has been
approved by the City.
H. Vehicle Inspections. Upon City request, Company shall submit the Safety
Compliance Report/Terminal Record Update from its Biennial Inspection of Terminal,
or BIT. If Company receives a terminal rating below satisfactory, Company shall notify
the City.. Company shall use the the time allowed by the Department of California
Highway Patrol ("CHP") to cure violations and bring the terminal rating up to
satisfactory. If the CHP does not adjust the rating to satisfactory or better within three
(3) months, then the Company shall remove any and all unsatisfactory vehicles from
operation within City.
I. Correction of Defects. Following any inspection, the Public Works Director shall
have the right to cause the Company, at its sole cost and expense, to recondition or
replace any vehicle or equipment found to be unsafe, unsanitary or unsightly. The
Public Works Director's determination may be appealed to the City Council, which
decision shall be final.
City of Palm Desert Page 49 5/15/2009
4.8.3 Containers
4.8.3.1 Cart Design Requirements
These Carts shall be manufactured by injection or rotational molding and meet the Cart
design requirements as specified below and performance requirements in Section
4.8.3.2.
4.8.3.1.1 Capacity
The Company shall continue to provide new and replacement Carts in the same three
sizes and appearance for residential refuse, recycling and greenwaste collection as in
use at the start of this contract term: 96, 64, and 32-gallon sizes.
4.8.3.1.2 Cart Handles
The Cart handles and handle mounts may be an integrally molded part of the Cart body
or molded as part of the lid. Bolt-on handles are acceptable. The Cart handles will
provide comfortable gripping area for pulling or pushing the Cart or lifting the lid.
Pinch points are unacceptable.
4.8.3.1.3 Cart Lid
Each Container shall be provided with a lid that continuously overlaps and comes in
contact with the Container body or otherwise causes an interface with the Container
body that simultaneously:
• Prevents the intrusion of rainwater, rodents, birds, and flies;
• Prevents the emission of odors;
• Enables the free and complete flow of material from the Container during the dump
cycle without interference with the material already deposited in the truck body or
the truck body itself and its lifting mechanism;
• Permits users of the Container to conveniently and easily open and shut the lid
throughout the serviceable life of the Container;
• The lid handle shall be an integrally molded part of the lid;
City of Palm Desert Page 50 5/15/2009
• The lid (and body) must be of such design and weight that would prevent an empty
Container from tilting backward when flipping the lid open;
• The lid shall be hinged to the Cart body in such a manner so as to enable the lid to
be fully opened, free of tension, to a position whereby it may rest against the
backside of the Container body; and,
4.8.3.1.4 Cart Colors
The Refuse, Recycling and Greenwaste Carts will continue to be differentiated by color.
The colors shall be colorfast and resistant to fading as a result of weathering or
ultraviolet degradation. Color must be uniform within each Container, and the colors
must be uniform for all Carts throughout the City.
4.8.3.1.5 Cart Identification Markings
All markings on the Containers shall be approved by the City in advance of ordering
Carts. An arrow (at least 3 inches by 5 inches) hot stamped in white color shall be
placed on the lid, indicating the direction of Cart placement.
In character size of no less than 3 16 inch, the phrase:
PLACE CONTAINER WITH ARROW FACING
STREET FOR COLLECTION
COLOQUE EL RECIPIENTE CON LAS FLECHAS
HACIA LA CALLE
Additionally, the REFUSE, RECYCLING or GREENWASTE must be hot stamped in
white color on the front or sides of the Cart.
Company shall provide at its sole cost labels for replacement recycle carts and
Company shall at its sole cost adhere recycle labels to residential carts prior to delivery
and shall place at Company cost City purchased recycle labels on existing carts within
90-days of execution of Agreement.
City of Palm Desert Page 51 5/15/2009
4.8.3.2 Cart Performance Requirements
All Carts shall be designed and manufactured to meet the minimum performance
requirements described below.
4.8.3.2.1 Cart Load Capacity
Depending on the capacity, the Carts shall have a minimum load capacity as noted
below without Container distortion, damage, or reduction in maneuverability or any
other functions as required herein.
Minimum Load Capacity
Cart Size (Gallons)
(LBS)
90-101 200
60-70 130
30-35 70
4.8.3.2.2 Cart Durability
Carts shall remain durable, and at a minimum, shall meet the following durability
requirements to satisfy its intended use and performance, for the term of this Contract:
• Maintain its original shape and appearance;
• Be resistant to kicks and blows;
• Require no routine maintenance and essentially be maintenance free;
• Not warp, crack, rust, discolor, or otherwise deteriorate over time in a manner that
will interfere with its intended use;
• Resist degradation from ultraviolet radiation;
• Be incapable of penetration by biting or clawing of household pets (i.e., dogs and
cats);
City of Palm Desert Page 52 5/15/2009
• The bottoms of Cart bodies must remain impervious to any damage, that would
interfere with the Cart's intended use after repeated contact with gravel, concrete,
asphalt or any other rough and abrasive surface;
• All wheel and axle assemblies are to provide continuous maneuverability and
mobility as originally designed and intended; and,
• Resist degradation by other airborne gases or particulate matter currently present in
the ambient air of the City.
4.8.3.2.3 Chemical Resistant
Carts shall resist damage from common household or Residential products and
chemicals. Carts, also, shall resist damage from human and animal urine and feces.
4.8.3.2.4 Stability and Maneuverability
The Carts shall be stable and self-balancing in the upright position, when either empty
or loaded to its maximum design capacity with an evenly distributed load, and with the
lid in either a closed or open position.
The Carts shall be capable of maintaining its upright position in sustained or gusting
winds of up to 25 miles per hour as applied from any direction.
The Carts shall be capable of being easily moved and maneuvered, with an evenly
distributed load equal in weight to its maximum design capacity on a level, sloped or
stepped surface.
4.8.3.2.5 Lid Performance
Cart lid assemblies shall meet the following minimum requirements:
• Prevent damage to the Cart body, the lid itself of any component parts through
repeated opening and closing of the lid by residents or in the dumping process as
intended;
• Remain closed in winds up to 25 miles per hour from any direction. All lid hinges
must remain fully functional and continually hold the lid in the original designed
City of Palm Desert Page 53 5/15/2009
and intended positions when either opened or closed or any position between the
two extremes; and,
• Lid shall be designed and constructed such that it prevents physical injury to the
user while opening and closing the Container.
4.8.3.2.6 Reparability
Minor cracks, holes, and other damages to hinges, wheels, axle, hardware, and other
component parts shall be readily repairable by the contractor personnel. All repairs
must restore the Container to its full functionality to meet the design and performance
requirements as set for herein.
4.8.3.2.7 Cart Replacement
The majority of the Carts in distribution at the start of this Contract term are aging and
may need replacing during the Contract term. Company shall replace any Cart upon
request of City or Customer with a uniform-looking new Cart. Carts removed from
service due to a complaint of poor appearance may not be placed back into service, in
either the same or another location, unless specifically authorized in writing by the City.
Replacement of carts shall also be in conformance with Section 4.8.3.1.5.
4.8.3.3 Cart Ownership and Maintenance Responsibilities
The Company shall be responsible for Cart repair and maintenance, graffiti removal,
and replacing lost, stolen or damaged Carts within five business days at no additional
charge to the Customer or to the City. All Carts provided under this Contract may
become the property of the City at the end of this Contract, although the City retains the
right to direct the Company to remove some or all of the Carts at the end of this
Contract term at no additional charge.
4.8.3.4 Bins
The Company shall provide Commercial, industrial, apartment and homeowner
association Customers requesting such service with Containers for Collection of Solid
Waste. Containers shall be constructed of heavy metal, or other suitable, durable
material, and shall be watertight and well painted. Wheels, forklift slots, and other
appurtenances which were designed for movement, loading, or unloading of the
Container shall be maintained in good repair.
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Bin Cleaning-The Company shall maintain its Containers in a clean, sound condition
free from putrescible residue. Company shall inspect all Bins at least once per year, and
clean or replace all Commercial and Industrial Containers as necessary, or upon
Customer request. One free cleaning or replacement per calendar year shall be
provided to each Customer at no additional charge, with two free
cleanings/replacements per calendar year for food establishments. Company shall
perform cleaning or replacement of Containers more frequently if necessary, for an
additional fee, to prevent a nuisance caused by odors or vector harborage. Customer
may request additional cleanings for a fee, in accordance with the approved rate
schedule. Food handling establishments must have Bins cleaned a minimum of every
quarter and may be charged for cleanings beyond one per year. Graffiti shall be
removed from any Container within one business day of request by City or Customers.
Each Container placed in the City by the Company shall have the name of the Company
in letters not less than three inches high on the exterior of the Container so as to be
visible when the Container is placed for use.
Bin Identification- All Bins shall be the same color, except where the City states
otherwise, and shall carry the Company's name and phone number, at least 3" high.
4.8.4 Litter Abatement
A. Minimization of Spills. The Company shall use due care to prevent Solid Waste
or fluids from leaking, being spilled and/or scattered during the Collection or
transportation process. If any Solid Waste or fluids leak or are spilled during
Collection, the Company shall promptly clean up all such materials. Each Collection
vehicle shall carry a broom and shovel at all times for this purpose.
The Company shall not transfer loads from one vehicle to another on any public street,
unless it is necessary to do so because of inechanical failure, accidental damage to a
vehicle, or a pre-approved method of Solid Waste transfer between vehicles, without
prior written approval by the City.
B. Clean Up. During the Collection or transportation process, the Company shall
clean up litter in the immediate vicinity of any Solid Waste storage or Collection area
whether or not the Company has caused the litter. The Company shall identify
instances of repeated spillage not caused by it directly with the Customer responsible
and will report such instances to the City. The City will attempt to rectify such
City of Palm Desert Page 55 5/15/2009
situations with the Customer if the Company has already attempted to do so without
success.
C. Covering of Loads. The Company shall properly cover all open Roll-off Boxes
during transport to the Disposal Site.
4.8.5 Personnel
The Company shall furnish such qualified drivers, mechanical, supervisory, clerical,
management and other personnel as may be necessary to provide the services required
by this Contract in a satisfactory, safe, economical and efficient manner. All drivers
shall be trained and qualified in the operation of vehicles they operate and must possess
a valid license, of the appropriate class, issued by the California Department of Motor
Vehicles.
The Company also agrees to establish and vigorously enforce an educational program
which will train the Company's employees in the identification of Hazardous Waste.
The Company's employees shall not knowingly place such Hazardous Waste in the
Collection vehicles, nor knowingly dispose of such Hazardous Wastes at the processing
Facility or Disposal Site.
The Company shall train its employees in Customer courtesy, shall prohibit the use of
loud or profane language, and shall instruct Collection crews to perform the work
quietly. The Company shall use its best efforts to assure that all employees present a
neat appearance and conduct themselves in a courteous manner. If any employee is
found to be discourteous or not to be performing services in the manner required by
this Contract, the Company shall take all necessary corrective measures including, but
not limited to, transfer, discipline or termination. If the City has notified the Company
of a complaint related to discourteous or improper behavior, the Company will
consider reassigning the employee to duties not entailing contact with the public while
the Company is pursuing its investigation and corrective action process.
The Company shall provide suitable operations, health and safety training for all of its
employees who use or operate equipment or who are otherwise directly involved in
Collection or other related operations.
City of Palm Desert Page 56 5/15/2009
4.8.6 Identification Required
The Company shall provide its employees, companies and Subcontractors with
identification for all individuals who may make personal contact with residents or
businesses in the City. The City may require the Company to notify Customers yearly
of the form of said identification. The Company shall provide a list of current
employees, companies, and Subcontractors to the City upon request.
The City reserves the right to perform a security and identification check through law
enforcement agencies upon the Company and all its present and future employees, in
accordance with accepted procedures established by the City, or for probable cause.
4.8.7 Fees and Gratuities
The Company shall not, nor shall it permit any agent, employee, or Subcontractors
employed by it, to request, solicit, demand, or accept, either directly or indirectly, any
compensation or gratuity for temporary Bin/Roll-off Box services or the Collection,
transportation, Recycling, processing, and Disposal of Solid Waste, otherwise required
under this Contract.
4.8.8 Non-Discrimination
The Company shall not discriminate in the provision of service or the employment of
Persons engaged in performance of this Contract on account of race, color, religion, sex,
age, physical handicap or medical condition in violation of any applicable federal or
state law.
4.8.9 Coordination With Street Sweeping Services
Company shall coordinate route schedules with the City's street sweeping schedule.
Company shall provide all routes and route schedules to the City and work with City to
resolve conflicts with street sweeping schedules.
4.8.10 Change in Collection Schedule
The Company shall notify the City in writing forty-five (45) days prior to, and
homeowner associations and other Single-Family Dwelling Unit Customers not later
than thirty (30) days prior to, any change in homeowner association and other Single-
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Family Dwelling Unit Collection operations which results in a change in the day on
which Solid Waste Collection occurs. The Company will not permit any Customer to
go more than seven (7) days without service in connection with a Collection schedule
change. The City's approval of any change in homeowner association and other Single-
Family Dwelling Unit Collection is required prior to such change, and such approval
will not be withheld unreasonably.
Any changes in the route map or Collection schedule shall require the prior approval of
the City. The City may require changes in the route map or Collection schedule, to
improve service, to resolve complaints or for other reasons.
4.8.11 Report of Accumulation of Solid Waste; Unauthorized Dumping
The Company shall direct its drivers to note the addresses of any Premises at which
they observe that Solid Waste is accumulating and is not being delivered for Collection;
and the address, or other location description, at which Solid Waste has been dumped
in an apparently unauthorized manner. The Company shall deliver the address or
description to the City within five (5) working days of such observation. Company
shall cooperate with City in the investigation and prosecution of any violations of the
Palm Desert City Code.
4.9 Transportation of Refuse
The Company shall transport all refuse collected under this Contract to a Transfer
Station, Transformation Facility or Disposal site directed by City. Unless and until the
City notifies the Company of a change, refuse shall be transported to the Edom Hill
Transfer Station. City's direction of a change of location that involves a change in
Company's cost of transportation or Disposal Tip Fee shall include a change in the
following:
• Company's compensation to offset Contractor's reasonable changes in operating costs.
• Company shall not redirect refuse without first notifying City in writing 30-days prior
to the proposed change. City's approval shall not be unreasonably withheld.
• The Company agrees to make all reasonable efforts to separate recyclable materials
from refuse for diversion from landfill Disposal.
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Company shall be permitted to direct recyclables, greenwaste, and other diverted
materials to appropriately licensed and permited processing facilities. City may
periodically request Company to report the tip fees or processing fees charged at such
facilities and may evaluate those tip fees and processing fees when considering rate
increases requested by Company pursuant to Article 6 hereof. City's evaluation of tip
fees and processing fees at processing facilities used by Company shall be for the
purpose of determining that said fees are within a reasonable range for comparable
facilities within the same market area and shall consider all relevant cost factors
including transportation and facility output quality. City shall notify Company in
writing if it determines any such fee is not within a reasonable range for comparable
facitilities within the same market area. Within thirty (30) days of City's notification of
unreasonable tip fees or processing fees, Company shall either provide written
justification for the fee or redirect materials to an alternative facility in the same market
area or adjust the fee in question. If a written justification for a fee is provided by the
Company the City and Company shall hold a meeting to review the justification
provided. The City shall have the final determination as to whether the justification is
acceptable and authority to redirect materials
4.10 Processing of Solid Waste
The City, upon prior written notice to the Company, reserves the right, prior to
Disposal, to direct portions of the Solid Waste stream Collected under this Franchise to
a Material Recovery Facility ("MRF") or Greenwaste Processing Facility for separation,
reuse, and Recycling of any Recyclable Materials contained therein. The Company
agrees to assist the City by identifying loads suitable for processing in the MRF. If the
City exercises this right, the City agrees to pass through any incremental change in the
Company's cost by adjusting the monthly rate.
4.11 Disposal of Refuse
Company shall ensure that all Refuse Collected under this Contract is disposed of at the
Disposal Site. Unless and until the City otherwise notifies the Company of a change,
the Disposal Site Company has designated shall be the Edom Hill Transfer Station for
transfer to the Riverside County Waste Management Department Landfill System. City
retains the right to designate the Disposal Site to be used by the Company.
City of Palm Desert Page 59 5/15/2009
4.12 Status of Disposal Site
Any Disposal Site utilized by the Company shall be designed and constructed in
accordance with 23 California Code of Regulations Section 2510 et se�c. ("Subchapter
15"). Any such landfill must have been issued all permits from federal, state, regional,
county and the City agencies necessary for it to operate as a Class III Sanitary Landfill
and is in full regulatory compliance with all such permits.
4.13 Route Audit
At City's request Company shall conduct an audit of its commercial collection routes in
the City. Additionally, if requested by the City, the route audit shall also include
residential collection routes. City shall request route(s) audit in writing. Within ninety
(90) days of written notice to perform a route audit, Company shall perform the route
audit and submit a report summarizing the audit findings and attaching the compelte
audit findings. The route audit shall be conducted by a person(s), other than the route
driver, selected by Company and approved in advance by the City.
The route audit information shall include, as a minimum, the following information for
each account:
For Residential Routes:
• The number of routes, collection vehicles and stops for each dav of the week and
for each tvpe of service (refuse, rec ���greenwaste, and other�prepared form
p�sical observation.
• A report�enerated from Company's customer records detailing all customers
or�anized by route and day of week and specifyin�the service address and type of
service.
• A report of route audit findin�s identifying any variances between the p�sical
audit and review of the Company's customer records and the location of anX
substandard Comp�-�rovided cart.
• The number of routes, collection vehicles, stops for each day of the week and for
each tvpe of service (refuse, recycling,greenwaste, and other) and tonnage of each
City of Palm Desert Page 60 5/15/2009
For Commercial Routes:
• The account name, number, address, and service level.
• The number of routes, collection vehicles, and stops for each day of the week and
for each type of service (refuse, rec�ng�greenwaste, and other�prepared form
phXsical observation.
• A report generated from Company's customer records detailin�all customers
organized by route and day of week and specifyin�the service address and type of
service.
• A report of route audit findings identifying any variances between the physical
audit and review of the Company's customer records and the location of an�
substandard Com�any-provided cart.
• The number of routes, collection vehicles, stops for each day of the week and for
each tvpe of service (refuse, recycling, greenwaste, and other) and tonnage of each.
For Roll-Off Routes:
• The account name, number, address, and service level.
• The number of routes, collection vehicles, and stops each day of the week and for
each type of service (refuse roll-off boxes, refuse compactors, and greenwaste roll-off
boxes) prepared from physical observation. Temporary accounts shall be excluded
from the route audit.
• A report generated from Company's customer records detailing all customers
organized by route and dav of week and specifying the service address and tX�e of
service.
• A report of route audit findin�s identifying any variances between the ph, s�
audit and review of the Company's customer records and the location of anv
substandard Company-provided cart.
• The number of routes, collection vehicles, stops for each day of the week and for
each tYpe of service (refuse, recycling, greenwaste, and other) and tonnage of each.
Until such time as the Company exclusively services Palm Desert routes without
merging with other jurisdications routes audit shall also confirm that all routes are
dedicated exclusively to Palm Desert customers and shall provide information
exclusively related to Palm Desert customers.
City of Palm Desert Page 61 5/15/2009
4.14 Service Exceptions; Hazardous Waste Notifications
A. Failure to Collect. When Solid Waste is not Collected from any Customer, the
Company shall notify the Customer in writing, at the time Collection is not made,
through the use of a "tag" or otherwise, of the reasons why the Collection was not
made.
B. Hazardous Waste Inspection and Reporting. The Company reserves the right
and has the duty under law to inspect Solid Waste put out for Collection and to reject
Solid Waste observed to be contaminated with Hazardous Waste and the right not to
Collect Hazardous Waste put out with Solid Waste. The Company shall notify all
agencies with jurisdiction, if appropriate, including the California Department of Toxic
Substances Control and Local Emergency Response Providers and the National
Response Center of reportable quantities of Hazardous Waste, found or observed in
Solid Waste anywhere within the City. In addition to other required notifications, if the
Company observes any substances which it or its employees reasonably believe or
suspect to contain Hazardous Wastes unlawfully disposed of or released on any City
property, including storm drains, streets or other public rights of way, the Company
will immediately notify the Public Work's Director or the Public Works Director's
designee.
C. Hazardous Waste Diversion Records. The Company shall maintain records
showing the types and quantities, if any, of Hazardous Waste found in Solid Waste and
which was inadvertently Collected from Customers within the City, but diverted from
landfilling.
4.15 Disaster Preparedness Plan
Within twelve (12) months of the effective date of this Contract, Company shall with
City assistance, prepare a written plan detailing how refuse services will be delivered in
a time of emergency or natural disaster. For the plan, City shall provide Contractor
with a written list of critical facilities being those facilities that the City deems in need of
special consideration in a time of emergency because they are critical to City's
emergency response, of priority to the need of the community and/or represent a
public health risk to the community. Company's written plan shall container a protocol
for contacting Company management in the event of an emergency, an overview of
Company's resources available for emergency response, a plan for collecting and
City of Palm Desert Page 62 5/15/2009
disposing of refuse generated by critical facilities until the time of emergency passes
and a plan for resuming normal operations following an emergency.
4.16 Dedicated Routes
Within eighteen (18) months of the effective date of this Contract, Company shall collect
all regular collection routes in such fashion that refuse, recycling, greenwaste,
construction and demolition, or other materials, except for Bulky Items and Used Motor
Oil, from residential, commercial, construction, industrial, roll-off, recycle, greenwaste,
or other customer in other jurisdictions may not be commingled in collection vehicles
with Palm Desert routes. All regular collection routes shall be dedicated exclusively to
the City of Palm Desert and not merge with or be combined with other jurisdictions.
City of Palm Desert Page 63 5/15/2009
ARTICLE 5
OTHER SERVICES
5.1 Services and Customer Billing
5.1.1 Service Description
Company shall annually, in September, prepare and distribute, subject to the direction
of the City, a notice to each Customer listing the Company's Collection rates for
services, annual holiday schedule, Recycling programs offered, and a general summary
of services required to be provided hereunder and optional services which may be
furnished by the Company. Such notice shall be in a form subject to the City's approval
prior to its distribution. Notice may be included with Billings. The notice may also be
included as part of the Company's public education plan described below in Section
5.3.1.
5.1.2 Billing
Company shall invoice all Customers directly, excluding Customers in the Commercial
Assessment District, for which the Company shall invoice the City. Company shall
design detailed billing formats to clearly and fully explain all charges to Customers.
City must approve, and may alter, all billing formats. City's written approval is
required prior to the Company charging, or agreeing to charge, a Customer rates other
than those listed on the City-approved rate schedule.
Individually Billed Residential Customers
Company shall invoice individually-billed Residential Customers on a quarterly basis,
at the beginning of each quarter. Low income individually-billed Residential
Customers may request in writing to be billed monthly. Low income Customers are
those Customers receiving "Lifeline" telephone rates and may prove eligibility for
monthly billing by submitting a copy of their telephone bill.
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All Master-Billed Residential Dwelling Unit Customers, and Commercial and
Industrial Customers
Company shall bill all Master-Billed Residential Dwelling Unit Customers and
Commercial and Industrial Customers, on a monthly basis, 30 days in advance in
accordance with the City's approved rate schedule. Commercial and Industrial
Customers shall be billed based on the number and size of their Containers and
frequency of Collection. Master Billed Residential Dwelling Units will be based on the
number of units or Carts and the types of services provided. To start service new
Customers will pay for one month's service in advance. Company may offer
homeowners associations who are Master-Billed an 11% discount.
Roll-off Box Customers. In regard to the billing of Roll-off Box Customers and the
collection of those bills:
For Residential Property Customers who request Roll-off Box service, the Company
shall accept major credit cards for payment. Residential Property Customers that do
not use credit cards may be required by the Company to post a security deposit or pay
on a "Cash on Delivery" (C. O. D.) basis. Any unused portion of a security deposit shall
be refunded to the Customer within five (5) business days of the termination of service.
For all other Roll-off Box Customers, the Company shall invoice monthly or semi-
monthly in arrears with payment due within 15 or 30 days from the invoice date (i.e.,
the beginning of the month or the inception of service). Company may require a
security deposit for temporary Roll-off Boxes, with the unused portion refunded to the
Customer within five business days of the termination of service.
Commercial Assessment District
The City shall bill Customers within the Commercial Assessment District on the tax roll
according to the approved rate schedule. The Company shall bill the City for such
accounts and otherwise handle accounts as Commercial Customers.
Temporary Suspension of Service
Residential Can and Cart Customers may suspend service for a minimum of a one
month period of time during which the Customer is not residing at the Residential
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Property. Service may also be suspended due to non-payment. The re-start fee after
any suspension of service is $17.10. The re-start fee does not apply to a Customer
establishing service at a new address, but only when service has been suspended and
restarted at the same location by the same Customer.
5.1.3 Review of Billings
The Company shall review its Billings to Customers under Section 5.1.2. The purpose
of the review is to determine that the amount which the Company is billing each
Customer is correct in terms of the level of service being provided to such Customer by
the Company. The Company shall review Customer accounts annually, and submit to
the City a written report of that review annually on the anniversary of the Effective Day
of this Contract.
The Company shall maintain copies of said Billings and receipts, each in chronological
order, for a period of five (5) years after the date of service for inspection by the City
upon request. The Company may, at its option, maintain those records in computer
form, on microfiche, or in any other manner, provided that the records can be preserved
and retrieved for inspection and verification in a timely manner, are sufficient to verify
accuracy of Franchise Fees and/or Recycling Fees owed to the City, and may be
produced in a form and manner sufficient to establish the existence of Customer
obligations in a court of competent jurisdiction.
5.2 Customer Service
5.2.1 Office Hours
Company shall provide an office within Coachella Valley, and office hours shall be, at a
minimum, from 8:00 A.M. to 5:00 P.M., Monday through Friday, excluding holidays. A
responsible and qualified representative of the Company shall be available during office
hours for communication with the public at the office. Normal office hour telephone
numbers shall be a toll free call. The Company's telephone system shall be adequate to
handle the volume of calls typically experienced on the busiest days, with a maximum
hold time of three minutes for Customers of the City of Palm Desert. Automated
telephone answering systems with menu-driven options must provide callers with an
option to connect to a live operator. Phone answering staff shall be competent to
handle questions on City's specific programs. The Company shall also maintain a toll
City of Palm Desert Page 66 5/15/2009
free telephone number for use during other than normal business hours. The Company
shall have a representative, answering or message providing/receiving (voice-mail)
service available at said after-hours telephone number. After-hours calls shall be
responded to on the next business day. Company shall provide the City staff with the
phone number of a live person who may be reached 24 hours a day.
5.2.2 Complaint Documentation
All service complaints shall be directed to the Company. Daily logs of complaints
concerning Collection of Solid Waste, Recyclable Materials and Greenwaste shall be
retained for a minimum of twenty-four (24) months and shall be available to the City at
all times upon request.
The Company shall log all complaints received by telephone and said log shall include
the date and time the complaint was received, name, address and telephone number of
caller, description of complaint, employee recording complaint and the action taken by
the Company to respond to and remedy complaint. All written Customer complaints
and inquiries shall be date-stamped when received. All complaints shall be initially
responded to within one (1) business day of receipt. The Company shall log action
taken by the Company to respond to and remedy all complaints.
All Customer service records and logs kept by the Company shall be available to the
City upon request and at no cost to the City. Company shall supply the City, within
seven (7) days of written notice, copies of all complaints on a form approved by the City
and indicate the disposition of each. The City shall, at any time during regular the
Company business hours, have access to the Company's Customer service department
for purposes that may include monitoring the quality of Customer service or
researching Customer complaints.
5.2.3 Missed or Requested Pick-ups
In case of a missed pick-up of Refuse, Recyclable Material, or Greenwaste, Company
shall Collect the Refuse, Recyclable Material, or Greenwaste from the Customer within
one business day. Missed pick-ups shall be logged and reported under Section 5.2.2.
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Requested pick-ups due to Bins filling up prior to normal Collection shall also be
responded to within twenty-four (24) hours and logged and reported under Section
5.2.2.
5.2.4 Resolution of Customer Complaints
Disputes between the Company and its Customers regarding the services provided in
accordance with this Contract may be resolved by the City. The City's decision shall be
final and binding. Should Company and Customers not be able to establish a mutually
acceptable fee to be charged for special hauling services, the matter shall also be
determined by the City, whose written approval is required for any charges that deviate
from the rate schedules, and the City's decision shall be final.
Intervention by the City is not a condition precedent to any rights or remedies third
parties might otherwise have in any dispute with Company. Nothing in this section is
intended to effect the remedies of third parties against the Company. To the extent that
remedies are warranted through this Contract, this shall apply.
5.2.5 Government Liaison
The Company shall designate in writing a "Government Liaison" to work with the City
and/or the City's designated representative(s) on contractual matters and to resolve
Customer complaints. Liaison shall be well versed in City's programs. City shall be
able to contact liaison via e-mail. City shall have the right to approve the Company's
choice for a liaison and shall be notified in writing of relevant personnel changes.
5.2.6 On-line Customer Account Viewing Capabilities
The Company shall provide all customers with on-line access to their account and the
ability to make payments on-line. Upon City request, Company shall provide City with
requested customer data from Company's billing system in electronic form on
computer disks or other portable storage device. Alternatively, other methods of
monitoring account information that are pre-approved by the City are acceptable.
Company shall provide all customers with the capability of remotely accessing up to
date account information on line, access may be read only. If possible, on line customer
billing should be available in the future.
City of Palm Desert Page 68 5/15/2009
5.3 Education and Public Awareness
5.3.1 General
Company acknowledges and agrees that education and public awareness are critical,
key and essential elements of any efforts to achieve AB 939 requirements. Accordingly,
the Company agrees to implement a public education program to expand public and
Customer awareness concerning the need to and methods of reducing, reusing and
Recycling Solid Waste. Company shall cooperate fully with City in this regard.
Company shall designate in writing a representative that will serve as the Public
Education Specialist responsible for coordinating the public information and outreach
activities. Company shall submit the public education program for approval by the
City prior to the Effective Date of the Contract. The approved public education
program shall be incorporated as Exhibit 2 into this Contract.
Company shall maintain its own program of providing information relevant to billing
and Solid Waste services, issues and needs, to Customers. All public education
materials shall be approved in advance by City. All printed materials shall be printed
on recycled paper.
City may require the Company to perform mailing services. City will provide not less
than thirty (30) days notice to the Company prior to the mailing date of any proposed
mailing to permit the Company to make appropriate arrangements for inclusion of the
City's materials. The City will provide the Company the mailers at least fifteen (15)
days prior to the mailing date. The City shall normally bear the expense of
reproduction and distribution of such additional information only to the extent it is
clearly in excess of the Company's normal billing costs and represents services beyond
the approved public education plan.
Company will provide a minimum of the following public education items to be
developed and distributed at Company's expense:
• Annual Brochures - Four (4) pages, full color informing Customers of how to use
available services. Three (3) separate brochures shall be developed: one for Single-
Family Customers, one for Apartment Complex Customers, and one for Commercial
and Industrial Customers.
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• Quarterly Billing Inserts/Notices - Company is responsible for sending notices
promoting and explaining programs and Collection schedules at least quarterly to
all Customers, at the City's request and with City's review and approval of the
materials. Through these and other notices sent by the Company and approved by
the City, Customers shall be notified of upcoming events such as Household
Hazardous Waste round-ups and other events not serviced under this Contract, as
requested by the City.
• Corrective Action Notice - For use in instances where the Customer sets out
inappropriate materials.
• Public Service Announcements - Company shall produce and distribute one (1)
public service announcements per year to advertise such events as, for example,
Desert Clean-up or Christmas tree Recycling. Such announcements shall be 1/8 of a
page in size. Circulation shall be at the discretion of the City.
• Door Hangers - Door hangers shall be used, at a minimum, to inform Customers of
all changes in service, such as a change in method of Collection or Collection days.
• Annual Neighborhood Cleanup Insert-Company shall produce once annually for
inclusion in the City's April issue of the BrightSide Newsletter.
• Website - Website page dedicated to City services, schedules and instructions on
how to dispose of Bulky Items and HHW. Website shall include Company customer
service contact information and Recycling guidance. Company is responsible for
having a link on the City website directing inquiries to Company's website.
All brochures, mailings, and other educational materials shall bear the City seal, unless
otherwise approved by the City. Company shall provide education programs to
schools for all grade levels.
All Residential dwelling units, including Multi-family and Master-billed Customers,
shall directly receive mailings from Company. It is not sufficient to send information to
the Billing address of record.
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5.3.2 Use of Advertising Agency
Company may hire an advertising agency to assist in the development of certain public
education materials. These include, at a minimum, materials on:
a) City's Annual Customer Brochure;
b) City's Annual Neighborhood Cleanup Flier;
If approved by the City in advance, Company may use internal resources rather than an
outside agency to produce other materials as needed and/or directed by the City.
However, if the City requires Company to hire an advertising agency, the City and
Company will in good faith negotiate cost to both parties up to an amount not
exceeding$50,000.
5.3.3 Community Events
At the direction of the City, the Company shall participate in and promote Recycling
and other diversion techniques at community meetings, special events and other local
activities. Such participation would normally include providing, without cost to City,
Collection of Solid Waste at the event, educational information promoting the goals of
the City's Solid Waste diversion or Recycling program, and guest speakers at meetings.
5.3.4 Field Representative
Company shall designate in writing one or more field representatives who will contact
each Commercial, apartment complex, and Master-Billed Residential account at least
once per year to solicit feedback about current services and modify programs where
appropriate. Recycling programs must be re-offered at least once per year. Company
shall maintain a log of such contacts and submit it to the City.
Representative(s) shall visit civic groups, homeowners' associations, and building
managers at apartment complexes and Commercial businesses to promote and explain
Recycling and other Solid Waste programs.
City of Palm Desert Page 71 5/15/2009
5.3.5 Recycling Coordinator
Company shall provide a Recycling coordinator to:
(a) be a liaison between the Company's Solid Waste and Recycling operations and
the City;
(b) formulate, communicate, and coordinate public education campaigns;
(c) produce educational material regarding all Solid Waste programs being
implemented by the City;
(d) develop an annual calendar of milestones and be responsible for informing the
public of events and deadlines; and,
(e) assist in preparing grants that enhance public education in regards to Solid
Waste and waste reduction issues.
5.4 Waste Generation/Characterization Studies
The Company acknowledges that the City may be required to perform Solid Waste
generation and Disposal characterization studies periodically to comply with AB 939 or
other waste diversion requirements. The Company agrees to participate and cooperate
with the City and its agents and to accomplish such studies at no additional cost the
City.
City of Palm Desert Page 72 5/15/2009
ARTICLE 6
COMPANY COMPENSATION AND RATES
6.1 General
The Company Compensation provided for in this Article shall be the full, entire and
complete compensation due to the Company pursuant to this Contract for all labor,
equipment, materials and supplies, taxes, insurance, bonds, overhead, Disposal,
transfer, profit and all other things necessary to perform all the services required and
reasonably anticipated by this Contract in the manner and at the times prescribed.
The Company will perform the responsibilities and duties described in this Contract in
consideration of the right to receive compensation for services rendered at maximum
rates fixed by the City from time-to-time. The City and the Company agree that the
Company will retain any proceeds from the sale of Recyclable Materials.
6.2 Initial Rates
The rates through June 30, 2010 shall not exceed those set forth in Exhibit 3, unless
amended by a written amendment to this Contract entered into by and between the
City and the Company. Unless and until the rates set forth on Exhibit 3 are adjusted,
the Company will provide the services required by this Contract, charging no more
than the rates authorized by Exhibit 3, except as provided herein and in Sections 6.3 and
6.5.
6.3 Schedule of Future Adjustments
Beginning July 1, 2010 and for all subsequent Rate Years, the Company may request an
annual adjustment to the rates shown in Exhibit 3. The Company shall submit its
request in writing, to be received by the City in person or via certified mail, at least
ninety (90) days prior to the start of the new Rate Year based on the method of
adjustment described in Section 6.4. Failure to submit a written request at least ninety
(90) days prior to the start of the new Rate Year shall result in the Company waiving the
right to request such an increase for the subsequent year.
City of Palm Desert Page 73 5/15/2009
6.4 Method of Adjustments
6.4.1 General
Pursuant to Section 6.3, the Company may request an annual adjustment to the rates
according to the method described below and the formulas shown in Exhibits 5A, 5B,
and 5C, subject to review and approval of the City. All future adjustments are to be
effective July 1, and shall be based on the rates in Exhibit 4. In addition, all other fees
associated with other services shall be included within the Exhibits (e.g., locking bin
rate, roll-off rate, temporary service rate, two-tiered C&D rate, etc.).
6.4.2 Cart, Can and Bin Rates
Maximum rates shall be adjusted according to the following procedures except for Roll-
off Box rates which shall be adjusted in accordance with Section 6.4.3. Example
calculations are shown in Exhibit 5A for Cart and Can rates and Exhibit 5B for Bin rates.
Step One - Determine the rate revenue net of Franchise Fees by deducting the Franchise
Fee portion from actual gross rate revenues for the twelve month period ending on the
date six months prior to the effective date of the rate adjustment.
Step Two - Determine the proportionate share of the Disposal Fee component,
Recycling Fee component, and the service component of the rate revenue net of
Franchise Fees.
Step Three - Calculate the percentage change in the Producer Price Index for Finished
Goods (PPI), the percent change in the Refuse Disposal tipping fee per ton, and the
percentage change in the Recycling Fee per ton. The change in the PPI shall be for the
twelve month period ending six months prior to the effective date of the rate
adjustment and the allowable portion used for the rate adjustment shall be equal to
100% of the change in the PPI. The change in the Refuse Disposal tipping fee shall be
based on the change between the most recent tipping fee on which rates are based and
the new tipping fee; provided, however, if the Company owns the Disposal Site, the
annual change in the Disposal tipping fee shall not exceed the annual change in the PPI.
The change in the Recycling Fee shall be equal to the percentage change between the
old and the new Recycling Fee per ton amount, if any, as determined by the City
Council.
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Step Four - Calculate the weighted percent change in maximum rates by:
1. Multiplying the Refuse Disposal component as a percent of rate revenue net of
Franchise Fees by the percent change in the Refuse Disposal tipping fee;
2. Multiplying the Recycling Fee component as a percent of rate revenue net of
Franchise Fees by the percent change in the Recycling Fee per ton;
3. Multiplying the service component as a percent of rate revenue net of Franchise Fees
by 100% of the percent change in the PPI; and,
4. Adding the results of 1, 2, and 3 above to determine the weighted percent change in
rates.
Step Five - Multiply the current monthly rate by weighted rate adjustment percentage
to determine the amount of the rate adjustment.
6.4.3 Roll-off Box
Maximum load charges, delivery charges, and overweight charges for Roll-off Box
Customers shall be adjusted according to the following procedures and the example
calculations shown in Exhibit 5C.
Step One - Calculate the percent change in the PPI for the twelve month period for the
most recent twelve months ending on the most recent Dec. 31. Multiply the percentage
change in the PPI by 100% to determine the rate adjustment percent change.
Step Two-Multiply the rate adjustment percent change by current rates to determine the amount
of the rate adjustment.
6.5 Extraordinary Adjustments
The Company or the City may request an adjustment to rates at reasonable times other
than that required in Section 6.3 for unusual changes in the cost of providing service
under this Contract. Such changes may include changes in the scope of services,
changes in components of the landfill tipping fee, changes in the Disposal Site requested
by the City, and changes in State or local government Solid Waste fees and charges.
Such changes shall not include changes in the market value of Recyclables, , inaccurate
estimates by the Company of its cost of operations, or change in wage rates or employee
City of Palm Desert Page 75 5/15/2009
benefits. For each such request, the Company shall prepare a schedule documenting
the extraordinary costs. Such request shall be prepared in a form acceptable to the City
with support for assumptions made by the Company in preparing the estimate.
Company shall also submit a schedule reporting its total costs and total gross receipts
each year for the past three (3) years for the collection and transportation of Solid Waste
pursuant to this Contract.
City shall make the final determination as to whether an adjustment to the maximum
rates will be made, and, if an adjustment is permitted, the appropriate amount of the
adjustment. Extraordinary rate adjustment shall only be effective after approval by the
City Council and may not be applied retroactively. City shall render its decision within
sixty (60) days of receipt of Company's request which shall not be considered received
unless and until all information required of this Section is submitted to City. City's
decision on Company's request shall be based upon the reasonableness of Company's
analysis of the impact of the extraordinary costs prompting the request and on
Company's overall financial performance for its performance of this Contract.
6.6 Supporting Information
In the event the Company requests a rate adjustment on the basis of unusual changes or
extraordinary increases or costs of doing business, the Company shall provide the City
with documentation supporting its request. Additionally, if required by the City, the
Company will also provide a copy of its certified annual financial statements prepared
by a Certified Public Accountant or a licensed public accountant, which shall have been
prepared in compliance with Rule 58 of the "Rules and Regulations of the State Board of
Accountancy," as established by the California Code of Regulations, Title 16, Chapter I.
Such Certified Public Accountant or licensed public accountant shall be entirely
independent of the Company and shall have no financial interest whatsoever in the
business of the Company. The City may specify the form and detail of the financial
statements.
6.7 Grants
From time to time, Federal, State, or local agencies including the City may provide to
the Company grants to assist in financing qualified programs provided by the
Company. The Company agrees that the Company Compensation, calculated as
described in Sections 6.2 through 6.5, shall be reduced by the amount of any such grant,
City of Palm Desert Page 76 5/15/2009
unless the grant is used exclusively to pay for new services. The City Council shall
determine whether the reduction in the Company Compensation shall be: (1) passed
through to those Customers designated by the City as a reduction to their rates; (2) as
an offset to a rate increase calculated in accordance with Sections 6.3 through 6.5; (3)
paid to the City for use as the City directs; or, (4) applied in any combination of (1)
through (3).
City of Palm Desert Page 77 5/15/2009
ARTICLE 7
REVIEW OF SERVICES AND PERFORMANCE
7.1 Performance Hearing
The City may hold a public hearing on or about the two year anniversary of the start of
this Contract, and annually thereafter, at which time the Company shall be present and
shall participate, to review the Solid Waste Collection, source reduction, processing and
other diversion services and overall performance. The purpose of the hearing is to
provide for a discussion and review of technological, economic, and regulatory changes
in Collection, source reduction, Recycling, processing and Disposal to achieve a
continuing, advanced Solid Waste Collection, source reduction and Recycling and
Disposal system; and to ensure services are being provided with adequate quality,
effectiveness and economy.
Forty-five (45) days after receiving notice from the City of a Solid Waste Services and
Performance Review Hearing, the Company shall, at a minimum, submit a report to the
City indicating the following:
a) Changes recommended and/or new services to improve the City's ability to
meet the goals of AB 939 and to contain costs and minimize impacts on rates.
b) Any specific plans for provision of changed or new services by the Company.
c) A summary of its complaint logs and an assessment of problems reported in the
past 12 months.
The reports required by this Contract regarding Customer complaints shall be used as
one basis for review. The Company may submit other relevant performance
information and reports for consideration. The City may request the Company to
submit specific information for the hearing. In addition, any Customer may submit
comments or complaints during or before the hearing, either orally or in writing, and
these shall be considered.
Topics for discussion and review at the Solid Waste Services and Performance Review
Hearing shall include, but shall not be limited to, services provided, feasibility of
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providing new services, application of new technologies, Customer complaints,
amendments to this Contract, developments in the law, new initiatives for meeting or
exceeding AB 939's goals, regulatory constraints and the Company performance. The
City and the Company may each select additional topics for discussion at any Solid
Waste Services and Performance Review Hearing.
Not later than sixty (60) days after the conclusion of each Solid Waste Services and
Performance Review Hearing, the City may issue a report. As a result of the review, the
City may require the Company to provide expanded or new services within a
reasonable time and for reasonable rates and compensation and the City may direct or
take corrective actions for any performance inadequacies.
City of Palm Desert Page 79 5/15/2009
ARTICLE 8
RECORDS, REPORTS AND INFORMATION REQUIREMENTS
8.1 General
The Company shall maintain such accounting, statistical and other records related to its
performance under this Contract as shall be necessary to develop the financial
statements and other reports required by this Contract. Also, the Company agrees to
conduct data collection, information and record keeping, and reporting activities
needed to comply with applicable laws and regulation and to meet the reporting and
Solid Waste program management needs of the City. To this extent, such requirements
set out in this and other Articles of this Contract shall not be considered limiting or
necessarily complete. In particular, this Article is intended to only highlight the general
nature of records and reports and is not meant to define exactly what the records and
reports are to be and their content. Further, with the written direction or approval of
the City, the records and reports to be maintained and provided by the Company in
accordance with this and other Articles of the Contract shall be adjusted in number,
format, or frequency.
8.2 Records
8.2.1 General
The Company shall maintain records required to conduct its operations, to support
requests it may make to the City, and to respond to requests from the City in the
conduct of the City business. Adequate record security shall be maintained to preserve
records from events that can be reasonably anticipated such as a fire, theft and
earthquake. Electronically maintained data/records shall be protected and backed up.
All records shall be maintained for three (3) years after the expiration of this Contract.
The Company agrees that the records of any and all companies conducting operations
addressed in the Contract shall be provided or made available to the City and its official
representatives during normal business hours. The City may review or utilize any of
the records described in this section for any purpose whatsoever.
City of Palm Desert Page 80 5/15/2009
8.2.2 Financial Records
Financial records shall be maintained and expense and revenue information for the City
shall be segregated from other areas served by the Company.
8.2.3 Solid Waste, Recycling, and Greenwaste Service Records
Records shall be maintained by the Company for the City relating to:
a) Customer services and billing;
b) Routes;
c) Facilities, equipment and personnel used;
d) Complaints;
e) Missed pick ups;
f) Number of Refuse, Recycling, and Greenwaste Carts; and
g) Tons Collected, processed, diverted, and disposed by type of service (Cart, Bin,
Can, or Roll-off Box), Waste stream (Refuse, Recycling, Greenwaste) and
Customer (Residential and Commercial).
8.2.4 CERCLA Defense Records
The City views the ability to defend against the Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA) and related litigation as a matter
of great importance. For this reason, the City regards the ability to prove where Solid
Waste Collected in the City was taken for Disposal, as well as where it was not taken, to
be matters of concern. The Company shall maintain data retention and preservation
systems which can establish where Solid Waste Collected in the City was landfilled (and
therefore establish where it was not landfilled) and provide a copy of the reports
required in Section 8.3 for five (5) years after the term during which Collection services
are to be provided pursuant to this Contract, or to provide copies of such records to the
City. The Company agrees to notify the City's Risk Manager and the City Attorney at
least 90 days before destroying such records. This provision shall survive the
expiration of the period during which Collection services are to be provided under this
Contract.
City of Palm Desert Page 81 5/15/2009
8.2.5 Disposal Records
The Company shall maintain records of Disposal of all Solid Waste Collected in the City
for the period of this Contract and all extensions to this Contract or successor Contracts.
In the event the Company discontinues providing Solid Waste services to the City, the
Company shall provide all records of Disposal or processing of all Solid Waste
Collected in the City within thirty (30) days of discontinuing service. Records shall be
in chronological and organized form and readily and easily interpreted.
8.2.6 Other Programs' Records
Records for other programs shall be tailored to specific needs. In general, they shall
include:
a) Plans, tasks, and milestones; and,
b) Accomplishments in terms such as dates, activities conducted, quantities of
products used, produced or distributed, and numbers of participants and
responses.
8.2.7 Scope and Cost of Audit
City may conduct an audit of Company every two years. Company to reimburse
for audit up to $7,500. This amount in subsequent years shall be increased based on the
Producer Price Index (PPI) for all Urban Consumers in Los Angeles, Riverside, Orange
County as calculated in Section 6.4. The scope of the audit, and auditing party, will be
determined by City and the scope may include, but is not limited to, Company revenue,
expenses, and methodology of franchise fee allocation The scope of the audit, and
auditing party, will be determined by City and the scope may include, but not limited
to, compliance with terms of this Contract, customer service levels and billing, fee
payments, gross receipts, tonnage, and verification of Diversion Rate. Company will
provide the necessary details support for the allocation of costs to the various services
areas and between the local jurisdictions. , . .
8.2.8 Payments and Refunds
Should an audit by the City disclose that the Franchise Fees, Recycling Fees or other
fees, if any, payable by the Company were underpaid or that Customers were
City of Palm Desert Page 82 5/15/2009
overcharged for the period under review, the Company shall pay to the City any
underpayment of Franchise Fees and/or Recycling Fees and/or refund to the
Company's Customers any overcharges. Undercharges may not be retroactively billed
more than three months in arrears. Should an audit disclose that Franchise Fees and/or
Recycling Fees were overpaid, the City shall promptly refund to the Company the
amount of the overpayment. Any refunds to be made by either party shall be due and
payable (30) days following the date of the audit.
8.3 Reports
8.3.1 Report Formats and Schedule
Records shall be maintained in forms and by methods that facilitate flexible use of data
contained in them to structure reports, as needed. Reports are intended to compile
recorded data into useful forms of information that can be used to, among other things:
a) Determine and set rates and evaluate the efficiency of operations;
b) Evaluate past and expected progress towards achieving AB 939 goals and
objectives;
c) Determine needs for adjustment to programs; and,
d) Evaluate Customer service and complaints.
The Company may propose report formats that are responsive to the objectives and
audiences for each report. The format of each report shall be approved by the City. The
Company agrees to submit all reports on computer discs or by electronic means in a
format compatible with the City's software/computers at no additional charge, if
requested by the City. The Company will provide a certification statement by an
authorized Company official that the report being submitted is true and correct.
Monthly reports shall be submitted within twenty (20) calendar days after the end of
each month. Quarterly reports shall be submitted within thirty (30) calendar days after
the end of the calendar quarter. If requested, the Company's complaint summary,
described in Section 8.3.3 (a) below, shall be sent to the City Manager within 5 days of
request. Annual reports shall be submitted before January 31st following the reporting
year.
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All reports shall be submitted to:
City Manager
City of Palm Desert
73510 Fred Waring Drive
Palm Desert, CA 92260
8.3.2 Monthly Reports
The information listed shall be the minimum reported:
a) Solid Waste Collected, recycled, and disposed of by the Company for each
month, sorted by waste stream (Refuse, Recycling, Greenwaste, ) and type of
Customer (Residential, Commercial, Industrial, Roll-off Box) in tons, and the
Facilities where the tons were processed or disposed.
b) Materials Recovered. Statement showing kinds of material and quantity sold
(in tons).
c) Number of accounts by category shown for each month for Customers billed by
the Company.
d) Other information or reports that the City may reasonably request or require.
e) Complaint summary for the quarter summarized by nature of complaints on a
compatible computer disc.
f) An account list of all Commercial and Industrial/Roll-off Customers billed by
the Company, including account number, name, service address,billing address,
service levels (i.e. number of Containers, Container size, and frequency of
service) and monthly rates.
g) Commercial Recycling Contamination Report, broken down by customer name,
address, dates of contamination(s), and number of bins and number of times
contaminated.
h) Commercial Recycling Cancellation Report, broken down by customer name,
address, and reason for cancellation.
City of Palm Desert Page 84 5/15/2009
8.3.3 Quarterly Reports
The information listed shall be the minimum reported:
a) Narrative summary of problems encountered (including scavenging) and actions
taken with recommendations for the City, as appropriate.
b) Copies of promotional and public education materials sent during the quarter.
c) Detailed "Cash Receipts Report", broken down by month, by type of customer
(residential, commercial, and industrial/roll off) including customer name and
account number.
d) Detailed "Disposal/Tonnage Report", broken down by type of customer
(residential, commercial, and industrial/roll off) including customer name,
account number, and disposal facility.
e) Detailed "Transfer Station(s) Self-Haulers Disposal/Tonnage Report", including
name, service address, and billing address or available information.
8.3.4 Annual Report
The Annual Report is to be essentially in the form and content of the monthly and
quarterly reports combined, but shall also include:
a) A complete inventory of equipment used to provide all services.
b) An account list of all Master-Billed Residential accounts, including homeowner
association name, service address, billing address, number of units, services
provided (Refuse, Recycling, Greenwaste), Container location (curbside, in-
ground, backyard), Collection method (manual or automated), and monthly
rates.
c) Number of Carts in service by type of Customer (single-family individually
billed, single-family Master-Billed, Commercial/Industrial), service (Refuse,
Recycling, Greenwaste) and Cart size (35, 64, or 96-gallon).
d) The field representative's contact log described in Section 5.3.4.
e) CERCLA Defense records required under Section 8.2.4.
f) Name, address, and phone numbers of all Residential Customers, Including
services provided (refuse, recycling, greenwaste), collection method (manual or
automated), and monthly rates.
City of Palm Desert Page 85 5/15/2009
8.3.5 AB 939 Reports
City may, at City's option, request the Company to prepare and submit to the California
Integrated Waste Management Board the annual AB 939 report.
8.3.6 Financial Report
The City may, at the City's option, request the Company's annual audited financial
reports/statements for the most recently completed fiscal year. City shall pay for the
direct cost of reproduction of such copies.
Financial statements shall include a supplemental combining schedule showing the
Company's results of operations, including the specific revenues and expenses in
connection with the operations provided for in this Contract, separated from others
included in such financial statements. The financial statements and footnotes shall be
prepared in accordance with Generally Accepted Accounting Principles (GAAP) and
audited, in accordance with Generally Accepted Auditing Standards (GAAS) by a
certified public accountant (CPA) licensed (in good standing) to practice public
accounting in the State of California as determined by the State of California
Department of Consumer Affairs Board of Accountancy. The cost for preparation of the
financial statements and audit shall be borne by the Company as a direct cost of service.
In addition, the Company shall provide to the City the supplemental schedule on a
compiled basis.
The Company shall, in its agreement with the CPA preparing the audit above, have its
CPA make available to the City (or the City's designated representative) such CPA's
working papers related to the audit. The cost, if any, incurred by the Company's CPA
shall be included in the cost of the audit.
At the City's request, the Company shall provide the City with copies of working
papers or other documentation deemed relevant by the City relating to information
shown in the disclosure letter. The disclosure letter shall be provided to the City.
8.4 Adverse Information
A. Reporting Adverse Information. The Company shall provide the City two
copies (one to the City Manager , and one to the City Attorney) of all reports, pleadings,
applications, notifications, Notices of Violation, communications or other material
City of Palm Desert Page 86 5/15/2009
relating specifically to the Company's performance of services pursuant to this
Contract, submitted by the Company to, or received by the Company from, the United
States or California Environmental Protection Agency, the California lntegrated Waste
Management Board, the Securities and Exchange Commission or any other federal,
state or local agency, including any federal or state court. Copies shall be submitted to
the City simultaneously with the Company's filing or submission of such matters with
said agencies. The Company's routine correspondence to said agencies need not be
routinely submitted to the City, but shall be made available to the City promptly upon
the City�s written request.
B. Failure to Report. The refusal or failure of the Company to file any required
reports, or to provide required information to the City, or the inclusion of any
materially false or misleading statement or representation by the Company in such
report shall be deemed a material breach of the Contract as described in Section 11.1
and shall subject the Company to all remedies which are available to the City under the
Contract or otherwise.
8.5 Right to Inspect Records
The City shall have the right to inspect the Company's internal documents or records
that are required expressly or by inference pursuant to this Contract, or any other
documents or records of the Company or its related party entities that the City shall
deem, in its sole discretion, necessary to evaluate the Company's performance provided
for in this Contract.
City of Palm Desert Page 87 5/15/2009
ARTICLE 9
INDEMNIFICATION, INSURANCE AND BOND
9.1 Indemnification
The Company hereby agrees to and shall indemnify and hold harmless the City, its
elected and appointed boards, commissions, officers, employees, and agents
(collectively, Indemnitees) from and against any and all loss, liability, penalty,
forfeiture, claim, demand, action, proceeding or suit in law or equity of any and every
kind and description (including, but not limited to, injury to and death of any Person
and damage to property, or for contribution or indemnity claimed by third parties)
arising or resulting from and in any way connected with (1) the negligence or willful
misconduct of the Company, its officers, employees, agents, Companies and/or
Subcontractors in performing services under this Contract; (2) the failure of the
Company, its officers, employees, agents, Companies and/or Subcontractors to comply
in all respects with the provisions of this Contract, applicable laws (including, without
limitation, the Environmental Laws), ordinances and regulations, and/or applicable
permits and licenses; (3) the acts of the Company, its officers, employees, agents,
Companies and/or Subcontractors in performing services under this Contract for which
strict liability is imposed by law (including, without limitation, the Environmental
Laws). The foregoing indemnity shall apply regardless of whether such loss, liability,
penalty, forfeiture, claim, demand, action, proceeding, suit, injury, death or damage is
also caused in part by any of the Indemnitees negligence,but shall not extend to matters
resulting from the Indemnitees sole or active negligence, willful misconduct or breach
of this Contract. The Company further agrees to and shall, upon demand of the City, at
the Company's sole cost and expense, defend (with attorneys acceptable to the City) the
Indemnitees against any claims, actions, suits in law or equity or other proceedings,
whether judicial, quasi-judicial or administrative in nature, arising or resulting from
any of the aforementioned events.
The Company, upon demand of the City, made by and through the City Attorney, shall
protect the City and appear in and defend the Indemnitees, in any claims or actions by
third parties, whether judicial, administrative or otherwise, including, but not limited to
disputes and litigation over the definitions of"Solid Waste" or "Recyclable Material" or
City of Palm Desert Page 88 5/15/2009
the limits of the City's authority with respect to the grant of licenses, or agreements,
exclusive or otherwise, asserting rights under the Dormant Commerce Clause or federal
or state laws to provide Solid Waste services in the City. This provision shall survive
the expiration of the period during which Collection services are to be provided under
this Contract. The City and the Company agree to confer following any trial to decide
jointly whether to appeal or to oppose any appeal. In the event the City and the
Company jointly agree to appeal, or to oppose any appeal, the City and the Company
agree to share equally the costs of appeals. Should either the City or the Company
decide to appeal, or to oppose an appeal, and the other decide not to appeal, or to
oppose an appeal, the party which decides to appeal, or to oppose an appeal, shall bear
all fees and costs of the appeal or the opposition to the appeal.
The Company's duty to indemnify and defend from the aforementioned events arising
during the Term of the Contract and as it may be extended shall survive the expiration
or earlier termination of this Contract.
9.2 Hazardous Substances Indemnification
A. Without regard to any insurance coverage or requirements, and without limiting the
above general indemnification obligation in any way, Company specifically agrees to
and shall, to the maximum extent permitted by law, defend (with counsel acceptable to
City), reimburse, indemnify, and hold harmless Indemnities harmless from and against
any and all claims, actions, liabilities, damages, demands,judgments, losses, costs, liens,
expenses, suits, actions, attorneys' fees, consultant fees, penalties and any and all other
losses, damages, fees and expenses of whatever kind or nature ("Claims") (including but
not limited to response costs, investigative costs, assessment costs, monitoring costs,
treatment costs, cleanup costs, removal costs, remediation costs, and similar costs,
damages and expenses) that arise out of or are alleged to arise out of or in any way
relate to any action, inaction or omission of Company that:
1. results in any demand, claim, notice, order, or lawsuit, asserting that any
Indemnitee is liable, responsible or in any way obligated to investigate, assess,
monitor, study, test, treat, remove, remediate, or otherwise cleanup, any
Hazardous Contaminant (as defined herein); or
2. relates to material Collected, transported, recycled, processed, treated or
disposed of by Company.
City of Palm Desert Page 89 5/15/2009
B. Company's obligations pursuant to this section shall apply, without limitation, to:
1. any Claims brought pursuant to or based on the provisions of any
Environmental Law;
2. any Claims based on or arising out of or alleged to be arising out of the
ownership, use, lease, sale, design, construction, maintenance or operation of
Company of any Facility;
3. any Claims based on or arising out of or alleged to be arising out of the
marketing, sale, distribution, storage, transportation, Disposal, processing or use
of any materials recovered by Company;
4. any Claims based on or arising out of or alleged to be arising out of any
breach of any express or implied warranty, representation or covenant arising
out of or in connection with this Contract.
C. The foregoing indemnity and defense obligations shall apply irrespective of the
negligence or willful misconduct of Company or any Affiliate of Company.
D. For purposes of this section, the term "Hazardous Contaminant" shall mean any
Hazardous Substance, any Hazardous Waste any crude oil or refined or unrefined
petroleum product or any fraction or derivative thereof; and any asbestos or asbestos-
containing material. The term "Hazardous Contaminant" shall also include any and all
amendments to any referenced statutory or regulatory provisions made before or after
the date of execution of this Contract.
E. THE PROVISIONS OF THIS SECTION SHALL NOT TERMINATE OR EXPIRE
AND SHALL BE GIVEN THE BROADEST POSSIBLE INTERPRETATION AND
SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS
AGREEMENT.
9.3 AB 939 Indemnification and Guarantee
A. To the extent authorized by law, Company agrees to indemnify and hold harmless
City from and against all fines and/or penalties imposed by the California lntegrated
Waste Management Board in the event the source reduction and Recycling goals or any
City of Palm Desert Page 90 5/15/2009
other requirement of AB 939 are not met by City with respect to the waste stream
Collected under this Contract.
B. Company warrants and represents that it is familiar with City's waste
characterization study as set forth in City's Source Recovery and Recycling Element
(SRRE), and that it has the ability to and will provide sufficient programs and services
to ensure City will meet or exceed the Diversion requirements (including, without
limitation, amounts of Solid Waste to be diverted, time frames for Diversion, and any
other requirements) set forth in AB 939, with respect to that portion of the Solid Waste
generated in City that is the subject of this Contract.
9.4 Insurance
The City does not, and shall not, waive any rights against the Company which it may
have by reason of the aforesaid hold harmless agreements, because of acceptance by the
City or the deposit with the City by the Company of the insurance policies described in
this provision.
A. Minimum Scope of Insurance. Coverage shall be at least as broad as:
1. The most recent editions of Insurance Services Office Commercial General
Liability coverage ("occurrence" form CG 0001).
2. The most recent editions of Insurance Services Office form number CA 0001
covering Automobile Liability, code 1 "any auto" and endorsement CA 0025.
3. Workers' Compensation insurance as required by the Labor Code of the State
of California and Employers Liability insurance.
B. Minimum Limits of Insurance. The Company shall maintain in force for the term
of this Contract limits no less than:
1. Comprehensive General Liability: Five Million Dollars ($5,000,000) combined
single limit per occurrence, for bodily injury, Personal injury and property
damage, with any self-insured retention not exceeding Two Hundred Fifty
Thousand Dollars ($250,000) per occurrence. Policy shall also cover:
a) premises operations;
City of Palm Desert Page 91 5/15/2009
b) blanket contractual; and
c) complete operations.
2. Automobile Liability: Five Million Dollars ($5,000,000) combined single limit per
accident for bodily injury and property damage, with any self-insured retention
not exceeding One Hundred Thousand Dollars ($100,000.00) per occurrence.
Any mobile equipment which is not covered under this policy shall be covered
under the Comprehensive General Liability policy.
3. Workers' Compensation and Employers Liability: Workers' compensation limits
as required by the Labor Code of the State of California and Employers Liability
limits of One Million Dollars ($1,000,000) per accident.
4. An excess umbrella liability policy with a minimum of not less than Five Million
Dollars ($5,000,000) per occurrence.
C. Deductibles and Self-Insured Retentions. Any deductibles or self-insured
retentions must be declared to and approved by the City. At the option of the City,
either: the insurer shall reduce or eliminate such deductibles or self-insured retentiori s
as respects the Indemnitees; or the Company shall procure a bond guaranteeing
payment of losses and related investigations, claim administration and defense
expenses in the amount of such deductibles or self-insured retentions.
D. Other Insurance Provisions. The policies are to contain, or be endorsed to
contain, the following provisions:
1. General Liability and Automobile Liability Coverages
a) The Indemnitees are to be named as additional insureds as respects:
liability arising out of activities performed by or on behalf of the
Company; products and completed operations of the Company; Premises
owned, leased or used by the Company; or vehicles owned, leased, hired
or borrowed by the Company. The coverage shall contain no special
limitations on the scope of protection afforded to the City, its elective and
appointive boards, commissions, officials, employees, agents or
volunteers.
City of Palm Desert Page 92 5/15/2009
b) The Company's insurance coverage shall be primary insurance as respects
the Indemnitees. Any insurance or self-insurance maintained by the City,
its officials, elective and appointive boards, commissions, employees,
agents or volunteers shall be excess of the Company's insurance and shall
not contribute with it.
c) Any failure to comply with reporting provisions of the policies shall not
affect coverage provided to the Indemnitees.
d) Coverage shall state that the Company's insurance shall apply separately
to each insured against whom claim is made or suit is brought, except
with respect to the limits of the insurer's liability.
2. Workers' Compensation and Employers Liability Coverage -The insurer shall
agree to waive all rights of subrogation against the Indemnitees for losses
arising from work performed by the Company for the City.
3. All Coverages -Each insurance policy required by this clause shall be
endorsed to state that coverage shall not be suspended, voided, canceled by
either party, reduced in coverage or in limits except after one hundred twenty
(120) days' prior written notice by certified mail, return receipt requested, has
been given to the City.
E. Acceptability of Insurers. The insurance policies required by this Section shall
be issued by an insurance company or companies authorized to do business in the State
of California and with a rating in the most recent edition of Best's Insurance Reports of
size category VII or larger and a rating classification of A or better.
F. Verification of Coverage. The Company shall furnish the City with certificates
of insurance and with original endorsements affecting coverage required by this clause.
The certificates and endorsements for each insurance policy are to be signed by a Person
authorized by that insurer to bind coverage on its behalf. The certificates and
endorsements are to be on forms provided by or acceptable to the City and are to be
received and approved by the City before work commences. The City reserves the right
to require complete, certified copies of all required insurance policies, at any time.
City of Palm Desert Page 93 5/15/2009
Renewal certificates will be furnished periodically to the City to demonstrate
maintenance of the required coverage throughout the Term.
G. Companies and Subcontractors. The Company shall include all Companies and
Subcontractors as insureds under its policies or shall furnish separate certificates and
endorsements for each the Company and Subcontractor. All coverages for Companies
and Subcontractors shall be subject to all of the requirements stated herein.
H. Required Endorsements
1. The Workers' Compensation policy shall contain an endorsement in
substantially the following form:
"Thirty (30) days prior written notice by certified mail, return receipt
requested, shall be given to the City in the event of cancellation, reduction in
coverage, or non-renewal of this policy. Such notice shall be sent to:
City Manager
City of Palm Desert
73510 Fred Waring Drive
Palm Desert, CA 92260
2. The Public Liability policy shall contain endorsements in substantially the
following form:
a) "Thirty (30) days prior written notice shall be given to the City in the event
of cancellation, reduction in coverage, or non-renewal of this policy. Such
notice shall be sent to:
City Manager
City of Palm Desert
73510 Fred Waring Drive
Palm Desert, CA 92260
b) "The City, its officers, elective and appointive boards, commissions,
employees, and agents are additional insureds on this policy."
c) "This policy shall be considered primary insurance as respects any other
valid and collectible insurance maintained by the City, including any self-
City of Palm Desert Page 94 5/15/2009
insured retention or program of self-insurance, and any other such
insurance shall be considered excess insurance only."
d) "Inclusion of the City as an insured shall not affect the City's rights as
respects any claim, demand, suit or judgment brought or recovered
against the Company. This policy shall protect the Company and the City
in the same manner as though a separate policy had been issued to each,
but this shall not operate to increase the Company's liability as set forth in
the policy beyond the amount shown or to which the Company would
have been liable if only one party had been named as an insured."
I. Other Insurance Requirements
1. In the event any services are delegated to another company or Subcontractor,
the Company shall require such company or Subcontractor to provide
statutory workers' compensation insurance and employer's liability insurance
for all of the other company or Subcontractor's employees engaged in the
work in accordance with this Section 9.4. The liability insurance required by
this Section 9.4 shall cover all Company or Subcontractors or the Company or
Subcontractor must furnish evidence of insurance that meets all of the
requirements of this Section 9.4.
2. The Company shall comply with all requirements of the insurers issuing
policies. The carrying of insurance shall not relieve the Company from any
obligation under this Contract. If any claim exceeding the amount of any
deductibles or self-insured reserves is made by any third Person against the
Company or any company or Subcontractor on account of any occurrence
related to this Contract, the Company shall promptly report the facts in
writing to the insurance carrier and to the City.
If the Company fails to procure and maintain any insurance required by this
Contract, the City may take out and maintain, at the Company's expense, such
insurance as it may deem proper and deduct the cost thereof from any moneys
due the Company.
City of Palm Desert Page 95 5/15/2009
9.5 Faithful Performance Bond
Concurrently with execution of this Contract, the Company shall deliver to the City a
performance bond, from an admitted surety insurer, in the amount of One Million
Dollars ($1,000,000), similar to the form provided in Exhibit 6, which secures the faithful
performance of this Contract, including, without limitation, payment of any penalty
and the funding of any work to cure a breach of this Contract. The bond shall contain
the original notarized signature of an authorized officer of the surety and affixed
thereto shall be a certified and current copy of his power of attorney. The bond shall be
unconditional and remain in force during the entire term of the Contract and shall be
null and void at the conclusion of the term of this Contract only if the Company
promptly and faithfully performs all terms and conditions of this Contract.
9.6 Forfeiture of Performance Bond
In the event the Company shall for any reason become unable to, or fail in any way to,
perform as required by this Contract, the City may declare a portion or all of the
performance bond which is necessary to recompense and make whole the City, forfeited
to the City. Upon partial or full forfeiture of the performance bond, the Company shall
restore the performance bond to its face amount within 30 days of the City's
declaration. Failure to restore the performance bond to its full amount within 30 days
shall be a material breach of contract.
9.7 Performance Security Beyond Service Term
Some Contract requirements extend beyond the Term of this Contract and other
requirements, such as minimum Diversion rates per Section 4.7.9,will not be
substantiated until after the final service date. Therefore, the Company shall not
terminate the performance bond required in Section 9.5, and will renew them to ensure
continuous availability to the City, until receiving a written release from the City.
Permission from the City to discontinue holding these performance securities does not
relieve Company of payments to the City that may be due, or may become due.
City of Palm Desert Page 96 5/15/2009
ARTICLE 10
CITY'S RIGHT TO PERFORM SERVICE
10.1 General
In addition to, but not in lieu of, any other rights or remedies City might have under
this Contract, at law or in equity, in the event that the Company, for any reason
whatsoever (including interruptions and discontinuance due to events described in
Section 11.5), fails, refuses or is unable to Collect, Recycle, process, transport or dispose
of any or all Solid Waste which it is required by this Contract, at the time and in the
manner provided in this Contract, for a period of more than forty-eight (48) hours, and
if, as a result thereof, Solid Waste should accumulate in the City to such an extent, in
such a manner, or for such a time that the City should find that such accumulation
endangers or menaces the public health, safety or welfare, then the City shall have the
right, but not the obligation, upon notice to the Company during the period of such
emergency as determined by the City, as hereinafter set forth, (1) to perform, or cause to
be performed, such services itself with its own or other personnel without liability to
the Company; and/or (2) to take possession of any or all of the Company's land,
equipment and other property used or useful in the Collection and transportation of
Solid Waste, and to use such property to Collect and transport any Solid Waste
generated within the City which the Company would otherwise be obligated to Collect,
transport and properly dispose of or process pursuant to this Contract.
Notice of the Company's failure, refusal or neglect to Collect, transport and properly
dispose of or process Solid Waste may be given orally by telephone to the Company at
its principal office and shall be effective immediately. Written confirmation of such oral
notification shall be sent to the Company within one business day of the oral
notification.
The Company further agrees that in such event:
A. It will take direction from the City to effect the transfer of possession of
equipment and property to the City for the City's use.
City of Palm Desert Page 97 5/15/2009
B. It will, if the City so requests, keep in good repair and condition all of such
equipment and property, provide all motor vehicles with fuel, oil and other service, and
provide such other service as may be necessary to maintain said property in operational
condition.
C. The City may immediately engage all or any personnel necessary or useful for
the Collection and transportation of Solid Waste, including, if the City so desires,
employees previously or then employed by the Company. The Company further
agrees, if the City so requests, to furnish the City the services of any or all management
or office Personnel employed by the Company whose services are necessary or useful
for Solid Waste Collection, transportation, processing and Disposal operations and for
the billing and Collection of fees for these services.
The City agrees that it assumes complete responsibility for the proper and normal use
of such equipment and Facilities while in its possession.
If the interruption or discontinuance in service is caused by any of the reasons listed in
Section 11.5, the City shall pay to the Company the reasonable rental value of the
equipment and Facilities, possession of which is taken by the City, for the period of the
City's possession, if any, which extends beyond the period of time for which the
Company has rendered bills in advance of service, for the class of service involved.
10.2 Billing and Compensation to the City During the City's Possession
During such time that the City is providing Solid Waste services, as above provided, the
Company shall bill and collect payment from all users of the above-mentioned services
as described in Section 5.1. The Company further agrees that, in such event, it shall
reimburse the City for any and all costs and expenses incurred by the City beyond that
billed and received by the City in taking over possession of the above-mentioned
equipment and property for Solid Waste service in such manner and to an extent as
would otherwise be required of the Company under the terms of this Contract. Such
reimbursement shall be made from time to time after submission by the City to the
Company of each statement listing such costs and expenses, but in no event later than
five (5) working days from and after each such submission.
City of Palm Desert Page 98 5/15/2009
10.3 City's Right to Relinquish Possession
It is further mutually agreed that the City may at any time at its discretion relinquish
possession of any or all of the above-mentioned property to the Company and
thereupon demand that the Company resume the Solid Waste services as provided in
this Contract, whereupon the Company shall be bound to resume the same.
10.4 City's Possession Not A Taking
The City's exercise of its rights under this Article 10 (1) does not constitute a taking of
private property for which compensation must be paid; (2) will not create any liability
on the part of the City to the Company; and (3) does not exempt the Company from the
indemnity provisions of Article 9, which are meant to extend to circumstances arising
under this Section, provided that the Company is not required to indemnify the City
against claims and damages arising from the sole negligence of the City, its elective and
appointive boards, commissions, officers, employees and agents in the operation of
Collection vehicles during the time the City has taken possession of such vehicles.
10.5 Duration of the City's Possession
The City's right pursuant to this Article to retain temporary possession of the
Company's Facilities and equipment, and to render Collection services, shall terminate
when the City determines that such services can be resumed by the Company, or when
the City no longer reasonably requires such property or equipment. In any case, the
City has no obligation to maintain possession of the Company's property or equipment
and/or continue its use for any period of time and may at any time, in its sole
discretion, relinquish possession to the Company.
City of Palm Desert Page 99 5/15/2009
ARTICLE 11
DEFAULT, REMEDIES AND LIQUIDATED DAMAGES
11.1 Events of Default
All provisions of this Contract to be performed by the Company are considered
material. Each of the following shall constitute an event of default.
A. Fraud or Deceit . If the Company practices, or attempts to practice any fraud or
deceit upon the City.
B. Insolvency or Bankruptcy. If the Company becomes insolvent, unable, or
unwilling to pay its debts, files a bankruptcy petition or takes steps to liquidate its
assets.
C. Failure to Maintain Coverage. If the Company fails to provide or maintain in
full force and effect the Workers' Compensation, liability, or indemnification coverage
as required by this Contract.
D. Violations of Regulation. If the Company violates any orders or filings of any
regulatory body having jurisdiction over the Company or City relative to this Contract,
provided that the Company may contest any such orders or filings by appropriate
proceedings conducted in good faith, in which case no breach of the Franchise and this
Contract shall be deemed to have occurred.
E. Failure to Perform. If the Company ceases to provide Collection, processing or
Recycling services as required under this Contract for a period of two (2) consecutive
days or more, for any reason within the control of the Company, including labor
disputes.
F. Failure to Pay. If the Company fails to make any payments required under this
Contract and/or refuses to provide the City, within ten (10) days of the demand
therefor, with required information, reports, and/or records in a timely manner as
provided for in the Contract.
City of Palm Desert Page 100 5/15/2009
G. Acts or Omissions. Any other act or omission by the Company which violates
the terms, conditions, or requirements of this Contract, the California lntegrated Waste
Management Act of 1989, any Environmental law as it may be amended from time to
time, or any law, statute, ordinance, 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 or, if the Company cannot reasonably correct or remedy the
breach within the time set forth in such notice, if the Company should fail to commence
to correct or remedy such violation within the time set forth in such notice and
diligently effect such correction or remedy thereafter.
H. False or Misleading Statements. Any representation or disclosure made to the
City by the Company in connection with or as an inducement to entering into this
Contract, or any future amendment to this Contract, which proves to be false or
misleading in any material respect as of the time such representation or disclosure is
made, whether or not any such representation or disclosure appears as part of this
Contract.
I. Attachment. There is a seizure of, attachment of, or levy on, the operating
equipment of the Company, including without limits its equipment, maintenance or
office facilities, or any part thereof.
J. Suspension or Termination of Service. There is any termination or suspension
of the transaction of business by the Company, including without limit, due to labor
unrest including strike, work stoppage or slowdown, sick-out, picketing, or other
concerted job action lasting more than two (2) consecutive days.
K. Failure to Provide Assurance of Performance. If the Company fails to provide
reasonable assurances of performance as required under Section 11.7.
The Company shall be given forty-eight (48) hours from notification by the City to cure
any default arising under subsections E, F, I,J and K provided, however, that the City
shall not be obligated to provide the Company with a notice and cure opportunity if the
Company has committed the same or similar breach within a twenty-four month
period.
City of Palm Desert Page 101 5/15/2009
11.2 Criminal Activity of Company
Should the Company or any of its officers or directors be found guilty of felonious
conduct related to the performance of this Contract, or of felonious conduct related to
anti-trust activities, illegal transport or Disposal of hazardous or toxic materials, or
bribery of public officials, the City reserves the right to unilaterally terminate this
Contract or impose other such sanctions (which may include financial sanctions,
temporary suspensions or any other condition deemed appropriate short of
termination) as it shall deem proper.
11.3 Right to Terminate Upon Default
Upon a default by the Company, the City shall have the right to terminate this
Franchise and this Contract upon a ten (10) days notice if the public health or safety is
threatened, or otherwise a thirty (30) days notice, but without the need for any hearing,
suit or legal action.
The City's rights to terminate this Contract, or to take possession of the Company's
Facility are not exclusive, and the City's termination of this Contract shall not constitute
an election of remedies. Instead, they shall be in addition to any and all other legal and
equitable rights and remedies which the City may have.
By virtue of the nature of this Contract, the urgency of timely continuous and high-
quality service, the time required to effect alternative service, and the rights granted by
the City to the Company, the remedy of damages for a breach hereof by the Company is
inadequate and the City shall be entitled in injunctive relief.
11.4 Liquidated Damages
A. General. The City finds, and the Company agrees, that as of the time of the
execution of this Contract, 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 the
Company of its obligations under this Contract. The factors relating to the
impracticability of ascertaining damages include, but are not limited to, the fact that: (i)
substantial damage results to members of the public who are denied services or denied
quality or reliable service; (ii) such breaches cause inconvenience, anxiety, frustration,
and deprivation of the benefits of the Contract to individual members of the general
City of Palm Desert Page 102 5/15/2009
public for whose benefit this Contract exists, in subjective ways and in varying degrees
of intensity which are incapable of ineasurement in precise monetary terms; (iii) the
services provided under this Contract might be available at substantially lower costs
than alternative services and the monetary loss resulting from denial of services or
denial of quality or reliable services is impossible to calculate in precise monetary terms;
and (iv) the termination of this Contract 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. Service Performance Standards; Liquidated Damages for Failure to Meet
Standards. The parties further acknowledge that consistent, reliable Solid Waste
Collection service is of utmost importance to the City and that the City has considered
and relied on the Company's representations as to its quality of service commitment in
awarding the Franchise to it. The parties further recognize that some quantified
standards of performance are necessary and appropriate to ensure consistent and
reliable service and performance. The parties further recognize that if the Company
fails to achieve the performance standards, or fails to submit required documents in a
timely manner, the City and its residents will suffer damages and that it is and will be
impractical and extremely difficult to ascertain and determine the exact amount of
damages which the City will suffer. Therefore, without prejudice to the City's right to
treat such non-performance as an event of default under this Article 11, the parties
agree that the following liquidated damage amounts represent a reasonable estimate of
the amount of such damages considering all of the circumstances existing on the date of
this Contract, including the relationship of the sums to the range of harm to the City
that reasonably could be anticipated and the anticipation that proof of actual damages
would be costly or impractical. In placing their initials at the places provided, each
party specifically confirms the accuracy of the statements made above and the fact that
each party has had ample opportunity to consult with legal counsel and obtain an
explanation of the liquidated damage provisions at the time that the Contract was
made.
Company City
Initial Here Initial Here
The Company agrees to pay (as liquidated damages and not as a penalty) the amounts
set forth below:
City of Palm Desert Page 103 5/15/2009
1. Collection Reliabilitv
a) For each failure to commence service to a new Customer account within
seven (7) days after order, which exceed five (5) such failures annually:
$150.00
b) For each failure to Collect Solid Waste, which has been properly set out for
Collection, from an established Customer account, or accounts, on the
scheduled Collection day and not Collected within the period described in
this Contract which exceeds ten (10) such failures annually: $150.00
c) For each failure to Collect Solid Waste, which has been properly set out for
Collection, from the same Customer on two (2) consecutive scheduled
pickup days: $150.00
2. Collection Quality
a) For each occurrence of violating a transfer station conditional use permit
(C.U.P.). $500.00
b) For each occurrence of uncompensated damage to private property which
exceeds five (5) such occurrences annually: $250.00
c) For each occurrence of failure to properly return empty Containers to avoid
pedestrian or vehicular traffic impediments or to place Cans upright with
lids secured (in areas where Customers own their Containers, if applicable)
which exceeds ten (10) service locations annually: $150.00
d) For each occurrence of excessive noise or discourteous behavior:
$250.00
e) For each failure to clean up Solid Waste spilled from Solid Waste Containers
which exceeds ten (10) such failures annually: $150.00
� For each occurrence of Collecting Solid Waste during unauthorized hours
which exceeds five (5) such occurrences annually: $250.00
City of Palm Desert Page 104 5/15/2009
g) For each failure to clean or replace Commercial and industrial Containers in
accordance with Section 4.8.3.4 of this Contract which exceeds ten (10) such
failures annually: $150.00
h) For each failure to replace locks on locking Bins after Collection in accordance
with Section 4.6.1 which exceeds three (3) annually: $ 50.00
3. Customer Responsiveness
a) For each failure to initially respond to a Customer complaint within one (1)
business day: $100.00
b) For each failure to process Customer complaints to the City as required by
Article 5 herein: $500.00
c) For each failure to remove graffiti from Containers, or to replace with
Containers bearing no graffiti, within one business day of request from City
or Customers: $100.00
d) For each failure of a Company field representative to annually contact a
Commercial, Industrial or Master-Billed Residential account. $ 50.00 per
account per year
4. Tirneliness of Submissions to the City
Any report shall be considered late until such time as a correct and complete
report is received by the City. For each calendar day a report is late, the daily
liquidated damage amount shall be:
a) Monthly Reports: $ 25 per day
b) Quarterly Reports: $100 per day
c) Annual Reports: $350 per day
d) For each day beyond 30 days after the end of each calendar quarter that
Company has not submitted complete and accurate supporting data and
calculations for Franchise and Recycling Fees paid, in accordance with
Article 3 of the Agreement, Company shall pay: $50.00/day
City of Palm Desert Page 105 5/15/2009
5. Accuracy of Billin�
a) Each Customer invoice that is not prepared in accordance with the City's
approved rate schedule that is not cured within 30 days of initial invoicing:
$250.00
b) Each occurrence in which a service address is "double billed" with multiple
invoices sent to different billing addresses (for examples, both a tenant and
an off-site property owner are billed for service at the same location):
$250.00
6. Im�lementation of Public Education Plan
a) For each day past the agreed upon deadline that the Company fails to
perform a task set forth in its public education plan.
$100 per day
7. Use of Alternative Fuel Route Vehicles
a) For each day past the first anniversary of the Contract that the Company
fails to have at least 50% of its route trucks powered by alternative fuel
sources (non-diesel). $500 per day
b) For each day past the second anniversary of the Contract that the Company
fails to have 100% of its route trucks powered by alternative fuel sources
(non-diesel). $500 per day
8. Food Waste Recycling Program Implementation
For each day after the 120 day period following the City's written request for
Company to implement a pilot food waste program that Company has not
implemented the pilot food waste Recycling program as described in Exhibit 2 to
this Addendum, Company shall pay: $100.00/day
9. Cooperation with Service Provider Transition
a) For each day routing information requested by City in accordance with
Section 12.9 is received after City-established due dates, both for
City of Palm Desert Page 106 5/15/2009
preparation of a request for proposals and for new service provider's
implementation of service : $1,000/day
b) For each day delivery of keys, access codes, remote controls, or other means
of access to Solid Waste Containers is delayed beyond one (1) day prior to
new service provider servicing Customers with access issues, as described in
Section 12.9: $1,000/day
c) For delay in not meeting the requirements contained in Sections 4.13 and
12.9 in a timely manner, in addition to the daily liquidated damages for
breach under 12(a) and 12(b) above, liquidated damages of: $35,000
10. General Contract Adherence
For each day that Franchisee fails to provide services required under the
Agreement, or comply with terms of the Agreement, five (5) business days after
receipt of written notification from City that such services are not being provided
or terms are not being met: $300.00/day
Liquidated damages will only be assessed after the Company has been given the
opportunity but failed to rectify the damages as described in this Contract.
The City may determine the occurrence of events giving rise to liquidated damages
through the observation of its own employees or representative or investigation of
Customer complaints.
Prior to assessing liquidated damages, the City shall give the Company notice of its
intention to do so. The notice will include a brief description of the incident(s)/non-
performance. The Company may review (and make copies at its own expense) all non-
confidential information in the possession of the City relating to incident(s)/non-
performance. The Company may, within ten (10) days after receiving the notice,
request a meeting with the City Manager or his or her designee. The Company may
present evidence in writing and through testimony of its employees and others relevant
to the incident(s)/non-performance. The City Manager or his or her designee will
provide the Company with a written explanation of his or her determination on each
incident(s)/non-performance prior to authorizing the assessment of liquidated
damages. The decision of the City Manager or his or her designee shall be final.
City of Palm Desert Page 107 5/15/2009
C. Amount. The City may assess liquidated damages for each calendar day or
event, as appropriate, that the Company is determined to be liable in accordance with
this Contract.
D. Timing of Payment. The Company shall pay any liquidated damages assessed
by the City within ten (10) days after they are assessed. If they are not paid within the
ten (10) day period, the City may proceed against the performance bond required by the
Contract or order the termination of the Franchise granted by this Contract, or exercise
any other right or remedy available to City under this Contract or at law or in equity, or
any combination of these remedies.
11.5 Excuse from Performance
The parties shall be excused from performing their respective obligations hereunder in
the event they are prevented from so performing by reason of floods, earthquakes,
other natural disasters, war, civil insurrection, riots, acts of any government (including
judicial action), picketing at Customer Collection locations that blocks access to
Container pick up points, and other similar catastrophic events which are beyond the
control of and not the fault of the party claiming excuse from performance hereunder.
Labor unrest, including but not limited to strike, work stoppage or slowdown, sick-out,
picketing, or other concerted job action conducted by the Company's employees or
directed at the Company is not an excuse from performance and the Company shall be
obligated to continue to provide service notwithstanding the occurrence of any or all of
such events.
The party claiming excuse from performance shall, within two (2) days after such party
has notice of such cause, give the other party notice of the facts constituting such cause
and asserting its claim to excuse under this Section.
The interruption or discontinuance of the Company's services caused by one or more of
the events excused shall not constitute a default by the Company under this Contract.
Notwithstanding the foregoing, however, if the Company is excused from performing
its obligations hereunder for any of the causes listed in this Section for a period of seven
(7) days or more, the City shall nevertheless have the right, in its sole discretion, to ter-
minate this Contract by giving ten (10) days' notice, in which case the provisions
relative to taking possession of the Company's land, equipment and other property and
engaging the Company's Personnel in Article 10 and this Article 11 will apply.
City of Palm Desert Page 108 5/15/2009
11.6 Arbitration
Any dispute arising out of or relating to this Contract, which dispute involves claims or
controversies having no monetary value, or are in an amount or amounts, if combined,
not exceeding$25,000, shall be first mediated between the parties. The party making
demand for mediation shall select a panel of three (3) mediators from those mediators
listed and approved by the local Superior Court of jurisdiction, and the party not
selecting the panel shall choose one (1) of the listed mediators who shall serve in that
capacity. The parties shall share equally in the cost and expense of the mediation.
Any dispute arising out of or relating to this Contract, which dispute involves claims or
controversies, having a monetary value in an amount or amounts, if combined, not
exceeding$25,000, which dispute was not resolved by mediation as required herein,
shall be decided by arbitration in accordance with the commercial rules of the American
Arbitration Association then pertaining, unless the parties agree otherwise and consent,
in writing, to a different method of dispute resolution, including mediation or judicial
arbitration.
Any dispute arising out of or relating to this Contract, which dispute involves claims or
controversies in an amount or amounts, if combined, exceeding $25,000, shall not
involve arbitration, or any other method of dispute resolution, unless the parties agree
otherwise and consent, in writing, but shall instead be brought in a court of competent
jurisdiction in the County of Riverside, State of California.
Venue for any action, including those actions subject to arbitration, shall be Riverside
County. Company hereby expressly waives any right to remove any such action to a
County other than Riverside County otherwise provided by California Code of Civil
Code of Civil Procedure Section 394.
Notice of the demand for arbitration is to be filed in writing with the other party to this
Contract and with the American Arbitration Association. The demand is to be made
within a reasonable period of time after the claim, dispute, or other matter in
controversy has arisen. In no event, however, is the demand for arbitration to be made
after the date when institution of legal or equitable proceedings based on such claim,
dispute or other matter in controversy would be barred by the applicable statute of
limitations.
City of Palm Desert Page 109 5/15/2009
Any award rendered by the arbitrator shall be final and judgment may be entered upon
it in accordance with applicable law in any court having jurisdiction thereof.
11.7 Assurance of Performance
The City may, at its option and in addition to all other remedies it may have, demand
from the Company reasonable assurances of timely and proper performance of this
Contract, in such form and substance as the City may require. If the Company fails or
refuses to provide satisfactory assurances of timely and proper performance in the form
and by the date required by the City, such failure or refusal shall be an event of default.
City of Palm Desert Page 110 5/15/2009
ARTICLE 12
OTHER AGREEMENTS OF THE PARTIES
12.1 Relationship of Parties
The parties intend that the Company shall perform the services required by this
Contract as an independent Company engaged by the City and not as an officer or
employee of the City nor as a partner of or joint venture with the City. No employee or
agent or Company shall be or shall be deemed to be an employee or agent of the City.
Except as expressly provided herein, the Company shall have the exclusive control over
the manner and means of conducting the Solid Waste Collection services performed
under this Contract, and all Persons performing such services. The Company shall be
solely responsible for the acts and omissions of its officers, employees, Companies,
Subcontractors, Affiliates and agents. Neither the Company nor its officers, employees,
Companies, Subcontractors, Affiliates and agents shall obtain any rights to retirement
benefits, workers' compensation benefits, or any other benefits which accrue to the City
employees by virtue of their employment with the City.
12.2 Cornpliance with Law
In providing the services required under this Contract, the Company shall at all times,
at its sole cost, comply with all applicable laws and regulations of the United States, the
State of California, and local agencies. The City shall comply with all applicable
regulations promulgated by federal, state, regional or local administrative and
regulatory agencies, now in force and as they may be enacted, issued or amended
during the Term.
12.3 Governing Law
This Contract shall be governed by, and construed and enforced in accordance with, the
laws of the State of California.
City of Palm Desert Page 111 5/15/2009
12.4 Jurisdiction
Any lawsuits between the parties arising out of this Contract shall be brought and
concluded in the courts of the State of California, which shall have exclusive jurisdiction
over such lawsuits.
With respect to venue, the parties agree that this Contract is made in and will be
performed in Riverside County.
12.5 Assignment
Except as may be provided for in Article 10 (City's Right to Perform Service), Company
shall not assign its rights, nor delegate, subcontract or otherwise transfer its obligations
under this Contract (collectively referred to as an"assignment") to any other Person
without the prior written consent of City. Any such assignment made without the
consent of City shall be void and the attempted assignment shall constitute a material
breach of this Contract.
For purposes of this section the term "assignment" shall be given the broadest possible
interpretation, and shall include, but not be limited to (i) a sale, exchange or other
transfer of substantially all of Company's assets dedicated to service under this Contract
to a third party; (ii) a sale, exchange or other transfer of outstanding membership
interest in Company to a third party provided said sale, exchange or transfer results in a
change of control of Company; (iii) any dissolution, reorganization, consolidation,
merger, re-capitalization, stock issuance or re-issuance, voting trust, pooling agreement,
escrow arrangement, liquidation or other transaction which results in a change of
control of Company; (iv) any assignment by operation of law, including those resulting
from mergers or acquisitions by or of Company of any of its Affiliates, insolvency or
bankruptcy, making assignment for the benefit of creditors, writ of attachment for an
execution being levied against this Contract, appointment of a receiver taking
possession of Company's property, or transfer occurring in the event of a probate
proceeding, which results in a change of control of Company; and (v) any combination
of the foregoing (whether or not in related or contemporaneous transactions) which has
the effect of any such transfer (under clause (i) above) or results in a change of control of
Company.
City of Palm Desert Page 112 5/15/2009
Notwithstanding the foregoing, nothing is this Section shall prohibit or prevent an
assignment by or among Company's present members, whether as trustees of trusts or
otherwise, or to or among trusts controlled by such members or trustees, so long as
such assignment does not result in a change of control of Company.
For the purpose of this Section, the term "Change of Control of Company" means that
the Company's present members shall cease to own, individually or collectively, either
directly or indirectly through one or more Affiliates or one or more trusts as to which
one or more of such individuals is or becomes a trustee, more that forty-nine (49)
percent of the voting membership interests in Company.
Company acknowledges that this Contract involved rendering a vital service to City's
residents and businesses, and that City has selected Company to perform the services
specified herein based on (1) Company's experience, skill and reputation for conducting
its Solid Waste Handling Services in a safe, effective and responsible fashion, at all
times in keeping with applicable Environmental Laws, regulations and best Solid Waste
management practices, and (2) Company's financial resources to maintain the required
equipment and to support its indemnity obligations to City under this Contract. City
has relied on each of these factors, among others, in choosing Company to perform the
services to be rendered by Company under this Contract.
If Company requests City's consideration of and consent to an assignment, City may
deny or approve such request in its sole and absolute discretion. Any request for an
assignment must be approved by the City Manager, and no request by Company for
consent to an assignment need be considered by City unless and until Company has
met (or with respect to matters that would only occur upon completion of the
assignment if approved, made reasonable assurances that it will meet) the following
requirements:
a) Company shall pay City its reasonable expenses for attorney's fees and
investigation costs necessary to investigate the suitability of any proposed
assignee, and to review and finalize any documentation required as a condition
for approving any such assignment. An advance payment towards expenses
may be requested by City prior to City consideration of any assignment request
and Company shall be responsible to pay all costs incurred by City in
City of Palm Desert Page 113 5/15/2009
considering a request for assignment, including those in excess of the aforesaid
deposit amount, regardless of whether City consents to the assignment.
b) Company shall pay the City a transfer fee equal to one percent (1%) of the Gross
Receipts, not to exceed $150,000, it, or its assignee, will receive during the
remaining term of the Contract, as estimated by City.
c) Company shall furnish City with audited financial statements for itself, and the
proposed assignee's operations for the immediately preceding three (3) operating
years.
d) A proforma financial statement (income statement and balance sheet) for the
proposed assignee with the projected results of operations assuming that the
assignment is completed. Such proforma financial statement shall reflect any
debt to be incurred by the assignee as part of the acquisition of Company's
operations.
e) Company shall furnish City with satisfactory proof: (i) that the proposed
assignee has at least ten (10) years of Solid Waste management experience on a
scale equal to or exceeding the scale of operations conducted by Company under
this Contract; (ii) that in the last five (5) years, the proposed assignee has not
suffered any significant citations or other censure from any federal, state or local
agency having jurisdiction over its Solid Waste management operations due to
any significant failure to comply with state, federal or local Environmental Laws
and that the assignee has provided City with a complete list of any such citations
and censures; (iii) that the proposed assignee has at all times conducted its
operations in an environmentally safe and conscientious fashion; (iv) that the
proposed assignee conducts its Solid Waste management practices in accordance
with sound Solid Waste management practices in full compliance with all
federal, state and local laws regulating the Collection and Disposal of Solid
Waste including Hazardous Substances; and, (v) of any other information
required by City to ensure the proposed assignee can fulfill the terms of this
Contract in a timely, safe and effective manner.
Under no circumstances shall City be obliged to consider any proposed
assignment by City if Company is in default at any time during the period of
City of Palm Desert Page 114 5/15/2009
consideration. Should City consent to any assignment request, such assignment
shall not take effect until all conditions relating to City's approval have been met.
An assignment among the existing shareholders or their related trusts shall not
require the City's prior approval and shall not be subject to the transfer fees,
submittals, and investigations articulated in this Section 12.5. Company shall
notify City in writing of any assignment among its existing shareholders or their
related trusts within thirty (30) days of the event.
12.6 Affiliated Companies
The Company's accounting records shall be maintained on a basis showing the results
of the Company's operations under this Contract separately from operations in other
locations, as if the Company were an independent entity providing service only to the
City. The costs and revenues associated with providing service to the City shall not be
combined, consolidated or in any other way incorporated with those of other
operations conducted by the Company in other locations, or with those of an Affiliate.
If the Company enters into any financial transactions with a Related Party Entity for the
provision of labor, equipment, supplies, services, capital, etc., related to the furnishing
of service under this Contract, that relationship shall be disclosed to the City, and in the
financial reports submitted to the City. In such event, the City's rights to inspect
records, and obtain financial data shall extend to such Related Party Entity or entities.
Any application for a change of ownership or a Franchise transfer shall be made in a
manner prescribed by the City Manager. The application shall include a transfer fee in
an amount to be set by a resolution of the City Council, to cover the reasonable costs of
all direct and indirect administrative expenses of the City, including, without limitation,
consultants and attorneys, necessary to analyze the application and to reimburse the
City for all its direct and indirect expenses. The applicant shall pay such invoices prior
to any authorized change of ownership or Franchise transfer becoming effective.
12.7 Contracting or Subcontracting
The Company shall not engage any companies or Subcontractors for Collection,
transfer, processing, Recycling or Disposal of Solid Waste without the prior written
consent of the City.
City of Palm Desert Page 115 5/15/2009
12.8 Binding on Assigns
The provisions of this Contract shall inure to the benefit of and be binding on the
permitted assigns of the parties.
12.9 Transition to the Next Company
Prior to, and at, the end of the Term or in the event this Contract is terminated for cause
prior to the end of the Term, Company shall cooperate fully with City and any
subsequent Solid Waste enterprise it designates to assure a smooth transition of Solid
Waste Handling Services. Company's cooperation shall include, but not be limited to,
providing route lists, Billing information and other operating records needed to service
all Premises covered by this Contract. The failure to cooperate with City following
termination shall be conclusively presumed to be grounds for specific performance of
this covenant and/or other equitable relief necessary to enforce this covenant.
Company shall provide a new service provider with all keys, security codes and remote
controls used to access garages and Bin enclosures. Company shall be responsible for
coordinating transfer immediately after Company's final pickups, so as not to disrupt
service. Company shall provide City with detailed route sheets containing service
names and addresses, Billing names and addresses, monthly rate and service levels
(number and size of Containers and pickup days) at least 90 days prior to the transition
date, and provide an updated list two weeks before the transition and a final list of
changes the day before the transition. Company shall provide means of access to the
new service provider at least one full business day prior to the first day of Collection by
another party, and always within sufficient time so as not to impede in any way the
new service provider from easily servicing all Containers.
12.10 Parties in Interest
Nothing in this Contract, whether express or implied, is intended to confer any rights
on any Persons other than the parties to it and their representatives, successors and
permitted assigns.
12.11 Waiver
The waiver by either party of any breach or violation of any provisions of this Contract
shall not be deemed to be a waiver of any breach or violation of any other provision nor
City of Palm Desert Page 116 5/15/2009
of any subsequent breach of violation of the same or any other provision. The
subsequent acceptance by either party of any moneys which become due hereunder
shall not be deemed to be a waiver of any pre-existing or concurrent breach or violation
by the other party of any provision of this Contract.
12.12 The Company's Investigation
The Company has made an independent investigation (satisfactory to it) of the
conditions and circumstances surrounding the Contract and the work to be performed
by it.
12.13 Condemnation
The City fully reserves the rights to acquire the Company's property utilized in the
performance of this Contract, by purchase or through the exercise of the right of
eminent domain. This provision is additive, and not intended to alter the rights of the
parties set forth in Article 10.
12.14 Notice
All notices, demands, requests, proposals, proposals, approvals, consents and other
communications which this Contract requires, authorizes or contemplates shall be in
writing and shall either be personally delivered to a representative of the parties at the
address below or be deposited in the United States mail, first class postage prepaid,
addressed as follows:
If to the City:
City Manager
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260
If to the Company:
District Manager
Burrtec Waste and Recycling Services, LLC
41-575 Eclectic Street
Palm Desert, CA 92260
City of Palm Desert Page 117 5/15/2009
The address to which communications may be delivered may be changed from time to
time by a written notice given in accordance with this Section.
Notice shall be deemed given on the day it is personally delivered or, if mailed, three
days from the date it is deposited in the mail.
12.15 Representatives of the Parties
References in this Contract to the "City" shall mean the City Council and all actions to
be taken by the City shall be taken by the City Council except as provided below. The
City Council may delegate, in writing, authority to the City Manager, and/or to other
City employees and may permit such employees, in turn, to delegate in writing some or
all of such authority to subordinate employees. The Company may rely upon actions
taken by such delegates if they are within the scope of the authority properly delegated
to them.
The Company shall, by the effective date, designate in writing a responsible officer who
shall serve as the representative of the Company in all matters related to the Contract
and shall inform the City in writing of such designation and of any limitations upon his
or her authority to bind the Company. The City may rely upon action taken by such
designated representative as actions of the Company unless they are outside the scope
of the authority delegated to him/her by the Company as communicated to the City.
12.16 City Free to Negotiate with Third Parties
Notwithstanding the exclusive nature of the Franchise, the City may investigate all
options for the Collection, transporting, Recycling, processing and Disposal of Solid
Waste at any time prior to the expiration of the Term. Without limiting the generality
of the foregoing, the City may solicit proposals from the Company and from third par-
ties for the provision of Collection services, Disposal services, Recycling services,
Greenwaste services and processing, and any combination thereof, and may negotiate
and execute agreements for such services which will take effect upon the expiration or
earlier termination under Section 11.1 (Events of Default) of this Contract.
City of Palm Desert Page 118 5/15/2009
12.17 Compliance with Municipal Code
The Company shall comply with those provisions of the municipal code of the City
which are applicable, and with any and all amendments to such applicable provisions
during the term of this Contract. The Company and any subcontractors must maintain a
current City business license during the term of this Contract.
12.18 Privacy
The Company shall strictly observe and protect the rights of privacy of Customers.
Information identifying individual Customers or the composition or contents of a
Customer's waste stream shall not be revealed to any Person, governmental unit,
private agency, or company, unless upon the authority of a court of law, by statute, or
upon valid authorization of the Customer. This provision shall not be construed to
preclude the Company from preparing, participating in, or assisting in the preparation
of waste characterization studies or waste stream analyses which may be required by
AB 939. This provision shall not apply to reports or records provided to City pursuant
to this Contract so long as City maintains reports or records with Customer
identification or confidential information in accordance with this Section 12.19, in which
case this Section 12.19 shall apply to City in the same manner to which it applies to
Company.
12.19 Cooperation Following Termination
Prior to, and at, the end of the Term or in the event this Contract is terminated for cause
prior to the end of the Term, the Company covenants to cooperate fully with the City
and any subsequent company to assure a smooth transition of Solid Waste management
services. The Company's cooperation shall include, but not be limited to, providing
operating records needed to service all properties covered by this Contract. The failure
to cooperate with City following termination shall be conclusively presumed to be
grounds for specific performance of this covenant and/or other equitable relief
necessary to enforce this covenant.
Company shall provide a new service provider with all keys, security codes and remote
controls used to access garages and Bin enclosures. Company shall be responsible for
coordinating transfer immediately after Company's final pickups, so as not to disrupt
service. Company shall provide City with detailed route sheets containing service
City of Palm Desert Page 119 5/15/2009
names and addresses, Billing names and addresses, monthly rate and service levels
(number and size of Containers and pickup days) at least 90 days prior to the transition
date, and provide an updated list two weeks before the transition and a final list of
changes the day before the transition. Company shall provide means of access to the
new service provider at least one full business day prior to the first day of Collection by
another party, and always within sufficient time so as not to impede in any way the
new service provider from easily servicing all Containers.
12.20 Compliance with Immigration Laws
The Company agrees that, in the performance of this Contract, it will comply with all
immigration laws.
12.21 Proprietary Information, Public Records
The City acknowledges that a number of the records and reports of the Company are
proprietary and confidential. Regular monthly, quarterly, and annual reports described
in Sections 8.3.2, 8.3.3, and 8.3.4 are not proprietary. The Company is obligated to
permit the City inspection of its records on demand and to provide copies to the City
where requested. The City will endeavor to maintain the confidentiality of all
proprietary information provided by the Company. Notwithstanding the foregoing,
and notwithstanding Section 12.19 (as it applies to City), any documents provided by
the Company to the City that are public records may be disclosed pursuant to a proper
public records request.
12.22 Guarantee of Contractor's Performance
Pursuant to a guarantee in substantially the form attached as Exhibit 5, Burrtec Waste
Group, Inc., , a California corporation, has agreed to guarantee the performance of this
Contract by Burrtec Waste and Recycling Services, LLC. The Guarantee is being
provided concurrently with the Company's execution of this Contract.
City of Palm Desert Page 120 5/15/2009
12.23 Attorney's Fees
In any action or proceeding to enforce or interpret any of the terms or conditions of this
Contract the prevailing party shall be entitled to an award to attorney's fees in the
amount reasonably incurred in the prosecution or defense of such action. The term
"prevailing party" shall mean the party entitled to recover costs of suit, upon the
conclusion of the matter, in accordance with the laws of the State of California.
City of Palm Desert Page 121 5/15/2009
ARTICLE 13
MISCELLANEOUS AGREEMENTS
13.1 Entire Contract
This Contract, including the Exhibits, represents the full and entire Contract between
the parties with respect to the matters covered herein. No verbal agreement or
conversation with any office, agent, or employee of the City, either before, during, or
after the execution of this Contract, shall affect or modify any of the terms or obligations
herein contained nor such verbal agreement or conversation entitle the Company to any
additional payment whatsoever under the terms of this Contract.
13.2 Section Headings
The article headings and section headings in this Contract are for convenience of
reference only and are not intended to be used in the construction of this Contract nor
to alter or affect any of its provisions.
13.3 References to Laws and Other Contracts
All references in this Contract to laws shall be understood to include such laws as they
may be subsequently amended or recodified, unless otherwise specifically provided.
This Contract supersedes any and all agreements heretofore entered into by the parties
and the City.
13.4 Interpretation
This Contract, including the exhibits attached hereto, shall be interpreted and construed
reasonably and neither for nor against either party, regardless of the degree to which
either party participated in its drafting.
13.5 Contract
This Contract may not be modified or amended in any respect except by a writing
signed by the parties.
City of Palm Desert Page 122 5/15/2009
13.6 Severability
If any non-material provision of this Contract is for any reason deemed to be invalid
and unenforceable, the invalidity or unenforceability of such provision shall not affect
any of the remaining provisions of this Contract which shall be enforced as if such
invalid or unenforceable provision had not been contained herein.
13.7 Exhibits
Each of the Exhibits identified in this Contract is attached hereto and incorporated
herein and made a part hereof by this reference.
13.8 Non-Waiver Provision
Failure of either party to exercise any of the remedies set forth herein within the time
periods provided for shall not constitute a waiver of any rights of that party with
regard to that failure to perform or subsequent failures to performing whether
determined to be a breach, excused performance or unexcused defaults by the other
party.
IN WITNESS WHEREOF, the City and the Company have executed this Contract as of the day
and year first above written.
CITY OF PALM DESERT
ATTEST: By
CITY CLERK MAYOR,CITY OF PALM DESERT
APPROVED AS TO FORM:
CITY ATTORNEY
BURRTECT WASTE AND RECYCLING SERVICES,LLC
By:
Name:
Title:
City of Palm Desert Page 123 5/15/2009
EXHIBIT 1
CITY FACILITIES
City facilities to receive refuse, recycling, greenwaste, and all other collection services
offered to the City, processing and disposal services at no additional cost to the City or
ratepayers include, but are not limited to the following locations:
LOCATION SERVICE ADDRESS
Behind Civic Center 73510 Magnesia Falls Road
City Hall 73510 Fred Waring Dr.
Community Center 45480 Partola Ave.
Enclosed yard 47500 Portola Ave.,North ar Haystack
Riv.County Fire Dept. 44400 Town Center Way
Historical Society 72-861 El Paseo
Yard 74833 Joni Dr.
Parks&Recreation 43900 San Pablo Ave.
Public Warks Yard 74796 Velie Way
PDHS Sports 43570 Cook St.
Soccer Park 74735 Hovley Ln.
Fire Station 73200 Mesa View Dr.
Fire Station 73995 Couniry Club Dr.
Visitors Bureau 72990 Hwy 111
Riv.Co.Sheriff's Dept. 73520 Fred Waring Dr.
Palm Desert Library 73300 Fred Waring Dr.
3 Acre Park P.D.C.C.Association BuIlding
All City Parks
Ironwood Park 47-800 Chia Dr.
Freedom Park 77-400 Country Club Dr.
University Village Park
City of Palm Desert Page 124 5/15/2009
EXHIBIT 2
PUBLIC EDUCATION PLAN
(to be prepared by Company)
City of Palm Desert Page 125 5/15/2009
EXHIBIT 3
INITIAL MAXIMUM RATES
Residential Monthlv Service Rates*
Individually Billed Customers Master-Billed Customers-Discounted
Monthly Monthly
Service �te Service Rate
Automated Refuse Service-per Cart(first Automated Refuse Service-per Cart(first
cart)(1) cart)
-96 Gallon Cart $ 10.58 -96 Gallon Cart $ 9.41
-64 Gallon Cart $ 8.46 -64 Gallon Cart $ 7.53
-32 Gallon Cart $ 6.35 -32 Gallon Cart $ 5.65
Manual Curbside Service-per Unit $ 11.64 Manual Curbside Service
-Single Family or Multi-Family $ 1036
Manual Walk-in Service-per Unit $ 20.37 -Single Family or Multi-Family 2/wk $ 13.65
Manual In-Groung Can-per Unit $19.32 -Mobile Home Park-Per Unit $ 9.41
Automated Walk-in Fee-per Unit(2) $ 8.74 Manual In-Ground Can $ 13.18
Automated Walk-in Fee-add'l carts(3) $ 8.74 Manual In-Ground Can 2/wk $ 16.48
Greenwaste Container Service $ 1.14 Automated Walk-in Fee-per Unit(2) $ 7.78
Automated Walk-in Fee-add'1 carts(3)
For Individually or Master-Billed Accounts
Additional Refuse Cart-Cart Size Monthly Greenwaste Container Service $ 1.02
Rate
Automated 96 Gallon Cart $ 5.29
Automated 64 Gallon Cart $ 4.23
Automated 32 Gallon Cart $ 3.18
(1)Small volume commercial customers with automated carts shall pay this rate for each refuse cart.
(2)Walk-in Customers shall be charged this rate,in addition to basic service rate,for one refuse cart and one
recycle cart. Disabled customers shall not be charged extra for this service.
(3)Customers paying far walk-in service shall pay this fee for each additional cart.
Additional Residential Services*
Description Rate
Bulky Item Pick-up-each item beyond four per pick-up $ 1 1.86
Bulky Item Pick-up-Apartment complex includes four items (per Section 4.5.2) $ 50.00
Suspension of service/Restart Fee- $ 17.10
following voluntary or involuntary suspension of service
Returned Check Fee $ 17.79
Cart Exchange- for entire HOA's(per cart exchanged) $ 7.12
*Adjust using formula from Exhibit 4A
May 15, 2009 3-1 Cify of Palm Desert
EXHIBIT 3 (continued)
INTIAL MAXIMUM RATES
Commercial Service Rates*
Commercial Collection
Pickups er Week
Container Size 1 2 3 4 5 6
Commercial Refuse Cart $ 10.58 $ 21.16 $ 31.74 $ 42.32 $ 52.90 $ 63.48
2 Cubic Yards $ 67.27 $ 117.95 $ 169.02 $ 219.55 $ 270.45 $ 354.04
3 Cubic Yards $ 88.60 $ 158.29 $ 206.48 $ 290.95 $ 361.01 $ 430.87
4 Cubic Yards $ 121.79 $ 204.40 $ 289.75 $ 375.43 $ 480.78 $ 539.44
6 Cubic Yards $ 184.59 $ 310.29 $ 440.48 $ 570.57 $ 689.46 $ 820.96
**Locking Bin Fee $ 8.00 $ 16.00 $ 24.00 $ 32.00 $ 40.00 $ 48.00
**Locking Bin Fee is a monthly charge based on number of pick ups per week
2-Yard - Extra Empty $ 31.48
3-Yard - Extra Empty $ 43.14
4-Yard - Extra Empty $ 58.29
6-Yard - Extra Empty $ 87.44
Temporary front end load bin- initial delivery, pickup, and disposal $ 116.58
Temporary front end load bin- additional dumps $ 116.58
Contaminated Recycling Container Charge - Bin (Extra Empty Charge)
Re-Start Fee- following voluntary or involuntary suspension of service $ 17.10
Returned Check Fee $ 17.79
Bin Cleaning/Enclosure Clean-up Charge (for overflowed bins, after required warnings $ 35.00
Emergency Service -hourly rate for one crew member and one collection truck $ 85.00
*Adjust using formula from Exhibit 4B
May 15, 2009 3-2 City of Palm Desert
EXHIBIT 3 (continued)
INTIAL MAXIMUM RATES
Roll-off and Compactor Services
Roll-off and Compactor rates are pull, plus disposal, plus delivery charge for initial
delivery, if applicable.
Description Rate Per Pull or
Standard Refuse Pull Charge(c) $ 120.70
Standard Greenwaste/Construction&Demolition Pull Charge (c ) $ 114.64
Compactor Pull Charge(c ) $ 194.78
Landfill Disposal Charge actual cost(a)
Greenwaste Disposal Charge actual cost(b)
Construction and Demolition Disposal Charge actual cost(c)
Rental Fee Per Day $ 8.00
(a)The disposal charge per ton includes both the landfill tipping fee(actual cost)and the
City's recycling fee of$8.25 per ton.
(b) Temporary roll off customers may be charged a delivery charge, a pull charge,plus four tons of
disposal. If disposal tonnage is less than four tons or greater than four tons,the customer will be
credited/charged accordingly.
(c)Roll-off customers may be charged a box rental fee after seven(7)business days if there has
been no pulls within the 7-day period. Roll-off customers who are using roll-off for recycling
purposes are not charged this fee.
Additional Services
Description Rate
Roll-o0ff Delivery or Relocation Charge $ 17.10
Returned Check Fee $ 17.79
*Adjust using formula from E�ibit 4C
May 15, 2009 3-3 City of Palm Desert
May 15, 2009 3-4 City of Palm Desert
EXHIBIT 4
RATE ADJUSTMENT FORMULA
4A. Cart Customers
4B. Bin Customers
4C. Roll-off Box Rates
May 15, 2009 City of Palm Desert
EXHIBIT 4A
Example Rate Adjustment- Cart Customers
Ste One: Deduct franchise fees from ross rate revenue
Revenue Com onent includin franchise fees Annual Amount a
Gross Residential Rate Revenue $2,500,000
Residential Franchise Fees(b) $200,000
Residential Rate Revenue Net of Franchise Fees $2,300,000
Step Two:Determine disposal ex ense,rec ciln fees,and service
Revenue Component(net of Franchise Fees) Annual Amount Percentage of Rate Revenue Net
of Franchise Fees
Residential Rate Revenue Net of Franchise Fees(c) $2,300,000 100%
Less: Actual Residential refuse Disposal Expense $575,000 25%
Less: Actual Residential Recycling Fees 230 000 10%
Residential Service Revenue $1,495,000 65%
Ste Three: Caluclate ercenta e chan e in ad'ustment factors
Rate
Adjustment Factor Old New Index Change Component
Percent Change
d
Disposal Tipping Fee per Ton $34.33 $36.00 5% 1.3%
Recycling Fee per ton $8.25 $8.25 0% 0.0%
Producer Price Index 168.8 172.0 1.9% 1.2%
Step Four: Calculate wei hted ercenta e chan e in sin le famil rates
Components of Actual Revenue Component Rate Component Percent Weighted Rate
Wei ht e Change(� Ad'ustment
Refuse Disposal 25% 1.3% 0.3%
Recycling Fee 10% 0.0% 0.0%
Service 65% 1.2% 0.8%
Total 100% 1.1%
Ste Five: A I wei hted ercenta e chan e to sin le famil rates
Current Monthly Rate Weighted Rate Adjusted
Service(g) Exam le Onl h Ad ustment � Rate Change Monthl Rate
� P Y)O 1 I�) Y G)
90-gallon automated cart collection $10.58 1.1% $0.12 $10.70
Manual curbside collection $11.64 1.1% $0.13 $11.77
Walk-in service fee $8.74 1.1% $0.10 $8.84
(a)For the twelve months ending the December before the July 1 rate adjustment.
(b)Franchise fee is 8%of gross revenue less disposal fees and per ton recyciing fees.
(c)From Step One above.
(d)"Index Change"multiplied by"Allowable Portion of Index Change."
(e)From"Percentage of Rate Revenue Net of Franchise Fees"in Step Two.
(f)From last column in Step Three.
(g)Not all rate categories are shown in this example.
(h)The weighted rate adjustment should be applied to the total rate, including Franchise Fee portion of the rate.
(i)From weighted rate adjustment in Step Four.
Q)"Current Monthly Rate"plus"Rate Change."
May 15, 2009 5-1 City of Palm Desert
EXHIBIT 4B
Example Rate Adjustment- Bin Customers
Ste One: Deduct franchise fees from ross rate revenue
Revenue Com onent includin franchise fees Annual Amount a
Gross Commercial and Multi-Family Rate Revenue $2,500,000
Commercial and Multi-Family Franchise Fees(b) $200,000
Commercial and Multi-Famil Rate Revenue Net of Franchise Fees $2,300,000
Ste Two: Determine dis osal ex ense, rec ciln fees, and service
Revenue Component(net of Franchise Fees) Annual Amount Percentage of Rate Revenue Net
of Franchise Fees
Commercial and Multi-Family Rate Revenue Net of Franchise Fees(c) $6,700,000 100%
Less: Actual Commercial and Multi-Family refuse Disposal Expense $736,000 32%
Less: Actual Commercial and Multi-Family Recycling Fees 230 000 10%
Commercial and Multi-Famil Service Revenue $5,734,000 58%
Ste Three: Caluclate ercenta e chan e in ad'ustment factors
Rate
Adjustment Factor Old New Index Change Component
Percent Change
d
Disposal Tipping Fee per Ton $34.33 $36.00 5% 1.6%
Recycling Fee per ton $8.25 $8.25 0% 0.0%
Producer Price Index 168.8 172.0 1.9% 1.1%
Ste Four: Calculate wei hted ercenta e chan e in sin le famil rates
Components of Actual Revenue Component Rate Component Percent Weighted Rate
Wei ht e Chan e Ad'ustment
Refuse Disposal 32% 1.6% 0.5°/a
Recycling Fee 10% 0.0% 0.0°/a
Service 58% 1.1% 0.6%
Total 100% 1.1%
Ste Five: A I wei hted ercenta e chan e to sin le famil rates
Current Monthly Rate Weighted Rate Rate Change Adjusted
Service(g) (Example Only)(h) Adjustment(i) Monthly Rate(j)
One 3-yard bin once per week $88.60 1.1% $0.97 $89.57
One 3-yard bin twice per week $158.29 1.1% $1.74 $160.03
One 3-yard bin three times per week $206.48 1.1% $2.27 $208.75
One 3-yard bin four times per week $290.95 1.1% $3.20 $294.15
One 3-yard bin five times per week $361.01 1.1% $3.97 $364.98
One 3-yard bin six times per week $430.87 1.1% $4.74 $435.61
Extra 3- ard em t $43.14 1.1% $0.47 $43.61
(a)For the twelve months ending the December before the July 1 rate adjustment.
(b)Franchise fee is 8°/a of gross revenue less disposal fees and per ton recyciing fees.
(c)From Step One above.
(d)"Index Change"multiplied by"Allowable Portion of Index Change."
(e)From"Percentage of Rate Revenue Net of Franchise Fees"in Step Two.
(f)From last column in Step Three.
(g)Not all rate categories are shown in this example.
(h)The weighted rate adjustment should be applied to the total rate, including Franchise Fee portion of the rate.
(i)From weighted rate adjustment in Step Four.
Q)"Current Monthly Rate"plus"Rate Change."
May 15, 2009 5-2 City of Palm Desert
EXHIBIT 4C
Example Rate Adjustment- Roll-off Box Rates
Step One: Calculate percentage change in Producer Price Index
PPI Index%
Adjustment Factor Old New Chan e
Producer Price Index 168.8 172.0 1.9%
Step Two: Apply 100% of percentage change in Producer Price Index to Service Portion of
Roll-off rates
Current Rate Rate Adjustment Rate Adjusted
Service Percent Change Chan e Rate
Standard roll-off charge per load(b) $ 120.70 1.9% $ 2.29 $ 122.99
Compactor charge per load $ 194.78 1.9% $ 3.70 $ 198.48
Delivery or relocation charge $ 17.10 1.9% $ .32 $ 17.42
b) Excluding Disposal. Disposal is billed at actual cost based on the tipping fee per ton at landfill used by
the Company,plus the Recycling Fees,multiplied by the number of tons.
May 15, 2009 5-3 City of Palm Desert
EXHIBIT 5
CORPORATE GUARANTY
Guaran
THIS GUARANT'Y (the "Guaranty) is given as of the day of , 2009.
THIS GUARANTY is made with reference to the following facts and circumstances:
A. Waste Management of California, Inc. d/b/a Waste Management of the Desert,
hereinafter ("Owner") is a corporation organized under the laws of the State of
California, all of the issued and outstanding stock of which is owned by Waste
Management, Inc. (Guarantor).
B. Owner and the City of Palm Desert ("the City") have negotiated an Contract for
Collection, Processing, and Disposal of Solid Waste dated as of ,
(hereinafter "Contract"). A copy of this Contract is attached hereto.
C. It is a requirement of the Contract, and a condition to the City entering into the
Contract, that Guarantor guaranty Owner's performance of the Contract.
D. Guarantor is providing this Guaranty to induce the City to enter into the
Contract.
NOW, THEREFORE, in consideration of the foregoing, Guarantor agrees as follows:
1. Guaranty of the Contract. Guarantor hereby irrevocably and unconditionally
guarantees to the City the complete and timely performance, satisfaction and
observation by Owner of each and every term and condition of the Contract which
Owner is required to perform, satisfy or observe. In the event that Owner fails to
perform, satisfy or observe any of the terms and conditions of the Contract, Guarantor
will promptly and fully perform, satisfy or observe them in the place of the Owner or
cause them to be performed, satisfied or observed. Guarantor hereby guarantees
payment to the City of any damages, costs or expenses which might become
recoverable by the City from Owner due to its breach of the Contract.
May 15, 2009 5-4 City of Palm Desert
2. Guarantor's Obli�ations Are Absolute. The obligations of the Guarantor
hereunder are direct, immediate, absolute, continuing, unconditional and unlimited,
and with respect to any payment obligation of Owner under the Contract, shall
constitute a guarantee of payment and not of collection, and are not conditional upon
the genuineness, validity, regularity or enforceability of the Contract. In any action
brought against the Guarantor to enforce, or for damages for breach of, its obligations
hereunder, the Guarantor shall be entitled to all defenses, if any, that would be
available to the Owner in an action to enforce, or for damages for breach of, the
Contract (other than discharge of, or stay of proceedings to enforce, obligations under
the Contract under bankruptcy law).
3. Waivers. Except as provided herein the Guarantor shall have no right to
terminate this Guaranty or to be released, relieved, exonerated or discharged from its
obligations under it for any reason whatsoever, including, without limitation: (1) the
insolvency, bankruptcy, reorganization or cessation of existence of the Owner; (2) the
actual or purported rejection by a trustee in bankruptcy of the Contract, or any
limitation on any claim in bankruptcy resulting from the actual or purported
termination of the Contract; (3) any waiver with respect to any of the obligations of the
Contract guaranteed hereunder or the impairment or suspension of any of the City's
rights or remedies against the Owner; or (4) any merger or consolidation of the Owner
with any other corporation, or any sale, lease or transfer of any or all the assets of the
Owner. Without limiting the generality of the foregoing, Guarantor hereby waives the
rights and benefits under California Civil Code Section 2819.
The Guarantor hereby waives any and all benefits and defenses under California Civil
Code Section 2846, 2849, and 2850, including without limitation, the right to require the
City to (a) proceed against Owner, (b) proceed against or exhaust any security or .
collateral the City may hold now or hereafter hold, or (c) pursue any other right or
remedy for Guarantor's benefit, and agrees that the City may proceed against
Guarantor for the obligations guaranteed herein without taking any action against
Owner or any other guarantor or pledgor and without proceeding against or
exhausting any security or collateral the City may hold now or hereafter hold. City
may unqualifiedly exercise in its sole discretion any or all rights and remedies available
to it against Owner or any other guarantor or pledgor without impairing the City's
rights and remedies in enforcing this Guaranty.
May 15, 2009 5-5 City of Palm Desert
The Guarantor hereby waives and agrees to waive at any future time at the request of
the City to the extent now or then permitted by applicable law, any and all rights which
the Guarantor may have or which at any time hereafter may be conferred upon it, by
statute, regulation or otherwise, to avoid any of its obligations under, or to terminate,
cancel, quit or surrender this Guaranty. Without limiting the generality of the
foregoing, it is agreed that the occurrence of any one or more of the following shall not
affect the liability of the Guarantor hereunder: (a) at any time or from time to time,
without notice the Guarantor, performance or compliance herewith is waived; (b) any
other of any provision of its Contract indemnification with respect to Owner's
obligations under the Contract or any security therefore is released or exchanged in
whole or in part or otherwise dealt with; or (c) any assignment of the Contract is
effected which does not require the City's approval.
The Guarantor hereby expressly waives, diligence, presentment, demand for payment
or performance, protest and all notices whatsoever, including, but not limited to,
notices of non-payment or non-performance, notices of protest, notices of any breach or
default, and notices of acceptance of this Guaranty. If all or any portion of the
obligations guaranteed hereunder are paid or performed, Guarantor's obligations
hereunder shall continue and remain in full force and effect in the event that all or any
part of such payment or performance is avoided or recovered directly or indirectly from
the City as a preference, fraudulent transfer or otherwise, irrespective of (a) any notice
of revocation given by Guarantor or Owner prior to such avoidance or recovery, and (b)
payment in full of any obligations then outstanding.
4. Term. This Guaranty is not limited to any period of time, but shall continue in
full force and effect until all of the terms and conditions of the Contract have been fully
performed or otherwise discharged and Guarantor shall remain fully responsible under
this Guaranty without regard to the acceptance by the City of any performance bond or
other collateral to assure the performance of Owner's obligations under the Contract.
Guarantor shall not be released of its obligations hereunder so long as there is any claim
by the City against Owner arising out of the Contract based on Owner's failure to
perform which has not been settled or discharged.
May 15, 2009 5-6 City of Palm Desert
5. No Waivers. No delay on the part of the City in exercising any rights under this
Guaranty or failure to exercise such rights shall operate as a waiver of such rights. No
notice to or demand on Guarantor shall be a waiver of any obligation of Guarantor or
right of the City to take other or further action without notice or demand. No
modification or waiver of any of the provisions of this Guaranty shall be effective unless
it is in writing and signed by the City and by Guarantor, nor shall any waiver be
effective except in the specific instance or matter for which it is given.
6. Attorney's Fees. In addition to the amounts guaranteed under this Guaranty,
Guarantor agrees in the event of Guaranty's breach of its obligations including to pay
reasonable attorney's fees and all other reasonable costs and expenses incurred by the
City in enforcing this Guaranty, or in any action or proceeding arising out of or relating
to this Guaranty, including any action instituted to determine the respective rights and
obligations of the parties hereunder.
7. Governing Law: Turisdiction. This Guaranty is and shall be deemed to be a
contract entered into in and pursuant to the laws of the State of California and shall be
governed and construed in accordance with the laws of California without regard to its
conflicts of laws, rules for all purposes including, but not limited to, matters of
construction, validity and performance. Guarantor agrees that any action brought by
the City to enforce this Guaranty may be brought in any court of the State of California
and Guarantor consents to personal jurisdiction over it by such courts. Guarantor
appoints the following person as its agents for service of process in California:
With a copy by certified mail to:
May 15, 2009 5-7 City of Palm Desert
8. Severability. If any portion of this Guaranty is held to be invalid or
unenforceable, such invalidity will have not effect upon the remaining portions of this
Guaranty, which shall be severable and continue in full force and effect.
9. Bindin�On Successors. This Guaranty shall inure to the benefit of the City and
its successors and shall be binding upon Guarantor and its successors, including
transferee(s) of substantially all of its assets and its shareholder(s) in the event of its
dissolution or insolvency.
10. Authori . Guarantor represents and warrants that it has the corporate power
and authority to give this Guaranty, that its execution of this Guaranty has been
authorized by all necessary action under its Article of Incorporation and By-Laws, and
that the person signing this Guaranty on its behalf has the authority to do so.
11. Notices. Notice shall be given in writing, deposited in the U.S. mail, registered
or certified, first class postage prepaid, addressed as follows:
To the City: City Manager
City of Palm Desert
73510 Fred Waring Drive
Palm Desert, CA 92260
with a copy to the City Counsel at the same address.
To the Guarantor:
By:
(title)
By:
(title)
May 15, 2009 5-8 City of Palm Desert
EXHIBIT 6
COMPANY'S FAITHFUL PERFORMANCE BOND
KNOW ALL MEN BY THESE PRESENTS:
That , a California , as PRINCIPAL, and
, a Corporation organized and doing business by
virtue of the laws of the State of California, and duly licensed for the purpose of
making, guaranteeing, or becoming sole surety upon bonds or undertakings required or
authorized by the laws of the State of California, as SURETY, are held and firmly bound
to City, hereinafter called OBLIGEE, in the penal sum of One Million
Dollars($1,000,000.00) lawful money of the United States, for the payment of which,
well and truly to be made, we and each of us hereby bind ourselves, and our and each
of our heirs, executors, administrators, successors, and assigns,jointly and severally,
firmly by these presents.
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH THAT:
WHEREAS, the above bounden PRINCIPAL has entered into a Contract, entitled
"INTEGRATED SOLID WASTE MANAGEMENT SERVICES" with the City of Palm
Desert, to do and perform the following work, to wit: Collect, Process and Dispose of
Solid Waste generated within City, in accordance with the Contract.
NOW, THEREFORE, if the above bounden PRINCIPAL shall well and truly perform, or
cause to be performed each and all of the requirements and obligations of said Contract
to be performed by said PRINCIPAL, as in said Contract set forth, then this BOND shall
be null and void; otherwise it will remain in full force and effect.
And the said Surety, for value received hereby stipulates and agrees that no change,
extension of time, alteration or addition to the terms of the Contract or to the work to be
performed thereunder or the specifications accompanying the same shall in any wise
affect its obligations on this BOND, and it does hereby waive notice of any such change,
extension of time, alteration or addition to the terms of the Contract or to the work or to
the specifications.
May 15, 2009 6-1 City of Palm Desert
IN WITNESS WHEREOF, said PRINCIPAL and said SURETY have caused these
presents to be duly signed and sealed this DAY OF , 2009.
a California Corporation SURETY
By: By:
(PRINCIPAL) (ATTORNEY IN FACT)
(SEAL) (SEAL)
May 15, 2009 6-2 City of Palm Desert
EXHIBIT 7
NOTARY CERTIFICATION
STATE OF CALIFORNIA)
COUNTY OF ) ss:
On , , before me, the undersigned, a Notary Public in and for the
State of California, personally appeared
, known to me to be the
of the Company that executed the within instrument
on behalf of the Company therein named, and acknowledged to me that such the
Company executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal in the
County of this day of ,
Notary Public
My Commission Expires:
May 15, 2009 7-1 City of Palm Desert