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HomeMy WebLinkAbout39-Public Services ORIGINAL. CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: Ken Fischer, Director Subject: Resolution authorizing the execution of an Agreement between the Dept: Public Services City of San Bernardino and Burbank Recycling Inc. for commingled recycling Date: October 25, 2006 services. Meeting Date: November 6, 2006 Synopsis of Previous Council Action: 9-20-2006 Ways and Means Committee Item continued 10-11- 2006 Ways and Means Committee Recommended for full Council Approval Recommended Motion: Adopt Resolution i nature Contact person: Ken Fischer, Director Phone: 5140 Supporting data attached: Staff Report, Ward: All Resolution; Agreement FUNDING REQUIREMENTS: Amount: None by this action; due to expiration of the previous contract, revenues will decline by $360,000.00. Source: Finance: Council Notes: Agenda Item No. 3q I i CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION Staff Report Subject: Resolution authoring the execution of an Agreement between the City of San Bernardino and Burbank Recycling Inc. for commingled recycling services. Background: The 5 year recycling contract the City had with Burrtec expired on February 7, 2006. Since that time the City has been operating with Burbank Recycling on a month to month basis. The City issued an October 2005 Request for Proposals to Provide Commingled and Commercial Recycling Processing to establish a new agreement. Proposals were sent to all identified materials recovery facility operators in Southern California, using the California Integrated Waste Management Board's permitted facilities list. The Proposal request indicated that we hoped to sign a seven-year agreement, with three automatic one-year renewals. The purpose of the initial term is to coincide with the Waste Delivery Agreement between the City and County, which expires December 31, 2012. At that time the City will need to have identified and be prepared to implement a material handling strategy that will incorporate recycling, trash and green material. We will no longer be able to depend on local landfills for our daily refuse disposal needs. The option years would be at the City's discretion and provide some insurance should our long term strategy require additional time to implement. Following a pre-bid conference, 5 proposals were received in November 2005. All bidders operate facilities processing commingled residential and commercial recycling collected from Southern California cities, and all are well regarded for their operations. The companies and a brief description of their proposed services includes: • Allan Company would process the City's recycling at its Baldwin Park facility. They propose leasing or renting 15,000 to 20,000 square feet at the City Public Services Yard, and transporting material in trailers. Allan Company proposed paying $17.50/ton for recyclable material, and nothing for trash in the recycling materials. i • Burbank has negotiated a collection and transfer station use agreement with Republic Services at its Inland facility on Steel Road, just south of Hospitality Lane and Hunts Lane. Burbank Recycling would pay $15/ton for delivered material, net of trash mixed with the material. • Burrtec Waste Industries proposes receiving City recycling material either at its Robert A. Nelson Transfer Station, near Rubidoux, or at Jack's Disposal on Industrial Parkway. Material at Jack's would be charged $10.83 per ton for delivery to Robert A. Nelson. Processing would be charged at $52/ton, with the City receiving 80% of recovered materials value. Disposal of trash from the recyclable processing would be charged $19.93/ton, plus $11/ton transfer, to Orange County. • Republic Services operates the Inland Regional Material Recovery Facility on Steel Road in Colton. They propose to receive all recycling directly from City collection trucks. Processing would be charged at $41/ton, with the City receiving 90% of materials sales revenue. Disposal of trash mixed with the recyclables in San Bernardino County landfills would cost $45.32/ton including transfer. • Sunrise Industries, d.b.a. Pomona Valley Recycling Center, would receive City recycling at the Inland Regional MRF and transport it to their Pomona facility for sorting. Processing would be charged at $62.85/ton, and to dispose of trash mixed with recyclables would cost $24.42/ton. They City would receive market value, set using indices and market price guides for material. Each bidder proposed pricing based on 14,859 total tons delivered by the City, which was the tonnage recovered for fiscal year 2004/05 under the Burrtec processing agreement. Staff used the proposed pricing formulas from each bidder and determined what the revenue generation would be for material with 25%, 35% and 45% trash mixed in with the recyclables. Each company was asked to verify in writing that the City correctly applied their proposed formulas. The verifications of our correct application of the formulas are attached. In order to test recovery at each of the five proposed facilities, City staff arranged to ship recycling loads to each company for processing and determination of the actual amount of trash mixed in with our typical recycling loads. Rain and operational delays caused an unexpectedly lengthy period for these characterizations. However, upon completion, it appears that high trash levels in the recyclables (from 40% to 60%) are the norm. Each of these material sorts were witnessed and verified by City staff. The results from each company are attached. 2 Below are annual revenue comparisons assuming a 50% trash mixed with recyclables, using revenues identified in each company's proposal. Bidder Processing Disposal Materials Variance Revenue to Sales City Allan Co. Inc. Inc. $130,016.60 $130,016.60 $130,016.60 Burbank Recycling Inc. Inc. $133,731.53 $133,731.53 $133,731.53 Burrtec -$772,670.77 -$229,795.26 $812,015.88 -$190,450.15 $0 Republic Services -609,219.00 -$336,704.94 $951,618.61 $5,694.67 $5,694.67 Sunrise Industries -$933,890.66 -$181,428.88 $753,650.80 -$361,668.74 $0 The high trash levels work in favor of pricing methods based on a net tons recovered value (Allan Company and Burbank Recycling). Those two proposals set a fixed value for all incoming material, and adjust the City's share on either recovered tonnage (Allan Company) or by trash disposal (Burbank Recycling). Allan Company determined, after two separate sorts of our material, that the City's recycling is too high in trash content to handle under the proposed arrangement and has withdrawn from further consideration. However, Burbank Recycling is prepared to stand by its proposal. The other three proposals would charge a processing fee for all delivered tons, charge for disposal, and share in recovered materials revenues. A consequence of this pricing approach is that the City's revenues decline as trash levels increase. Burrtec Waste Industries and Sunrise Industries pricing would result in no net recycling revenue to the City. Republic Services would show a small surplus. It is clear that the City's recycling collection is highly contaminated with trash. A new and concentrated effort to reduce trash levels is underway, beginning with additional residential collection routes and the newly hired refuse inspector position. As proactive efforts result in trash contamination decline, some of the alternative pricing arrangements could yield more revenue to the City (depending on market conditions, increased processing costs and landfill pricing). However, it is not clear how long it would take to reduce trash contamination to realize these benefits. The Council Ways and Means Committee reviewed the proposals from each company and requested that staff ask the bidders if they would agree to a 3 year agreement rather than the longer term 6 year agreement and what impact that change would have on their original proposal. The shorter term was to give staff time to work on reducing the amount of trash mixed in with recyclables and thereby make it more valuable to recycling processors. Staff received only two written responses to this request. Republic stated their proposal would not change if a shorter term were offered. Allan Company indicates that residue is too high to handle under the proposed arrangement, and has since withdrawn its proposal. 2 Proposal sets a 40% trash mix. 3 Proposal is net/floor price not less than $0/ton. 3 Burbank indicated that it takes longer than 3 years to establish an effective program. They did not wish to sign a shorter-term agreement, but they recognized the desire of the City to receive a higher level of payment per ton, if the City were successful in cleaning the material. Burbank offered to pay $15 per ton for material for the first three years and then allow a re-sort of the material to determine the percentage change in the trash content. They also agreed to freeze the City waste at 40% of the total recycling load. The following table describes the material value based on percent of trash mixed with the recycling and the annual payment to the City if these rates are achieved. Tonnage Percent Trash Payment per Ton Annual Payment 14859 30% $20 $208,026 14859 25% $22.50 $250,745 14859 20% $25 $297,180 14859 15% $30 $378,904 14859 10% $40 $534,924 Staff looked at what percent of trash mix would be required to swing the most favorable proposal offered by Burbank toward the proposal offered by Republic. It would take a 5% downward shift in the percent of trash in the recyclables for the proposal from Republic to match that offered by Burbank. A 5% downward shift is equal to 743 tons or 1,486,000 pounds of material. Each year we collect about 338 pounds of recycling material from each residence. Therefore, to change the overall material mix from 50% contamination to 45% we would need to have 4,396 homes reduce the amount of trash in their recycling container from 50% to 0% and sustain that effort over the course of a year. Staff believes, and the Ways and Means Committee concurred, that it would be difficult to achieve the level of participation in the residential areas and sustain it at a level that would swing the most favorable proposal. The Ways and Means Committee recommended awarding a six-year contract with three automatic one-year renewals to Burbank for recycling services. The renewals will not occur if the City provides 180 days written notice on non-renewal. Financial Impact: The fiscal year 2006/07 budget anticipated $500,000 in revenue from recycling. The proposed agreement will generate approximately $133,731 during each of the first three years and increase based on the improved material mix after 3 years. Therefore, total revenues will be approximately $360,000 less per year than was budgeted for the first three years, primarily due to the high level of trash in our delivered material. Additional revenue will be realized as the recycling load becomes cleaner with efforts to educate the public and enforce the proper use of recycling containers. Recommendation: Adopt resolution. 4 2006-395 Exhibit A Form of Agreement PROFESSIONAL SERVICES AGREEMENT FOR PROCESSING RECYCLING MATERIALS THIS AGREEMENT is made and entered into this 6th day of November , 2006 ("Effective Date"), by and between the CITY OF SAN BERNARDINO, a municipal corporation ("City"), and Burbank Recycling Inc., a California corporation ("Contractor"). WITNESSETH: WHEREAS, The Legislature of the State of California, by enactment of the California Integrated Waste Management Act of 1989 ("AB 939"), incorporated into the California Public Resources Code as Section 40000 et seq., has declared that it is in the public interest to authorize and require local agencies to make adequate provision for the disposal of Solid Waste within their jurisdictions; and . WHEREAS, City and Contractor are mindful of the provisions of the laws governing the safe collection, transport, recycling, and disposal of Solid Waste, including AB 939 (as amended), the Resource Conservation and Recovery Act ("RCRA"), and the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"). City and Contractor desire to leave no doubts as to their respective roles and to memorialize that by entering into this Agreement. City is not thereby becoming an "arranger" or a "generator" as those terms are used in CERCLA, and that it is Contractor, not City, who is "arranging for" the disposal, composting, and recycling of Recyclable Material which may contain hazardous substances; and further to confirm that Contractor has agreed to indemnify the City in connection with any claims relating to the inadvertent or intentional disposal of hazardous materials that may occur in connection with Contractor's performance under this Agreement. WHEREAS, City and Contractor understand and agree that it is Contractor, and not City, who will take title to the Recyclable Materials, that City has not, and, by this Agreement does not, instruct Contractor on its methods of performing the duties under this Agreement. Any title in and to such Recyclable Materials that otherwise might exist in or with City in the absence of this Agreement is hereby transferred to Contractor. WHEREAS, Contractor has agreed, as part of this Agreement, to provide such services as are necessary to ensure City complies with the requirements of Public Resources Code Section 40000, et seq. WHEREAS, City proposes to have Contractor perform the services described in the City's Request for Proposal and incorporated herein by reference and Contractor's Response to City's Request for Proposal; and WHEREAS, Contractor represents that it has that degree of specialized expertise contemplated within California Government Code, Section 37103, and holds all necessary licenses to practice and perform the services herein contemplated, and 1 Professional Services Agreement For Processing Recycling Materials 10-30-06 Final 2006-395 WHEREAS, City and Contractor desire to contract for specific services in connection with the Recycling of Recyclable Materials and desire to set forth their rights, duties and liabilities in connection with the services to be performed, and WHEREAS, no official or employee of City has a financial interest, within the provisions of California Government Code, Sections 1090-1092, in the subject matter of this Agreement. NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the parties hereby agree as follows: SECTION 1.00 RECITALS The Parties acknowledge the above recitals are true and correct and incorporate them herein as if they were fully restated. SECTION 2.00 DEFINITIONS Whenever any term used in this Agreement has been defined by Division 30, Part 1, Chapter 2 of the California Public Resources Code, or Chapter 8.24 of the City of San Bernardino Municipal Code, the definition of such term set forth therein shall apply unless the term is otherwise defined in this Agreement. The terms defined herein shall have the meaning set forth in this Agreement. Otherwise, the terms herein shall have their ordinary meaning. 2.1 AB 939. "AB 939" shall mean the California Integrated Waste Management Act of 1989, currently codified as California Public Resources Code Section 40000 et seq. as it may be amended from time to time. 2.2 City. "City" means the City of San Bernardino, a municipal corporation. 2.3 Contractor. "Contractor" shall mean Burbank Recycling Incorporated, a California Corporation, the entity entering this Agreement with the City, or any party permitted pursuant to the terms hereof to become the successor or assignee thereof. 2.4 Effective Date. "Effective Date" shall mean November 6, 2006. 2.5 Hazardous Waste. "Hazardous Waste" means (i) all waste defined or characterized as hazardous waste by the federal Solid Waste Disposal Act (42 U.S.C. § 3251 et seq.), as amended, including the Resource Conservation and Recovery Act of 1976 (42 U.S.C. § 6901 et seq.) and all future amendments thereto, or regulations promulgated thereunder and (ii) all waste defined or characterized as hazardous waste by the principal agencies of the State of California (including without limitation the Department of Health Services and the California Waste Management Board) having jurisdiction over hazardous waste generated by facilities within such state, provided that the term "Hazardous Waste": 2 Professional Services Agreement For Processing Recycling Materials 10-30-06 Final 2006-395 A. Is intended to mean and include those substances that are not normally expected to be disposed of by generally accepted sanitary landfill disposal methods; B. Shall include radioactive wastes; and C. Shall be construed to have the broader, more encompassing definition where there exists a conflict in the definitions employed by two or more governmental agencies having concurrent or overlapping jurisdiction over hazardous waste. 2.6 Municipal Code. "Municipal Code" shall mean the "San Bernardino Municipal Code" of the City of San Bernardino 2.7 Recycling. "Recycling" means the process of collecting and turning used products, including, but not limited to, newspapers, cans, corrugated cardboard and bottles, into new products by reprocessing or remanufacturing them. 2.8 Recyclable Material. "Recyclable Material" or "Recyclables" shall mean all Solid Waste, garbage, trash, refuse, construction and demolition debris, and any other Solid Waste which is capable of being recycled. 2.9 RFP. "RFP" means the City's Request for Proposal attached hereto as Exhibit "A" and incorporated herein as though set forth in full. 2.10 Response. "Response" means Contractor's response or proposal to City's RFP, attached hereto as Exhibit "B" and incorporated herein as though set forth in full. 3.0. SERVICES PROVIDED BY CONTRACTOR 3.1 Scope of Services. Contractor shall provide the services described in Contractor's Response. Specifically, Contractor shall collect City's recyclable material at a designation location, acceptable to the City, transport the material for processing at an approved recycling facility, and dispose of non-recyclable residue at an approved disposal facility as more fully described in Exhibit "E" attached hereto and incorporated herein. 3.2 Equipment. Contractor shall furnish all labor, materials and equipment necessary to perform the services contemplated by this Agreement. 3.3. Professional Practices. All professional services to be provided by Contractor pursuant to this Agreement shall be provided by personnel experienced in their respective fields and in a manner consistent with the standards of care, diligence and skill ordinarily exercised by professional Contractors in similar circumstances in accordance with sound professional practices. Contractor also warrants that it is familiar with all laws that may affect its performance of this Agreement and shall advise City of any changes in any laws that may affect Contractor's performance of this Agreement. 3.4 Restriction on Manner of Collection. In order to ensure City complies with the provisions of AB 939, and to accurately account for and report the amount of Solid Waste including Recyclable Material collected within the City Limits and processed, 3 Professional Services Agreement For Processing Recycling Materials 10-30-06 Final 2006-395 recycled and/or disposed pursuant to this Agreement, City Recyclable Material shall not be commingled with any other Recyclable Material until City Recyclable Material has been weighed and/or accounted for in some other manner. 3.5 Pursuit and Management of Grants. Contractor shall assist City in pursuing grants and other funding as may become available for recycling, public education and other recycling related programs. Contractor shall manage any such funding obtained, and implement any programs that may be funded, if requested to do so by City, and shall be entitled to compensation for such management services if the funding in question may be utilized to so compensate Contractor. 3.6. Warranty. Contractor warrants that it shall perform the services required by this Agreement in compliance with all applicable Federal and California employment laws including but not limited to those laws related to minimum hours and wages; occupational health and safety; fair employment and employment practices; workers' compensation insurance and safety in employment, and all other Federal, State and local laws and ordinances applicable to the services required under this Agreement. Contractor shall indemnify and hold harmless City from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description including attorneys' fees and costs, presented, brought, or recovered against City for, or on account of any liability under any of the above-mentioned laws, which may be incurred by reason of Contractor's performance under this Agreement. 3.7. Non-discrimination. In performing this Agreement, Contractor shall not engage in, nor permit its agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, physical handicap, medical condition, marital status, sexual gender or sexual orientation, except as permitted pursuant to Section 12940 of the Government Code. Violation of this provision may result in the imposition of penalties referred to in Labor Code, Section 1735. 3.8. Business License. Contractor/Consultant/Vendor warrants it possesses, or shall obtain, and maintain during the term of this Agreement a business registration certificate pursuant to Title 5 of the City of San Bernardino Municipal Code, and any and all other licenses, permits, qualifications, insurance and approvals of whatever nature that are legally required of contractor/consultants/vendor to practice its profession, skill or business. 3.9. Delegation and Assignment. This is a personal service contract, and the duties set forth herein shall not be delegated or assigned to any person or entity without the prior written consent of City. Contractor may engage a subcontractor(s) as permitted by law and may employ other personnel to perform services contemplated by this Agreement at Contractor's sole cost and expense. 4.0 CITY RESPONSIBLILITIES 4.1 Access to City Documents. City shall provide to Contractor access to all information and documents in City's possession that are relevant and material with respect to Contractor's performance of this Agreement. 4 Professional Services Agreement For Processing Recycling Materials 10-30-06 Final 2006-395 4.2 Access to City Owned Property. City will provide access to and make provisions for Contractor to enter upon City-owned property as may be required by Contractor to perform the services contemplated by this Agreement. 5.0. TERM, TERMINATION AND CURE 5.1. Term. This Agreement shall commence on the Effective Date and ending December 31, 2012, unless previously terminated as provided herein or as otherwise agreed to in writing by the parties. Subject to the provisions herein, this Agreement may be renewed for up to three (3) successive one (1) year terms. Such renewal will be deemed automatic unless this Agreement is sooner terminated as provided for hereinafter, or upon written notice of intent not to renew given by City at least 180 days prior to the expiration of this Agreement, or any renewal period thereof. 5.2. Termination. The City reserves and has the right and privilege of canceling, suspending or abandoning the execution of all or any part of the work contemplated by this Agreement, with cause, at any time, by providing thirty (30) days written notice to Contractor. In the event of such termination, Contractor shall immediately stop rendering services under this Agreement unless directed otherwise by the City. 5.3. Cure. In the event Contractor defaults in the performance of any of the terms or conditions of this Agreement or fails to conform to the rules, and regulations, or any of the directions or instructions that may be properly made by City in the exercise of its powers, or fails, neglects or refuses to pay the consideration of any part thereof within 30 days after the same shall become due, or becomes unable to fulfill its obligations under this Agreement, or defaults in the performance of any of the other terms or provisions therein required, City shall have the following options without any further notice or authorization from Contractor, and its choice of any option shall in no way waive its rights to select any other option at any time. 5.2.1 City may give Contractor notice of such default. If the Contractor does not cure said default within 30 days after it was first discovered (forthwith for a default involving any condition involving safety) or make reasonable progress to cure said default (reasonable progress to be determined at City's sole and absolute discretion), City may terminate this Agreement on a date of its choice. 5.3.2 The acceptance of all or part of recycling revenues by City for any period after a default shall not be deemed a waiver of any of these options, nor a waiver of the default of any subsequent default of the same or any other term, covenant and condition. Any waiver by City of a default on the part of Contract shall not be construed as, or constitute a waiver of, any subsequent default of the same or any other term, covenant and condition. 5.4.2 In the event City defaults in the performance of any of the terms or conditions of this Agreement, and if a written notice of such default 5 Professional Services Agreement For Processing Recycling Materials 10-30-06 Final 2006-395 is issued to City by Contractor by registered mail, and if City does not cure said default within thirty (30) days of receipt of said notice or makes reasonable progress in curing such default, then Contractor may immediately terminate this Agreement, and recover at law any and all claims which may be due. 5.4 Compensation. In the event of early termination, Contractor shall pay City compensation for all Recyclable Materials delivered by the City as of the date of termination. 5.5 Documents. In the event of termination of this Agreement, all writings prepared by Contractor in its performance of this Agreement including, but not limited to, data, reports and materials as may have been accumulated by Contractor in the performance of this Agreement, shall be delivered or otherwise made available to City within ten (10) days of Contractor's receipt of termination notice, at no cost to City. The term "writings" shall be construed to mean and include: handwriting, typewriting, printing, photographing, and every other means of recording upon any tangible thing any form of communication or representation, including letter, works, pictures, drawings, sounds, or symbols, or combinations thereof. City shall have full ownership and control of all such writings delivered by Contractor pursuant to this Agreement. 6.0. COMPENSATION AND ACCOUNTING 6.1. Revenue Calculation. Revenue calculation shall be calculated as set forth in the Contractor's Response (Exhibit " C " Fee Schedule"). The parties agree that the characterization of 40% residue is material to this Agreement and that the City relied on such characterization in entering into the Agreement. Subsequent characterizations shall be performed within 60 days of the beginning of year 3, year 4, year 5 and each subsequent year to determine the characterization percentage for purposes of payment to the City. The City's representatives shall observe the characterization. Any recalculation of revenue from subsequent characterizations shall not result in the Contractor charging City for receipt of material, nor shall such characterization cause the level of residue to exceed 40%. In no event, shall the value of the City's material, net of residue disposed, be less than $zero ($0). 6.2 Payment to City. Contractor shall pay the Compensation for the preceding month to the City no later than thirty (30) calendar days from the end of each month. Payments to the City will include California Redemption Value applicable to curbside Recycling programs. 6.3 Late Payments. Interest on amounts past due will be assessed at the rate of 1.5% per month. 6.4 Monthly Summary Reports. Contractor will provide the City with a monthly report on the overall amount of Recyclable Materials delivered by the City recycling trucks. Contractor shall submit the weight tickets and monthly summary report to the City within thirty (30) calendar days following the end of each month. 6.5. Additional Services. Contractor shall not receive compensation for any services provided outside the scope of services specified in the Response unless the 6 Professional Services Agreement For Processing Recycling Materials 10-30-06 Final 2006-395 City or its Project Manager, prior to Contractor performing the additional services, approves such additional services in writing. It is specifically understood that oral requests and/or approvals of such additional services or additional compensation shall be barred and are unenforceable. 6.6. Records and Audits. Records of Contractor's services relating to this Agreement shall be kept on a generally recognized accounting basis and shall be made available to City or its Project Manager for inspection and/or audit at mutually convenient times for a period of three (3) years from the commencement of this Agreement. Contractor shall maintain books and accounts of all project related weights by material type. Such records shall be available at all reasonable times for examination by the City at the office of Contractor. 7.0. TIME OF PERFORMANCE 7.1. Commencement of Work. The professional services to be performed pursuant to this Agreement shall commence within five (5) days from the Effective Date of this Agreement. 7.2. Excusable Delays. Neither party shall be responsible for delays or lack of performance resulting from acts beyond the reasonable control of the party or parties. Such acts shall include, but not be limited to, acts of God, fire, strikes, material shortages, compliance with laws or regulations, riots, acts of war, or any other conditions beyond the reasonable control of a party. 8.0. INSURANCE 8.1. Minimum Scope and Limits of Insurance. Contractor shall obtain and maintain during the life of this Agreement all of the following insurance coverages: (a) Comprehensive general liability, including premises-operations, products/completed operations, broad form property damage, blanket contractual liability, independent contractors, personal injury with a policy limit of not less than One Million ($1,000,000.00) Dollars per occurrence and Two Million ($2,000,000.00) Dollars, aggregate. (b) Automobile liability for owned vehicles, hired, and non-owned vehicles, with a policy limit of not less than One Million ($1,000,000.00) Dollars, combined single limits, per occurrence and aggregate. (c) Workers' compensation insurance as required by the State of California. 8.2. Endorsements. The comprehensive general liability and automobile liability insurance policies shall contain or be endorsed to contain the following provisions: Professional Services Agreement For Processing Recycling Materials 10-30-06 Final 2006-395 (a) Additional insureds: 'The City of San Bernardino and its elected and appointed boards, officers, agents, and employees are additional insureds with respect to this subject project and contract with City." (b) Notice: "Said policy shall not terminate, nor shall it be cancelled, nor the coverage reduced, until thirty (30) days after written notice is given to City." (c) Other insurance: "Any other insurance maintained by the City of San Bernardino shall be excess and not contributing with the insurance provided by this policy." 8.3. Certificates of Insurance. Contractor shall provide to City certificates of insurance showing the insurance coverages and required endorsements described above, in a form and content approved by City, prior to performing any services under this Agreement. 8.4. Non-limiting. Nothing in this Section shall be construed as limiting in any way, the indemnification provision contained in this Agreement, or the extent to which Contractor may be held responsible for payments of damages to persons or property. 9.0. GENERAL PROVISIONS 9.1. Entire Agreement. This Agreement constitutes the entire Agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. This Agreement may be modified only in writing, and signed by the parties in interest at the time of such modification. The terms of this Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Agreement. 9.2. Representatives. The City Manager or his designee shall be the representative of City for purposes of this Agreement and may issue all consents, approvals, directives and agreements on behalf of the City, called for by this Agreement, except as otherwise expressly provided in this Agreement. Contractor shall designate a representative for purposes of this Agreement who shall be authorized to issue all consents, approvals, directives and agreements on behalf of Contractor called for by this Agreement, except as otherwise expressly provided in this Agreement. 9.3. Project Managers. City designates the Public Services Director to act as the Project Manager to work directly with Contractor in the performance of this Agreement. Contractor shall designate a Project Manager who shall represent it and be its agent in all consultations with City during the term of this Agreement. Contractor or its Project Manager shall attend and assist in all coordination meetings called by City. 9.4. Notices. Any notices, documents, correspondence or other 8 Professional Services Agreement For Processing Recycling Materials 10-30-06 Final 2006-395 communications concerning this Agreement or the work hereunder may be provided by personal delivery, facsimile or mail and shall be addressed as set forth below. If such communication is sent through regular United States mail, it shall be deemed served or delivered 48 hours after deposit in the U.S. Mail as reflected by the official U.S. postmark. In all other instances, notices, bills, and payments shall be deemed given at the time of actual delivery. Changes may be made in the names and addresses of the person to whom notices, bills, and payments are given by giving notice pursuant to this paragraph. IF TO CONTRACTOR: IF TO CITY: Burbank Recycling City of San Bernardino 500 So. Flower Street Public Services Director Burbank, CA 91502 Public Services Department Attn: Geoff Folsom 300 North "D" Street San Bernardino, CA 92418-0001 Attn: 9.5. Attorneys' Fees. In the event that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in enforcing this Agreement shall be considered as "attorneys fees" for purposes of this Agreement. 9.6. Governing Law. This Agreement shall be governed by and construed under the laws of the State of California without regard to principles of conflict of laws. 9.7. Venue. The parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated either in the State courts located in the County of San Bernardino, State of California or the U.S. District Court for the Central District of California. The aformentioned choice of venue is intended by the parties to be mandatory and not permissive in nature. 9.8. Assignment. Contractor shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of Contractor's interest in this Agreement without City's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for termination of this Agreement. Regardless of City's consent, no subletting or assignment shall release Contractor of Contractor's obligation to perform all other obligations to be performed by Contractor hereunder for the term of this Agreement. In the event of mutual agreement between the parties to sublet a portion of the services to be performed pursuant to this Agreement, Contractor shall add the subcontractor as an additional insured to Contractor's insurance policy and provide City with the insurance endorsements prior to any work being performed by the subcontractor. Assignment does not include printing or other customary reimbursable expenses that may be provided in this Agreement. 9.9. Indemnification and Hold Harmless. Contractor shall protect, defend, indemnify and hold harmless City and its elected and appointed officials, officers, and 9 Professional Services Agreement For Processing Recycling Materials 10-30-06 Final 2006-395 employees from any and all claims, liabilities, expenses, including attorney fees, damage to property or injuries to or death of any person or persons or damages of any nature including, but not by way of limitation, all civil claims or workers' compensation claims arising out of or in any way connected with the intentional or negligent acts, errors or omissions of Contractor, its employees and/or authorized agents or subcontractors in the performance of this Agreement. 9.10. Employment Indemnification. Contractor expressly waives all rights to subrogation against City, its Officers, employees and volunteers for losses arising from work performed by Contractor for City by expressly waiving Contractor's immunity for injuries to Contractor's employees and agrees that the obligation to indemnify, defend and hold harmless provided for in this Agreement extends to claims brought by or on behalf of any employee of Contractor. The parties mutually negotiate this waiver. This shall not apply to any damage resulting from the sole negligence of City, its agents and employees. 9.11. Hazardous Substances Indemnification. Without regard to any insurance coverage or requirements, and without limiting the above general indemnification obligation in any way, Contractor specifically agrees to and shall, to the maximum extent permitted by law, defend (with counsel acceptable to City) reimburse, indemnify, and hold City and its past and present officers, council members, employees, consultants and agents (hereinafter "Indemnified Parties") harmless from and against any and all claims, actions, liabilities, damages, demands, judgments, losses, costs, liens, expenses, suits, actions, attorneys' fees, consultant fees, penalties and any and all other losses, damages, fees and expenses of whatever kind or nature ("Claims") (including but not limited to response costs, investigative costs, assessment costs, monitoring costs, treatment costs, cleanup costs, removal costs, remediation costs, and similar costs, damages and expenses) that arise out of or are alleged to arise out of or in any way relate to any action, inaction or omission of Contractor that: (a) results in any demand, claim, notice, order, or lawsuit, asserting that any Indemnified Party is liable, responsible or in anyway obligated to investigate, assess, monitor, study, test, treat, remove, remediate, or otherwise cleanup, any Hazardous Contaminant (as defined herein); or (b) relates to material collected, transported, recycled, treated or disposed of by Contractor. Contractor's obligations pursuant to this Section shall apply, without limitation, to: (a) any Claims brought pursuant to or based on the provisions of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq., the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 9601 et seq., the California Hazardous Substances Account Act (California Health & Safety Code Sections 25300 et seq.), the California Hazardous Waste Control Laws (California Health and Safety Code Sections 25100 et seq.), the California Porter- Cologne Act (California Water Code Section 13000 et seq.), and any and all amendments and regulations thereto, and any other Federal, State, regional or local environmental statutory or regulatory provision; 10 Professional Services Agreement For Processing Recycling Materials 10-30-06 Final 2006-395 (b) 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 Contractor of any facility; (c) any Claims based on or arising out of or alleged to be arising out of the marketing, sale, distribution, storage, transportation, disposal, processing or use of any materials recovered by Contractor; (d) any Claims based on or arising out of or alleged to be arising out of any breach of any express or implied warranty, representation or covenant arising out of or in connection with this Agreement. The foregoing indemnity shall apply irrespective of the negligence or willful misconduct of Contractor or any affiliate of Contractor. For purposes of this Section, the term "Hazardous Contaminant" shall mean any "hazardous material," as that term is defined under California Health & Safety Code Section 25501(1); any "hazardous substance," as that term is defined under California Health & Safety Code Sections 25281(f), 25501(e), 25501.1 and under Title 42, Section 9601(14) of the United States Code; any "hazardous waste," as that term is defined under Title 42, Section 6093(5) of the United States Code and under California Health & Safety Code Section 25550(m); any chemical which the Governor has identified as a chemical known to the State to cause cancer or reproductive toxicity pursuant to California Health & Safety Code Section 25249.8; any crude oil or refined or unrefined petroleum product or any fraction or derivative thereof; and any asbestos or asbestos- containing material. The term "Hazardous Contaminant" shall also include any and all amendments to the above-referenced statutory and regulatory provisions made before or after the date of execution of this Agreement. The provisions of this Section shall not terminate or expire and shall survive the termination or expiration of this Agreement. 9.11. Independent Contractor. Contractor is and shall be acting at all times as an independent contractor and not as an employee of City. Contractor shall secure, at his expense, and be responsible for any and all payment of Income Tax, Social Security, State Disability Insurance Compensation, Unemployment Compensation, and other payroll deductions for Contractor and its officers, agents, and employees, and all business licenses, if any are required, in connection with the services to be performed hereunder. 9.12 Public Records Act Disclosure. Contractor has been advised and is aware that all reports, documents, information and data including, but not limited to, computer tapes, discs or files furnished or prepared by Contractor, or any of its subcontractors, and provided to City may be subject to public disclosure as required by the California Public Records Act (California Government Code Section 6250 et. seq.). Exceptions to public disclosure may be those documents or information that qualify as trade secrets, as that term is defined in the California Government Code Section 6254.7, and which Contractor informs City of such "Trade Secret." "Confidential," or "Proprietary" status. The City will endeavor to maintain as confidential all information obtained by it that is designated as proprietary. The City shall not, in any way, be liable or responsible for the 11 Professional Services Agreement For Processing Recycling Materials 10-30-06 Final 2006-395 disclosure of any such records including, without limitation, those so marked if disclosure is deemed to be required by law or by order of the Court. 9.13. Confidentiality. All findings, reports, information and exhibits prepared or assembled by Contractor in connection with the performance of its professional services pursuant to this Agreement are confidential and Contractor agrees that they shall not be made available to any individual or organization without the prior consent of City. 9.14. Responsibility for Errors. Contractor shall be responsible for its work and results under this Agreement. Contractor, when requested, shall furnish clarification and/or explanation as may be required by the City's representative, regarding any services rendered under this Agreement at no additional cost to City. In the event that an error or omission attributable to Contractor occurs, then Contractor shall, at no cost to City, provide all necessary design drawings, estimates and other Contractor professional services necessary to rectify and correct the matter to the sole satisfaction of City and to participate in any meeting required with regard to the correction. 9.15. Prohibited Employment. Contractor will not employ any regular employee of City while this Agreement is in effect. 9.16. Order of Precedence. In the event of an inconsistency in this Agreement and any of the attached Exhibits, the terms set forth in this Agreement shall prevail. If and to the extent this Agreement incorporates by reference any provision of the RFP or the Response, such provision shall be deemed a part of this Agreement. Nevertheless, if there is any conflict among the terms and conditions of this Agreement and those of any such provision or provisions so incorporated by reference, this Agreement shall govern over both the Response and the RFP and the Response shall govern over the RFP. 9.17. Costs. Each party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations hereunder except as expressly provided herein. 9.18. No Third Party Beneficiary Rights. This Agreement is entered into for the sole benefit of City and Contractor and no other parties are intended to be direct or incidental beneficiaries of this Agreement and no third party shall have any right in, under or to this Agreement. 9.19. Headings. Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modify, explain or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement. 9.20. Construction. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Agreement, this Agreement shall be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall be no presumption or burden of proof favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. 12 Professional Services Agreement For Processing Recycling Materials 10-30-06 Final 2006-395 9.21. Amendments. Only a written amendment executed by the parties hereto or their respective successors and assigns may amend this Agreement. 9.22. Waiver. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought. The waiver of any right or remedy in respect to any occurrence or event shall not be deemed a waiver of any right or remedy in respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver. 9.24. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable in any circumstance, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance. 9.25. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. 9.26. Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by doing so, the parties hereto are formally bound to the provisions of this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their respective authorized officers, as of the date first above written. CITY OF SAN BERNARDINO, CONTRACTOR A municipal corporation Patrick J. Morris, Mayor Geoff Folsom, President City of San Bernardino Burbank Recycling Inc. Rachel G. Clark, City Clerk City of San Bernardino APPROVED AS TO FORM: mes F. P man, City Attorney 13 Professional Services Agreement For Processing Recycling Materials 10-30-06 Final ' 2006-395 EXHIBIT A CITY OF SAN BERNARDINO REQUEST FOR PROPOSALS TO PROVIDE COMMINGLED RECYCLIING PROCESSING AND COMMERCIAL RECYCLING PROCESSING INTRODUCTION The City of San Bernardino provides residential,commercial and roll-off collection services. The City operates a curbside commingled recycling program serving approximately 40,000 residences within the city limits. Currently, the City provides automated collection of commingled recyclables in 90-gallon containers. Container collection includes some small businesses and multi dwelling units. The City provides commercial recycling services to 168 accounts. Another 200 accounts are considered to be rich in recyclable material. Refuse is disposed under the San Bernardino County Waste Delivery Agreement, with Mid-Valley Landfill in Rialto as the designated disposal site. This RFQ and Bid Proposal will be used to select one or more service providers to process the City's collected commingled recycling materials, commercial recycling and selected commercial materials. PROJECT DESCRIPTION One or more selected service providers will be required to execute a service agreement with the City. Under the terms of the agreement,the selected service provider will process specified materials from the City's recycling programs; and will transfer and dispose of program residue. The Selected service providers will be required to return to the City revenue from sales of recovered materials.The Local Enforcement Agency for San Bernardino County may require selected providers to obtain one or more Solid Waste Facility Permits to provide transfer station or materials recovery services. Selected service providers will be responsible for obtaining and paying for all required permits, including local land use approvals and Solid Waste Facility Permits; and for operating in compliance with the permits. The term of the agreement will be for seven (7)years with three (3) single-year renewal options. PROPOSAL SUBMISSION PROCEDURES AND REQUIREMENTS Organizations interested in submitting a proposal shall submit five (5) copies of their proposal to: Solid Waste Manager City of San Bernardino 234 South Mountain View Avenue San Bernardino, CA 92408 All proposals and copies of proposals shall be submitted on recycled content paper, with at least 30% post-consumer content. BIDDER'S CONFERENCE The Bidder's Conference will be held on Thursday, November 10, 2005. The location for the Bidder's Conference will be the Public Services Conference Room "A 4"' Floor at 300 North "D" Street, from 2:00 p.m. to 3:30 p.m. City will accept bids only from those bidders who have attended the Bidder's Conference. 1 Professional Services Agreement For Processing Recycling Materials 9-05 Draft I 2006-395 Questions will be answered regarding the RFQ and Bid Proposal at the Bidder's Conference so that all prospective bidders will hear the same response to any questions or explanations of this RFQ and Bid Proposal. Do not contact any City employees, Commissioners, or Elected Officials regarding this project or the selection process. Questions regarding the RFQ and Bid Proposal shall be asked at the Bidders Conference or submitted in writing in conformance with the stated deadlines. Bidders will be asked to certify that they did not contact any City employees, Commissioners, or Elected Officials regarding this project or the selection process other than in writing to the Solid Waste Manager. Any bidder found by the City to have violated this prohibition will be disqualified from bidding, and the City will not consider its Bid Proposal further. SELECTION PROCESS A. The City will rank all proposals received to determine whether bidders are qualified based upon information provided during this process. B. The City will deliver a load to the highest qualified bidders, and observe processing operation. C. The City will then initiate negotiations with the qualified firm or firms proposing the greatest revenue, to be offset by off-route collection costs. D. Table 1 (see attached)will be used as a score sheet for the evaluation of the qualifications of bidders. E. Qualified proposals will then be ranked based on projected revenue per"A" above. F. All applicants will be notified in writing of the selection. AWARD OF CONTRACT An agreement will be negotiated following final selection of a bidder or bidders. If the City and the selected bidder or bidders are unable to negotiate satisfactorily, acceptable to both parties, the next ranked bidder will be contacted and so on until an agreement is reached. CITY'S RIGHTS, OPTIONS, AND POLICIES The City reserves the right to postpone selection and award of contract for its own convenience, to cancel this RFQ and Bid Proposal at any time, and/or to reject any and all proposals for any reason in its sole and exclusive discretion. The City highly encourages participation by local qualified firms in all aspects of service contracting unless the project requires unusual or highly specialized services. PROPOSAL CONTENT To facilitate evaluation of the proposals received, all proposals must conform to the chronology and content described below: A. All bidders must indicate their willingness to sign the attached Service Agreement(Exhibit A). Any deviation in a proposal from the language in the Service Agreement must be explained in detail. Substantial differences in language or terms between a proposal and the Service Agreement may result in rejection of the proposal. The City reserves the right to negotiate minor modifications of the language contained within the attached agreement upon selection of the service provider. Exhibit A of the attached agreement contains the Scope of Services. 2 Professional Services Agreement For Processing Recycling Materials 9-05 Draft I 2006-395 B. All proposals must indicate the physical location of their facility or facilities that will be used for off-loading of City vehicles and for processing material. Proposals will include the distance in miles from their facility or facilities to the City Refuse Yard (234 South Mountain View Avenue). C. Proposals will include an up-to-date list of references and contacts for which similar work has been performed. The list should include a mailing address,contact person and daytime phone number. D. Proposals will identify the designated project managers,their work location and provide a resume for principal employees assigned to work on the project. E. Proposals will address the issue of regulatory compliance related to proposed facility or facilities. The bidder shall provide documentation of all necessary permits and clearances related to their proposal. Any violations documented by enforcement agencies(e.g.,the Local Enforcement Agency,Air Quality Control District, Regional Water Quality Management District, etc.) shall be disclosed and addressed. Compliance with any request for a change in operation by an enforcement agency or Notice and Order shall be discussed. F. The bidder will discuss any future plans for a permit change or application as related to the acceptance of materials from the City's recycling program. The proposal will include a schedule for obtaining necessary permits and clearances related to their proposal. The proposal also should address the impact of planned improvements on materials processing. G. Bidders will disclose any indictments or litigation history related to their company, partner or subsidiary arising out of the performance of a materials processing contract or violation of laws, regulations or permits. Provide details of any litigation against the bidder, its parent company or joint venture company(s) by a government entity; or against a government entity by the bidder, its parent company or joint venture company(s). H. Bidders will prepare bid sheets based on the City's estimated annual recovery. 1. Bidders are free to propose any combination of pricing methodologies. For example, propose to establish a price index that is adjustable. Adjustable fees may include but are not limited to the following examples: i. Average door price based on specific facilities ii. Adjustable prices based on a recognized index iii. Shared, verifiable revenue in combination with a processing fee J. Utilizing the proposed methodology, bidders shall calculate the total payment to the City for the period 7/1/04-6/30/05. Bidders shall provide sufficient documentation to demonstrate accuracy of calculations regarding hypothetical payments to the City under the proposed payment methodology. Bidders shall make themselves available to clarify proposed payment methodology. Bidders shall make themselves available to clarify proposed payment methodology upon request by the City's Representative. K. Bidders will assume recovery of materials at the levels enumerated in Table A. The bidder should also assume contamination by weight of 25% in preparing bids.The table below should be used to calculate revenue paid to the City on an annual basis: 3 Professional Services Agreement For Processing Recycling Materials 9-05 Draft I 2006-395 STMATED ANNUAL RECOVERY Material ITons Recovered Newsprint q4072.19 3.18 CC 2.32 Mixed Paper ffice Pack 91 Green Glass 42.32 Brown Glass 35.12 Lear Glass 92.59 Mixed Glass 903.7 DPE Mix Color 123.51 DPE Clear 118.85 PETE 195.27 Scrap Metal 228.11 Steel Cans 105.61 Aluminum 33.61 Total 11144.29 1.. Proposals will be disqualified unless there is a clear means of calculating revenue. Estimated revenue shall be linked to a verifiable market index, a flat fee, or some other documented methodology. Bidders shall observe the following guidelines in preparing bids: i. Calculations based on quarterly or monthly indexes should assume that the Tons recovered are equal for each index period. it. Bids will be compared based on an assumption of 25% residue. Bidders shall indicate any changes in the pricing affecting net revenue based on either increases or decreases in the percentage of residuals. M. The bidder must include a physical drawing of their facility indicating the following: i. Trace the flow of City vehicles through the facility ii. Scales to be used by City vehicles iii. Material sorting lines and screens iv. Floor storage V. Residue load-out vi. Balers N. The bidder will address the adequacy of their facilities to perform the services described by Exhibit A of the attached agreement. At a minimum,this section shall address the following issues. i. Description of sorting equipment and procedures ii. Maneuverability of City trucks through the facility including ingress and egress iii. Staging of City trucks and estimate of maximum time to off-load materials iv. Clearance and width of scales in regard to City trucks V. Expandability of processing lines to include increased collection of materials O. The bidder will indicate their willingness to accept and divert the following materials collected by the City's recycling programs: i. All grades of paper Ii. All glass containers iii. All plastic containers iv. Steel, bimetal and aluminum cans P. Additional material diversion should be identified, including: i. fines ii. mixed plastic iii. construction materials iv. carpet V. textiles 4 Professional Services Agreement For Processing Recycling Materials 9-05 Draft I 2006-395 EVALUATION OF RFQ AND BID PROPOSAL This RFQ and Bid Proposal is a two-part process. The table below will be used to determine whether a bidder is qualified. The lowest score represents the least responsive and the highest score represents the best score a proposal can earn within a respective category. A score of less than 75 will result in a determination that the bidder is unqualified to perform the services required by the City Agreement. Qualified bidder will then be ranked based on proposed revenue(to be offset by off-route collection costs) to the City. CRITERIA OSSIBL SCORE SCORE WILLINGNESS TO SIGN ATTACHED SERVICES AGREEMENT 5 REFERENCES 10 UALIFICATIONS AND EXPERIENCE 20 ERMITS, CLEARANCES AND REGULATORY OMPLLIANCE 15 ITIGATION HISTORY 10 HYSICAL FACILITIES 40 OTAL 100 Explanation of Criteria A. A bidder with the least substantive modifications to the City Agreement will receive the highest score in this category. B. A reference check will be conducted for each bidder. C. Selection Committee Members will evaluate bidders based on their qualifications and experience performing similar project work. D. A bidder that demonstrates possession of necessary permits, clearances and regulatory compliance will receive the highest score. Selection Committee Members will also give preference to existing, permitted facilities vs. proposed facilities. E. The questions below will provide the selection committee with guidance in their evaluation of proposed facilities: i. Is the flow of vehicles through the facility efficient? ii. Does the facility provide for adequate clearances and turning radius to reduce the possibility of damage to either property or City vehicles? iii. Does the facility provide for maneuverability and good line of sight? iv. Can City vehicles enter and exit quickly. V. Is the facility sized and designed for expansion and processing of increasingly commingled waste streams? vi. Is the facility design flexible enough to accommodate various vehicle configurations and designs? vii. Is the facility designed to maximize diversion through the processing of additional material types? viii. Does the facility design and processing capabilities maximize diversion? 5 Professional Services Agreement For Processing Recycling Materials 9-05 Draft 1 2006-395 Ranking of Qualified Bidders Qualified bidders will be ranked based on a comparison of proposed revenue to be offset by the City's calculation of collection cost. The proposal representing the greatest revenue to the City will receive the highest rank. Cost and revenue will be calculated based on the following: A. Total revenue calculation. The total revenue will be calculated for each proposal. The total revenue will be calculated based on utilizing the proposed methodology for the period 7/1/04-6/30/05. B. Collection cost. Collection cost represents the cost associated with the off-route travel time for the seven-year term of the contract. C. Collection central. For the purpose of this RFQ and Bid Proposal, collection central of the City will be 234 South Mountain View Avenue. D. Frequency. As to how many recycling trucks will go to each facility based on the distance traveled. During the period;7/01/04—6/30/05,the City delivered 2,987 residential and commercial loads for processing. E. Floor Price.The City will not consider proposals that result in a net cost to the City for processing and recycling materials. The "Floor Price" or minimum price paid to the City for acceptance of materials collected in the City's automated recycling collection program shall not be less than $0.00 during any given month of the term of the agreement. Proposal of a higher floor price is acceptable. DISQUALIFICATION OF PROPOSALS A bidder failing to meet the following conditions will be disqualified from consideration: A. Proposals must conform to the required deadline. Bidder must submit five(5) copies of their proposal. B. Proposals shall be submitted on recycled paper,with at least 30% post-consumer content. C. The Contractor must accept all materials for off-loading City vehicles at the same location(s). Under no circumstances will the City agree to tip part of a truckload at one facility and then part of the same load at a second facility. D. Proposals will be disqualified if the cost section includes the possibility of the City paying the bidder for acceptance of materials. E. Proposals will be disqualified if the proposed methodology for calculating lacks specificity for comparative purposes. F. Proposal will be disqualified if the proposal does not indicate acceptance and diversion of all materials currently included in the City's recycling collection program. G. At the discretion of selection committee members, a proposal may be disqualified if it is considered fatally flawed in any section. That is, a proposal may score highly in all categories except one section, but if that section is essentially unresponsive to the City's needs,the proposal may be disqualified. 6 Professional Services Agreement For Processing Recycling Materials 9-05 Draft 1 2006-395 EXHIBIT B � � Burbank Recycling Inca as City of San Bernardino Ken Fischer 300 North"D" Street San Bernardino, CA 92418 Dear Mr. Fischer, I received your September 20, 2006 letter(sent certified mail) stating the following: 1. Council subcommittee members are concerned that the percentage of waste in our recycle collection is so high. 2. Council subcommittee members believe that we can improve material mix. 3. Council subcommittee members want to give staff time to work toward improvement in the material mix. Based on the above three points, my company has been asked: "what change, if any,there would be in your original proposal if we change the term of the proposed agreement from seven years to three years?" Burbank Recycling Inc.'s response: The processing of any city's single-stream residential curbside is not a short-term operational plan. Operationally, one needs to organize/mobilize equipment, staff, location and marketing. Three years is a short-term operational plan. Seven years with three one- year options, is a longer term consideration which provides the contractor and the city time to develop/improve a sustainable program. Therefore, I would like to propose the following which I believe provides the City of San Bernardino the immediate financial security/upside it desires in the short term(while its recyclables are heavily contaminated)as well as longer term upside once the said recyclables are improved in regards to material quality. 1. Burbank Recycling Inc (BRI) will pay the City of San Bernardino $15 per ton net of residue for the first three years of the contract. Current residue levels are between 40% and 52%. Burbank Recycling Inc will protect the City with a 40% residue floor. Therefore, at no time during the first three years will the City be paid less than $9 per ton for its curbside material. 2. Years four, five, six, seven(and any of the three, one-year options) will undergo an annual detailed waste characterization audited by both parties. Based on the audited results, the City's net of residue per ton payment will be increased as follows: 500 South Flower St., Burbank, CA 91502 — TEL: 818-841-9700 — FAX: 818-841-9465 2006-395 Burbank Recycling Inc. as a. If the City reduces its curbside material residual rate to 30%, BRI will increase the net of residue per ton payment to $20 per ton. b. If the City reduces its curbside material residual rate to 25%, BRI will increase the net of residue per ton payment to $22.50 per ton. c. If the City reduces its curbside material residual rate to 20%, BRI will increase the net of residue per ton payment to $25 per ton. d. If the City reduces its curbside material residual rate to 15%, BRI will increase the net of residue per ton payment to $30 per ton. e. If the City reduces its curbside material residual rate to 10%, BRI will increase the net of residue per ton payment to $40 per ton. I feel this provides the best long-term solution for BRI and the City. BRI will be able to build a sustainable business around the City's curbside materials (i.e.: gear up operational, logistical, marketing infrastructure) and the City will benefit from immediate short-term pricing protection while the material is dirty and still derive financial benefit once the said material is improved in terms of quality. I hope this offer is to the City's satisfaction as I am looking forward to building a seven to ten year relationship with the City of San Bernardino. Sincerely, Geom &ey President 500 South Flower St., Burbank. CA 91502 —TEL: 818-841-9700—FAX: 818-841-9465 2006-395 EXHIBIT "C" FEE SCHEDULE YEAR ONE: Contractor will pay City $15 per ton less a 40% weight deduction for residual. Example: If the City delivers 1500 tons during a given month to Contractor the following year-one calculation will apply: 1500 tons less 40% = 900 tons x $15 per ton = $13,500 net payment. YEAR TWO: Contractor will pay City $15 per ton less a 40% weight deduction for residual. Example: If the City delivers 1500 tons during a given month to Contractor the following year-two calculation will apply: 1500 tons less 40% _ 900 tons x $15 per ton = $13,500 net payment. YEAR THREE: Contractor will pay City $15 per ton less a 40% weight deduction for residual. Example: If the City delivers 1500 tons during a given month to Contractor the following year-three calculation will apply: 1500 tons less 40% = 900 tons x $15 per ton = $13,500 net payment. At the end of year three, a mutually audited waste characterization will be performed that will potentially increase the Contractor payment to the City during year four. If the said waste characterization demonstrates that the City's residual reduces to 30% or below, the Contractor's payment to the City increases from $15 per ton to $20 per ton. If the said waste characterization demonstrates that the City's residual reduces to 25% or below, the Contractor's payment to the City increases from $15 per ton to $22.50 per ton. If the said waste characterization demonstrates that the City's residual reduces to 20% or below, the Contractor's payment to the City increases from $15 per ton to $25 per ton. If the said waste characterization demonstrates that the City's residual reduces to 15% or below, the Contractor's payment to the City increases from $15 per ton to $30 per ton. If the said waste characterization demonstrates that the City's residual reduces to 10% or below, the Contractor's payment to the City increases from $15 per ton to $40 per ton. The above waste characterization and potential per ton price change will happen at the end of year three, four, five, six, seven and any extensions mutually agreed to by both parties. At no time during the contract will the Contractor charge the City or increase the residual deduction to more than 40%. Page 16 of 19 2006-395 EXHIBIT "D" PROJECT SCHEDULE Page 17 of 19 2006-395 EXHIBIT "E" Processing of Recycling Materials Services to be provided are specified below: Contractor will accept materials for recycling from the City's recycling Program serving single-family residences and commercial accounts. Contractor will provide a facility at the location specified below for Off-loading City recycling trucks. The facility will be available to begin accepting materials by November 13, 2006. The designated facility is: Inland Regional Material Recovery Facility 2059 E. Steel Road Colton, CA 92324 Unloading Time/Truck Turn-around Time—Each City recycling truck entering the Contractor's facility shall have a maximum of 15 minutes turnaround time from the time the truck arrives at the facility until the time the truck exits the facility. The 15-minute turnaround time shall apply under all circumstances. The Contractor shall either provide separate scales, ingress and egress from their facility or otherwise accommodate City vehicles to avoid queuing City vehicles behind self-haul trucks Contractor shall provide a means to avoid "stacking" of recycling trucks on public streets as they enter their facility(s). Contractor shall provide City trucks preference over the general public to facilitate off-loading efficiencies and turn-around time. Accounting System – Contractor shall design an accounting system for all Recyclable materials delivered by City trucks. The accounting system must be developed by the Contractor and approved by the City prior to program start-up. Commingled materials on City trucks shall be accounted for based on factors derived from periodic sampling, separate processing, or by other means as agreed to by the City, to establish factors for the percent of each material. The Contractor shall comply with all Federal, State and local regulations that apply to recyclable materials delivered to them by City recycling trucks under the terms of this agreement. Unmarketable Materials – In no case shall the Contractor take any City delivered recyclable materials to a disposal facility unless permission in writing is provided by the City on a load-by-load basis. If the Contractor can demonstrate that a material is not marketable, such permission shall not be unreasonably withheld. This provision does not apply to residue that is incidental to processing recyclables. Page 18 of 19 2006-395 j Contractor will provide for alternative off-loading methods in the event of reasonable down —time due to repair and maintenance of equipment. Contractor shall maintain adequate space to stockpile recyclable materials during such reasonable down time for acceptance of material without a break in service. "Reasonable down time" shall be defined as less than one day each operating month. Contractor shall be responsible for disposal of residue from processing of City recyclables at no charge to City. Contractor's facilities shall be open to receive materials from City trucks Monday through Saturday, year round. Facilities shall be open to receive City materials from 6:30 a.m. to 5:00 p.m. Contractor shall provide an area for tipping of City vehicles separate from the general public. Contractor shall provide spotting of City trucks in areas at their facility with tight maneuverability. Contractor shall allow the City's representatives to inspect their facilities during normal business hours to assure compliance with the service agreement. With the exception of what is recognized by the recycling industry as "residue" or "contaminants", Contractor agrees to divert all materials from landfill delivered to them by City recycling trucks. Contractor shall provide use of a phone to City employees in the event a City driver needs to contact their supervisor regarding City business. Contractor shall provide paved surfaces for all areas where City trucks will operate at their facility. All ingress and egress from the Contractor's facility shall be paved. Contractor shall make reasonable accommodations to provide tours of their facilities to the public upon request by the City's representative. The City will not furnish facilities or equipment for this Agreement. Page 19 of 19 nai.z: 11/6/2006 Time: 9:42 AM TO: R 1(818)841-9465 2006-395 TWI W Ins Services Page: 001 DATE(MWOONYYY) ACORDM CERTIFICATE OF LIABILITY INSURANCE 11/06/2006 PRODUCER (805)585-6161 FAX (805)585-6261 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION TWIW Insurance Services, LLC - Li c #OE52073 ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE Tolman & Wiker Ins - #0357216 HOLDER.THIS CERTIFICATE DOES NOT AMEND,EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. 196 S. Fir St. , P.O. Box 1388 Ventura, CA 93002-1388 Attn: Deirdre Geary INSURERS AFFORDING COVERAGE NAIC# INSURED INSURER A. American Intl Specialty Lines 126883 Burbank Recycling Inc. INSURERB Commerce & Industry Ins. Co. 119410 500 S. Flower Street INSURER Burbank, CA 91502 INSURER INSURER E COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED.NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR ADD' TYPE OF INSURANCE POLICYNUMBER POLICYEFFECTIVE POLICYEXPIRATION LIMBS TR INSR DAT D T M 1 GENERAL LIABILITY EG7554236 07/01/2006 0710112007 EACH OCCURRENCE $ 1,000,000 X COMMERCIAL GENERAL LIABILITY DAMAGE TO RENTED $ 1.000,000 CLAIMS MALE F�_]OCCUR MED EXP(Any one person) $ 1,000,000 A PERSONAL&ADV INJURY $ 1,000,000 GENERAL AGGREGATE $ 2,000,000 GENL AGGREGATE L IMIT APRIL IES PER PRODUCTS-COMP/OP ASS $ 2,000,000 X POLICY PRO ECT LOC J AUTOMOBILE LIABILITY CA7554238 07/01/2006 07/01/2007 COMBINED SINGLE LIMIT ANY AUTO (Ea accident) $ 1,000,000 ALL OWNED AUTOS BODILY INJURY SCHEDULED AUTOS (Per person) $ B X HIRED.AUTOS BODILY INJURY X NON-OWNED AUTOS (Per accident) $ PROPERTY DAMAGE $ (Per accident) GARAGE LIABILITY AUTO ONLY-EA ACC[DENT $ ANY AUTO OTHER THAN EA ACC $ AUTO ONLY AGO $ EXCESSAIMBRELLA LIABILITY EGU75542371 07/01/2006 07/01/2007 EACH OCCURRENCE $ 4,000,00 X OCCUR CLAIMS MADE AGGREGATE $ 4,000,000 A E XDEDUCTIBLE $ RETENTION $ 10,000 $ WC Y I STATU- FIR WORKERS COMPENSATION AND T EMPLOYERS'LIABILITY E EACH ACCIDENT ANY PROPRIETOR/PARTNER/EXECUTIVE . $ OFFICER/MEMBER EXCLUDED*) E .DISEASE-EA EMPLOYE $ It yes,descnbe under SPECIAL PROVISIONS below E .DISEASE-POLICY LIMIT $ OTHER DESCRIPTION OF OPERATIONS 1 LOCATIONS/VEHICLES 1 EXCLUSIONS ADDED BY ENDORSEMENT SPECIAL PROVISIONS L: The Citry of San Bernardino and its elected and appointed boards, officers, agents and employees are named as Additional Insured as respects to the operations of the Named Insured per the attached endorsement. This applies only when required by written contract during the policy term. This insurance is primary and non-contributory to any other insurance held by the Additional Insured. *10 Days for Non-payment of Premium CERTIFICATE HOLDER CANCELLATIO N SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF,THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30" DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, The Cl t ry of San Bernardino BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY 300 N. "D" Street OF ANY KIND UPON THE INSURER,ITS AGENTS OR REPRESENTATIVES. San Bernardino, CA 92418 AUTHORIZED REPRESENTATIVE - . � Denise Sutton, AAI, AIS/DMG / K[ ACORD 25(2001/08) dmg ©ACORD CORPORATION 1988 Date: 11/6/2006 Time: 9:42 AM TO: @ 1(818)841-9465 2006-395 TWI W Ins Services Page: 002 IMPORTANT If the certificate holder is an ADDITIONAL INSURED,the policy(ies)must be endorsed.A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED,subject to the terms and conditions of the policy, certain policies may require an endorsement.A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer,and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORD 25(2001108) Date: 11/6/2006 Time: 9:42 AM To: @ 1(818)841-9465 TWI W Ins Services Page: 003 2006-395 ENDORSEMENT NO. This endorsement, effective 12.01 AM: 7/01/2006 Forms a part of policy no.: EG7554236 Issued to: Burbank Recyling, Inc By; American International Specialty Lines Insurance Company THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED I PRIMARY COVERAGE ENDORSEMENT This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY POLLUTION LEGAL LIABILITY COVERAGE FORM SCHEDULE In consideration of an additional premium of $INCLUDED, it is hereby agreed that the following is included as an Additional Insured as respects Coverage's A and B and then only for liability arising out of your ongoing operations performed for the Additional Insured by or for you. Additional Insured: Blanket where required by written contract. This does not apply to bodily injury or property damage arising out of the sole negligence or willful misconduct of, or for defects in design furnished by the Additional Insured. As respects the coverage afforded the Additional Insured, this insurance is primary and non-contributory, and our obligations are not affected by any other insurance carried by such Additional Insured whether primary, excess, contingent, or on any other basis. This endorsement does not increase the company's limits of liability as specified in the declarations of this policy. Al other terms, conditions and exclusions remain the same. Date: 11/6/2006 Time: 9: 42 AM TO: R 1(818)841-9465 TWI W Ins Services Page: 004 2006-395 c CERTHOLDER COPY S SL TATE P.O. BOX 420807, SAN FRANCiSCO,CA 94142-0807 COMPENSATION INSURANCE FUND f V® CERTIFICATE OF WORKERS' COMPENSATION INSURANCE ISSUE DATE: 11-06-2006 GROUP: POLICY NUMBER: 1833206-2008 CERTIFICATE ID: 2 CERTIFICATE EXPIRES:07-01-2007 07-01-2006/07-01-2007 THE CITY OF SAN BERNARDINO SL JOB:VERIFICATION OF COVERAGE 300 N D ST SAN BERNARDINO CA 92418-0001 This is to certify that we have issued a valid bVorkers' Compensation insurance policy in a form approved by the California Insurance Commissioner to the employer named below for the policy, period indicated. This policy is not subject to cancellation by the Fund except upon30 days advance written notice to the employer. We will also give you 30 days advance notice should this policy be cancelled prior to its normal expiration. This certificate of insurance is not an insurance policy and does not amend, extend or alter the coverage afforded by the policy listed herein. Notwithstanding any requirement, term or condition of any contract or other document With respect to which this certificate of insurance may be issued or to which it may pertain, the insurance afforded by the policy described herein is subject to all the terms, exclusions, and conditions, of such policy. t T YA� ORIZED REPRESENTATI PRESIDENT EMPLOYER'S LIABILITY LIMIT INCLUDING DEFENSE COSTS: $1,000,000 PER OCCURRENCE. ENDORSEMENT #1600 - GEOFFREY FULSON P,S T - EXCLUDED. ENDORSEMENT #2065 ENTITLED CERTIFICATE HOLDERS' NOTICE EFFECTIVE 07-01-2006 IS ATTACHED TO AND FORMS A PART OF THIS POLICY. EMPLOYER BURBANK RECYCLING INC SL 500 S FLOWER ST BURBANK CA 91502 (817,SLI IREV.2.051 PRINTED : 11-06-2008 Late : 11/6/2006 -Time: 9:42 AM To: e 1(818)841-9465 TWI W Ins Services Page: 005 2006-395 C POLICYHOLDER COPY SL STATE P.O. BOX 420807, SAN FRANCISCO,CA 94142,-0807 COMPENSATION INSURANCE FUND CERTIFICATE OF WORKERS' COMPENSATION INSURANCE ISSUE DATE: 11-06-2005 GROUP: POLICY NUMBER: 1833206-2006 CERTIFICATE ID: 2 CERTIFICATE EXPIRES:07-01-2007 07-01-2006/07-01-2007 THE CITY OF SAN BERNARDINO SL JOB:VERIFICATION OF COVERAGE 300 N D ST SAN BERNARDINO CA 92418-0001 This is to certify that we have issued a valid Workers' Compensation insurance policy in a form approved by the California insurance Commissioner to the employer named below for the policy period indicated. This policy is not subject to cancellation by the Fund except upon30 days advance written notice to the employer. We will also give you 30 days advance notice should this policy be cancelled prior to its normal expiration, This certi'icate of insurance is not an insurance policy and does not amend, extend or alter the coverage afforded by the policy listed herein. Notwithstanding any requirement, term or condition of any con race or other document with respect to which this certificate of insurance may be issued or to which it may pertain, the insurance afforded by the policy described herein is subject to all the terms, exclusions, and conditions, of such policy. tTH0RX1ZEaD REPRESENTATI PRESIDENT EMPLOYER'S LIABILITY LIMIT INCLUDING DEFENSE COSTS: $1,000,000 PER OCCURRENCE. ENDORSEMENT #1500 - GEOFFREY FULSON P,S T - EXCLUDED. ENDORSEMENT #2055 ENTITLED CERTIFICATE HOLDERS' NOTICE EFFECTIVE 07-01-2006 IS ATTACHED TO AND FORMS A PART OF THIS POLICY. EMPLOYER BURBANK RECYCLING INC SL 500 S FLOWER ST BURBANK CA 91502 [B17,SLI (Rw.2-e5) PRINTED : 11-08-2008