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HomeMy WebLinkAbout08.F-Public Works DOC ID: 2021 C CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION Agreement/Contract Amendment From: Jim Smith M/CC Meeting Date: 09/17/2012 Prepared by: Todd Housley, (909) 384-5140 Dept: Public Works Ward(s): All Subject: Discussion on City RFP and Waste Delivery Extension. Financial Impact: The processing of refuse,recyclables and green waste is accounted for in the Integrated Waste Fund No. 527. This approval will allow the City to contain costs until longer-term agreements and plans are established as a result of the expiration of the Waste Delivery Agreement with the County of San Bernardino. Motion: Authorize Staff to Extend and Expand Upon Existing Recycling Agreements with Local Vendors on a Month-to-Month Basis and Authorize the City Manager to Give Notice to the County of San Bernardino of the City's Intention Not to Extend the Waste Delivery Agreement(WDA). Synopsis of Previous Council Action: r^ December 16, 1997 -Waste Delivery Agreement (WDA)with the County of San Bernardino October 17,2011-Burrtec Resolution and Agreement October 17,2011 -Republic Resolution and Agreement September 5,2012 -Direct City Attorney and City Manager to Develop an RFP to Lease Integrated Waste Division. Background: At the Mayor and Common Council Meeting of August 6,2012, staff recommended sealed bids for processing of refuse,recyclables and green waste. The recommendation was denied. Further, at the Mayor and Common Council Meeting of September 5, 2012, the City Attorney and City Manager were directed to develop an RFP for leasing the Integrated Waste Division. The County of San Bernardino Waste Delivery Agreement(WDA) is expiring December 31, 2012, and the terms of the extension offered by the County are less favorable than extending existing recycling agreements with local vendors and adding waste disposal options provided by the vendors. Given the need to contain costs,and provide for refuse,recyclables and green waste processing beyond the expiration of the current Waste Delivery Agreement(WDA) on December 31,2012, staff recommends that the Mayor and Common Council approve the following: 1)Authorize the City Manager to give notice to the County of San Bernardino that the City of San Bernardino will cease delivery of waste to County Landfills after December 31,2012,and the City will not execute the extension of the Waste Delivery Agreement, and; 2) Should the RFP process take longer than December 31,2012,direct staff to extend existing recycling and green waste agreements with local vendors, and add waste processing options Updated:9/12/2012 by Jason Simpson C Packet Pg. 327 2021 provided by the vendors on a month-to-month basis. SuouortinQ Documents: 97-12-16 WDA Agreement (PDF) 2011-285 Burrtec Resolution and Agreement (PDF) 2011-284 Republic Resolution and Agreement (PDF) 12-07-13 County WDA Extension Letter (PDF) 12-05-24 Burrtec Response (PDF) 12-05-24 Republic Response (PDF) 12-06-28 Republic Response II (PDF) C C Updated:9/12/2012 by Jason Simpson C Packet Pg. 328 REPO RTIRECOMMENDATION TO THE BOARD OF SUPERVISORS OF SAN BERNARDINO COUNTY, CALIFORNIA "7-'7 AND RECORD OF ACTION Agree. 97-1051 December 16, 1997 FROM: GERRY NEWCOMBE,Contract Administrator Public Services Group, Waste System Division SUBJECT: WASTE DELIVERY AGREEMENT BETWEEN THE COUNTY AND THE CITY OF SAN BERNARDINO 0 .y RECOMMENDATION: Approve 15 year Waste Delivery Agreement (WDA) with the City of San m Bernardino for use of the County landfill system,from January 1, 1996 to December 31,2012. x w BACKGROUND INFORMATION: On November 4, 1997, the Board approved a standard WDA and directed staff to present the agreement to cities for approval and return any signed agreements to the > Board for final approval. The San Bernardino City Council approved the WDA on December 15, 1997. m Approval of the recommendation will result in the adoption of the WDA whereby the City of San w Bernardino is obligated to deliver all of its controllable waste to the Calton and Mid Valley Landfills for 15 years, and the County is obligated to provide capacity for that waste at a speciried contract rate .o reimbursed by the City. OF IL When WDA's representing 60 percent of the system tonnage of 1,390,000 tons (less the unincorporated tonnage which will be controlled by the County through franchise agreements) have >, been executed, it wM be necessary to modify the compensation provisions in NORCAL's contract. Staff has met with NORCAL and reached agreement on the rational for a revised compensation program that Is consistent with the controls placed on the contract rate contained in the WDA's. The o WSD will present the modified compensation program for Board consideration when the 60 percent o threshold is within reach. Prior to reaching that threshold,the system can continue to function wish the .y existing compensation program in place. m REVIEW BY OTHERS: This item has been reviewed by Deputy County Counsel Robert L Jocks on December 5, 1997. N O FINANCIAL IMPACT: This action will have no impact on the General Fund. The difference between the existing S331ton tip fee and the $28.50;ton contract rate will result in reduced revenue to the Division in Fiscal Year 1997198. This reduction will be offset by a combination of expenditure E reductions and new revenue sources, y m SUPERVISORIAL DISTRICT(S): Fifth Q Q O N Record of Action of the Board of Supervisors n cc: WSD-Newcombe w/4 agrees. AGREEMENT 97-1051 O1 Contractor do WSD w12 DEFERRE E BOARD OF SUPERVISORS agrees. p ERNARDINO m Auditor w;agree. a' s E Contract Compl. wlagree. MOTION . Np z CO. Counsel-Jocks a s Q File wlagree. EA .: O D BY iw DATED : De Rev 07W ITEM 950a Packet Pg.329 ` Ij 97-371 EXECUTION COPY c o_ WASTE DISPOSAL AGREEMENT " c d w Between � THE COUNTY OF SAN BERNAIZDn'O,CALIFORNIA O d N d and V C M a LL THE CITY OF SAN BERNARDINO U 0 0 C 0 Dated December 16, 1997 y d O N O N C d E d d Ol Q Q County Authorization Date: City Authorization Date: N December 16. 1997 D-q�mg ber 12. 1997 r m County Notice Address: City Notice Address: d E z U A Emergency Contact: Emergency Contact: Padket Pg.330 97- 371 © WASTE DISPOSAL AGREEMENT TMS WASTE DISPOSAL AGREE41ENT is made and dated as of the date indicated on the cover page hereof between the County of San Bernardino,apolitical subdivision of the State of California (the"County").and the City designated on the cover page of this Agreement,a general law or charter city and political subdivision of the State of California(the"City"). RECITALS o .y C The County owns, manages and operates a sanitary landfill system for the disposal of municipal solid waste generated in the unincorporated area within the County and which it has made w available for the disposal of municipal solid waste generated wi thin cities locmt d within the County(the it "Disposal System").The Disposal System currently includes 12 active landfills and is expected to consist > of five active landfills upon implementation of the Solid Waste Partnership Strategy and Implementation o plan. d y The Disposal System is used for the disposal of municipal solid waste which is not 3 composted, reused. recycled, transformed or otherwise diverted from landfill disposal, pursuant to the v Califarniabnegrared Waste Management Actof 1989(Division3o of the California Public Resources Code), m The Act,which mandates the diversion of 50%of waste from landfill disposal by 2000.has already reducer! a the volume of waste delivered to the landfills. T The County wishes to enter into an agreement with the City to accept all of the City's a municipal solid waste in the Disposal System for the term and subject to the provisions of this Agreement, o sod the City desires to use all legal acid contractual powers it possesses to deliver or cause to be delivered o the municipal solid waste generated within its boundaries to the Disposal Systern for the term of and subject .y to the provisions of this Agreement. U The City. in the exercise of its police power and its powers under the Act, either(i) has entered into a franchise or other agreement with or issued permits or licenses to one or more private haulers N for thecoliection and disposal of municipal solid waste generated within the City or fii)collects municipal N solid waste generated within the City in City owned and operated collection vehicles. c v The City has determined that the execution of this Agreement by the City will serve the E public health,safety and welfare of the City by providing greater disposal rate stability, more predictable v and reliable long-term disposal service,and the continuation of sound environmental management. rn Q The County has determined that the execution by the County of this Agreement will serve � the public health,safety and welfare by providing a more stable,predictable and reliable supply of municipal solid waste and die resulting service payment revenue to the Disposal System.thereby enabling the County to plan,manage,operate and finance improvements to the Disposal System on a more prudent and saund long term, businesslike basis. m Official action approving this Agreement and determining it to be in the public interest and m authorizing its execution and delivery was duly taken by the County on the County authorization dale E indicated an the cover page hereof. @ U Z Official action approving this Agreement and determining it to be in the public interest and a authorizing its execution and delivery was duly taken by the City on the City authorization date indicated on the cover page hereof. I 97-371 © It is,therefore,agreed as b1lnas c o N G d X W d 7 d N A 3 C R a LL T c 0 c o_ O N N U N cl N O N C N E v Q 0 3 N n Of C d E L U A a � z Packet'lrg=332 97-771 © ARTICLE 1 DEFL ITIONS AND INTERPRETATION SEC17ON 1.i. DEfI4rr1OSS. As used in this Agreement,the following terms shall have the meanings set forth below. "Acceptable Waste"means all garbage,refuse,rubbish and other materials and substances discarded or rejected as being spent, useless,worthless or in excess to the owners at the time of such discard 2 or rejection and which are normally disposed of by or collected from residential(single family and multi- family),commercial,industrial,governmental and institutional establishments which are acceptable at Class i< 111 landfills under Applicable Law(including,without limitation,the Legal Entitlements for each facility). w m "Act"means the California Integrated Waste Management Act of 1989(Division 30 of the California Public Resources Cade),as amwded,supplemenlcd,superseded and replaced from lime to time. o v "Agreement"means this Waste Disposal Agreement hs:mvim the County and the City as the same may be amended or modified from time to time in accordance herewith. 3 c "Appendix"means m appendix to this Agreement.as the same may W amended or modified n From time to time in accordance with the terms hereof. 'Applicable Law" means the Act, the San Bernardino County Code, CERCLA, RCR.A. CEQA, any Legal Entitlement and any federal or state rule, regulation. requirement, guideline, permit, U c action,determination or order of any iiovemmental Body having jurisdiction,applicable from time to time O © to the siting. design, pm amitting. acquisition, crntstructinn, equipping, financing. ownership. possession. o operation or maintenance of the 136posd Sv stem, the transfer. handling. tramp ination and disposal of .N Acceptable Waste,Unacceptable Waste,or any other transaction or matter contemplated hereby(including any of tits foregoing which concern health, safety. tire,environmental protection, mitigation monitoring A 0 plans and building cedes.). N "Board" means the California Integrated Waste.Management Board ° "CEQA"means the California Environmental Quality Act,codified at Cal. Pub,Res.Code d Scctim 2!000 et se .(West 19961 as amended or superseded,and the regulations promulgated thereunder. E au "CERC'LA"means the Comprehensive Environmental Responsibility Compensation and Q Liability Act,42 U.S.0 A.Section 9601 et sea.(Wrest 1995 &Stipp. 1996).as amended or superseded,and Q the regulations promulgated thereunder. ° "Change in Law"means any of the following events or conditions which has a material and CZA aria erse effect on the performance by the parties of their respective obligations under this Agreement(except for payment obligations),or the siting.design,permitting,acquisition,construction,equipping,financing, m ownership, possession, operation or maintenance of the Disposal System or other matters to which c Applicable Law applies: E r (t) the enactment,adoption,promulgation,issuance,material modification or written m change in administrative or judicial interpretation on or after the Commencement Data of any Q Applicable Law(other than Applicable Law enacted by the County); © 3 17-371 © (2) the order orjudgment of any Governmental Body(other than the County),on or after the Commencement Date,to the extent such order or judgment is not the result of willful or negligent action. error or omission or lack of reasonable diligence of the County or of the City. whichever is asserting the Occurrence of a Change in Law;mvided,however,that the contesting in good faith or the good faith decision not to contest any such order orjudgment shall not constitute or be construed as such a willful or negligent action, error or omission or lack or reasonable diligence;or 0 (3) the denial of an application for, delay in the review, issuance or renewal of,or suspension,termination,interruption,imposition of a new or more stringent condition in connection x with the issuance.renewal or failure of issuance or renewal on or after the Commencement Date of w any Legal Entitlement to the extent that such denial,delay,suspension,termination, interruption, imposition or failure materially and adversely interferes with the performance of this Agreement, if and to the extent that such denial, delay, suspension, termination, interruption, imposition or m failure is no the result of willful or negligent action, error or ornission or a lack of reasonable m diligence of the County or of the City,whichever is asserting the occurrence of a Change in Law; nrovided,however that the contesting in good faith or the good faith decision not to contest any such � denial,delay,suspension,termination,interruption,imposition or failure shall not be construed as c such a willful or negligent action,error or omission or lack of reasonable diligence. 0. LL "Change in Law" shall not include actions taken by Governmental Bodies to enforce requitcmcnts Of T Applicable Law, v C "City" means,as applicable,the city designated on the cover page of this Agreement and 0 c party to this Agreement. °_ © N 0 'City Acceptable Waste" means all Acceptable Waste which was originally discarded by the first generator thereof within the geographical limits of the City.and Residue from the foregoing(or w Tonnage equivalencies of such Residues.as and to the extent provided in subsection 3.VC)hetcof). N "Contract Date" means the date of delivery of this Agreement as executed by the parties hereto. c d "Contract Rate" has the meaning specified in Section 42 hereof. E v "Contract Year"means the fiscal year commencing on July 1 in any year and ending en June Q 30 of the following year. 0 "Controllable Waste" means all City Acceptable Waste with respect to which the City has the legal or contractual ability to determine the disposul location therefor and.which is: N (1) iron-Diverted Cily Acceptable Waste: M (2) not getttemted from the operations of the Governmental Bodies which, under Applicable Law,have tine imlependent power to arrange for the disposal of the waste they generate £ (such as school districts and State correctional facilities); r (3) not Residue excluded from the Waste Delivery Covenant pursuant to Section (4) not inert materials, construction and demolition debris, green waste and other materials which can be disposed at landfills other than Class III landfills;and (S) collected and hauled by franchise Haulers. O 4 97-371 © "County" means the County of San Bernardino, a political subdivision of the State of , California and party to this Agreement. "County Waste Management Enterprise Fund"means the waste management enterprise fund established and managed by the County pursuant to Section 25261 of the Govenunent Code separate from it.,other funds and accounts for receipts and disbursements in connection with the Disposal System. c "County-wide Recycling Services"has the meaning set forth in subsection 3.6(A)hereof. 2 y t "Designated Disposal Facility"means the sanitary landfill or other facility operated by or « X for the County as part of the Disposal System which is designated in Appendix I hereto as the disposal w location for Controllable Waste delivered to the County pursuant hereto as of the Commencement hate,or such other additional, alternate or replacement sanitary landfills or other disposal facilities as may be designated by the County as the Designated Disposal Facility (subject to the approval of the City) in e1 0 accordance with Section 3.2 hereof p; N A "Disposal Agreements"means each of the waste disposal agreements entered into between the County and any city within the County in accordance herewith. n "Disposal Services'means the solid waste disposal services to be provided by the County tai pursuant to the Service Covenant and othenvise hereunder. T "Disposal System"means all sanitary landfills and other solid waste transfer,transportation storage,handling,processing and disposal facilities,now or at any time owned, leased,managed,operated O by or under contract ni the County for the acceptance,handling,Processing and disposal of Acceptable Waste o delivered by it on behalf of the City under this Agreement, including the Designated Disposal Facilities a listed on Appendix I and any expansion thereof.all as more particularly described in the Solid Waite U Partnership Strategy and Implementation Plan. o "Disposal System Component"means any landfill,facility,structure,work,equipment,site N or other real or personal property constituting a component part of the Disposal System. N "Diverted City Acceptable Waste" means any otherwise Controllable Waste which is v separated from Acceptable Waste by the generator thereof or by processing and which is"diverted"within y the meaning of Section 40180 of the Public Resources Code. d m Q "Franchise Hauler"meatsany hauleror collector who provides Acceptable Waste collection Q services within the City pursuant to,or under authority granted by,a contract, franchise or other agreement with the City. The term Franchise hauler includes the City itself if Acceptable Waste collection and transportation services are provided directly by City operated municipal collection service. N "Governmental Body" means any federal. State, county, city or regional legislative, m executive,judicial or other governmental board,agency,authority,committee,administration court or other c body,or any officer thereof acting within the scope of his or her authority. E E z "flazardous Substance"has the meaning given such teen in the Resource Conservation and @ Recovery Act,42 U.S.C.6901 ct seq,CFRCI.A, and all future amendments to either of them or as defied Q by California statute or by the California Environmental Protection Agency or the California Integrated Waste Management Hoard,or any of them. © 5 Packet Pg. 335. 97-371 O "Hazardous Waste" means(a) any waste which by reason of its quality, concentration, composition or physical, chemical or infectious characteristics may do either of the following: cause,or significantly contribute to, an increase in mortality or an increase in serious irreversible,or incapacitating reversible, illness,or pose a sutnstantial threat or potential hazard to human health or the environment,or any waste which is defined or regulated as a hazardous waste,toxic substance,hazardous chemical substance or mixture,or asbestos under Applicable Law,as amended from time to time including,but not limited to: (1) the Resource Conservation and Recovery Act and the regulations container{ in 40 CFR Parts 260.281;(2) the Toxic Substances Control Act(15 U.S.C.Sections 2601 et sea.)and the regulations contained in 40 CFR o Parts 761-766;(3)the California Health and Safety Code,Section 25117(West 1992&Supp. 1996):(4)the c California Public Resources Code, Section 40141 (West 1996); (5)CF.RCLA and regulations promulgated X thereunder and(6)future additional or substitute Applicable Law pertaining to the identification,treatment, w storage or disposal of toxic substances or hazardous wastes;or(b)radioactive materials which are source, it special nuclear or by-product material as defined by the Atomic Energy Act of 1954(42 U.S.C.Section 201 t el sea.)and the regulations contained in 10 CFR Part 40- o v "Imported Acceptable Waste" means Acceptable Waste that is generated outside of the geographical boundaries of the County and delivered to the Disposal System. v c j "In-County Processing Facility" means any Processing Facility located within the M i geographical boundaries of the County, whether owned and/or operated by the County,any city,cr private LL operator. "Independent Haulers"means those waste collection/hauler companies primarily engaged c as it principal business in the collection and transportation of municipal solid waste generated in the County of San Bernardino and not under a franchise or other contract with a city in the County, o N N "Term"has the meaning specified m Section 6.1(A)hereof. Mn "Legal Entitlement" means all permits. licenses, approvals, authorizations,consents and entitlements of whatever kind and however described which are required under Applicable Law to be N obtained or maintained by any person with respect to the Disposal System or the Performance of any r°v obligation under this Agreement or the matters covered hereby. c d "Legal Proceeding" means every action, suit, litigation, arbitration, administrative E proceeding, and other legal or equitable proceeding having a bearing upon this Agreement. m a "Loss-and-Expense" means any and all loss. liability,obligation,damage,delay, penalty, Q judgment,deposit,cost.expense claim.demand,charge, tax.or expense,including all fees and costs. M m "Out-of-County Processing Facility" means a Processing Facility located outside the N geographical boundaries of the County r m "Nom Diverted City Acceptable Waste"means all City Acceptable Waste other than Diverted c City Acceptable Waste. W E r "Overdue Rate"means the post judgment rate of intemst specified by the laws of she State. m Q "Processing Facility" means any materials recovery facility, composting facility, intermediate processing center,recycling center,incinerator or other waste management facility to which City Acceptable Waste is delivered for processing prior to disposal. O 6 Packet Pg. 336'.'.. 47-371 I � "Prohibited Medical Waste"means any medical or infectious waste prohibited or restricted v tinder Applicable Law from being received by or disposed at the Disposal System. i "Qualified Household 1{uzimlous Waste" means waste materials determined by the Board, the Department of Health Services,the State Water Resources Control Board,or the Air Resources Board to be: V) Of a nature that they must be listed as hazardous in State statutes and regulations; o (3) Toxiclignitable/corrosivc.'reactive;and '2 (3) Carcinogenic/mutagenic/teratogenic; m X W which are discarded from households as opposed to businesses. Qualified Household Hazardous Waste shall >, not include Unacceptable Waste. Z "Residue" means arty material remaining from the processing in permitted solid waste o facilities or other facilities,by any means and to any extent, of City Acceptable Waste or Diverted City y Acceptable Waste. 1O 3 v "Rtsource Conservation and Recovery Act"or"RCRA"mcans the Resource Conservation and Recovery Act,d?U.S.C.A.Section 6901 et sea.(West 1983&Stipp 1989),as amended and superseded. a LL W "Self-Hauled Waste"means City Acceptable Waste collected and hauled by Self-Haulers. ZN U "Sclf•Hauler"means env person not engaged commercially in waste haulage who collects o and hauls Acceptable Waste generated Prom residential or business activities conducted by such person. o © N "Service Covenant"means the covenants and agreements of the County set forth in Sections 3.2 and 3.3 hereof. w 'o "State" means the State of California. N O I arm"shall mean the Term of this Agreement specified in Section 6.1. c "rott"means a"short ton"of 2,000 pounds. E E v "Transfer Station"means any transfer station or otherwastu handling or management facility m to which solid waste collected for the City is delivered for transfer, processing or transformation before Q disposal in the Disposal System. p 3 "Unacceptable Waste"means Hazardous Waste;Hazardotu Substances;Prohibited i<tedical Wastc;Qualified Household riazardous Waste separated from Acceptable Waste(or otherwise identified N by the County in loads otherwise containing Acceptable Waste);explosives,ordnance,highly flammable r substances,and noxious materials and lead-acid batteries(except if tieliverxl in minimal quantities);dmms and closed container; liquid waste, oil, human wastes; machinery and equipment from commercial or industrial sources,such as hardened gears,shafts,motor vehicles or major components thereof,agricultural E equipment.traiters,marine vessels and steel cable;hot loads;and any waste which the Disposal System is prohibited from receiving under Applicable Law. )°• Q "Uncontrollable Circumstance" means any act,event or condition affecting the Disposal System,the County,the City,or any of their Franchise Haulers,contractors or suppliers to the extent that © 7 Packet Pg. 337 97-371 �. it materially aid adversely affects die ability of either party to perform any obligation under the Agreement (except for payment obligations). if such act,event or condition is beyond the reasonahle control and is not also the result of the willful or negligent act,error or omission or failure to exercise reasonable diligence on the part of the party relying thereon as justification for not performing an obligation or complying with any condition required of such party under the Agreement;(ygyidud,however,that the contesting in good faith or the good faith decision not to contest such action or inaction shall not be construed as willful or negligent action or a lack of reasonable diligence of either party. Examples of Uncontrollable Circumstances are: c 0 (1)an act of Gad, landslide lightning,earthquake,fire,explosion,flood,sabotage or similar M occurrence.acts of a public enemy,extortion,war,blockade or insurrection,riot or civil disturbance; m x and w d (2)a Change in Law. > It is specifically understood that none of the fallowing acts or conditions shall constitute Uncontrollable Circumstances:(a)gencml economic conditions,interest or inflation rates,currency fluctuations or changes in the cost of fuel, the availability of commodities, supplies or equipment; (b) changes in the financial condition of the County,the City or any Subcontractor affecting their ability to perform their obligations; v (c)the consequences of erors,neglect or omissions by the County,the City,or any Subcontractor of any tier in the performance of their obligations hereunder;(d)union work rules,requirements or demands which have as the effect of increasing the number of employees employed in connection with the Disposal System or otherwise increase the cost to the County of operating and maintaining the Disposal System or providing the «_ Disposal Services;(e)strikes,work stoppages or other labor disputes or disturbances occurring with respect cr to any activity performed or to be performed by the City or the County or any of the City's or County's o Subcontractors in connection with the Disposal System or the Disposal Services; (f)any failure of any `o © Subcontractor to furnish labor,materials,service or equipment for any reason(other than an Uncontrollable 'm Circumstance): (g)equipment failure;(h)any impact of minimum wage law, prevailing wage law,customs or practices on the Couuty?s construction or operating costs;or(i)changing conditions in the local,regional, y or national waste disposal market. N "Unincorporated Area" means these portions of the County w'hic'h are not Contained within N the jurisdictional boundaries of incorporated cities. c v "Waste Disposal Covenant" means the covenants and agreements of the City set forth in E m Section 3.1 hereof. m a SECTION 1.2. jy"[p RPRf fATlO^I. In this Agreement, unless the context otherwise Q requires: (A)References Harem. lbe terms'licrebv',"hereof',"herein","hereunder"and any similar M terms are references to this Agreement, and the temu "hereafter' means after, and the term "heretofore" means before.the Contract Date. rn (B)Gender and Plurality, Words of the masculine gender mean and include correlative d words of the feminine and neuter genders and words importing the singular number mean and include the E plural number and vice versa, m (C) Person Words importing persons include firms, companies, associations, general Q partnerships, limited partnerships,trusts, business trusts, corporations and other legal entities, including public bodies,as well as individuals. © B —Packet Pg. 338 97-375 o (D) it eadines. The table of contents and any headings preceding the text of the Articles, Sections and subsections of this Agreement shall be solely for convenience of reference and shall not constitute a part of this Agreement.nor shall they affect its meaning.construction or effect. (E)Entire Agreement, This Agreement contains the entire agreement between the parties hereto with respect to the transactions contemplated by this Agreement and,except as expressly provided otherwise herein, nothing in this Agreement is intended to confer on haulers or any other person other than the parties hereto and their respective permitted successors and assigns hereatnder any rights or remedies g under or by reason of this Agreement w K (F)Counwroarts. This Agreement maybe oxecuted in any number of original counterparts.. w All such counterparts shall constitute but one and the same Agreement. (G)Applicable Law. This Agreement shall be governed by and construed in accordance m 0 with the Applicable Laws of the State of California. m N A (H) ASpLtgnting forms. All accounting terms used but not specifically defined herein shalt 3 be construed in accordance with.all accounting determinations hereunder to be made shall be prepared in accordance with generally acceptable accounting principles applied on a consistent basis. m a LL (I l Seve e 'it If any clause.provision,subsection,Section or.Article of this Agreement shall be Haled invalid by any court of jurisdiction.then the parties shall:(1)promptly meet and negotiate a iJ substitute for such clause,provision,subsection.Section or Article which shall,to the greatest extent legally permissible,effect the intent of the parties therein;(2)if necessary-or desirable to accomplish item(1)above, o apply to the court having declared such invalidity for ajudicial construction of the invalidated portion of this o Agreement;and(3)negotiate such changes in,substitutions for or additions to the remaining provisions of this Agreerent as may be necessary in addition to aid in conjunction with items(l)and(2)above to effect the intent of the parties in the invalid provision.The invalidity of such clause,provision,subsection,Section T or Article shall not affect any of the remaining provisions hereof,and this Agreement shall be construed and .. enforced as if such invalid portion did not exist, unless such invalidity frustrates the underlying primary N 0 purpose ol'the Agreement. "+ (J) Integration, This Agreement contains the entire agreement between the parties with m respect to the transactions contemplated hereby.This Agreement shall completely and fully supersede all E m prior understandings and agreements between the Parties with respect to such transactions. m m Q (K)Recitals.The recitals to this Agreement are not intended to bind the parties hereto.In Q the event of a conflict between (tae recitals and the operative provisions of this Agreement,the operative 0 ir provisions shall prevail.The recitals shall not be used to interpret the provisions of the Agreement. N n A C E U U 0 Q © 9 PacketPg. 339 97-37 1 . A.RTI(CLE It REPRESENTATIONS AND WARRANTIES SECTION 2.1. RFPRfSFNTATION S A*{(� W'ARRANTIFS OF THE_QU'— The City represents and wurrmas;that: (A) E•xf. . The City is a general law or charter city validly existing under the o Constitution and laws of the State. y C (g) Due Authorization, The City has duly authorized the execution and delivery or this K Agreement and this Agreement has been duly executed and delivered by the City. w a, (C)jNss_C4ttfll , Neither the execution nor the delivery by the City of this Agreement nor the performance by the City of its obligations hereunder nor the consummation by the City of the p transactions contemplated hereby(1)conflicts with,violates or results in a breach of any Applicable Law d or(2)conflicts with,violates or results in a breach of any term or conditions of any contract, agreement, m franchise.judgment, instrument or dectce to which the City is a party or by which the City or any of its properties or assets are bound,or constitutes a default under any such contract, Ftanchise,judgment,decree, m agreement or instrument tt LL (D)No Lititratiun. There is no action,suit or other proceeding, at law or equity, before or T by any court or Governmental Body pending or,to the City's best knowledge, threatened against the City in U Which an unfavorable decision..ruling or finding which would materially and adversely affect the validity of or enforceability of this Agreement or any other agreement or instrument to be entered into by the City c in connection with the transactions contemplated hereby,or which would materially and adversely affect the o performance by die City of its obligations hereunder or tinder any such other agreement or instrument. m SECTION 2.2. 1?3GSETATtONS ANU W'ARR�yT,j,GY OF "fHE: (`OIIN_"(�'i'. The County represents and warrants that: N (A) Existence. The County is a political subdivision of the State of California validly existing under the Constitution and laws of the State. c ar (B)ITme Authorization. The County has duly authorized the execution and delivery of this E Agreement,and this Agreement has been duly executed and delivered by the County. °•' run Q (C)No Cunflict. Neither the execution nor the delivery by the County of this Agreement Qo nor the performance by the County of its obligations hereunder nor the consummation by the County of the 3 transactions contemplated hereby(1)conflicts with,violates or results in a breach of any Applicable Law or(2)conflicts with,violates or results in a breach of any term or conditions of any contract, agreement, N franchise,judgment.instrument or decree to which the County is a pans or by which the County or any of its properties or assets are bound,or constitutes a default under any such contract, franchise,judgment, M decree, agreement or instrument. c v (D)No Lineation. There is no action, suit or other proceeding,at law or equity,before or u by any court or Governmental Body pending or, to the County's best knowledge,threatened against the x County in which an unfavorable decision,ruling or finding which would materially and adversely affect the Q validity of or enforceability of this Agreement or any other agreement or inslrunwrit to be entered into by the County in connection with the transactions contemplated hereby, or which would materially and © In 47-371 © adversely affect the performance by the i:ounty of its obligations hereunder w under any such other agreement or instrument. c 0 N C W @ 1 d ' N 9 C @ a u r c 0 c o_ O y N N_ N O \ N @ E d Q Q O O N n Ol C d E u U @ a ,i I Packet Pg. 341 97-371 OARTICLE III . . DELIVERY AND ACCEPTANCE OF WASTE AND PROVISION OF DISPOSAL SERVICE SECTION 3.1- DELIVERY OF WASTE. (A)Waste Disposal�. Subject to the occurrence of the Commencement late and throughout the Tenn of this Agreement,the City shall exercise all legal and contractual power and authority which it may possess front time to time to deliver or cause the delivery of all Controllable Waste to the Disposal System in accordance herewith beginning on January I, 1998. o .N c (8) Diverted City Acceptable Wade- The panics tingle acknowledge the responsibility aJ of the City to meet the recycling and landfill diversion goals contained in the Act. Nothing in this uu Agreement is intended or shall be interpreted to prohibit or impair the ability of the City to meet or exceed such responsibilities, or to restrict the right of the residents, businesses or organizations in the City to practice source separation,source reduction,recycling,composting or other materials recovery activities, o or to restrict the right of the City to conduct,sponsor,encourage or require such activities in any form. No m reduction in the amount of Controllable Waste generated in the City and delivered to the Disposal System by or on behalf of the City which may result from any such source separation or recycling program(whether 3 or nor such program meets or exceeds the diversion requirements of the Act)shall cause the City any liability -o hereunder and shall not constitute a breach of this Agreement. a. LL (SECTION TO RE USED IF.ALI,WASTE. CURRENTLY STAYS WITHIN COUNTY] X (C) tk..wlutfc i_1u.:Transfer Stationer Processing Facilities. Subject to the provisions of this Section, all Residue from any processing of Controllable Waste by materials recovery, composting, U recycling or other means, performed at In-County Processing Facilities or Out-of Counl Processing o Facilities shall constitute Controllable Waste and be subject to the Waste Disposal Covenant-The County o © specifically acknowledges that the City shall have the right to deliver or cause the delivery of City Acceptable Waste to Out-of-Counly Processing Facilities,and that the City is not obligated to require that Residue from such Out-of-County Processing Facilities be delivered to the Disposal System, after final processing or re-processing of such Rcsidue as long as such Residue from Oui-ofCounty Processing Facilities does not exceed. in any Contract fear, the lesser of(0 10%of die amount of City Acceptable N U'asre delivered m such Ourof•Counry Processing Facility in such Contract Year or(ii)2.v of the total N amount of Controllable Waste generated in the City during such Contract Year.To the extent that Residue from the processing of Controllable Waste exceeds the amount specified in the preceding sentence,the City v stall exeroisc all legal and contractual authority which it may Ia.+scess fnwn time to time to require that such E excess Residue be delivered to the Disposal System, and shall include a requirement to that eff"t in any v contracts,agreements or other arrangements for processing at Out-of-County processing Facilities which Q it enters into or amends after the Contract Date.Where City Acceptable Waste is processed at an In-County Q or Oat-of-County Processing Facility which concurrently processes other Acceptable Waste in a manner which produces commingled residue which cannot be traced to a geographic source. generic residues from such Processing Facility in I nonage equal to the residues that would have been produced had City Acceptable Waste only been processed ar the facility shall constitute Controllable Waste and be subject to the Waste Disposal Covenant(subject to the exclusion from Controllable Waste of the amounts of Residue from Out-of-County Processing Facilities specified in this Section 3.1(C).)Such generic residues shall be delivered to the Disposal System regularly, in approximately the same frequency as deliveries of City m Acceptable Waste to the Processing Facility. (in making any determination of Residue attributable to the E City.the City may rely on the reports or certifications of the owner or operator of the Transfer Station or m Processing Facility.) [FOLLOWING SECTION TO BE USED IF WASTE CURRENTLY PROCESSED OUT-OF- COUN'FYj 12 i Packet Pg. 342 97-371 © (C) t;FjgdteAcGvercd m Trangfer Station or Processingtacilii ties. Subject to the provisions of this Section,all Residue from any processing of Controllable Waste by materials recovery,composting, recycling or other means, performed at In-County Processing Facilities or Out-of-County Processing Facilities shall constitute Controllable Waste and he subject to the Waste Disposal Covenant. the County acknowledges that a portion of Controllable Waste,(i)the subject of a franchise,contractor other agreement which provides for the processing of such portion of Controllable Waste at an Out-of-County Processing Facility and(ii)was,as of July I, 1997,and is,as of flit Contract Date being actually delivered roan Out-of County Processing Facility pursuant to such or other agreement. With respect to the o e portion of Ccnttrollablc Waste which is subject to the franchise,contmG or other agreement described in this Section the City is not obligated to require that Residue from such Out-of-County Processing Facilities be m delivered to the Disposal System,after final processing or re-processing of such Residue as long as such w Residue from Out-of-County Processing Facilities does not exceed,in any Contract Year,the lesser of(i) 40%of the amount of City Acceptable Waste delivered to such Out-of-County Processing Facility in such i Contract Year or (ii) 7% of the total amount of Controllable Waste generated in the City during such o Contract Year. However, the City agrees that upon the expiration date of such franchise, contract or m agreement (n8 such expiration date exists as of the Contract Date, without any renewal, amendment or modification thereof) the City will not be obligated to require that Residue from such Out-of-County 3 Processing Facilities be delivered to the Disposal System.after final processing or re-processing of such Residue as long as such Residue from Out-of-County Processing Facilities does not exceed,in any Contract m Year, the lesser of(i) 40% of the amount of City Acceptable Waste delivered to such Out-of-County LL Processing Facility in such Contract Year or(ii)2%of the total amount of Controllable Waste generated in � the City during such Contract Y'enr To the extent that Residue from the processing of Conrnllnble Waste exceeds the amount specified in this Section,the City shall exercise all legal and contractual authority which co c it may possess fmm to time to time to require that such excess Residue be delivered to the Disposal System. o and shall include a requirement to that effect in any contracts, agreements or other arrangements for o ® processing at Out-of-County Processing Facilities Much it enters into or amends after the Contract Date. .y Where City Acceptable Waste is processed at an In-County or Out-of-County Processing Facility which U concurrently processes other Acceptable Waste in a manner which produces commingled residue which W cannot be traced In a geographic source,generic residues from such Processing Facility in Tonnage equal to the residues that would have been produced had City Acceptable Waste only been processed at the facility N shall constitute Controllable Waite and be subject to the Waste Disposal Covenant(subject to the exclusion t°y from Controllable Waste of the amounts of Residue from Out-of-Country Processing Facilities specified this Section 3.1(C).)Such generic residues shall be delivered to the Disposal System regularly,in approximately m the same frequency as deliveries of City Acceptable Waste to the Processing Facility. (in making any E determination of Residue attributable to the City:the City may rely on the reports or certifications of the d owner or operator of the Transfer Station or Processing Facility.) a a a (D) p,SisrtgObljyateWaste Disrtesal a*-d.Cmm�lr•t'}3lii_Ijiiy-fir dent.On or before 3 January 1. 1998.(i)am City franchise,contract,lease,or other agreement which is lawfully in effect misting to or affecting Controllable Waste shall provide, or shall have been amended to provide,that the City shall have the right without material restriction on and after the January 1, 1998 to direct the delivery of all Controllable Waste to a disposal location selected by the City(whether or not such Controllable Waste is delivered to a transfer station as an intermediate step prior to landfill disposal)and otherwise to comply with its obligations under this Agreement with respect to Controllable Waste and Franchise Banters,(ii)the City m shall designate the Designated Disposal Site as the disposal location pursuant to such franchise,contract, E s least or other agreement and(iii) the City's Franchise!tauter shall execute the Healer Acknowltdgmem U attached hereto as Appendix 2.pursuant to which the Franchise Hauler acknowledges the City's execution G of this Agreement,and agrees to comply with the Waste Disposal Covenant. Throughout the Term of this j Agreement the City(a)shall not enter into any franchise,contract,lease,agreement or obligatioq issue any 31 permit,license or approval,or adopt any ordinance,resolution or law which is materially inconsistent with 1 j 13 1 { I "efPg. 343 91-371 © the requirements of the Waste Disposal Covenant. and (b) shall maintain non-exclusive or exclusive franchises or other contractual arrangements (or collection through City owned and operated collection services) over any City Acceptable Waste which. as of the Contract Date. is subject to non-exclusive or exclusive franchise or ther contractual arrangements.The City agrees that the County shall be a third party beneficiary of the obligation of Franchise Haulers to deliver Contro llable Waste to the Disposal System,and may directly enforce such obligation dirough any legal or means available; provided,however,that such designation of the County as a third party beneficiary does not relieve the City of its obligations hereunder to enforce the waste delivery obligation of the Franchise Haulers.The City shall notify in writing each o Franchise Hauler of the County's third party beneficiary rights.+ c m (E) Waste Flow Enforcement The City,in cooperation with the County,shall establish, tL implement, carry out and enforce a waste Flow enforcement program Which is sufficient to assure the delivery of all Controllable Waste to the Disposal System pursuant to and in accordance with the Waste Disposal Covenant for disposal at the times and in the manner provided herein. The waste flow enforcement .� program shat]consist of amending City franchises with all Franchise Haulers,to the extent required by this 0 Sse[ion,and shall include in addition,to the extent necessary and appropriate in the circumstances to assure � compliance with the Wastc Disposal Covenant but shall not be limited to: (1) licensing or permitting 1e Franchise Haulers.upon the condition of compliance with the Waste Disposal Covenant,(2)providing for and taking appropriate enforcement action under any such franchise, license. (it permit, such as but not limited to the suspension,revocation and termination of collection rights and privileges,the imposition of a LL fines or collection of damages,and the excrcis'e of injunctive relief against non-complying Franchise Haulers K and (3) causing any Transfer Station to Which Controllable Waste is delivered for processing to deliver certification, under the penalty of perjury, of the amounts of Controllable Waste received and Residue cl remaining from processing at such Transfer Station. 'The City acknowledges and agrees that in the event of o a breach of tm Waste Disposal Covenant by the City,the City shall pay the County an amount equal to 1000/0 e 0 © multiplied by the Contract Rate in effect at the time of such breach multiplied by the number of inns of 'iii Controllahic Waste which Were not delivered to the Disposal System as a result of the failure of the City to comply with the Waste Disposal Covenam the parties recognize that if the City fails to meet its obligations m hereunder. the County will suffer damages and that it is and will be impracticable and extremely difficult o to ascertain and determine the exact amount of such damages. Therefore,the parties agree that the damages specified above represent a reasonable estimate of the amount of such damages, considering all of die N circumstances existing on the date hereto.including the relationship of the sinus to the range of harm to the County that reasonably could be amicipated;rod anticipation that proof of actual damages would he costly or inconvenient.In signing this Agreement,each party specifically confirms the accuracy of the statements E made above and the Fact that each party had ample opportunity to consult with legal counsel and obtain an 0 explanation of this liquidated damage provision at the time that this Agreement was made. Q Q (F) LsseA,�Chalknaes to Franchise Svstenl. The City shall use its best etYnrts to � preserve,prouxt and defend(by diligent pursuit of claims through the trial court level) its right to exercise and Comply With the Waste Disposal Covenant against any challenge thereto,legal or otherwise(including any lawsuits against the City or the County,whether as plaintiff or defendant),by a Franchise Hauler or any other person,based upon breach of omumot violation of law or any other legal theory. The City shall bear the cost and expense of any such Legal Proceeding or other challenge. In the event any such I-egal Proceeding relating to the Waste Disposal Covenant or the City's exercise thereof establishes in a final m determination that such covenant or exercise thereof is void,unlawful or unenforceable,or if any Franchise E Hauler fails to deliver Controllable Waste to the Disposal System in breach of its franchise with the City on @ the grounds that a judicial determination made by any court or other Applicable Law has rendered its obligation to deliver Controllable Waste to the Disposal System void,unlawful or unenforceable on any legal Q grounds,with the result that actual waste deliveries of the City's Controllable Waste to the Disposal System in any Contract Year fall below 93% of the amount of the City's Controllable Waste delivered to the © Id -Packet Pg.344 97-371 © Disposal System during the preceding Contract Year, the County shall be entitled to terminate this Agreement upon 40 days prior written notice to the City, Such right of the County to terminate must be exercised within one year of the end of the Contract Year during which the delivery shortfalls described in this Section giving rise to doe right to terminate occurred. Upon any termination by the County pursuant to the provisions of this Section,the obligations of the County pursuant to Section 7.3 hereof shall not apply to any Loss-and-Expense of the City which may arise from deliveries of waste to the Disposal System after such date of termination. c 0 (G) Franchise Haulers. The City shall compile and provide the County with they following information concerning all Franchise Haulers: name,address and phone number; identification number; area of collection and transportation:and franchise and permit terms. w ZI (}l) W - snnttitw_Sy;iCCJn. The City shall cooperate with the County in collecting i information and otherwise monitoring Franchise Haulers in order to assure compliance with this Agreement. m Such information may include,to the extent practicable,date pertaining to Controllable Waste collected, transported, stored, processed and disposed of; Diverted City Acceptable Waste collected, transported, stored, processed and marketed or disposed of; Franchise Haulers' franchise, permit or license terms, collection areas,transportation routes and compliance with Applicable Law;and all other information which -o may reasonably be required by the County in connection with this Agreement, m a (1) City Act ms AffegDllz County. The City agrees not toconduct awry disposal services for Controllable Waste to be provided in competition with the Disposal Services provided by the Ceunty hereunder,and not to take or omit to take any action with respect to Controllable Waste or its collection, c transportation.transfer,storage,irwmnent or disposal that may materially and adversely affect the County's o ability to achieve such timely compliance. The County acinowledges that development by the City (or © g cooperation by the City in connection with the private development on any materials recovery facility or 'm transfer station located within or without the City shall not violate the provisions of this section as long as die ultimate disposal site for any Controllable Waste(or Residue therefrom) which is delivered to such w materials recovery facility or transfer station is the Disposal System.Notwithstanding the foregoing,the City shall not be required to(i)approve or deity any permit or license or grant or refuse to grant any approval while exercising its police powers or(ii)waive,modify or otherwise limb in any rummer the City's land use ry authorit). c (J) iw Right of Waste Substitution. Nothing in this Agrecment shall authorize or entitle E rho City to deliver or cause the delivery to the Disposal System of Acceptable Waste originating from or v generated outside the jurisdiction of the City.nor obligate the County to receive or dispose of any such Q Acceptable Waste. The City shall not assign in whole or in part its right to deliver or cause to be delivered Q Controllable Waste to the County hereunder,and shall not permit any Acceptable Waste originating from o or generated outside the jurisdiction of the City to be substituted for Controllable Waste for any purpose m hereunder. N (K) Annexations and Restr cturinu. it is the intention of the parties that this Agreement and the obligations and rights of the City hereunder,including particularly the Waste Disposal Covenant and the Contract Rate, shall, to the extent permitted by Applicable Law (and subject to any rights of waste v haulers operating in such areas prior to such annexation),c:dend to any territory annexed lay the City(or any E territory with respect to which the City assumes solid waste management responsibility from a sanitary district or other public entity)and shall bind any successor or restructured Governmental Body which shall assume or succeed to the rights of the City under Applicable Law. 4 ® ti Packet Pg. 345 47-371 SECTION 3.2. PRO)MION OF DISPOSAL SERVICES BY THE COUNTY (A)Service ivgnartt. Commencing January I, 1998,the County shall provide or cause the provision of the service of (1)receiving and disposing of till Controllable Waste at the Designated Disposal Facility,(2)disposing in accordance with subsection 12_(C)hereof bf Controllable Waste which, at any time and for any reason, is in excess of the disposal capacity of the Designated Disposal Facility,and(3) in accordance with subsection 33(C)hereof,disposing of Unacceptable Waste inadvertently accepted at the Designated Disposal Facility. The County shall do and perform all acts and things wilich may be necessary or desirable in connection with its covenants in this subsection, including without limitation all planning,development, administration, o implementation, construction,operation, maintenance,management, financing and contract work related 0 thereto or undertaken in connection therewith. The Comity shall exercise 411 reasonable efforts to minimize the costs incurred in complying with the Service Covenant consistent with its responsibilities hereunder and w under this Agreement,Applicable Law and prudent solid waste management practice and environmental ?I considerations,so as to enable the County to provide the services hereunder at the Contract Rate. > .@ (B) Tempomrviinaval(gbilhv of Designated Dismal Fgcility: Provision of Transfer m C'n ac' v. The County shall immediately advise the City and Franchise Hauler by telephone and facsimile of any situation,event or circumstance which results in the partial or complete inability of the County to 3 receive Controllable Waste at the Designated Disposal Facility, its effect on the County's ability to perform v its obligations hereunder,and the County's best estimate of the probable duration. The County shall confirm m such advice in writing within 24 hours of the occurrence of any such inability, 'Ilse County shall use its test a efforts to resume normal operation of the Designated Disposal Facility as soon as possible in accordance with subsection 3.2(C)hereof. In the event that any time during the term hereof,the County is unable to accept City Acceptable Waste for disposal at any particular Designated Disposal Facility for a period in O excess of 14 consecutive days,it shall nonetheless provide sufficient transfer capacity at such Designated o Disposal Facility, and shall accept for transfer and disposal City Acceptable Waste at such Designated o © Disposal Facility for the Contract Rate. In the event that the County cannot provide such transfer capacity, .y it shag be obligated to accept such City Acceptable Waste at another facility within the Disposal System and to reimburse the City for any increased transportation cost(including without limitation,equipment rental m costs,overtime and increased fuel costs resulting(boat the unavailability of Oe Designated Disposal Facility) incurred by the City or the Fmnch ise Hattters in transporting City Acceptable Waste to another disposal N facility within the Disposal System.In the event that the County cannot provide disposal capacity at another N Facility within the Disposal System. it shall be obligated to reimburse the City For (i) any increased transportation cost(including without limitation,equipment rental costs,overtime and increased fuel costs v resulting from the unavailability of the Designated Disposal Facility)incurred by the City or thu franchise E Haulers in transporting City Acceptable Waste to any other disposal facility used by the City or Franchise a Hauler and(it)the amount.if any.by which the tipping fee at the alternative facility utilized by the City or w Franchise liauler(because of the unavailability of any facility within the Disposal System)exceeds the then Q current Contract Rate.The invoice shall include reasonable substantiatic+n of the amount invoiced. � IQ Termination by County in Certain Circumstances, In the event that the Designated Disposal Facility becomes unavailable pursuant to Section 3.2(B)for a period exceeding 14 days,the County shall have the right to terminate this Agreement pursuant to this Section.The County may exercise such right by m providing 10 days prior written notice thereof to the City. In the event that the County exercises such right, the County shall be obligated to pay the City an amount equal to (i)any aggregate increased transportation m cost(including without limitation,equipment rental costs,overtime and increased fuel costs resulting from E the unavailability of the Designated Disposal Facility)reasonably expected to be incurred by the City or the L m Franchise Haulers in transporting City Aonreptable Waste to any other disposal facility used by the City or Q Franchise Hauler for a period of one year fallowing the date of termination and(ii)the aggregate amount, if any,by which the tipping fee at the alternative facility utilized by the City or Franchise Hauler(because of the unavailability of any facility within the Disposal System)is reasonably expected to exceed the then O ie Packet Pg. 346 97-371 current Contract Rate for a period of one year following the date of termination. Such amounts shall loo payable by the County within 60 days of the date of termination. (D) Change in Designated (&'t Iwal Facility by Mutual Consm. The Designated Disposal Facility has been initially designated in Appendix I hereto. The Designated Disposal Facility may be changed,and other Designated Disposal Fneililies added, at any time with the mutual consent of the parties. c 0 (G) ChRove in Designated Disposal Faeiilty at.City Baum In the event the City � wishes to change the Designated Disposal Facility to another Disposal System Component,the City shall m provide written notice and the reasons therefor to the County, and shall indicate whether the requested w change is pernatent or temporary. The County shall consider any such request in good faith and provide a response to the City within 14 days, taking into account the reasons for the request, time County's obligations to other cities which have executed Disposal Agreements,the requirements of Applicable Law, .� and the implications of any such change for the Disposal System as a whole. 'The County shall honor any O such request to the extent commercially practicable based on such considerations and the overall interests w m of the Disposal System. 3 a (F) Annual Notification oRemaininu Disposal Cnoacitv. .At the end of each Contract R Year,the City shall advise the County in writing as to the expected delivery levels of Controllable Waste a during dw next Contract Year,and the County shall submit to the City a statement specifying(I)the amount of disposal capacity at the Designated Disposal Facility expected to be available for use by the City during «_ the next Contract Year;(2)the aggregate amount of Disposal System capacity expected to be available for U use by the cities which have executed Disposal Agreements during the remaining Tenn of this Agreement, o and (3)any plans the County may have with respect to mricsignating the Designated Disposal Facility, e O o increasing or decreasing the number of cities using the Designated Disposal Facility, or curtailing or 'w expanding the use of the Designated Disposal Facility.The annual notification to be provided by the County a Pursuing to this Section shalt also describe the status of any permits required with respect to the Dexignatert m Disposal Facility, including a description of(i)any permit revisions expected to be proposed by the County; and (ii) any abatement orders or other permit compliance or enforcement actions taken or proposed by N Governmental Bodies. ° N SECTION 3.3. COUNTY RIGHT TO REFUSE WASTE.. (A) Right ,yf Refusal. Notwithstanding any other provision hereof,the County may refuse delivery of: E m v (1) Unacceptable Waste;and G (2) Controllable Waste delivered at hours other than those provided in the facility Q operating permit. l] (B)Identification oft;naceenl• le 1Vaste. the County shall have the right(hut not the duty `r or the obligation)to inspect time vehicles of all Fmnchim Haulers delivering material to the Disposal System, and may require that the Franch isc Hauler remove any Unacceptable Waste from such vehicle before it is m unloaded.If the County determines that it is impractical to separate Controllable Waste from Unacceptable Waste in any vehicle,or if the Franchise Hauler delivering such waste is unwilling to make such separation, a or if troy vehicle is carrying waste which may spill or leak,then the County may reject the entire vehicle,and .Ec the County shall require that the Franchise Hauler shall forthwith remove or cause the removal of the entire m delivery from the Disposal System. (C) Ha¢ r„ns Waste and Hazardous Substances. The parties acknowledge that the Disposal System has not been designed or permitted,and is not intended to be used in my manner or to any © 17 Packet Pg.347 97-371 Oextent, for the handling,transportation, storage or disposal of Hazardous Waste or Hazardous Substances. Neither the County nor the City shall countenance or knowingly permit the delivery of Hazardous Waste or Hazardous Substances to the Disposal System. (D) j)1:2nsal of Unaccepi ble Waste and Hazardous Wast-. If Unacceptable Waste or Hazardous Waste is discovered in a vehicle at any landfill within the Disposal System, the driver of the vehicle will not be permitted to discharge die load If a vehicle is observed unloading Unacceptable Waste or Hazardous Waste in the tipping area of a landfill within the Disposal System County personnel will use o reasonable efforts to assure that such material has been characterized,properly secured and its disposition N resolved, The return or reloading on to the delivery vehicle of any Hazardous Waste, Prohibited Medical a? Waste ur other waste requiring handling or transportation shall be conducted in accordance with Applicable iu Law, Whenever Hazardous Waste is detected at any landfill within the Disposal System,the County shall L, take immediate action in accordance with Applicable Law.In addition, if the Comity inadvertently accepts Unacceptable Waste, it shall have the right to pursue any remedies which it may against the person o delivering such Unacceptable Waste to recoup the cost of handling and properly disposing of such ar Unacceptable Waste. (E) Environmental Insurance. Prior to the Contract Date, the County will obtain T1 insurance for potential CERCLA or other environmental liability of the Disposal System,in an amount equal m to$10,000,000 with deductibles o4(i) $1,000,1100 for events giving rise to coverage which events occurred a LL prior to October 1, 199$ and(ii)$250,000 for events giving rise to coverage which events occurred on or � after October 1, 1995,The County shall maintain comparable insurance throughout the term hereof so long as commercially available on reasonable terms,as determine,]in the reasonable discretion of the County risk u manager. The County shall notify the City in the event that the County does not maintain the insurance o described in this Section. a o_ N SECTION 3.4. MISCELLANEOUS OPERATIONAL LS1&1 S.(A)Permit Revisions or Stipulated Qtt1.4f:.The County shall provide the City with any application of the County to revue the A Legal Entitlements for the Designated Disposal facility (or any draft or final stipulated notice and order relating to the Designated Disposal Faciliy which may be under consideration by the local enforcement agency with jurisdiction over the Designated Disposal Facility). Such applications shall be provided to the n C itv concurrently with its submittal to the appropriate regulatory agency. c (B)Scale.%• and R„gjahIpyr.'I'he County stall operate and maintain permanent scales at the E E Disposal System in compliance with Applicable Law. The County shall weigh all vehicles delivering m Controllable Waste by or on behalf of the City(whether or not the County accepts such waste)and prepare Q a daily weight record with regard to such delivery.(in the event that scales are temporarily unavailable, the Q County shall reasonably estimate the weight of Controllable Waste delivered by volume.) 3 SECTION 3.5. OTHER I10ERS OF THE DISPOSAL SYSTEM. (A) Generally. The `D County shall have the right to enter into waste disposal agreements with other cities in the County,Sanitary Districts, Transfer Stations or Independent Haulers; provided, however, that in no event shall such agreements have terns and provisions more favorable than the terms and provisions of this Agreement (including but not limited to the Contract Rate and availability of disposal capacity)unless the County has m tirst offered the City such more favorable contract(or amendments to this Agreement). r 0 (B) Receipt of Imported Airemable Waste an a Contract Basin.The County shall have the right to enter into a contract or other agreement with any municipal or private non-County evilly for the G delivery of Imported Acceptable Waste on terns and conditions that the County determines to be necessary to ensure and enhance the viability of the disposal System for the benefit of the County and the cities which ® 16 Packet Pg. 348 y7-371 have executed Disposal Agreements. 'Ile County shall not enter into tiny such arrangements if such arrangements would materially and adversely affect the ability of the County to receive and dispose of Acceptable Waste from the cities which have executed Disposal Agreements in accordance with the Disposal Agreements throughout the Term thereof. Any such agreements shall provide that, in the event there is insufficient capacity at the Designated Disposal Facility for both Controllable Waste and Imported Acceptable Waste,Controllable Waste shall have priority with respect to existing capacity. SEC.TION3.6. CO(NTY PROVISION OF WASTE DIVERSION SERVICES. o (A)County-Wide Recvclina Services. This Agreement does e not require the County to provide for airy source reduction.materials recovery, recycling,composting,or other waste diversion services by the County not any payment therefor by the City, by Franchise Haulers or by ratepayers; provided,however,any County- w Wide Recycling Services, or recycling services provided at any Designated Disposal Facility (such as providing drop boxes for wood waste,green waste or other recyclable materials delivered to such Designated > Disposal Facility), may be funded through die County Waste Management Enterprise Fund. Any such o recycling services may be expanded,contracted or modified by the County at anytime in its sole discretion (8) 5sprac City-County Diversion Service A reemenis. Nothing in this Agreement m m is intended to limit the right of the County to enter into a separate agreement with the City or any other v person to provide source reduction, materials recovery, recycling, composting or other waste diversion m services. Any such program conducted by the County,whether in participation with the City,any other of a the cities which have executed Disposal Agreements, other cities, Sanitary Districts. Transfer Stations, ut Independent Haulers,Unincorporated Ares or non-County entity,shall be operated,managed and accounted for as a program separate and distinct front the Disposal Services program contemplated by the Dispnsnl O Agreements and shall not be funded through the general revenues of the Disposal System. o c 0 (C) Diversion Programs in Unincorporated Atgtt„s. To the extent the County implements 'N diversion or other related programs in the Unincorporated Area of the County,the cost of such diversion U programs shall be paid by the residences and businesses receiving the benefit of such diversion programs, 0 and shall not he payable from the revenues of the Disposal System. N N C E E v ar m 0 3 N_ r Oh C al E L U N ¢ O19 9 9?-371. © ARTICLE W CONTRACT RATE SEC•T1ON41. CHARQING AND SECURING PAYMENTOF CONTRACTRATF, The City acknowledges that the County shall have the right to charge and collect a Contract Rate for the acceptance and disposal of Controllable Waste delivered br the System by any Franchise Hauler, The Contract Rate shall be calculated and established,and may be modified,as provided in Section 4.2 hereof. In addition,the City acknowledges that the County shall have the right to establish as part of the operating o rules and regulations reasonable measures to secure the payment of all Contract Rates.Notwithstanding Section 4.2(A).the County shall have the right to impose special charges for the receipt of hard to handle materials,such as bulky materials.construction and dernol ition debris,tires and sludge.Such special charges w shall be calculated to reflect the reasonable incremental costs to the County of accepting such hard to handle it materials. 0 SECTION 4.2. CQ_73RACT RATE. (A) Generally. Effective January 1, 1998, the ° Contract Rate payable by each Franchise hauler shall be 52850 per ton,subject to potential adjustment y necessary to reflect the circumstances set forth below: a (i) increased costs incurred by the County (in excess of available insurance proceeds) @ due to the occurrence ofome or more Uncontrollable Circumstances,including Changes in Law;and a tx (n) escalarion during the Term of this Agreement calculated in accordance with Section 42(B)' c 0 Prior to adjusting the Contract Rate as a result of any of the circumstances described in e © Section 43(Axi),the County shalt utilize the following remedy: reduce the costs of operating the Disposal 'o b System to the extent practicable, 2 Any adjustments to the Contract Rate permitted by this Section 4.2(A)(i)shall be calculated by the County to reflect the actual costs or expenses of addressing the circumstance or circumstances N pursuant to which the adjustment is authorized,and shall also reflect,where applicable, the then remaining N capacity in the Disposal System.Such adjustment may not reflect circumstances other than the circumstances described in Section 4.2(A)(i), v E (B) Calculation of Escalation. For purposes of Section 4.2(Axii),the Contract Rate shall be y adjusted in accordance with the formula described in this Section each July t during the term hereof, Q commencing July 1, 1999.The adjustment shall be calculated in accordance with the following formula: Q Contract Rate Fixed Portion +[Escalating Portion x Index) m Where, r Fixed Portion = $10.81 c m Escalating Fortiori - $17.63 E 0 V Index s Price Index, which shall be determined in accordance with the following formula I a .7[PPI,1PPI;}+-3[ErfEl:l © zo °^'pac Pg. 50 97- 371 GPPI, The Producer Price Index,Industrial Commodities,as published by the United States Department of Labor Statistics in die publication Prodercrr Price bulicgt,Table 6,for the month of February in the year the adjustment is being made(e.g.,the first adjustment will use the February, 1999 value) PPI_ Producer Price Index, Industrial Commodities for the month of c February, 1998 '7, a+ El, Employment Cost Index,Compensation.Private Industry Workers, w as published by the united Stites Department of Labor Statistics in the publication { in h v a &&L,_R,Tiew Table 22 for the last quarter of the year preceding the year the adjoatment is beingmade 'd (e.g..the first adjustment will use the last quarter, 1998 value) ° m N Eli Employment Cost Index,Compensation,Private Industry Workers m established for the last quarter of 1997 v c m If the Employment Cost Index or Producer Price Index are no longer published,or are otherwise a unavailable. then the Cost of Living Adjusinent shall be delemiined by Using standard official statistics rx measuring changes to,respectively,labor costs and cast of materials,as the parties shall mutually agree. D U (C) Procedure far Rate Adjustments. In the event die County determines that it is o entitled to an adjustment of the Contract Rate pursuant to Section 4.2(Ayi), it shall utilize the procedures o © described in this Section 4.2(C). The County shall be required to provide the City with at least 60 days prior 'N written notice of the adjustment. which notice shall identify the specific event(s)or circumstances which. require the adjustment. The notice shalt also specify, the earliest date on which the County Board of ai Supervisors shall consider the proposed adjustment. At least 45 days prior to such meeting of the Board of ° Supervisors,die County shall provide the Cite with a report which shall contain the following information: a description of the specific event(s)or circumstances which require the adjustment;a description(including o N cost estimates) of any activities (which may include, but not be limited to capital imprm•emcnts to the Disposal System)required in order to remedy such event or circumstance;certification by the County,that c v it has implemented the remedy described in Section 41 prior to requiring the rate adjusimenk and n E description of the methodology used by the County to calculate the adjustment to the Contract Rate w (hereinafter the"County Report"). In the event the City disputes the adjustment,it shall provide die County M with a written description of the reason for the dispute at least 10 days prior to the meeting of the Board of < Supervisors Identified in the initial notice of the County(hereinafter the"City Report"). The City Report o shall be provided to the Board of Supervisors for consideration at such meeting in connection with the �+ proposed rate adjustment. Ai any time from anti after the date that the Coup provides the City with the 1 '•PO• J IY P y' County Report,upon the request of either party,the City and County shall meet and confer in good faith to r`i resolve any dispute that may arise mgarding the proposed adjustment to the Contract Rate. In the event the Board of Supervisors approves all or a portion of the proposed rate adjustment,such rate adjustment shall become effective on the date identified in the initial notice sent by the County, but subject to potential reimbursement pursuant to Section 4.2(D). E t 0 (D) �jtgj(s;tl�es tq$ale� tstt nient. In the event that the City challenges a Rate Adjustment M made pursuant to Section 4.2(A)and a court of applicable jurisdiction determines that any portion of the Q County's adjusted Contract Rate was improperly imposed,the County shall,within 30 days of the date of the statement of decision, reimburse to the City the amount improperly imposed,together with interest 21 97-371 © calculated at the Overdue Rate. Such reimbursement may be made in the form tda reduction in the Contract Rate for a future period reasonably calculated to provide full reimbursement of the amounts described above. st:CTioNd.3. RESPONSIBILITY FOR PAYMENT OF THE COMM ACT.(A)R tent bv.i�n:. In the event and to the extent(i)the City uses municipal collection forces directly for the haulage Of Controllable Waste to the Disposal System or t?) the City uses non-municipal Franchise Haulers for collection but nonetheless elects to pay the Contract Rate from City revenues. the City shall have direct responsibility for payment of the Contract Rate,and shall take all such budgetary,appropriation and other 0 action as may be necessary to provide for the timely payment of the Contract Rate. Such action may include, 'w depending upon the means authorized by the City to provide for such payment,the levy and collection of general or special taxes, the imposition of benefit assessments. or the collection of user fees, generator w charges or other similar impositions for municipal solid waste disposal. The City shall use best efforts in i?• accordance with Applicable Law to levy and impose all such taxes, assessments,fees or charges,and%i II 0 take all steps, actions and proceedings for the enforcement,collection and payment of all such amounts 'y which shall become delinquent,to the full extent perm itted by Applicable Law. To the extent provided in o Section 7.: hereof, the obligation of the City for such Contract Rate or Transfer Rates shall be limited to w amounts in the City's Solid Waste Enterprise Fund. From the Commencement Date to the date of expiration 10 or termination of this Agreement.the obligation of the City to pay the Contract Rate or Transfer Rate,to the a extent the City rather than Franchise Haulers is responsible directly for payment and provided that the Service Covenant has been compiled with,shall he absolute and unconditional and shall not be subject to a delay or diminution by reason of set,oB:abatement,counterclaim,existence of a dispute or otherwise.The U. obligation of the City hereunder shall be limited in all circumstances to amounts available in any enterprise w fund created by the City For solid waste management purposes,and there shall be no recourse hereunder v against the City's general god or other funds not related to solid waste management purposes for amounts a owed by the City hereunder. o O m (B) Payment b} Franchise Haulers. With rasped to Controllable Waste delivered by � Franchise Haulers other than City municipal collection forces, the obligation to pay the Contract Rate shall rest with such Franchise Flaulcrs and not with the City and,unless the City has agreed with the County to he responsible rot Franchise Hauler payments,the Citv shall not be financially responsible for any delay or failure by such Franchise Hauler to pay the Contract Rate or any portion thereof when due. In the event of o any such failure,the County and the City shall cooperate with each other and use their best efforts to obtain =' timely payment. Such efforts by the County may include, ai appropriate, requiring cash payments for c disposal rights from such Franchise Hauler and bringing a legal proceeding for payment and damages. Such E efforts by the City shall include, as appropriate, legal proceedings to suspend, revoke or terminate the y Franchise Hauler's franchise,permit or license rights. rn a (C) Disputes. If the City or the Franchise Hauler disp les any amount billed by the p Courtly in any Billing Statement,the City or the Franchise Hauler shall nonetheless pay undisputed amounts identified on suck Billing Statement and shall provide the County with written objection within 30 days of the receipt of such Billing Statement indicating the amount that is being disputed and providing all reasons t`+ then known to the City or the Franchise Hauler for any objection to or disagreement with such amount.The County shall then respond to such written objection(providing additional documentation substantiating the O1 amount disputed if applicable)within 30 days of receipt of the written objection.If the City or the Franchise m Hauler and the County are not able t0 resolve such dispute within 30 days after the Couitry's response,either E puny may pursue appropriate legal remedies. In addition, in the event of nonpayment.by the City or v Franchise Hauler,as applicable.the County shall have the right to discontinue any credit arrangements it may have had with the City or Franchise Hauler,and require cash payment for subsequent deliveries. a O 22 97-371 SECTION 4.4, BILLING NG OF 1'11E CONTRACT R 4TF.'rhe County shall continue to bill �•/ Contract Rate after Januay 1. 1998, in the same manner as it has customarily billed tipping fees.Subject to the other provisions of this Agreement,the County shall have the right to modify or amend such manner of billing an reasonable notice to affected parties. SECTION 4.5. SOLD WASTE DISPOSAL FEE OPTION Notwithstanding the other provisions of this Article TV,City shall have the option to adopt the following procedure: c y City agrees that it or its Franchise Hauler will pay the than current Solid Waste Disposal Fee(which Fee is, m at this time,set forth in Section 16.0222 of the County Code),as same may be amended from time to time, w relative to the City's Controllable Waste delivered to the Disposal System. In turn,the City will receive a Z• monthly payment from the County equal to the product of the City's Controllable Waste delivered to the Disposal System for the month in question multiplied by the difference between the then current Solid 'y Waste Disposal Fee and the then current Contract Rate (as the Contract Rate is determined under the provisions of this Agreement). City acknowledges that the County shall have the right to establish as part N of the operating rules and regulations reasonable measures to secure the payment of all Solid Waste Disposal Fees. Further,all references to"Contract Rate'in Sections 4.3 and 4.4 shall be deemed to refer to the Solid .o Waste Disposal Fee. e m a City shall elect the option set forth in this Section 4S by notifying the County of such election as provided in Section 7.16. The election shall be effective on the first day of the second month following receipt of the >, notice by County. v 0 0 c I � O N O N C N E d v m i Q h a 3 N f n T C U E U Q I © 23 I, J Packet Pg. 353 97-371. ARTICLE I BREACH,ENFORCEMENT AND TERMLNATION SF,CTION 5 L BREACH:RiwenIES.'rhe panics acknowledge that the money damages provided hereunder may not be adequate to compensate either party for the other party's nonperformance. The parties agree that in the event either party breaches any obligation under this Agreement or any representation made by either party hereunder is untrue in any material respect,the other party shall have the right to take any action at law or in equity(including actions for injunctive relief,mandamus and specific e performance)it may have to enforce the payment of any amounts due or the performance of any obligations 0 to be performed hereunder. Neither parry shall have the right to terminate this Agreomentexccpt as provided d in Section 3.l(F). Section 3.M(C), Section 5.2 and Section 5.3 hereof or as otherwise provided in this w Agreement. d SECTION 5.2. CffY CONV FNk mNcE TERMINATION.The City shall have the right to m terminate this Agreement in its sole discretion,for its convenience and without cause at any time during the a Term hereof upon 90 days' written notice to the County. If the City exercises its rights to terminate the m Agreement pursuant to this Section, the City shall pay the County a termination fee equal to (x) S14,25 t6 multiplied by (y) the amount of Controllable Waste delivered to the Disposal System during the prior v Contract Year multiplied by(z)remaining temp ofthe Waste Disposal Agreement,stated in years(assunimg m such termination for convenience did not occur).Upon any termination by the City pursuant to the provisions a LL of this Section. the obligations of the County pursuant to Sectiar 7.3 hereof shall not survive such tr termination.notwithstanding Section 6.t(B). U SECTION 5.3. TERMTNATION. (A)gv City. Except as expressly provided herein,.the o City shall have no right to terminate this Agreement for cause except in the event of the repeated failure or o refusal be the County substantially to perform any material obligation udder this Agreement unless such '0 failure or refusal is excused by an Uncontrollable Circumstance;except that no such failure or refusal shall give the City the right to terminate this Agreement for cause under this subsection unless: ur 0 (1) The City has given prior written notice to the County stating that a specified failure N or refusal to perform exists which will, unless corrected, constitute a material breach of this N Agreement on the pan of the County and which will, in its opinion, give the City the right to terminate this Agreement For cause under this subsection unless such breach is corrected within a reasonable period of time,and E v v (2) The County has neither challenged in an appropriate forum (in accordance with Q Section 5.6)the Cory's conclusion that such failure or refusal to perform has occurred or cunsiitutea Q a material breach of this Agreement not corrected or diligently taken steps to correct such breach within a reasonable period of tunic not more than 90 days from the date of the notice given pursuant to clause(I)of this subsection(but if the Canty shall have diligently taken steps to correct such m breach within such reasonable period of time,the same shall not constitute a breach giving rise to the right of termination for as long as the County is continuing to take such steps to correct such a breach). c d (B) By County. Except as expressly provided herein.the County shall have no right to .Ee terminate this Agreement for cause except in the event of the repeated failure or refusal by the City n substantially to perform any material obligation under this Agreement unless such failure or refusal is Q excused by an Uneuntrollable Circumstance;except that no such failure or refusal shall give the County the right to terminate this Agreement for cause under this subsection unless: za Packet Pg. 354 97-371 O (1) The County has given prior written notice to the City stating that a specified failure or refusal to perform exists which will. unless correctcd, continue a material breach of this Agreement on the pan of the City and which will,in its opinion.give the County right to terminate this Agreement for cause under this subsection unless such breach is corrected within a reasonable period of time,and (2) The City has neither challenged in an appropriate forum(in accordance with Section 5.6 the County's conclusion that such failure or refusal to perform has occurred or constitutes a o material breach of this Agreement nor correctcd or diligently taken steps to correct such breach within a reasonable period of time not more than 90 days from the date of the notice given pursuant X to clause(1)ofthis subsection(but if the City shall have diligently taken steps to correct such breach w within such reasonable period of time,the same shall not constitute a breach giving rise to the right of termination for as long as the City is continuing to take such steps to correct such breach). > SECTION 5.4. NO WAIVERS. No action of the County or the City pursuant to this Agreement(including,but not limited to,any investigation or payment),and no failure to act,shall constitute a waiver by either party of the other party's compliance with any term or provision of this Agreement. No ?� course of dealing or delay by the County or the City in exercising any right, power or remedy under this Agreement shall operate as a waiver thereof or otherwise prejudice such party's rights,powers and remedies. j No single or partial exercise of(or failure to exercise)any right power or remedy of(he County or the City as i under this Agreement shall preclude any other or further exercise thereof of the exercise of any other right, T power or remedy. U c SECTION' 53 DAMAGES.(A)City.In the event that the City terminates the Agreement O pursuant to Section 5.3(A),the County shall be obligated to pay to the City as damages the amnuntby which o Cite City's reasonably expected cost of transporting and disposing of City Acceptable Waste(for a period w © commencing on the date of termination and ending one year after such date of termination) exceeds the aggregate Contract Rate that would hate been payable with respect to such City Acceptable Waste had the County met its obligations hereunder and the Agreement had not been terminated. N (B)Cnnrny.In the event that the County terminates the Agreement pursuant to Section 53(ft the City shall pay the County as damages an amount equal to the Contract Rate in effect at the time of such termination multiplied by the number of tons of City Acceptable Waste delivered to the Disposal System v during the preceding twelve months. m v SECTION 5.6. FORAM FOR DISPUTE RL5QJ 1,VJ=. It is the express intention of the Q parties that all legal actions and proceedings related to this Agreement or to the Disposal System or to any Q rights or any relationship between the parries arising therefrom shall be solely and exclusively initiated and maintained in courts of the State of California having appropriate jurisdiction. N er ' C d E s u A Q zs /^ 97-371 ARTICLE U TMI SECTION 6.1. EFFECTIVE DATE AND TERM. (A) Ternt. This Agreement shall become effecrive.shall be in full force and effect and shall be legally binding upon the City and the County from the Contract Date and shall continue in full force and effect until the fifteenth anniversary of the Contract Date, unless earlier terminated in accordance with its terms. c 0 (l3) Survivah Accrued Rights The rights and obligations of the panics hereto pursuant to y Sections 3.1(E), 5-1, 5.3, 5.5, 7.2.7.3, 7.5, 7.7, 7.8, 7.9,and 7.19 hereof shall survive the termination or a; expiration of this Agreement, and no such termination or expiration shall limit of otherwise affect the w restnuctive rights and obligations of the parties hereto accrued prior to the date of such termination or �. respiration provided,however,that Section 73 shall not survive if the termination of the Waste Disposal Agreement is due to [- the occurrence of an Event of fault on the pan of the City. At the end of the'ferm 'v of this Agreement,all other obligations of the parties shall terminate. v N 3 a c a LL _T U c 0 C 0 m m N_ 0 N O N C d E d d m Q a 0 3 N r m c E E s u A Q PacketPg. 356 97-37;. © ARTICLE III GENERAL PROVISIONS SECTION 7.1. OPE RATION AND.MAMEMANCEOF PIE DISPOSALSYSTEM. The County,at its cost and expense through the County Solid Waste Enterprise Fund,shall at all times operate. or cause to be opemted,the Disposal System in accordance with Applicable Law and the operating rules and regulations of the County. 0 SECTION 7.2. UNCONTROLLABLE CIRCUMSTANCES OF - e - Y, .2 (A)Performance Excused. Except as otherwise specifically provided in this Agreement,neither the County d nor the City shall be liable to the other for any failure or delay in the performance of any obligation under w this Agreement(other than any payment at the time due and owing)to the extent such failure or delay is due to the occurrence of an Uncontrollable Circumstance. w (B) Notice.Mitigation. The party experiencing an Uncontrollable Circumstance shall notify the other party by telecommunication or telephone and in writing,on or promptly after the date the m party experiencing such Uncontrollable Circumstance first knew of the commencement thereof, followed m within i S days-by a written description of(I i the Uncontrollable Circumstance and the cause thereof(to the 'Cl extent known).(2) the date the Uncontrollable Circumstance be and the cause Thereof, its estimated duration, the estimated time during which the performance of such party's obligations hereunder will be a delayed,(3)the estimated amount.if any,by which the Contract Race may need to be adjusted as a result of such Uncontrollable Circumstance.(4)its estimated impact on the other obligations of such party under this Agreement and(i)potential mitigating actions which might he taken by the County or City and my areas U where costs miytt be reduced and the approximate amount ofsuch cost reductions. Each party shall provide o prnmpl written moth ee of the cc'salion 0f smelt Uncontrollahle Circumslanee. Whenever each acl,evem or c © condition shall occur,the party claiming to be adversely affected thereby shall, as promptly as reasonably 2 possible,use its best efforts to eliminate the Cause therefor.reduce costs and resume performance under this Agreement. In addition, with reipect to Changes in Law, the County shall diligently contest any such °m changes the imposition of which would)save a material adverse impact on the Disposal System. While the o delay continues, the County or City shall give notice to the otter party. before the first day of each succeeding month,updating the information previously submitted. o N (C) Impact on Contract Rate. If and to the extent that Uncontrollable Circumstances interfere with,delay or increase the cost to the Couary of meeting its obligations hereunder and providing E Disposal Services to the cities which have executed Disposal Agreements in accordance herewith,the Coca Ity y shall be entitled to an increase in the Contract Rate as provided in Section 4,2 herein or an extension in the `0 schedule for performance equal to the amount of the increased cost or the time lost as a result thereof. The Q proceeds of any insurance mailable to meet anv such increased cost shall he applied to such purpose prior O to any determination of cost increases payable under this subsection. Any'cost reductions achieved through �+ the mitigating measures undertaken by Elie('curry pursuant to subsection 7,2(13)hereof upon the occurrence of an Uncontrollable Circumstance shall be reflected in a reduction of the amount by which the Contract Rate would have otherwise been increased or shall serve to reduce the Contract Rate to reflect such mitigation r measures,as applicable. m c m SECTION 7.3. NDpMNTptCAT10N,The County shall indemnify,defendwith competent E counsel reasonably selected by the Couny, protect and hold harmless City, its officers, employees and v assigns from and against all Loss-and-Expense, including natural resources damages, injuries, costs, =°• response, assessment,remediation and removal costs, losses, demands, debts, liens, liabilities,causes of action,suits,legal or administrative proceedings,interest, fines,charges,penalties and expenses(including but not limited to attorneys'and expert witness fees and costs incurred in connection with defending against 27 Packet Pg. 357 97-371 Qany of the foregoing or iu enforcing this indemnity)of aoykind whatsoever paid, incurred or suffered by, or asserted against,City or its officers or employees arising from or attributable to any repair,cleanup or detosi fication,or preparation and implementation of any removal,remedial,response,closure or other plan (regardless of whether undertaken due to governmental action) or replacement or restoration of natural resources arising from or related to Hazardous Substance or Hazardous Wastes or petroleum products at any place where County transfers,stores or disposes of municipal solid waste pursuant to this agreement,or the County's activities pursuant to this Agreement which result in a release or threatened release of Hazardous Substances or Hazardous Wastes or petroleum products into the environment.The foregoing indemnity is c intended to operate as an agreement pursuant to but not limited to Section 107(0)of the Comprehensive 'io Environmental Response.Compensation and liability Act(-'CERCLA'-). 42 U.S.C.Section 9607(n),and .w-. California health and Safely Code Section 2364,to defend,protect,hold harmless and indemnify City firm w liability. This indemnity shall not apply to willful,deliberate or grossly negligent delivery by the City of Hazardous Substances or If ttanivus Waste to the Disposal Systerm This indemnity shall also not apply with respect to (i) vehicle accidents or other waste delivery activities or (ii) to any Hazardous Substances, .� Hazardous Waste,petroleum product or other Unacceptable Waste not accepted for disposal in the Disposal System.The City agrees that the County may provide counsel tojointly represent itself,the City and any and a all other parties who disposed of waste lit the Disposal System,The City hereby agrees to waive,in writing, 3 any conflict,actual it apparent.created by the joint representation of such parties pursuant to this indemnity. v The City also hereby agrees to cooperate fully and completely with the County and with counsel provided R by the County in resolving any legal matter that arises pursuant to this indemnity.The City further agrees LL that the County has complete discretion in the conduct of any matter to which this indemnity applies,and of may resolve or settle such matters to which this indemnity applies in its sole discretion without the permission N approval of the City. The County agrees that it will not bring any action against the City U claiming or alleging that the City has any responsibility for matters,actions or liabilities within the scope o ofthe indemnity provided above. c ® w SECTION 7.4. BEI,ATInA;SHIPOFTHEPART7F.S. tied+.`r party tothis Agreement shall 3 lwve any responsibility whatsoever with respect to services provided orcontractual obligations or liabilities w assumed by the other party hereto,%tether accrued,absolute,contingent or otherwise,or whether due or to become due. The County is an independent contractor of the Ciry and nothing in this Agreement shall be deemed to constitute either party a partner,agent ar legal representative of the other party or to create any o fiduciary relationship between the parties. c d SECTION 7.5- t tN Tl'FD,Rli(Ct?Ri . (A) ,Lo the Cij), Except in the event the City has E not established m maintained a City Solid Waste Enterprise Fund, no recourse shall be had to the general d funds or general credit of the City for the payment of any amount due The County hereunder, or the a erformance of an obligation incurred hereunder,including any Loss-acrd-E,• C P y ga ' g y>Cnse of any nature arising from the performance or non-performance of the City's obligations hereunder. The sole recourse of the o County for all such amounts shall be to the finds held in ary such Solid Waste Enterprise Fund, All amounts held In anv Cih•Solid Waste Enterprise Fund shall be held for the uses permitted and required thereby-and no such amounts shall constitute property of the County. The City shall make adequate provision in the administration of any City Solid Waste Enterprise Fund for the payment of any amount or the performance m of any obligation which may be dme hereunder. d (B) 7-n the County. No recourse shall be had to the general funds or genera]credit of E the County fur the payment of any amount due the City hereunder,or the performance of any obligation v incurred hereunder, including any Loss-amt-Expense of any nature arising from llte performance or now performance of the County's obligations hereunder. The sole recourse of the City for all such amounts shall Q l be to the funds held in the County Solid Waste Enterprise Fund in accordance with the terms of this Agreement All amounts held in the County Solid Waste Enterprise Fund shall be held for the uses permitted 28 Packet Pg. 350 97-37: and required thereby.and no such amounts shall constitute property of the City. The County shall make adequate provision in the administration of the County Solid Waste Enterprise Fund for the payment of any amount or the performance of any obligation which may be due hereunder. SECTION 7.6. PRE-EXISTING RIOfITS AND LIABILITIES. Except as specifically set Porth herein,nothing in this Agreement is intended to affect, release,waive or modify any rights,obligations or liabilities which anv party hereto may have to or against the other patty as of the Contract Date relating to the disposal of waste in the Disposal System or any other related matter. o 0 c SECTION 7.7, NO VESTED RIGHTS. The City shall not acquire any vested property, m license or other rights in the Disposal System by reason of this Agreement, w it SECTION 7.8. L.IAHILI"fY FOR COLLECTION. TRANSPORTATION AND PROCESSING. Any liability incurred by the City as a result of collecting Acceptable Waste or processing v it for diversion from landfill, or as a result of causing, franchising, pomaitling, licensing, authorizing or arranging any of the foregoing,,hall twits sole liability,except as expressly otherwise provided herein, v, w SECTION 7.9. NO CCINSEOUENTIAI OR pUNn'IVE DAMAGES. In no event shall a either parry humto be liable to the other or obligiacd in any manner to pay to the other any special,incidental, m consequential, punitive or similar damages based upon claim; arising out of or in connection with the a performance or non-performance of its obligations or otherwise under this Agreement, or the material inaccuracy of any representation made in this Agreement whether such claims are based upon contract,tort, negligence, warranty or other legal theory. ch c 0 SECTION 7.1 U.A%MDNIF.NTS. Neither this Agreement nor arty provision hereof may o be changed,modified,amended or waived except by written agreement duly authorized and executed by both •y parties. SECTION 7.11.ti LQN, Each party shall deliver written notice to the other of any Legal Proceeding to v,hich it is a party and which questions the validity or enforceability of this N Agreement executed by'the CI(1'or the County or any 1.Cga1 Entitlement 155ned in CnnnfCiinn herewith. � .N.. SECTION 7.13.Flit _u ASSURANCES. At any and all times the City and the County y so far as may be authorized by law shall pass, make, do,execute,acknowledge and deliver arty and every E such further resolution,,acts,deeds,conveyances•instruments,assignments,transfers and assurances as may m be necessary or reasonably requested by the other in order to give full effect to this Agreement. rn Q SECTION 7.13.ASSIGNMENT OF AGRFFMFNT. Neither this Agreement nor any of the rights or obligations hereunder mar be assigned by either party hereto without the prior written consent of the other party.which maybe withheld in the other party's sole discretion.Notwithstanding the foregoing, that either party may assign this Agreement to another successor public entity, subject to the reasonable consent of the other party,In such citatmstances the party not requesting the assignment shall have the right m to demand assurances of the financial.technical and Legal ability of[he proposed assignee to undertake the responsibilities and obligations of the assigning parry. E SECTION 7.14. INTEREST ON OVERDUE OBLIGATIONS- Except as otherwise R provided herein.all amounts due hereunder,whether as damages,credits,revenue or reimbursements,that 4 are not paid when due shall bear interest at the Overdue Rate on the amount outstanding from time to time, on the basis of 365-day year,counting the actual number of days elapsed,and all such interest accrued at any time shall,to the extent permitted by Applicable Law,be deemed added to the amount due,as accrued. 29 Packet Pg. 359 97-371 SECTION 7.15. BINDING EFFF.C°f. This Agreement shall hind and inure to the benefit of the patties hereto and any successor or assignee acquiring an interest hereunder consistent with the provisions of Section 7.13 hereof. SECTION 7.16.NOTICES. Any notice or communication required or permitted hereunder shall be in writing and sufficiently given if delivered in person or sent by certified or registered mail,postage prepaid, to the notice address of the respective panics set forth on the cover page of this Agreement. o Changes in the respective addresses to which such notices may be directed may be made from time to time by any party by notice to the other party. °= x W 0 ❑ v A 3 v a a U. fY _T U C 0 c 0 .N m U b ❑ N N N C d E v v m N A C U E U U N a 30 Packet Pg. 360 97-372 IN WITNESS WHEREOF,the parties have caused this Agreement to be executed by their duly authorized ours or representatives as of the day and year first above written. COUNTY OF SAN BERNARDINO Dale DEf 16 1997 (C 2w� ° Fv c 11 'hai 1.1 Board of Supervisors m 41`1 roSl x W T SIGNED A'VD T A COPY OF > "tICSCON'I JVEPEDTO o TFIEC A Date D[C 113 1997 y" �R t C tr Clerk of Supervisors Of San Bernardino County,California v c 0 C o_ U N 3 U N g 1997 / Date By ./1--.2:'(, Tom Minor, Mayor N City of San Bernardino ° N C d APPROVED AS TO FORM: v COUNTY COUNSEL d SAN BERNARDINO COUNTY, RNIA a 4 0 By N r rn c E E t U R Q 31 Packet Pg. 361 97-371 c 0 .N c a k W m APPENDIX m O m mm 3 DESIGNATED DISPOSAL FACILITY -m c m IL LL _T U I o jj c 0 .N u m_ D N O N C E \ E a m � rn \ Q 0 3 N n � \ A C m \` E u m z "Packed Py:`382 =' g7-371 APPENDIX c 0 .y C d FORM OF FLAULER ACKNOWLEDGMENT % w (CAN BE USED TO SATISFY CITY WASTE DELIVERY OBLIGATION PURSUANT TO SECTION 3.1(E)l > O d m @ v c a LL _% U c 0 c 0 O N Vl N_ N O N C d E d d m Q ` Q 0 r N ` \ n c d E L d Q PacketPg. 363 97-371 © FRANCHISE HAULER ACKNOW'I,EDGMENT THIS FRANCHISE HAULERACKNOWLE,DGMENT,dated asofmm . 1997 (the "Acknowledgment"), by and between the City of (the "City") and (the"Franchise Hauler'). WIT LN ESSETH 0 m c WHEREAS.the City and fhe Haulet have heretofore enremd into an agreement entitled_ m dated as of y Ta W IUERF.AS,the Fraachiso provides for the collection and disposal ofeerrain municipal solid waste as dtscribed therein("Franchise Waste")generated within the City; and .� 0 v WHEREAS.San Bernardino County (the"County")utvns,manages and operates a sanitary u, landfill disposal system for municipal solid waste generated within the County;and v WHEREAS, the City and the County have heretofore entered into a Waste Disposal m Agreement,dated as of . 1997(the "Disposal Agreement')determining that the execution a LL of such Disposal Agreement will serve the public health,safety and welfare of the residents of the City and K County:and U WHEREAS, under the Disposal Agreement,the County has agreed to provide long-term o disposal of all municipal solid waste generated within the City and the City has agreed to exercise all legal, 0 and contractual power which it possesses from time to time to deliver or cause the delivery of such waste 'm ` to the the San Bernardino Coomy Landfill Disposal Svstem(the"Disposal System"):and \d N WHEREAS,the provisions of the Waste Disposal Agreement which guarantee capacity for the long term disposal of waste at specified rates generated in the City provide significant benefits to the N Hauler; N W'HERE.AS,m twithstanding my Franchise provisions to the contrary..the Franchise Hauler explicitly acknowledges the aforementioned benefits to the City, the County and the Hauler in providing for E the disposal of all Franchise Waste to the Disposal System;and m m WHEREAS,the City and the Franchise Hauler desire to enter into this Acknowledgment Q to u>sure that the City and the Hauler will be entitled to the benefits of the Waste Disposal Agreement and 3 to assure conformity with the waste delivery obligations which have been agreed to by the City under the Disposal Agreement through the delivery of waste by the Franchise Hauler to the Disposal System; and N WHEREAS,the Franchise Hauler's agreement to deliver Franchise Waste to the Disposal System under this Acknowledgment is given in consideration of the Franchise Haulers right to receive the Contract Rate for such disposal as provided in the Disposal Agreement. y E s U m Q i 97-37i '. © NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration,the receipt and sufficiency of which is hereby acknowledged,the parties hereto,intending to be legally bound hereby.agree as follows; 1. Capitalized terms used and not otherwise defined herein are used as defined in the Disposal Agreement. 2. The Franchise Hauler hereby waives any right which it may possess under o Applicable Law to contest on any ground,constitutional,statutory,case law,administrative or otherwise, c (a)the right,power or authority of the County or the City to enter into or pertbrm their respective obligations w under the Disposal Agreement, (b) the enforceability against the County or the City of the Disposal w Agreement,or(c)the right,power or authority of the City to deliver or cause the delivery of all Controllable Waste to the Designated Disposal Facility in accordance with this Acknowledgment. 3, The City and the Franchise Hauler each hereby represent that this Acknowledgmem ❑ has been duly authorized by all necessary action of their respective governing bodies. a m 4. The Franchise Hauler shall deliver or cause to be delivered all Controllable Waste v (including residue from the processing by any means,wherever conducted, of Controllable Waste to the extent provided in the Disposal Agreement),to the Disposal Sysren.and shall otherwise assist the City in a LL complying with its obligations under the Waste Disposal Covenant in Section 3.1 of the Disposal Agreement. tY _T 5. The Franchise Hauler shall not haul Controllable Waste to any materials recovery U facility,composting facility,intermediate processing facility,recycling center,transfer station or other waste o handling or management facility unless- the contract or other agreement or arrangement between the o O Franchise Hauler and the operator of such facility is sufficient in the opinion of the City m assure that the 'm Residue from such facility constituting City Acceptable Waste(or Tonnage equivalencies)and the City Acceptable Waste transferred by such facility shall be delivered to the Designated Disposal Facility to the U extent required by the Waste Disposal Covenant. ❑ 6. 'fhe Franchise Hauler shall pay the Contract Rate imposed by the County at the N Designated Disposal Facility for the disposal of all Controllable Waste, which rate shall be subject to potential adjustment necessary to reflect the circumstances set forth in the Disposal Agreement. E 7. Nothing in this Acknowledgment is intended to restrict any right or responsibility explicitly given the Franchise Hauler in the Franchise to recycle City Acceptable Waste,except as provided Q in paragraph 5 above with respect N Residue from any such recycling operations. Q S. The obligations of the Franchise Hinder under this Acknowledgment shall apply notwithstanding any provision of the Franchise which may conflict herewith. N 9. This Acknowledgment may be enforced by the City by any available legal means. In any eniforcement action by the City,the burden of proof shall be on the Franchise Hauler to demonstrate c compliance herewith, w E s U F Q 11 O Packet Pg: 365 97-371 10. This Acknowledgment shall be in full force and effect and shall be legally binding upon die City and Franchise Hauler from the(titled hereof and shall continue in full force and effect until the earlier Of the cud of the term of the Franchise or(ii)the cod of the term of the Disposal Agreement. II. the City and Hauler agree that the County shall be an exprea third party beneficiary of this Acknowledgment,and shall be entitled to independently enforce through any available legal means, including specific performance,the obligations of the Hauler hereunder.The parties acknowledge that the money damages provided hereunder may not be adequate to compensate either party for the other parry's o ncmperformance.In addition,in the event that the Hauler delivers Controllable Waste outside of the Disposal System in violation of the Disposal Agreement.due Hauler agrees that the County shall be entitled to draw on any bond or other security instrument or deposit held by the County in an amount equal to the Contract w Rate multiplied by the number of tons of Controllable Waste delivered outside of the Disposal System by Z` the Hauler in violation of the Disposal Agreement.The Hauler shall exearte a revised security agreement i to effectuate the provisions of this Section, m m N @ 3 a c @ a LL _T U C 0 c 0 N N U _N ❑ N O N C N E w m m Q Q ❑ 3 IV r A C U E U U a Packet Pg. 366 1 97-371. ® TABLE OF CONTENTS Pace RECITALS ... . . . . . . . . ... ... ..... . ... ............_ ... ... .. . . . . .. . . ...... . .. ........ I. ARTICLET DF..FINII'IONSANDTNTF.RPRETA'FION .. ... ... ._. ... ... ... ..... .. . ..... .... 3 SECTION LI. DEFINITIONS . . . .. . . . . . . . ...... .............. .......... .......•. 3 SECTION 1.2.INTERPRETATION . .. . . . . . ............. .. ............ ... ........ 3 c N c ARTICLE 11 REPRESENTATIONS AND WARRANTIES . . . .. . .. . . . . . . . . . . . .. .. ... ....... 10 2 SECTION 2.1. REPRESENTATIONS AND WARRANTIES OF THE CITY ... ........... 10 w SECTION'_.'.REPRE_SF.NTATjONS AND WARRANTIES OF THE COUNTY ... . . .... .. 10 m ARTICLE• III DELIVERY ANDACCEPT'ANCEOF WASTE, m AND PROVISION OF DISPOSAL SF,RVICE . . . . . . . . . .. . . . . .. . . ....... .. . .. . 11 m SECTION3.I. DELIVERYOFWASTE . . . . . . . . . . . . . . . . . . . . . .. . . . . .. . .... ........ I1 a SEC-nON 3.2. PROVISION OF DISPOSAL SERVICES BY THE COUNTY 14 10 3 SECTION 3.3. COUNTY RIQHT TO REFUSE WASTE . . . . ... . .. . . . . . . .. .......... 16 v SECTION 3.4. MISCELLANFOUS OPERAI IONAL MATTERS . . .. ...... ....:. 17 a SECTION 3S. OTTIER USFRS OF ZIjI'DISPOSAL SYSTEM . . .. .. .. . ......... ... 17 a SECTION 3-6. MID=PROVISION OF WASTE DIVERSION SERVICES . . .. . .. ... 17 a ARTICLE IV CDNT'RAC I-RATE . .. . .... . . . .. . . . . . . . . . . . 19 O SECTION 4.1. CHARGTVO AND_$FCURING PAYMENT OF CONTRACT RATE...... 19 0 SECTION 4.2. CONTRACT RATL .. .. . . . .. ... ... ... .. .. . ... ...... ... . . .. :. ... 19 c © SECTION 4 3. RESPONSIR.ILITY FOR PAYMLN T OF THE.CONTRACT ::::.. :::.. 21 � SECTION 1.4. BILLING OF THE C(,�KMACT RATE . 21 w ARTICLE V BREACH. ENFORCEMENT AND TERMINATION ... ...... SECTION 5.1. @REACH: REMFDIFS . .. .... .. . . . . .. ... ... ...... ... ..... . . ... ... 22 N SECTION 5.2. CITY CONVENIENCE TI:AMINATION ....... ....... ... .. .. .. . .. . ... 22 N SECTION S.3. IE.RMINATION . _ . ... .. .. . . .. . . . ... ...... . ..... ......... . ... ... 22 SECTION S.4. NO WAIVERS . . . .. .. . .. .. . . .. . . .... ... . .. . .. ... .. .. . .. . . . .. ... 23 d SECTION 5.5 DAMAGES . . .. .. . . _ . . . .. . . . . .. . .. .... ... ........... .. . . ... . .. 23 E SECTION 5.6. FORUM FOR DISPUTE_RF_SOL QTl ION . ... ... ........... .. . .. .... . 23 d m ARTICLE VI TERM . . . . . . . . . .. . . .. .. . .. ... . .. . .. . . . . ... . . . ..... ... . ... ... 24 .. .. . .. .... . .. . .. . . . . ... . . . .. SECTION 6A. EFFECTIVE DATE A\D TER\,J . .. . . .. . ... ... ..... . .... .... . . .. . .. 24 ARTICLE.VII GFNERAL PROVISIONS . . . . . . . . . . . . fO SECTION 1.1, OPERATION AND MAINJOANCE OF THE DISPOSAL.SYSTEM . ... 25 SECTION 7.2, SIN ONTROL .ABL .cigLcu.MsTANcEs aENrgAl,t.,y .. . . . . . . .. . .. 25 SECTION 7.3. INDEMNIFICATION . . . . . .. ... . . ....... .. . ............. . . ... ... 25 SECTION 7.4, RELATIONSHIP OF THE PARTIES . ..... . . . . . ..... ......... ... .... 26 `m SECTION I.S. LIMITED RECOURSE . .. .. . .. . .. . . . . . . . . . . . . . . . . . .... ... . ... .. . 26 E SECI1ON 7.6. PRE-EXISTING RIGHTS Ati0 L fARILITIES .. . .. . . . ........ . ... ... 26 m SECTION 7.7. NO VESTED RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . .. ....... .. . .. .... 27 Q SECTION 7-8, LIABILITY FOR COLLECTION,TRANSPORTATION ANDPROCESSINC . . . .. . .. . . . . .. . .. . . . . . . . . . . . . ............... 27 Packet Pg. 367 97-375 SECTION 7.9. NO CONSEQUENTIAL OR PUNITIVE DAMAGES . . . .. .. .... . ...... 27 SECTION 7.10.AMENDME'N'TS . . .. . . . . .. . .. . .. .... . . ... . . .... . .... .... ... .. . . 27 SECTION 7.1 L NOTICE OF !,(]"IGATION .. ... ... . 27 SEC I ION 7.12.FtRTFIERASSURANCE5... .. .. . . .... .. ... . .. . ......._..... ,. .:, 2? SECTION 7.13. B GNMENTOF AGREEMENT ... ...... .. .. . . ........ ... . ...... 27 SECTION 7.14.]NTEREST ON OVERDUE.OBLIGATIONS ... . .............. . . . . . 27 SECTION 7.15. BINDING EFFECT . ... . .... . .... ........ ... .......... ..... . .. . .. 27 SECTION 7,16.NOTICES .. .:. . ... ......... ... ........ ... .......... ..... ... ... 27 0 .N C d APPENDIX I DESIGNATED DISPOSAL FACILITY w APPENDIX? FOft4MOFHAULERACKNOWLEDGMEN'E > m 0 d N >d J 9 G d a LL Lr T U C 0 c 0 r^ N d U O N O N, 1 C d � E \ d d a a 0 3 N A A C d E z d d Packet Pg 386' ' 1 1)Et:-214-1997 1259 IFFO SF.'6v1[E5 242 606 7398 P.Oep Cumm Labor Srati>tict: Comp3n5aripn 8 llldumiuf Relatipr3l I tt EAIWaf+11.t13 Cass Owso.lt'Lw allle g1..3N1 M VON iuS HM.!wl 97-375 If4 +133 IIM Ivlaas�p > la s.. ..�.. Iow. 13fL v S.R i ac SI. wr. 31.( pt lW WA I. of IL. N u .a...a.fa.l..r+.l.« WMr4lOflfn{e4..��...�_—�..— If[S 1111 lu 1,1. b(+ Its pal hM�.111+ugwuCM_.__���� tw w f1L ,.( 1 11a ala b}l =1 C idw.esfrrd.rawwraAYY ,11 Ir fn 11]a (1a1 la ,]N I Ib 513 ! }( O } �eM ylgl pfp6(yy Iw SRS ble xe 'yl �,� fll. IIL 1111 "A, ll tl IW IiIA lm. A 3! C ha y.yya II;3 31 1112 II(! 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Obititav Seines ActlAv, GRCarRONJOe Number F A 5 Commodity Code Esamawd P*Vmnt Total by Fiscal Year CONTRACT TRANSMITTAL FY Amount tic FY Amount 181 Pmjact Name O — �N W CONTRACTOR City of San Bernardino w Binh Federal ID No. or Social Security No. 0 0 d Contractor's Representative Fred Wilson,ActinZ GtyAdmimstrator,__ _ Address 300 North D Street, San Bernardino,CA 92418 phone (909) 384-5122 9 c m Nature of Contract: (Briefly describe the general terms of the contract3 a (Y T A 15 year Waste Delivery Agreement between the County and the City of San Bernardino v for use of the County landfill system, January 1, 1998 to December 31,2012. e c 0 .y N u w O N O N C d E d d m 0 3 N A T C d E t U A /Attach this frongmt Walvaqat contracts not prepared on the "Standard Contract"form.) Q A ro ed as to leg a n, Reviewed as to Aflumetwo,Action Reviewed for Processing r J County dourso /q �/ _.(�-7 Agency AdmMinrator/CAO Date mac.=_/.1._._._...�_. Da[s�.��__ beta...._..._ 02.12211-000aw True MEMO AMENDMENT No. I TO WASTE DISPOSAL AGREEMENT On December 18, 1997, the City of San Bernardino ("City') and the County of San Bernardino ('County') entered into a Waste Disposal Agreement c (the "Waste Disposal Agreement")which is hereby amended as of this 19th day .0 of March, 2002('Amendment No. 1'), x w Recitals v A. On March 27, 2001 the County entered into a Solid Waste Operations '- Contract ("Operations Contract') with Buntec Waste Industries, Inc. o ("Contractor"), During each fiscal year during the term of the Operations Contract, the Contractor has the right and the obligation to dispose of at least 250,000 but not more than 300,000 tons of solid waste to the Disposal System. In Amendment No. 4 to the Operations Contract, entered into on March 5, 2002 m the amount of solid waste to be delivered for disposal in the Disposal System o from March 19, 2002 to and through June 30, 2002 is at least 20,830 but not u more than 150,000 tons of solid waste. T B. The solid waste which may be delivered to the Disposal System by the e Contractor Is defined in Article 19 of the Operations Contract as solid waste that is: (1) allowed to be disposed of in the Disposal System pursuant to federal, state `o_ and local law; (ii)not being delivered to the Disposal System as of the date of the w Operations Contract; (iii) being processed at the West Valley Material Recovery y Facility or the Robert A. Nelson Transfer Station; and (Iv) delivered to the o Disposal System in transfer trailers. Such solid waste is referred to as the"Article .. 19 Solid Waste." N 0 N C. The amount to be paid to the County by the Contractor for the disposal of Article 19 Solid Waste is $20.50 per ton, to be adjusted for Cost of Living d Increases in the same percentage amount as the actual change made to the per E ton disposal fee charged by the County to Cities which have a Waste Disposal m Agreement ("WDA") with the County pursuant to the "Calculation for Escalation" G contained in Sectlon 4.2 (8)of the W DA. Such per ton disposal fee Is referred to a as the"Article 19 Disposal Fee." o 3 D. The current Contract Rate payable by City to County for the disposal of solid waste under the Waste Disposal Agreement is higher than the Article 19 N Disposal Fee. m E. City contends that absent agreement by the Cities to the contrary.Section c 3.5(A) of the Waste Disposal Agreement prohibits the County from allowing the E disposal of Article 19 Waste at the Article 19 Disposal Fee unless the County m Q 1 8303v1 024537)001317 AGAR PacketPg,373 S.F.a I ' makes available to the City a Contract Rate equal to the Article 19 Disposal Fee. The County disputes this contention. R Notwithstanding their dispute, the County and City agree that there will be benefits to the Disposal System and accordingly to the County, as the ownerloperator of the Disposal System, and to the City, as a user of the Disposal o System, of accepting Article 19 Solid Waste for disposal In the Disposal System. Accordingly,on the terms provided herein, both City and County agree relative to the acceptance of Article 19 Solid Waste to a limited waiver of their respective w rights and further, the County agrees to share a portion of such Article 19 Z Disposal Fee (the 'Article 19 City Fee')with each city that entered into a Waste Disposal Agreement, Including City('WDA Cities'). '- c ( o G. The purpose of this Amendment No. 1 is to acknowledge that: (1) City agrees to waive its right under the provisions of Section 3.5(A) hereof with respect to the Operations Contract, including the right of the County to accept 3: Article 19 Solid Waste on payment of Article 19 Disposal Fee without being required to offer to City to adjust the current or future Contract Rate to equal the m Article 19 Disposal Fee; (ii) County agrees to waive any right it may have to U. accept Article 19 Solid Waste except as provided herein; and(Iii)that the County T and City agree on the method of calculating and sharing with City its share from the receipt of the Article 19 Disposal Fee, as described herein. This Amendment No. 1 shall become effective only if and when all WDA Cities, Including City, have g adopted and executed a counterpart of this Amendment Ng. 1 without o modifications and the County has adopted and executed each counterpart of this y Amendment No. 1. Attached as Exhibit A is a list of WDA Cities and their respective share of Article 19 City Fee. 0 H. Pursuant to Amendment No. 4 to the Operations Contract, the County must mail notice to Contractor on or before March 19, 2002 of Its decision to N cancel the right.of Contractor to deliver Article 19 Solid Waste to the Disposal System. If the County fails to take such action by such dale (absent a further m amendment of the Operations Contract to extend such date) then Contractor's E rights to dispose of Article 19 Solid Waste In the Disposal System become m effective. m a NOW THEREFORE, in consideration of the forgoing recitals and the o following covenants and promises the parties agree as follows: ; 1. Limited Waiver of Ci)yrs Rights Under Waste Delivery Agreement and N Right of County to Accept Article 19 Solid Waste. The parties agree that for the term of the Operations Contract (including any extensions of term currently rn contained in the Operations Contract) the County may accept Article 19 Solid Waste from Contractor for disposal in the Disposal System in the amount of at E least 250,000 but not more than 300,000 tons of solid waste to the Disposal System and for the period of March 19, 2002 to and through June 30, 2002, in m a 2 83030 02453r1004311 AQMT Packet Pg. 374 the amount of at least 20,830 but not more than 150,000 tons of solid waste. Upon payment of the Article 19 City Fee and satisfaction of the other requirements of the Operations Contract and of this Amendment No. 1, the County will not be required to offer City a Contract Rate equal to the Article 19 Disposal Fee in accordance with Section 3.5(A) of the Solid Waste Agreement, provided that such acceptance of Article 19 Solid Waste will not Impair the rights $ of the WDA Cities under the provisions of Section 3.5(B) of the Solid Waste Agreement. X w 2. Limited Waiver of County's Riahts Under Waste Delivery Agreement and Z Rlohl of County to Accept Article 19 Solid Waste. The parties agree that, for the term of the Operations Contract (including any extensions of term currently contained in the Operations Contract) the County agrees to accept Article 19 0 Solid Waste from Contractor for disposal In the Disposal System only in the a amounts specified in paragraph 1 of this Amendment and only upon payment of the Article 19 City Fee and satisfaction of the other requirements of the Operations Contract and of this Amendment No. 1. m n. 3. Calculation of Net Per Ton Article 19 Disposal Fee. For purposes if this u Amendment, the Net Per Ton Article 19 Disposal Fee shall consist of the Article r l 19 Disposal Fee, then in attack, under the terms of the Operations Contract, less v the following payments: `o s^ (i) the amount of the required payment to Contractor for disposing of g r such Article 19 Solid Waste then In effect under the terms of the Operations i� Contract; (ii) the others pacified payments to governmental agencies in the •• amounts then required (Including any newly required payment or any payment made In substitution of an Identified payment); and $ (ill) the amounts representing the allocation of costs for closure, d postclosure maintenance and construction of addition disposal capacity (in the E amounts set forth on Exhibit`B', such amounts to be adjusted for Cost of Living d increases in the same percentage amount as the actual change made to the per 4 ton disposal fee charged by the County to Cities which have a Waste Disposal R Agreement ("WDA")with the County pursuant to the "Calculation for Escalation" o j contained in Section 4.2(B)of the WDA). 3 f Formula: Article 19 Disposal Fee r Less Payment under Operations Contract to Contractor O1 Payment to California Integrated Waste Management Board c Payment to Local Enforcement Agency E Payment to the City of Fontana = v I Q 3 3303vt 02 4 53 71004 31 7 AGMr I Padket Pg:srs - -. 8.F.a'?1 i Any other payment required to be made to local, State or Federal Agencies relative to the disposal of solid waste or fees collected relative to such disposal " Allocation of costs for Closure and Postclosure Allocation for costs of construction of Additional Capacity c Equals Net Per Ton Article 19 Disposal Fee. 2 c " The parties acknowledge that the County currently owes $2.00 per ton x to the City of Rialto, as adjusted by the Cost of Living Index, but Is not obligated w to make any out of pocket payment of such amount until its Credit For v Prepayment is exhausted, an event expected to occur in approximately 2009, at which time such payment will be applicable to the calculation of the Net Per Ton o Article 19 Disposal Fee. N N Exhibit B, attached hereto sets forth the calculation of the Net Per Ton 3: Article 19 Disposal Fee in effect as of the date hereof. m 4. Allocaton of Article 19 City Fee,in consideration of the agreements of the a LL City hereunder, the County will pay to the WDA Cities, in the aggregate, 50%of the Net Per Ton Article 19 Disposal Fee for each ton of Article 19 Solid Waste A accepted for disposal at the Disposal System. Such fee is referred to herein as the "Article 19 City Fee". The remaining 50% of the Net Per Ton Article 19 0 Disposal Fee is being retained by the County. The Article 19 City Fee may be a used by each City as it shall deem appropriate, in its sole discretion. _y The Article 19 City Fee shall be further allocated among each of the WDA N Cities on the basis of tm separate criteria: (1) 50% of the Article 19 City Fee shall be divided equally among the N WDA Cities,without regard for any other criteria;and c (11) 50% of the Article 19 City Fee shall be divided among the WDA w Cities based on population, on a per capita basis, as published by the California Department of Finance, as of each May 1. each year during the term of the WDA. m The allocation of the Article 19 City Fee among each WDA Cities for fiscal o year 2001.02 Is set forth in Exhibit "A,' attached hereto and made a part hereof, 3 For illustration purposes only, Exhibit A assumes an Article 19 City Fee of m $1,000,000. N The City's share of the Article 19 City Fee shall be paid to City in quarterly m payments, within forty five (45) days after the end of the calendar quarter (I.e., March, June, September and December);provided that the payment for the fiscal year 2001-02 shall be paid in full on or before August 15, 2002, E E U m 4 930M 024537004317 AGNr 17Packet Pg. 376 i 5. Effective Date. This Amendment shall be effective 9 and only when all cities listed on Exhibit 'A' have adopted and executed a counterpart of this Amendment No. 1 and such amendment has been adopted and executed by the County. In all events, the conditions In the forgoing sentence necessary for this Amendment No. 1 to be effective shall occur on or before March 19, 2002, otherwise this Amendment No. 1 shall be null and vold and without any effect whatsoever. c 0 6. No other amendments. Except as modified In this Amendment No. 1 (or in any prior amendment) all other terms and conditions of the Waste Disposal m Agreement shall remain in full force and effect % w Z IN WITNESS WHEREOF, the parties hereto have executed this agreement on the day and year set forth below, v 0 COUNTY OF SAN BERNARDINO CITY 2 m v i c it'A a Fre gufar.Chairman,aoa� fSupeNisors Titled c1i/g ia,//�+r 1r9,cf°'' T Date: MBAR 19 2902 D ChL 6 c 0 C SIGNED AND CERTIFIED THAT 4 A COPY OF THIS DOCUMENT HAS w _ BEEN DELIVERED TO THE CHAIRMAN OF THE BOARD c RENEE BASTIAN;,.'' , Clerk of the. rd 6t Supervisors N E %.. Nl E c"• { Q Date: MfAR 19ffbY/ p Approved as to form: 3 ALAN A nt Counsel N San ern rd' o allfomia m Y: c Deputy E ig L U Date: 5 84SO 0245 3 7/0 64 31 7 AGMT PaoKat P�:37i' MIE 8a"r �7S°gg ii g � c 8QQ n � .m C d W d r � OI m O m 1'1 N CF Ol pS �m+ Grn� ��gg op � N� n � m N r r h � � � N O > N YT d r uj LU o an vi o� m m F N U d 4 14 $ 0 a 8 s R 8 8 A 4 mm m pp vi of Q vi r: pi f ' Uf N Y Ip V �r O A U O X LL m a W O y v LL 8S88S888 $ 888888 c gg g $$ wo sa X g n 2 g g g g M $ m LL �._ �.y ni ni ti ri of m ri of M m m N m m � $ p U < c d ti Q 9 Q 0 D a � e .r d 3 > d b z Q Pac�Ce#i?g:378." 8.F.a Exhlblt"B" NET PER TON ARTICLE 19 DISPOSAL FEE AS OF THE DATE HEREOF o i c v Article 19 Disposal Fee $20.50 w Less; Payment under Operations Contract to Contractor $6.50 d Payment to California Integrated Waste Management Board $ 1.34 Payment to Local Enforcement Agency $0.78 0 Payment to the City of Fontana $2.07 « Any other payment required to be made to local, State or Federal agencies relative to the disposal of solid waste Or fees collected relative to such disposal $0.00 Allocation of costs for closure and postclosure $0.34 4 Allocation of costs for construction of additional capacity S2.10 Net per ton Article 19 Disposal Fee $7.37 A U c "Article 19 City Fee' consisting of 50%of the Net Per Ton Article 19 c Disposal Fee $3.685 a I N J U Ul 0 N O N C d E m P i Q Q 0 m N r m c y E t A Q 8303v1 024537JO04317 AGMT I Packet Pg.379 &F.a 2003-306 _ Exhibit "A" ' AMENDMENT No. 2 TO WASTE DELIVERY AGREEMENT On December 16, 1997, the City of San Bernardino("City') and the County of San Bernardino ("County'l entered into a Waste Disposal Agreement (the 'WDA") which is hereby amended as of this 17th day of Aovember, 2003 0 ("Amendment No. 2"). I Recitals w L, A. On March 27, 2001 the County entered into a Solid Waste Operations ; i Contract ("Operations Contract'l with Burrtec Waste Industries, Inc. o ("Contractor"). During each fiscal year during the term of the Operations d Contract, the Contractor has the right and the obligation to dispose of at least 250,000 but not more than 300,000 tons of solid waste to the Disposal System. In Amendment No. 4 to the Operations Contract, entered into on March 5, 2002 -o the amount of Article 19 Solid Waste to be delivered for disposal in the Disposal cm System from March 19, 2002 to and through June 30, 2002 was at least 20,830 o. but not more than 150,000 tons of solid waste. In Amendment No. to the Operations Contract, to be entered into concurrently with this Amendment, the amount of Article 19 Solid Waste that is acceptable for disposal in the Disposal System for the month of June 2003 is to be at least 20,834 but not more than 0 31,250 tons of solid waste, c 0 N B. In Amendment No. 1: (t) City agreed to waive its right under the provisions of Section 3.5(A) of the WDA with respect to the Operations Contract, including A the right of the County to accept Article 19 Solid Waste on payment of Article 19 Disposal Fee without being required to offer to City to adjust the current or future N Contract Rate to equal the Article 19 Disposal Fee, (ii) County agreed to waive o° any right it may have to accept Article 19 Solid Waste except as provided in Amendment No. 1: and (iii) the County and City agreed on the method of d calculating and sharing with City its share from the receipt of the Article 19 E Disposal Fee, as described in Amendment No. 1, d 1 a { C. The Contractor under the Operations Contract has stated that it has a control over 75,000 additional tons per year of solid waste that satisfies the definition of Article 19 Solid Waste within the meaning of the Operations Contract o and that it desires to bring such waste to the Disposal System for disposal as N Article 19 Solid Waste. M I M D. The County and City agree that it is in the interests of both parties to allow j the Contract to bring the additional 75,000 tons of Article 19 Solid Waste for E 1 disposal in the Disposal System, under the same terms and conditions as set out in Amendment No. 1 to the WDA. Thus,the purpose of this Amendment No. 2 to 2 the WDA is to increase the maximum amount of Article 19 Solid Waste that is a i 53030 0245371004317 AGMT E J Packet Pg. 380I • 2003-306 r r acceptable for disposal in the Disposal System from 300,000 tons per Contract Year to 375,000 per Contract Year. NOW THEREFORE, in consideration of the forgoing recitals and the following covenants and promises the parties agree as follows: 1. Amendment to Section 1 of Amendment No. 1 to the WDA Regarding 0 Limited Waiver of City's Riahts Under WDA and Right of County to Accept Article 71 19 Solid Waste. The parties agree that Section 1 of Amendment No. 1 shall be revised by adding the following: w T Notwithstanding the forgoing, commencing on the effective date of Amendment "> No. 2, and for the term of the Operations Contract (including any extensions of o term currently contained in the Operations Contract), the County may accept Article 19 Solid Waste from Contractor for disposal in the Disposal System in the amount of at least 250,000 but not more than 375,000 tons of solid waste and for 3 the month of June 2003, in the amount of at least 20,834 but not more than a c 31,250 tons of solid waste, m a LL All other terms and conditions of Section 1 of Amendment No. 1 shalt remain in T full force and effect and are not amended by the provisions of this Amendment No. 2. 0 C 2 Effective Date. This Amendment shall be effective if and only when all 9 cities listed on Exhibit "A" to Amendment No. 2 have adopted and executed a counterpart of this Amendment No. 2 and such amendment has been adopted y and executed by the County. In all events, the conditions in the forgoing o sentence necessary for this Amendment No. 2 to be effective shall occur on or before December 31, 2003, otherwise this Amendment No. 2 shall be null and c void and without any effect whatsoever. c 3. No other amendments. Except as modified in this Amendment No,2 (or in E any prior amendment) all other terms and conditions of the WDA, including without limit those contained in Amendment No. 1, shall remain in full force and rn effect. a ! a I � 3 ! N ! c f � 1 1° J a 93030 0245371004317 AGMT 1 1 j Packet Pg. 381 i 8.F.a IN WITNESS WHEREOF, the parties hereto have executed this agreement on the day and year set forth below. COUNTY OF SAN BERNARDINO CITY I • c 0 Dennis Hansberiler,Cna nnan,Board of u,�pervisors Title:/Lld + ,Olo T i j Date. DEC 16 2003 Date: // —20 —o ai 0 SIGNED AND CERTIFIED THAT m A COPY OF THIS DOCUMENT HAS BEEN DELIVERED TO THE CHAIRMAN OF THE BOARD m RENE 9ArpT[Aff,4;,, Cie f :o'-- " Q isors D O Yy 3 C Date: �� U D p Approved as toTooM: d �1av o -1ff�Rff my e Counsl � ` 1 d �Y L.. E Deputy d m Date; 0 3 N t` T C a E s U N ¢ © 6303v1 0245371004317 AGMT 8.F.a 2003-306 AMENDMENT No. 2 EXHIBIT"A" LIST OF WASTE DELIVERY AGREEMENT CITIES AND TOWNS Town of Apple Valley City of Barstow co_ City of Big Bear Lake City of Colton " City of Fontana w City of Grand Terrace r City of Hesperia > City of Highland o City of Loma Linda m City of Rialto City of San Bernardino City of Twentynlne Palms City of Victorville A City of Yucaipa Town of Yucca Valley , U a 0 C 0 y N 3 U N_ O N O N C E v v m a a 0 3 N n T C E E U U N Q 8300 024537+004317 AGNIT 17yacket Pg. 383 RESOLUTION NO. 2011-285 1 c RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY °- 2 N OF SAN BERNARDINO AUTHORIZING EXECUTION OF AN PROFESSIONAL m 3 SERVICES AGREEMENT WITH BURRTEC WASTE INDUSTRIES, INC., w 4 PURSUANT TO SAN BERNARDINO MUNICIPAL CODE SECTION 3.04.010 Z PARAGRAPH B3, TO ALLOW BURRTEC WASTE INDUSTRIES, INC., TO > 5 PROVIDE COMMINGLED RECYCLING AND COMMERCIAL RECYCLING Z PROCESSING. 6 7 WHEREAS,the City has an existing non-exclusive Professional Services Agreement 8 a with Burbank Recycling Inc.(BRI)to process recycling materials for the City; 9 WHEREAS,pursuant to San Bernardino Municipal Code Section 3.04.010 Paragraph v 10 0 11 B3,the City would like to enter into one or more Professional Services Agreements to process o N 12 recycling; a 'c 13 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE 14 CITY OF SAN BERNARDINO AS FOLLOWS: N 15 SECTION 1. That the Mayor and Common Council authorize execution of the E 16 Professional Services Agreement attached as Exhibit"A"with Burrtec Waste Industries,Inc., d m 17 a pursuant to San Bernardino Municipal Code Section 3.04.010 Paragraph B3,to allow Bun-tee c 18 Waste Industries, Inc.,to provide commingled recycling and commercial recycling g 19 0 20 processing. 21 SECTION 2. The authorization to execute the above-mentioned Agreement is r 22 rescinded if the parties to the Agreement fail to sign it within sixty(60)days of the passage of m' in 23 this resolution. 24 25 E 26 0 27 u/ a 28 Packet,pg.=384 •' 2011-285 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING EXECUTION OF AN PROFESSIONAL F 2 SERVICES AGREEMENT WITH BURRTEC WASTE INDUSTRIES, INC., ° " PURSUANT TO SAN BERNARDINO MUNICIPAL CODE SECTION 3.04.010 a 3 PARAGRAPH B3, TO ALLOW BURRTEC WASTE INDUSTRIES, INC., TO w 4 PROVIDE COMMINGLED RECYCLING AND COMMERCIAL RECYCLING PROCESSING. > W 5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and ° 6 " Common Council of the City of San Bernardino at a regular meeting 3 7 c 8 thereof, held on the 17tltlay of October 2011,by the following vote,to wit: a LL 9 Council Members: AYES NAYS ABSTAIN ABSENT U 10 MARQUEZ x c 11 °- 12 JENKINS x 13 BRINKER x N 14 SHORETT x N 15 KELLEY x m 16 JOHNSON x _ — rn 17 a p MCCAMMACK x v 18 C 19 0 20 Rac el G.Clark,CMC, City Clerk m 21 The foregoing resolution is hereby approved this !9 7' day of 0 2011. r 22 ca n 23 N Patri k J. Morris, 'bya[_> 24 t of San Bernardino c 2$ Approved as to form: E 26 JAMES F.PENMAN; u City Attorney 27 By: a 28 Packet Pg.;385 2011-285 Exhibit A Form of Agreement PROFESSIONAL SERVICES AGREEMENT FOR PROCESSING RECYCLING MATERIALS o N C d X THIS AGREEMENT is made and entered into this 17th day of October, 2011 w ("Effective Date"), by and between the CITY OF SAN BERNARDINO, a municipal v corporation ("City"), and Burrtec Waste Industries, Inc., a California corporation ("Contractor"). N WITNESSETH: a WHEREAS, The Legislature of the State of California, by enactment of the a California Integrated Waste Management Act of 1989 ("AB 939"), incorporated into the LL California Public Resources Code as Section 40000 et seq., has declared that it is in the r public interest to authorize and require local agencies to make adequate provision for the disposal of Solid Waste within their jurisdictions; and o C WHEREAS, City and Contractor are mindful of the provisions of the laws s governing the safe collection, transport, recycling, and disposal of Solid Waste, U including AB 939 (as amended), the Resource Conservation and Recovery Act ("RCRA"), and the Comprehensive Environmental Response, Compensation and o 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 N thereby becoming an "arranger" or a "generator' as those terms are used in CERCLA, c 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 2 claims relating to the inadvertent or intentional disposal of hazardous materials that may occur in connection with Contractor's performance under this Agreement. m c WHEREAS, City and Contractor understand and agree that it is Contractor, and 4 not City, who will take title to the Recyclable Materials, that City has not, and, by this o Agreement does not, instruct Contractor on its methods of performing the duties under d this Agreement. Any title in and to such Recyclable Materials that otherwise might exist X 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 m services as are necessary to ensure City complies with the requirements of Public N Resources Code Section 40000, at seq. 0 WHEREAS, City proposes to have Contractor perform the services described in the City's Request for Proposal and incorporated herein by reference; and £ E 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 9-21-2011 Final PacketPg. 386 2011-285 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 o provisions of California Government Code, Sections 1090-1092, in the subject matter of this Agreement. w NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the parties hereby agree as follows: v m SECTION 1.00 RECITALS The Parties acknowledge the above recitals are true and correct and incorporate them herein as if they were fully restated. a LL SECTION 2.00 DEFINITIONS T Whenever any term used in this Agreement has been defined by Division 30, o Part 1, Chapter 2 of the California Public Resources Code, or Chapter 8.24 of the City 0 of San Bernardino Municipal Code, the definition of such term set forth therein shall 2 apply unless the term is otherwise defined in this Agreement. The terms defined herein in shall have the meaning set forth in this Agreement. Otherwise, the terms herein shall H have their ordinary meaning. °. 2.1 AB 939. "AB 939" shall mean the California Integrated Waste Management Act N of 1989, currently codified as California Public Resources Code Section 40000 et seq. as it may be amended from time to time. d 2.2 City. "City" means the City of San Bernardino, a municipal corporation. 2 2.3 Contractor. "Contractor" shall mean Burrtec Waste Industries, Inc., the entity entering this Agreement with the City, or any party permitted pursuant to the terms hereof to become the successor or assignee thereof. °— 0 2.4 Effective Date. "Effective Date" shall mean November 1, 2011. d 2.5 Hazardous Waste. "Hazardous Waste" means (i) all waste defined or characterized as hazardous waste by the federal Solid Waste Disposal Act (42 g U.S.C. § 3251 et seq.), as amended, including the Resource Conservation and m Recovery Act of 1976 (42 U.S.C. § 6901 et seq.) and all future amendments H thereto, or regulations promulgated thereunder and (ii) all waste defined or characterized as hazardous waste by the principal agencies of the State of N California (including without limitation the Department of Health Services and the California Waste Management Board) having jurisdiction over hazardous waste E generated by facilities within such state, provided that the term "Hazardous Waste": m A. Is intended to mean and include those substances that are not normally expected to be disposed of by generally accepted sanitary landfill disposal 2 Professional Services Agreement For Processing Recycling Materials 9.21-2011 Final Packet Pg. 387 B.F.b 2011-285 methods; B. Shall include radioactive wastes; and C. Shall be construed to have the broader, more encompassing definition o where there exists a conflict in the definitions employed by two or more governmental agencies having concurrent or overlapping jurisdiction over x hazardous waste. w m 2.6 Municipal Code. "Municipal Code" shall mean the "San Bernardino Municipal Code' of the City of San Bernardino 0 2.7 Recycling. "Recycling" means the process of collecting and turning used products, including, but not limited to, newspapers, cans, corrugated cardboard v and bottles, into new products by reprocessing or remanufacturing them. `o IL LL 2.8 Recyclable Material. "Recyclable Material" or "Recyclables" shall mean all Solid T Waste, garbage, trash, refuse, construction and demolition debris, and any other Solid Waste which is capable of being recycled. o C 2.9 RFP. "RFP" means the City's Request for Proposal attached hereto as Exhibit 2 •N "A" and incorporated herein as though set forth in full. U N 2.10 Response. "Response' means Contractor's response to honor the terms of the o current agreement in place with Burbank Recycling Inc. to process curbside and N commercial recycling and remit payments to the City based upon the overall N recycling percentage. c m 3.0. SERVICES PROVIDED BY CONTRACTOR E a v 3.1 Scope of Services. Contractor shall provide the services described in a Contractor's Response. Specifically, Contractor shall collect City's recyclable material at a designated location, acceptable to the City, transport the material for processing at an approved recycling facility, and dispose of non-recyclable residue at an approved 2 County of San Bernardino disposal facility per the Waste Disposal Agreement. 0 N a 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 m recycling trucks. The facility will be available to begin accepting materials by November N 1, 2011. The designated facilities are: 0 N Burrtec Waste Industries, Inc. Burrtec Waste Industries, Inc. \1��O 4856 Agua Mansa Road 5455 Industrial Parkway Riverside, CA 92509 San Bernardino, CA 92407 E E m Unloading TimeTTruck 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 3 Professional Services Agreement For Processing Recycling Materials 9-21-2011 Final Packet Pg. 388 8.F.b 2011-285 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 c self-haul trucks. 0 .y C Contractor shall provide a means to avoid "stacking" of recycling trucks on public streets K as they enter their facility(s). Contractor shall provide City trucks preference over the W general public to facilitate off-loading efficiencies and turn-around time. Accounting System -Contractor shall design an accounting system for all o 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 v 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 c 0 agreement. o Unmarketable Materials - In no case shall the Contractor take any City delivered in recyclable materials to a disposal facility unless permission in writing is provided by the y City on a load-by-load basis. If the Contractor can demonstrate that a material is not o marketable, such permission shall not be unreasonably withheld. This provision does N not apply to residue that is incidental to processing recyclables. Contractor will provide for alternative off-loading methods in the event of reasonable v down -time due to repair and maintenance of equipment. Contractor shall maintain v 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 a defined as less than one day each operating month. v m c Contractor shall be responsible for disposal of residue from processing of City o recyclables at no charge to City and in compliance with the Waste Disposal Agreement. o m a, 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. m Contractor shall provide an area for tipping of City vehicles separate from the general N public. Contractor shall provide spotting of City trucks in areas at their facility with tight maneuverability. N Contractor shall allow the City's representatives to inspect their facilities during normal d business hours to assure compliance with the service agreement. E U N With the exception of what is recognized by the recycling industry as "residue" or a "contaminants", Contractor agrees to divert all materials from landfill delivered to them by City recycling trucks. a Professional Services Agroomenr For Processing Recyoling Materials 9-21-2011 Final Packet Pg. 389 S.F.b 2011-285 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 o their facility. All ingress and egress from the Contractors facility shall be paved. m Contractor shall make reasonable accommodations to provide tours of their facilities to Z the public upon request by the City's representative. N The City will not furnish facilities or equipment for this Agreement. o d 3.2 Equipment. Contractor shall furnish all labor, materials and equipment necessary to perform the services contemplated by this Agreement. c 3.3. Professional Practices. All professional services to be provided by LL 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 0 with all laws that may affect its performance of this Agreement and shall advise City of 2 any changes in any laws that may affect Contractor's performance of this Agreement. U N 3.4 Restriction on Manner of Collection. In order to ensure City complies with 'o 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, N 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 v been weighed and/or accounted for in some other manner. E d 3.5 Pursuit and Management of Grants. Contractor shall assist City in a 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 0 so by City, and shall be entitled to compensation for such management services if the o 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; CO occupational health and safety; fair employment and employment practices, workers' m compensation insurance and safety in employment; and all other Federal, State and ry local laws and ordinances applicable to the services required under this Agreement. N Contractor shall indemnify and hold harmless City from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and v description including attorneys' fees and costs, presented, brought, or recovered s 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. a 3.7. Non-discrimination. In performing this Agreement, Contractor shall not 5 Professional Services Agreement For Processing Rccycling Materials 9.21-2011 Final Packet Pg. 390 8.F.b 's. 2011-285 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 o 1735. v X 3.8. Business License. Contractor/Consultant/Vendor warrants it possesses, w 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 o that are legally required of contractor/consultants/vendor to practice its profession, skill N or business. 6 3 v 3.9. Delegation and Assignment. This is a personal service contract, and the o duties set forth herein shall not be delegated or assigned to any person or entity without a LL 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 U this Agreement at Contractor's sole cost and expense. o C 3.10 Duty to Notify City. Contractor shall have a duty pursuant to this 0 Agreement to notify the City of any charges, accusations, or lawsuits commenced, filed, prosecuted, or instituted by the California Deparment of Resources, Recycling and N Recovery (aka "CalRecycle"), the State of California, the Attorney General, and any o other similar regulatory agency. The duty to notify the City shall extend to and include investigations by the applicable regulatory agency. N 4.0 CITY RESPONSIBLILITIES d E W 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. c 4.2 Access to City Owned Property. City will provide access to and make 2 provisions for Contractor to enter upon City-owned property as may be required by 3 Contractor to perform the services contemplated by this Agreement. it 5.0. TERM, TERMINATION AND CURE r 5.1. Term. This Agreement shall commence on the Effective Date and end on m December 31, 2012, unless previously terminated as provided herein or as otherwise N 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 N 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 90 days prior to the expiration of this Agreement, or any renewal period thereof. r U N 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 or without cause, at any time, by providing thirty s Professional SeMi .Ag...t For Processing Rccyding Materiels 9-21-2011 Final Packet Pg. 391 B.F.b 2011-285 (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 W within 30 days after the same shall become due, or becomes unable to fulfill its d 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 o further notice or authorization from Contractor, and its choice of any option shall in no N way waive its rights to select any other option at any time. 5.3.1 City may give Contractor notice of such default. If the Contractor does not cure said default within 30 days after it was first LL discovered (forthwith for a default involving any condition involving safety) or make reasonable progress to cure said default D (reasonable progress to be determined at City's sole and absolute o discretion), City may terminate this Agreement on a date of its 0 choice. = N N 5.3.2 The acceptance of all or part of recycling revenues by City for any y period after a default shall not be deemed a waiver of any of these o options, nor a waiver of the default of any subsequent default of the same or any other term, covenant and condition. Any waiver by N 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 d any other term, covenant and condition. d v 5.3.3 In the event City defaults in the performance of any of the terms or a conditions of this Agreement, and if a written notice of such default 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 o or makes reasonable progress in curing such default, then Contractor may immediately terminate this Agreement, and recover v at law any and all claims which may be due. U U 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 m' termination. N 5.5 Documents. In the event of termination of this Agreement, all writings N 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 E performance of this Agreement, shall be delivered or otherwise made available to City s 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, a printing, photographing, electronic communication, and every other means of recording upon any tangible thing any form of communication or representation, including letter, Professional Services Agreement Far Processing Recycling Materials 9-21-2011 Final Packet Pg. 392 S.F.b 2011-285 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. c 6.0. COMPENSATION AND ACCOUNTING 2 .N c 6.1. Revenue Calculation. Revenue calculation shall be calculated as set x w forth below: 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 2 calculation will apply: 1500 tons less 40% = 900 tons x $15 per ton = $13,500 net o payment. At the end of 60 days, a mutually audited waste characterization will be performed that will potentially increase the Contractor payment to the City. 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 LL below, the Contractor's payment to the City increases from $15 per ton to $22.50 per M ton. If the said waste characterization demonstrates that the City's residual reduces to u 20% or below, the Contractor's payment to the City increases from $15 per ton to $25 C per ton. If the said waste characterization demonstrates that the City's residual reduces 0� 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 3 to 10% or below, the Contractor's payment to the City increases from $15 per ton to $40 in per ton. Quarterly waste characterizations and potential per ton price change will o happen upon mutual agreement by both parties. At no time during the contract will the Contractor charge the City or increase the residual deduction to more than 40%. N c The parties agree that the characterization of 40% residue is material to this Agreement E and that the City relied on such characterization in entering into the Agreement. v Contractor shall be responsible to perform periodic characterizations in accordance with a best management practices. The City's representatives shall observe any future characterizations. Any recalculation of revenue from subsequent characterizations shall m not result in the Contractor charging City for receipt of material, nor shall such `o characterization cause the level of residue to exceed 40%. In no event, shall the value P of the City's material, net of residue disposed, be less than $zero ($0). ° m 6.2 Payment to City. Contractor shall pay the Compensation for the preceding m month to the City no later than thirty (30) calendar days from the end of each month. c Payments to the City will include California Redemption Value applicable to curbside M Recycling programs. N 6.3 Late Payments. Interest on amounts past due will be assessed at the rate c of 1.5% per month. c 6.4 Monthly Summary Reports. Contractor will provide the City with a monthly s report on the overall amount of Recyclable Materials delivered by the City recycling m trucks. Monthly Invoices shall reflect the established percentages of each commodity or type. Contractor shall submit the weight tickets and monthly summary report to the City within thirty (30) calendar days following the end of each month. 8 Professional Services Agreement For Processing Recycling Materials 9-21-2011 Final Packet Pg. 393 2011-285 r` 6.5. Additional Services. Contractor shall not receive compensation for any services provided outside the scope of services specified in the Response unless the 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. x 6.6. Records and Audits. Records of Contractor's services relating to this w 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 five (5) years from the commencement of this o Agreement. Contractor shall maintain books and accounts of all project related weights y by material type. Such records shall be available at all reasonable times for examination 3 by the City at the office of Contractor. A 7.0. TIME OF PERFORMANCE D 7.1. Commencement of Work. The professional services to be performed L) pursuant to this Agreement shall commence within five (5) days from the Effective Date c of this Agreement. `o 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. N Such acts shall include, but not be limited to, acts of God, fire, strikes, material o shortages, riots, acts of war, or any other conditions beyond the reasonable control of a N party. N 8.0. INSURANCE in B.I. Minimum Scope and Limits of Insurance. Contractor shall obtain and 0 rn maintain during the life of this Agreement all of the following insurance coverages: a a c (a) Comprehensive general liability, including premises-operations, products/completed operations, broad form property damage, 2 blanket contractual liability, independent contractors, personal c 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, U aggregate. r (b) Automobile liability for owned vehicles, hired, and non-owned m vehicles, with a policy limit of not less than One Million N ($1,000,000.00) Dollars, combined single limits, per occurrence and aggregate. N (c) Workers' compensation insurance as required by the State of E California. R 8.2. Endorsements. The comprehensive general liability and automobile a .— liability insurance policies shall contain or be endorsed to contain the following provisions: 9 Professional Services Agreement For Processing Recycling Materials 9-21-2011 Final Packet Pg. 394 2011-285 (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 c with City." 4 c (b) Notice: "Said policy shall not terminate, nor shall it be cancelled, nor the coverage reduced, until thirty (30) days after written notice w is given to City." v (c) Other insurance: "Any other insurance maintained by the City of o San Bernardino shall be excess and not contributing with the y insurance provided by this policy." a 8.3. Certificates of Insurance. Contractor shall provide to City certificates of insurance showing the insurance coverages and required endorsements described a. above, in a form and content approved by City, prior to performing any services under W T this Agreement. c 8.4. Non-limiting. Nothing in this Section shall be construed as limiting in any C way, the indemnification provision contained in this Agreement, or the extent to which 2 Contractor may be held responsible for payments of damages to persons or property. U N 9.0. GENERAL PROVISIONS 9.1. Entire Agreement. This Agreement constitutes the entire Agreement N 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 v in writing, and signed by the parties in interest at the time of such modification. The m terms of this Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Agreement, a v c 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, o approvals, directives and agreements on behalf of the City, called for by this Agreement, except as otherwise expressly provided in this Agreement. d 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 m' expressly provided in this Agreement. N 9.3. Proiect Managers. City designates the Public Works Director to act as the N Project Manager to work directly with Contractor in the performance of this Agreement. c v Contractor shall designate a Project Manager who shall represent it and r 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. a 9.4. Notices. Any notices, documents, correspondence or other 10 Professional Services Agreement For Processing Recycling Materiels 9-21-2011 Final Packet Pg. 395 ....................... �. 2011-285 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 `o 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 x paragraph. z m IF TO CONTRACTOR: IF TO CITY: Burrtec Waste Industries, Inc., City of San Bernardino 0 9890 Cherry Ave, Public Works Director Fontana, Ca 92324 300 North "D" Street San Bernardino, CA 92418-0001 m Attn: Michael Arreguin Attn: Nadeem Majaj a LL K 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 `g 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 ti shall be considered as "attorneys fees" for purposes of this Agreement. .a 9.6. Governing Law. This Agreement shall be governed by and construed N under the laws of the State of California without regard to principles of conflict of laws. c m 9.7. Venue. The parties hereto agree that all actions or proceedings arising in d 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 ° a the Central District of California. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. 0 9.8. Assignment. Contractor shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of Contractors interest in this Agreement without City's prior written consent. Any attempted assignment, transfer, subletting or W 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 ca obligations to be performed by Contractor hereunder for the term of this Agreement. In all the event of mutual agreement between the parties to sublet a portion of the services to ry be performed pursuant to this Agreement, Contractor shall add the subcontractor as an N additional insured to Contractor's insurance policy and provide City with the insurance endorsements prior to any work being performed by the subcontractor. Assignment d does not include printing or other customary reimbursable expenses that may be r provided in this Agreement. y a 9.9. Indemnification and Hold Harmless. Contractor shall protect, defend, indemnify, save and hold harmless City and its elected and appointed officials, officers, 11 Professional Services Agreement For Prm,cssing Recycling Materiels 9-21-2011 Final Packet Pg. 396 2011-285 and 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 o subcontractors in the performance of this Agreement. m K 9.10. Employment Indemnification. Contractor expressly waives all rights to W 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, o save 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. M This shall not apply to any damage resulting from the sole negligence of City, its agents and employees. a LL 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 o extent permitted by law, defend (with counsel acceptable to City) reimburse, indemnify, 0 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 o all other losses, damages, fees and expenses of whatever kind or nature ("Claims") N (including but not limited to response costs, investigative costs, assessment costs, N monitoring costs, treatment casts, cleanup costs, removal costs, remediation costs, and similar costs, damages and expenses) that arise out of or are alleged to arise out of or v in any way relate to any action, inaction or omission of Contractor that: E d (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 d disposed of by Contractor. U d Contractor's obligations pursuant to this Section shall apply, without limitation, to: m (a) any Claims brought pursuant to or based on the provisions of the N Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq., the Resource Conservation and Recovery Act ("RCRA"), 42 N 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 E Laws (California Health and Safety Code Sections 25100 et seq.), the California Porter- E 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 a Qenvironmental statutory or regulatory provision, 12 Professional Services Agrcernent For Processing Recycling Materials 9.21-2011 Final Packet Pg. 397 2011-285 (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 o the marketing, sale, distribution, storage, transportation, disposal, processing or use of w any materials recovered by Contractor; X w (d) any Claims based on or arising out of or alleged to be arising out of v any breach of any express or implied warranty, representation or covenant arising out of '- or in connection with this Agreement. ° d The foregoing indemnity shall apply irrespective of the negligence or willful misconduct of Contractor or any affiliate of Contractor. v M M For purposes of this Section, the term "Hazardous Contaminant" shall mean any LL "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 U 9601(14) of the United States Code; any "hazardous waste," as that term is defined 0 under Title 42, Section 6093(5) of the United States Code and under California Health & g Safety Code Section 25550(m); any chemical which the Governor has identified as a 00 chemical known to the State to cause cancer or reproductive toxicity pursuant to y California Health & Safety Code Section 25249.8; any crude oil or refined or unrefined o 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 N amendments to the above-referenced statutory and regulatory provisions made before or after the date of execution of this Agreement. d E The provisions of this Section shall not terminate or expire and shall survive the m m termination or expiration of this Agreement. a v c 9.11. Independent Contractor. Contractor is and shall be acting at all times as m an independent contractor and not as an employee of City. Contractor shall secure, at o his expense, and be responsible for any and all payment of Income Tax, Social Security, State Disability Insurance Compensation, Unemployment Compensation, and a other payroll deductions for Contractor and its officers, agents, and employees, and all M business licenses, if any are required, in connection with the services to be performed hereunder. 3 CO 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, R 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, s as that term is defined in the California Government Code Section 6254.7, and which m Contractor informs City of such "Trade Secret." "Confidential,' or "Proprietary' status. a 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 13 Rmfessiunal Services Agreement For Processing Recycling Materials 9-21-2011 Final Packet Pg. 398 2011-285 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 o 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. w T 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 o services rendered under this Agreement at no additional cost to City. In the event that 2 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. a� 9.15. Prohibited Employment. Contractor will not employ any regular employee of City while this Agreement is in effect. `o c 9.16. Order of Precedence. In the event of an inconsistency in this Agreement 2 and any of the attached Exhibits, the terms set forth in this Agreement shall prevail. If u 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, o 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 N govern over both the Response and the RFP and the Response shall govern over the c RFP. E a 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. c 9.18. No Third Party Beneficiary Rights. This Agreement is entered into for the q sole benefit of City and Contractor and no other parties are intended to be direct or o incidental beneficiaries of this Agreement and no third party shall have any right in, under or to this Agreement. d 9.19. Headings. Paragraphs and subparagraph headings contained in this r Agreement are included solely for convenience and are not intended to modify, explain CO or to be a full or accurate description of the content thereof and shall not in any way N affect the meaning or interpretation of this Agreement. 0 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 E interpretation arises with respect to this Agreement, this Agreement shall be construed s 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 a authorship of any of the provisions of this Agreement. 14 Professional Services Agreement For Processing Recycling Materials 9-21-2011 Final PacketPg. 399 8.F.b 2011-285 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 o 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 x respect to any other occurrence or event, nor shall any waiver constitute a continuing w Z waiver. > 9.24. Severability. If any provision of this Agreement is determined by a court of In competent jurisdiction to be unenforceable in any circumstance, such determination N shall not affect the validity or enforceability of the remaining terms and provisions hereof 3 or of the offending provision in any other circumstance. m 9.25. Counterparts. This Agreement may be executed in one or more a LL counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. C 9.26. Corporate Authority. The persons executing this Agreement on behalf of 0 C the parties hereto warrant that they are duly authorized to execute this Agreement on .0 behalf of said parties and that by doing so, the parties hereto are formally bound to the U provisions of this Agreement. cl IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be N executed by and through their respective authorized officers, as of the date first above N written. E E v CITY OF SAN BERNARDINO, CONTRACTOR o A municipal corporation a v c m O Vatri J. Morri s, Mic I rreg in, a President N San Bernardino Bur a Waste Industne m Rachel G. Clark, City Clerk co City of San Bernardino N APPROVED AS TO FORM: c m E L v James F. Penman, City Attorney a 15 Professional Services Agreement For Prmessing Recycling Materials 9-21-2011 Final Packet Pg. 400 8.F.c 2011-284 Exhibit A G Form of Agreement PROFESSIONAL SERVICES AGREEMENT FOR PROCESSING RECYCLING MATERIALS c .N a, X THIS AGREEMENT is made and entered into this 17th day of u, _October 2011 ("Effective Date"), by and between the CITY OF SAN z BERNARDINO, a municipal corporation ("City"), and Republic Services of Southern California, LLC, a limited liability company ("Contractor"). ° m N WITNESSETH: ; n WHEREAS, The Legislature of the State of California, by enactment of the a California Integrated Waste Management Act of 1989 ("AB 939"), incorporated into the California Public Resources Code as Section 40000 at 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 o C WHEREAS, City and Contractor are mindful of the provisions of the laws 0 governing the safe collection, transport, recycling, and disposal of Solid Waste, including AB 939 (as amended), the Resource Conservation and Recovery Act o ("RCRA"), and the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"). City and Contractor desire to leave no doubts as to their o 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 d recycling of Recyclable Material which may contain hazardous substances; and further d to confirm that Contractor has agreed to indemnify the City in connection with any rn claims relating to the inadvertent or intentional disposal of hazardous materials that may occur in connection with Contractor's performance under this Agreement. 0 WHEREAS, City and Contractor understand and agree that it is Contractor, and o 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. v v 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 N Resources Code Section 40000, et seq. o N WHEREAS, City proposes to have Contractor perform the services described in v the City's Request for Proposal and incorporated herein by reference; and L U N WHEREAS, Contractor represents that it has that degree of specialized expertise a 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 Pm ing Rerycling Maeerials 9.21-2011 Final Packet Pg.401 2011-284 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 c provisions of California Government Code, Sections 1090-1092, in the subject matter of a this Agreement. X w NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the parties hereby agree as follows: 0 d SECTION 1.00 RECITALS The Parties acknowledge the above recitals are true and correct and incorporate 3 them herein as if they were fully restated. a LL SECTION 2.00 DEFINITIONS r U Whenever any tens used in this Agreement has been defined by Division 30, o Part 1, Chapter 2 of the California Public Resources Code, or Chapter 8.24 of the City o of San Bernardino Municipal Code, the definition of such tern 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 o have their ordinary meaning. N O 2.1 AB 939. "AB 939" shall mean the Califomia Integrated Waste Management Act of 1989, currently codified as Califomia Public Resources Code Section 40000 at seq. as it may be amended from time to time. v v 2.2 City. "City" means the City of San Bernardino, a municipal corporation. a v 2.3 Contractor. "Contractor" shall mean Republic Services of Southern California, LLC, the entity entering this Agreement with the City, or any party permitted o pursuant to the terms hereof to become the successor or assignee thereof. 0 N N 2.4 Effective Date. "Effective Date" shall mean October 17, 2011. U 2.5 Hazardous Waste. "Hazardous Waste" means (i) all waste defined or o characterized as hazardous waste by the federal Solid Waste Disposal Act (42 U.S.C. § 3251 at seq.), as amended, including the Resource Conservation and N 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 b characterized as hazardous waste by the principal agencies of the State of N California (including without limitation the Department of Health Services and the d California Waste Management Board) having jurisdiction over hazardous waste s generated by facilities within such state, provided that the term "Hazardous Waste": a A. Is intended to mean and include those substances that are not normally expected to be disposed of by generally accepted sanitary landfill disposal 2 Professional Services Agrmocid For Processing Recycling Materials 9-212011 Final Packet Pg.402 S.F.c 2011-284 methods; B. Shall include radioactive wastes; and C Shall be construed to have the broader, more encompassing definition o where there exists a conflict in the definitions employed by two or more governmental agencies having concurrent or overlapping jurisdiction over x hazardous waste. w it a, 2.6 Municipal Code. "Municipal Code" shall mean the "San Bernardino Municipal m Code" of the City of San Bernardino ° v N 2.7 Recycling. "Recycling" means the process of collecting and turning used 3 products, including, but not limited to, newspapers, cans, corrugated cardboard and bottles, into new products by reprocessing or remanufacturing them. a LL 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. `o a 2.9 RFP. "RFP" means the City's Request for Proposal attached hereto as Exhibit 2 "A" and incorporated herein as though set forth in full. N O 2.10 Response. "Response" means Contractor's response to honor terms of the current agreement in place with Burbank Recycling Inc. to process curbside and o commercial recycling and remit payments to the City based upon the overall recycling percentage. v E 3.0. SERVICES PROVIDED BY CONTRACTOR d a 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 designated location, acceptable to the City, transport the material for processing at o an approved recycling facility, and dispose of non-recyclable residue at an approved o County of San Bernardino disposal facility per the Waste Delivery Agreement, which Contractor expressly acknowledges. U Contractor will accept materials for recycling from the City's recycling Program serving a single-family residences and commercial accounts. Contractor will provide a facility at the location specified below for Off-loading City N recycling trucks. The facility will be available to begin accepting materials by November b 1, 2011. The designated facility is: w v Republic Services of Southern California, LLC E 3059 E. Steel Road Colton, CA 92324 a Unloading TimetTruck Turn-around Time—Each City recycling truck entering the Contractor's facility shall have a maximum of 15 minutes turnaround time from the time 3 Professional Services Agreement For Processing Recycling Materials 9-21-2011 Final Packet Pg. 403 LUL l—Lt54 �., 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 c self-haul trucks Contractor shall provide a means to avoid "stacking" of recycling trucks on public streets w as they enter their facility(s). Contractor shall provide City trucks preference over the general public to facilitate off-loading efficiencies and tum-around time. d 0 Accounting System —Contractor shall design an accounting system for all N 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 a from periodic sampling, separate processing, or by other means as agreed to by the City, to establish factors for the percent of each material. , U The Contractor shall comply with all Federal, State and local regulations that apply to C recyclable materials delivered to them by City recycling trucks under the terms of this o agreement. Unmarketable Materials — In no case shall the Contractor take any City delivered o 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 o - marketable, such permission shall not be unreasonably withheld. This provision does not apply to residue that is incidental to processing recyclables. d E Contractor will provide for alternative off-loading methods in the event of reasonable d down —time due to repair and maintenance of equipment. Contractor shall maintain a 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. o Contractor shall be responsible for disposal of residue, which shall be in compliance with the WQA, from processing of City recyclables at no charge to City. s v Contractor's facilities shall be open to receive materials from City trucks Monday a through Saturday, year round. Facilities shall be open to receive City materials from 6:30 a.m. to 5:00 p.m. N Contractor shall provide an area for tipping of City vehicles separate from the general b public. Contractor shall provide spotting of City trucks in areas at their facility with tight N maneuverability. v E Contractor shall allow the City's representatives to inspect their facilities during normal business hours to assure compliance with the service agreement. a 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 4 Professional Services Agreemem For Processing Recycling Materiels 9.21-2011 Final Packet Pg. 404 8.F.c 2011-284 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. 2 0 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. x w Contractor shall make reasonable accommodations to provide tours of their facilities to lr the public upon request by the City's representative. v 0 The City will not furnish facilities or equipment for this Agreement. 3 3.2 Equipment. Contractor shall furnish all labor, materials and equipment necessary to perform the services contemplated by this Agreement. a LL 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 o and skill ordinarily exercised by professional Contractors in similar circumstances in o accordance with sound professional practices. Contractor also warrants that it is familiar 'N 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. o 3.4 Restriction on Manner of Collection. In order to ensure City complies with o the provisions of AB 939, and to accurately account for and report the amount of Solid L. Waste including Recyclable Material collected within the City Limits and processed, 5 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 d been weighed and/or accounted for in some other manner. a 3.5 Pursuit and Management of Grants. Contractor shall assist City in pursuing grants and other funding as may become available for recycling, public o 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. a a 3.6. WarrantV. 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' b compensation insurance and safety in employment; and all other Federal, State and local laws and ordinances applicable to the services required under this Agreement. v Contractor shall indemnify and hold harmless City from and against all claims, L demands, payments, suits, actions, proceedings, and judgments of every nature and description including attorneys' fees and costs, presented, brought, or recovered a 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. 5 Pmressional Smim Agsccmcot For Ps sing Recycling Melcriels 9.21-2011 Final Packet Pg.405 8 F 2011-284 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 o provision may result in the imposition of penalties referred to in Labor Code, Section d 1735. K W 18. Business License. Contractor/Consultant/Vendor warrants it possesses, v or shall obtain, and maintain during the term of this Agreement a business registration 2 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 R that are legally required of contractor/consultants/vendor to practice its profession, skill 3: or business. m M 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 u permitted by law and may employ other personnel to perform services contemplated by c this Agreement at Contractors sole cost and expense. o N Ul 3.10 Duty to Notify City. Contractor acknowledges that it has a duty pursuant to this Agreement to notify the City of any charges, accusations, or lawsuits commenced o or instituted by the Cafdcrnia Department of Resources, Recycling and Recovery (aka "CalRecycle"), the State of California, the Attorney General, and any other similar o regulatory agency. This duty to notify the City shall extend to and include investigations by the applicable regulatory agency prior to any formal action being taken. E a, 4.0 CITY RESPONSIBILITIES v s Q 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. °— j 0 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. a n 5.0. TERM, TERMINATION AND CURE v 5.1. Term. This Agreement shall commence on the Effective Date and end on December 31, 2012, unless previously terminated as provided herein or as otherwise N 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 d deemed automatic unless this Agreement is sooner terminated as provided for r hereinafter, or upon written notice of intent not to renew given by City at least 90 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 6 Pmrcssmnal Services Agreement For Processing Recycling Melends 9-21-20]1 Final Packet Pg.406 S.F.c 2011-284 contemplated by this Agreement, with or without 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. c 0 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 x any of the directions or instructions that may be properly made by City in the exercise of w 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 Z further notice or authorization from Contractor, and its choice of any option shall in no 3 way waive its rights to select any other option at any time. a 5.3.1 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 v safety) or make reasonable progress to cure said default o (reasonable progress to be determined at City's sole and absolute o discretion), City may terminate this Agreement on a date of its N choice. y 0 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 o 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, E or constitute a waiver of, any subsequent default of the same or 2 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 9 is issued to City by Contractor by registered mail, and if City does o not cure said default within thirty (30) days of receipt of said notice or makes reasonable progress in curing such default, then W Contractor may immediately terminate this Agreement, and recover .2 at law any and all claims which may be due. 'o d 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 N termination, o N 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 L 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 a 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, electronic communication, and every other means of recording 7 Profmionel Scr ias Agreement Fm Processing Recycling Mmnals 9-21-201 I Final Packet Pg.407 8.F.c 2011-284 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. 2 6.0. COMPENSATION AND ACCOUNTING d 6.1. Revenue Calculation. Revenue calculation shall be calculated as set W forth below: Contractor will pay City $15 per ton less a 40% weight deduction for residual. o Example: If the City delivers 1500 tons during a given month to Contractor the following y year-one calculation will apply: 1500 tons less 40% = 900 tons x $15 per ton = $13,500 net payment. At the end of 60 days, a waste characterization will be performed that will potentially increase the Contractor payment to the City. If the said waste R characterization demonstrates that the City's residual reduces to 30% or below, the LL 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 C 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. N Quarterly waste characterizations and potential per ton price change will happen upon N mutual agreement by both parties. At no time during the contract will the Contractor charge the City or increase the residual deduction to more than 40%. E a, a, The parties agree that the characterization of 40% residue is material to this a Agreement and that the City relied on such characterization in entering into the Agreement. Contractor shall be responsible to perform periodic characterizations in c accordance with best management practices. The City's representatives shall observe - any future characterizations. Any recalculation of revenue from subsequent 0 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). 3 a 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. N Payments to the City will include California Redemption Value applicable to curbside Recycling programs. N 6.3 Late Payments. Interest on amounts past due will be assessed at the rate E of 1.5% per month. U 6.4 Monthly Summary Reports. Contractor will provide the City with a monthly a report on the overall amount of Recyclable Materials delivered by the City recycling trucks. Monthly Invoices shall reflect the established percentages of each commodity type. Contractor shall submit the weight tickets and monthly summary report to the City 8 Professional Services Agreement For Processing Rc cling Malenals 9-21-2011 Final Packet Pg.408 2011-284 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 City or its Project Manager, prior to Contractor performing the additional services, o approves such additional services in writing. It is specifically understood that oral requests and/or approvals of such additional services or additional compensation shall x be barred and are unenforceable. w T d 6.6. Records and Audits. Records of Contractor's services relating to this v Agreement shall be kept on a generally recognized accounting basis and shall be made c available to City or its Project Manager for inspection and/or audit at mutually N 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 ° a. by the City at the office of Contractor. T 7.0. TIME OF PERFORMANCE v c 0 7.1. Commencement of Work. The professional services to be performed o pursuant to this Agreement shall commence within five (5) days from the Effective Date y of this Agreement. 0 7.2. Excusable Delays. Neither parry shall be responsible for delays or lack of performance resulting from acts beyond the reasonable control of the party or parties. o Such acts shall include, but not be limited to, acts of God, fire, strikes, material N shortages, riots, acts of war, or any other conditions beyond the reasonable control of a party d d 8.0. INSURANCE c 61. Minimum Scope and Limits of Insurance. Contractor shall obtain and 0 maintain during the life of this Agreement all of the following insurance coverages: s 3 (a) Comprehensive general liability, including premises-operations, ° v products/completed operations, broad form property damage, blanket contractual liability, independent contractors, personal a injury with a policy limit of not less than One Million ($1,000,000.00) 'o Dollars per occurrence and Two Million ($2,000,000.00) Dollars, aggregate. N (b) Automobile liability for owned vehicles, hired, and non-owned o vehicles, with a policy limit of not less than One Million N ($1,000,000.00) Dollars, combined single limits, per occurrence and v aggregate. s U R (c) Workers' compensation insurance as required by the State of a California. 9 ProPossional Services Agee nt For Processing Recycling Materials 9-21-2011 Final Packet Pg.409 B.F.c ZU 11—ZU4 8.2. Endorsements. The comprehensive general liability and automobile liability insurance policies shall contain or be endorsed to contain the following provisions: (a) Additional insureds: 'The City of San Bernardino and its elected o and appointed boards, officers, agents, and employees are additional insureds with respect to this subject project and contract x with City." w d (b) Notice: "Said policy shall not terminate, nor shall it be cancelled, v nor the coverage reduced, until thirty (30) days after written notice ° is given to City." 3 (c) Other insurance: "Any other insurance maintained by the City of San Bernardino shall be excess and not contributing with the a insurance provided by this policy." _T 8.3. Certificates of Insurance. Contractor shall provide to City certificates of insurance showing the insurance coverages and required endorsements described o above, in a form and content approved by City, prior to performing any services under this Agreement. N U 8.4. Non-limitino. Nothing in this Section shall be construed as limiting in any o 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. o N 9.0. GENERAL PROVISIONS c d 9.1. Entire Agreement. This Agreement constitutes the entire Agreement d between the parties with respect to any matter referenced herein and supersedes any a 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. o N a 9.2. Representatives. The City Manager or his designee shall be the u_ representative of City for purposes of this Agreement and may issue all consents, a approvals, directives and agreements on behalf of the City, called for by this 'o Agreement, except as otherwise expressly provided in this Agreement. v Contractor shall designate a representative for purposes of this Agreement who shall be authorized to issue all consents, approvals, directives and o agreements on behalf of Contractor called for by this Agreement, except as otherwise N expressly provided in this Agreement. d E z 9.3. Project Managers. City designates the Public Works Director to act as the A Project Manager to work directly with Contractor in the performance of this Agreement. a 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 10 Professional Services Ag remem For Proceosing Recycling Materiels 9-214011 Final PacketPg.410 tl.F.c �uFF-car or its Project Manager shall attend and assist in all coordination meetings called by City. 9.4. Notices. Any notices, documents, correspondence or other 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 `o_ 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. x postmark. In all other instances, notices, bills, and payments shall be deemed given at T 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 o paragraph. N IF TO CONTRACTOR: IF TO CITY: ; Republic Services of City of San Bernardino Southern California Public Works Director a 3059 E. Steel Road 300 North "D" Street Colton, Ca 92324 San Bernardino, CA 92418-0001 v Attn: Peter Sterenberg Attn: Nadeem Majaj o C 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 o 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 o 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. d E 9.6. Governing Law. This Agreement shall be governed by and construed v under the laws of the State of California without regard to principles of conflict of laws. a v 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 o located in the County of San Bernardino, State of California or the U.S. District Court for the Central District of California. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. U 9.8. Assignment. Contractor shall not voluntarily or by operation of law assign, o 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 N for termination of this Agreement. Regardless of City's consent, no subletting or o 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 v the event of mutual agreement between the parties to sublet a portion of the services to z 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 a 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. tt ProPasiond Scrvices Agreement For Processing Recycling Mercrids 9-21-2011 Find Packet Pg. 411 2011-284 9.9. Indemnification and Hold Harmless. Contractor shall protect, defend, indemnify, save and hold harmless City and its elected and appointed officials, officers, and 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 `o 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, x errors or omissions of Contractor, its employees and/or authorized agents or w subcontractors in the performance of this Agreement. d 9.10. Employment Indemnification. Contractor expressly waives all rights to 0 subrogation against City, its Officers, employees and volunteers for losses arising from y work performed by Contractor for City by expressly waiving Contractor's immunity for 3 injuries to Contractors 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 z shall not apply to any damage resulting from the sole negligence of City, its agents and employees. 0 0 9.11. Hazardous Substances Indemnification. Without regard to any insurance o coverage or requirements, and without limiting the above general indemnification y 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, o save and hold City and its past and present officers, council members, employees, consultants and agents (hereinafter "Indemnified Parties") harmless from and against o any and all claims, actions, liabilities, damages, demands, judgments, losses, costs, r 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") E (including but not limited to response costs, investigative costs, assessment costs, a monitoring costs, treatment costs, cleanup costs, removal costs, remediation costs, and a 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: 0 (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 a (b) relates to material collected, transported, recycled, treated or � disposed of by Contractor. N Contractors obligations pursuant to this Section shall apply, without limitation, to: S N (a) any Claims brought pursuant to or based on the provisions of the d Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA!' E 42 U.S.C. § 9601 et seq., the Resource Conservation and Recovery Act ("RCRA"), 42 R U.S.C. § 9601 et seq., the California Hazardous Substances Account Act (Califomia a 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 12 Professional Services Agreement For Processing Recycling Matcdals 9.21-2011 Final Packet Pg.412 8.F.c cvi i-�av amendments and regulations thereto, and any other Federal. State, regional or local environmental statutory or regulatory provision; (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 o Contractor of any facility; m (c) any Claims based on or arising out of or alleged to be arising out of w the marketing, sale, distribution, storage, transportation, disposal, processing or use of v any materials recovered by Contractor; 0 (d) any Claims based on or arising out of or alleged to be arising out of N any breach of any express or implied warranty, representation or covenant arising out of or in connection with this Agreement. m The foregoing indemnity shall apply irrespective of the negligence or willful misconduct of Contractor or any affiliate of Contractor. , U For purposes of this Section, the term "Hazardous Contaminant" shall mean any o "hazardous material," as that term is defined under California Health & Safety Code c Section 25501(1); any "hazardous substance," as that term is defined under California N 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 o 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 o chemical known to the State to cause cancer or reproductive toxicity pursuant to N California Health & Safety Code Section 25249.6; any crude oil or refined or unrefined c 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 d amendments to the above-referenced statutory and regulatory provisions made before a or after the date of execution of this Agreement. m The provisions of this Section shall not terminate or expire and shall survive the o termination or expiration of this Agreement. 0 N d 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 a his expense, and be responsible for any and all payment of Income Tax, Social a Security, State Disability Insurance Compensation, Unemployment Compensation, and other payroll deductions for Contractor and its officers, agents, and employees, and all m business licenses, if any are required, in connection with the services to be performed ry hereunder. 0 N 9.12 Public Records Act Disclosure. Contractor has been advised and is aware v that all reports, documents, information and data including, but not limited to, computer t 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 a 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 13 Pmfmional Sm =$Agr ment For Processing Reryclmg Metmiels 9-21-2011 Final Packet Pg. 413 2011-284 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 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. o N C 9.13, Confidentiality. All findings, reports, information and exhibits prepared or w 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. d a w 9.14. Responsibility for Errors. Contractor shall be responsible for its work and results under this Agreement. Contractor, when requested, shall furnish clarification 3 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 a 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. o c 0 9.15, Prohibited Employment. Contractor will not employ any regular employee of City while this Agreement is in effect. N 0 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 o 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, d if there is any conflict among the terms and conditions of this Agreement and those of d any such provision or provisions so incorporated by reference, this Agreement shall v govern over both the Response and the RFP and the Response shall govern over the a RFP. c 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 o hereunder except as expressly provided herein. 9.18. No Third Party Beneficiary Rights. This Agreement is entered into for the a sole benefit of City and Contractor and no other parties are intended to be direct or a incidental beneficiaries of this Agreement and no third party shall have any right in, under or to this Agreement. N 9.19. Headings. Paragraphs and subparagraph headings contained in this N 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 E affect the meaning or interpretation of this Agreement. s U 9.20. Construction. The parties have participated jointly in the negotiation and a 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 14 Pro£ceswnal Services Agreement For Pmcessing Recycling Malenels 9-21-2011 Fmel PacketPg.4t4 B.F.c 2011-284 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. 9.21. Amendments. Only a written amendment executed by the parties hereto or their respective successors and assigns may amend this Agreement. o c 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 z 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 2 respect to any other occurrence or event, nor shall any waiver constitute a continuing c waiver. 9.24. Severability. If any provision of this Agreement is determined by a court of a 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. _T U 9.25. Counterparts. This Agreement may be executed in one or more o counterparts, each of which shall be deemed an original. All counterparts shall be o construed together and shall constitute one agreement. N U 9.26. Corporate Authority. The persons executing this Agreement on behalf of o 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 o provisions of this Agreement. N c IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be E executed by and through their respective authorized officers, as of the date first above d m written. a v c c CITY OF SAN BERNARDINO, CONTRACTOR ° A municipal corporation o N N u_ _ - a atrick J. orris, Mayor Thomas J. Vogt, President o f Bernardino Republic Services of Southern California, LLC v N Rachel G. Clark, City Clerk N City of San Bernardino c u E L APPROVED AS TO FORM: a James F. Penman, City Attorney 15 Professional Services AgMMMt Fa Processing Recycling Mamnsls 9-21-2011 Final Packet Pg. 415 8.F.c RESOLUTION NO. 2011-284 1 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY `g OF SAN BERNARDINO AUTHORIZING EXECUTION OF A PROFESSIONAL m 3 SERVICES AGREEMENT WITH REPUBLIC SERVICES OF SOUTHERN w 4 CALIFORNIA, LLC, PURSUANT TO SAN BERNARDINO MUNICIPAL CODE SECTION 3.04.010 PARAGRAPH B3, TO ALLOW REPUBLIC SERVICES OF d 5 SOUTHERN CALIFORNIA,LLC TO PROVIDE COMMINGLED RECYCLING AND o COMMERCIAL RECYCLING PROCESSING. a 6 3 7 a WHEREAS,the City has an existing non-exclusive Professional Services Agreement with @ 8 a Burbank Recycling Inc.(BR])to process recycling materials for the City; 9 ZN WHEREAS,pursuant to San Bernardino Municipal Code Section 3.04.010 Paragraph B3,the 6 10 0 C City would like to enter into one or more Professional Services Agreements to process recycling; 0 11 y BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF 12 SAN BERNARDINO AS FOLLOWS: � 0 13 SECTION 1. That the Mayor and Common Council authorize execution of the Professional N 0 14 Services Agreement attached hereto as Exhibit"A"with Republic Services of Southern California, c 15 LLC,pursuant to San Bernardino Municipal Code Section 3.04.010 Paragraph B3,to allow Republic E 16 Services of Southern California, LLC to provide commingled recycling and commercial recycling a 17 a processing. m 18 0 19 SECTION 2. The authorization to execute the above-mentioned Agreement is 0 N 20 rescinded if the parties to the Agreement fail to sign it within sixty(60)days of the passage of U_ 21 this resolution. o. d 22 oa 23 24 25 Ill E 26 ° 27 28 /n Packet Pg. 416 2011-284 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY. _ 2 OF SAN BERNARDINO AUTHORIZING EXECUTION OF A PROFESSIONAL ` 0 SERVICES AGREEMENT WITH REPUBLIC SERVICES OF SOUTHERN CALIFORNIA, c 3 LLC, PURSUANT TO SAN BERNARDINO MUNICIPAL CODE SECTION 3.04.010 2 PARAGRAPH B3,TO ALLOW REPUBLIC SERVICES OF SOUTHERN CALIFORNIA,LLC w 4 TO PROVIDE COMMINGLED RECYCLING AND COMMERCIAL RECYCLING a PROCESSING. 5 0 6 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 7 Common Council of the City of San Bernardino at a regular meeting a c m 8 thereof,held on the 17thday of October 2011,by the following vote,to wit: o! 9 lU Council Members: AYES NAYS ABSTAIN ABSENT v c 0 11 MARQUEZ R `0_ y 12 JENKINS x 0 2 13 BRINKER x 0 N 14 SHORETT % 15 ` KELLEY x E 16 17 JOHNSON x v c 18 MCCAMMACK % c 0 19 ' 0 N 20 Ric hel G. Clark, CMC,City Clerk U 21 The foregoing resolution is hereby approved this day of&kk.W ,2011. n 22 23 N Pari J.Moms,Ma b San Bernardino N 25 Approved as to form: a JAMES F.PENMAN, E r City Attorney m 27 By. a 28 8.F.d DEPARTMENT OF PUBLIC WORKS FLOOD CONTROL . LAND DEVELOPMENT S CONSTRUCTION . OPERATIONS COUNTY OF SAN BERNARDINO SOLID WASTE MANAGEMENT . SURVEYOR . TRANSPORTATION SOLID WASTE MANAGEMENT DIVISION GERRY NEW COMBS Director of Public Works 222 West Hospitality Lane,Second Floor•san Bernardino,CA 9241&0011.(909)386-6701 c AdminlslrationfEngineerfng Fax(909)396-8900 0 N C July 13, 2012 K w it m Andrea Travis-Miller Acting City Manager o City of San Bernardino d 300 North D Street m San Bernardino, CA 92418 3 v c m RE: AMENDMENT TO WASTE DELIVERY AGREEMENT(WDA) BETWEEN THE a. CITYfTOWN AND THE COUNTY OF SAN BERNARDINO X _T Dear Ms. Travis-Miller: c 0 As a result of the recent review process regarding the WDAs, County staff and the City and o Town Managers have agreed to recommend amending the current WDA to extend the tens until .2 June 30, 2016. This amendment will also put each CityfTown on the same termination date. N Enclosed are two copies of the amendment to the WDA for consideration and approval by your ° City/Town Council. As with any amendment to the WDA, this amendment shall be effective only N if all fifteen affected WDA entities agree to it and the County is able to adopt it on or before $ December 18, 2012. m Once you obtain Council approval, please return both signed copies, no later than October 31, 2012, and we will present the fifteen WDA amendments to the Board of Supervisors (BOS) for approval. '0� c d After BOS approval, the County will return one fully executed original document to you for your w records. If you have any questions regarding this letter, please contact me at(909)387-7906. 4 Sincerely, 0 !! Qwvc�YTl/l/Q� c � U GERRY NEWCOMBE Director o N Enclosures as noted `m E z u m cc: Arthur L. Rivera, Interim Division Manager, Solid Waste Management C. RozzilE. Barrington, DPW-Administrative Services Division a Board of Supervisors BRAD MfTZELFELT...............................First District NEIL DERRY....._....................._.............Third Dbidcl GREGORY C.DEVEREAUX JANICE RUTHERFORD......................second District GARY C.OVITT..................... ......Fourth District Chief Executive Officer JOSIE GONZALES......................Fifth Distinct Packet Pg. 418 S:F.d WASTE DISPOSAL AGREEMENT BETWEEN a 2 N THE COUNTY OF SAN BERNARDINO, CALIFORNIA x W it AND > 0 THE CITY OF SAN BERNARDINO y 3 a DATED: December 16, 1997 a LL T U C 0 C County Authorization Date: City Authorization Date: 0 y N J V N_ 0 N County Notice Address: City Notice Address: N Solid Waste Management Division City of San Bernardino v 222 Hospitality Lane, 2nd Floor 300 North D Street San Bernardino, CA 92415-0017 San Bernardino, CA 92418 0 y G d x W Emergency Contact: Emergency Contact: 0 3 Arthur L. Rivera T Interim Division Manager o (909) 386-8703 M r O N C d E z U R a Packet Pg.419 AMENDMENT NO. 5 TO THE WASTE DISPOSAL AGREEMENT On December 16, 1997 City of San Bernardino ("City') and the County of San Bernardino ("County')entered into a Waste Disposal Agreement("WDA'). The parties hereby amend the c WDA, on the Effective Date as provided herein, by their respective execution of this agreement (hereinafter"Amendment'). « X w it d Recitals o a A. In connection with the on-going administration of the WDA, the Parties have determined m it is now in their best interests to change the termination date to June 30, 2016. 3 v c B. This change in the termination date will assist both the City and the County in planning a for future fiscal years' budgeting of solid waste disposal services and costs. a D U NOW THEREFORE, in consideration of the forgoing recitals and the following covenants and `o promises the Parties agree as follows: `o y 1. Amended ARTICLE VI TERM Section 6.1 EFFECTIVE DATE AND TERM. (A) Term. This section is amended in its entirety to read: 0 SECTION 6.1. EFFECTIVE DATE AND TERM. (A)Term. This Agreement shall N become effective, shall be in full force and effect and shall be legally binding upon $ the City and the County from the Contract Date and shall continue in full force and effect until June 30, 2016 unless earlier terminated in accordance with its terms. m J 2. Effective Date. This Amendment shall be effective if and only when all fifteen cities listed o on Exhibit"A" have each adopted and executed a counterpart of this Amendment No. 5 .2 (the amendment number may differ for each city listed on Exhibit"A")on or before 2 October 31, 2012 and such amendment has been adopted and executed by the County w on or before December 18, 2012. In all events, the conditions in the forgoing sentence c shall occur otherwise this Amendment No. 5 shall be null and void and without any effect ; whatsoever. > c 3. No other amendments. Except as modified in this Amendment (or in any prior U Amendment(s)) all other terms and conditions of the WDA, including without limit those contained in any prior Amendment, shall remain in full force and effect. c N ( d L ( N Q Packet Pg:42Q ' IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized officers or representatives as of the day and year first above written. CITY OF SAN BERNARDINO COUNTY OF SAN BERNARDINO c .N By: cm By: W Name: Chairman, Board of Supervisors Z Print Name > 2 Title: Date: ° d w M Date: m o. LL ATTEST: SIGNED AND CERTIFIED THAT A COPY OF THIS CONTRACT HAS BEEN DELIVERED TO v THE CHAIRMAN OF THE BOARD c C 0 Clerk of the Board of Supervisors 0 Of the County of San Bernardino m 'o By. N City Clerk By: $ Deputy d d J 0 O .y C d APPROVED AS TO FORM: APPROVED AS TO FORM: w CITY ATTORNEY COUNTY COUNSEL SAN BERNARDINO o COUNTY, CALIFORNIA ; c BY By: 0 M r Date: Date: N c v E L u m a PacketPg.421 8.F.d EXHIBIT A CITIES/TOWNS WITH A WASTE DELIVERY AGREEMENT WITH THE COUNTY OF SAN BERNARDINO o OFFERED THIS AMENDMENT JULY 2012 FOR AN AGREEMENT END DATE OF JUNE 30, 2016 x W m 1. APPLE VALLEY d 2. BARSTOW ° 3. BIG BEAR LAKE 4. COLTON 3 5. FONTANA 6. GRAND TERRACE a 7. HESPERIA 8. HIGHLAND 9. LOMA LINDA 10. RIALTO O 11. SAN BERNARDINO 12. TWENTYNINE PALMS 13. VICTORVILLE N 14. YUCAIPA 15. YUCCA VALLEY N O N N N J C O C d X W a 0 r C 3 O U M PL O N C d E z U N a PacketPg.422 FOR COUNTY USE ONLY New FAS Vendor Code /+ Dept. Contract Number Change S�+ SWM 97-1052 A-5 Cancel ePrc Vendor Number ePro Contract Number County Department Dept. Orgn. Contractor's License No. DPW/Solid Waste Management Division SWM SWM County Department Contract Representative Telephone Total Contract Amount _ County of San Bernardino ` Gerry Newcombe (909)387-79061 VARIOUS 3 F A 5 Contract Type e 1A Revenue ® Encumbered lrl Unencumbered � Other: « X CONTRACT TRANSMITTAL If not encumbered or revenue contract type,provide reason: W Commodity Code Contract Start Date tracl End Date Original Amount Amendment Amour 01/01/1998 06130/2016 > Fund Dept Organization Appr. Obt/Rev,Source GRC/PROJ/JOB No. Amount O EAA SWM SWM 9700 None N Fund Dept. Organization Appr: ObjlRev Source GRC/PROJ/JOB No. Amount 3 9 Fund Dept. Organization Appr. ObyRev Source GRC/PROJ/JOB No. Amount r`p a LL Project Name Estimated Payment Total by Fiscal Year K Amendment No.5 to the Waste FY Amount IID FY Amount I/D Z` 110,nneal Anmpmpnf FMenda 0 C Anmomenl Fnd Do}p G C mannna _ — o .y b CONTRACTOR City of San Bernardino T Cl :ral ID No.or Social Security No. N Contractor's Representative Andrea Travis-Miller,Acting City Manager Address 300 North D Street, San Bernardino, CA 92376 Phone (909) 384-5549 r J Nature of Contract: (Briefly describe the general terms of the contract): `o The Waste Disposal Agreement that is the subject of this amendLpent is a fifteen year agreement between the C County and the City of San Bernardino for use of the County landfill system. Amendment No. 1 was to implement ;r the "Article 19 Solid Waste" component of the County's Waste management system and define the City's share of a that revenue. Amendment No. 2 was to increase the annual maximum limits of "Article 19 Solid Waste" in the o County landfill system. Amendment No. 3 allowed the County to charge the tee of$.10.00 per ton (pro rated) for r identified controllable waste of the City.(e.g., roll off container trucks and other,Couni/City vehicles such as pick- c ups and dump trucks) and have such waste subject to being processed in the recycling program. Amendment No. 'o 4 allowed the County to calculate the annual cost of li ttO1adj�i st end earlier in the calendar year. �p\ � ti The purpose of this Amendment No. 5^ fit Co eutend the end date of the Waste Disposal o Agreement to June 30, 2016, (Attach this transmittal to all contracts nok pas to�B!on the "Standard Contract"form.) m Approved as to Legal Form(sign In blue ink) R Contract Compliance Presented to SOS for Signature u R County Counsel Department Head Date Dale Audrror.Cont,olier'TreasurerIT"Corlecror Use On ❑Contract Database O FAS Input Date Keyed By Packet Pg.423 c O .y C m x W m O m N m 3 17 C m a LL _T U c 0 c 0 .y m U m N O N d d J C O .y C m LI W Q O T c 0 O U eh r 0 N C m E r U m Q Aaditw-CanadHrIT a sureNiaz Gdkectw Use Only ❑Contract Database O FAS Input Data Keyed By PacketPg.424 BURRTEC f ° WASTE INDUSTRIES, INC, "We'll Take Care Of It" OEM alum Now 4 Si J S �LY�r• � .. Y�r v S.F.e _-=- BURRTEC WASTE INDUSTRIES, INC. "We'll Take Care Of It" May 24, 2012 c 0 Mr. Jim Smith, P. E. Interim Director of Public Works X City of San Bernardino w 300 North"D" Street Z San Bernardino, CA 92418 > Re: Professional Services Agreement For Processing Recyclable Materials ° N N Dear Mr. Smith, 3 v Burrtec Waste Industries is proud to be a current service provider and materials processor for `m the City of San Bernardino. Over the many years of working with the City we have forged a LL positive relationship based on quality customer service, dependability, industry knowledge, o community service and our swift approach to the needs of the City. v In response to the letter received, dated May 7, 2012 from Mr. Todd Housley, City of San `o Bernardino's Integrated Waste Division Manager, Burrtec would like to express our interest in o the City of San Bernardino's proposed action to modify the current Recycling Services y Agreement and the expansion of acceptable materials. Ui In doing so, we have developed a comprehensive program designed to address the City's °. specific requirements while focusing on cost factors and compliance with State Mandates. Additionally, Burrtec proposes to offer to the City, an advance payment of the recyclable ° materials rebate in the amount of four million dollars ($4,000,000) or a host fee program that m would be made upon execution of a fifteen year Exclusive Solid Waste Materials Processing and Disposal Agreement, similar to the current County Agreement that is expiring this year. The °o enclosed proposal will speak specifically to these issues, giving the City our recommendations regarding the Agreement, Acceptable Materials, Materials Rebate, Construction and Demolition (C&D) Programs, and Disposal and Processing Options as per the City's request. It is Burrtec's sincere desire to continue providing its service standards and expertise to the City m of San Bernardino. We are confident in our ability to meet and exceed the City's Solid Waste N Processing and Disposal expectations, now and into the future. c N On behalf of Burrtec Waste Industries, we thank you for this opportunity to continue our partnership with the City of San Bernardino, and look forward to discussing this proposal in m greater detail at your earliest convenience. E Sincerely, V Micha Ar�u:n 9 Vice resident 9890 Cherry Avenue ° Fontana, California 92335 909-429-4200 FAX 909-429-4290 PacketPg.426 B.F.e t N C d SOLID WASTE MATERIALS PROCESSING AND DISPOSAL PLAN It d c a LL i a C N � N y C O O. U a N d d 8.F.e Solid Waste Materials Processing and Disposal Plan The City of San Bernardino is in the final year of a 15 year Waste Delivery Agreement (WDA) with the County of San Bernardino that will terminate on December 31, 2012. Additionally, the current agreements for Processing the City's Residential and Commercial Recyclable Materials will also terminate on December 31, 2012. Resolving these issues as well as addressing the increased 75% waste diversion requirement, due to recently passed State Legislation, presents o a new challenge for the City and its Solid Waste Processor. d Burrtec Waste Industries proposes to address these waste processing and disposal issues with w the arrival of the East Valley Materials Recovery Facility (MRF). The East Valley MRF is a fully v permitted solid waste processing and transfer facility located in the City of San Bernardino. > Burrtec and its affiliated companies own and operate several Material Recovery Facilities such o as the East Valley MRF throughout Southern California. These facilities are designed to accommodate large waste streams and to guarantee compliance with local and state diversion mandates. In an effort to provide the City with an efficient, cost effective solid waste materials 3 processing and disposal program, Burrtec would like to highlight the following operational and fiscal benefits of the East Valley Materials Recovery Facility. A a LL • Located at 1150 &1250 South Tippecanoe Avenue in the City a of San Bernardino, the East ,ku z 0 Valley MRF is a 900 ton per day, ' o Permitted Solid Waste Facility g that is approximately 3.5 miles w from the City's Civic Center. w • The East Valley MRF is capable of processing the City's entire Waste Stream, including N Recyclables, Organics and Disposable Solid Waste, which is estimated at 700-800 tons per day. The facility is a fully enclosed processing operation with a complementary aesthetic appearance. `oa • Well within close range to all of San Bernardino's waste and recycling collection routes, the East Valley MRF is an exceptional choice for the City's current and future waste processing and disposal practices. r • Exclusive commitment of the City's Waste Stream to the East Valley MRF would generate m' the following: N o Local Jobs —Approximately 50 job openings would be made available to City residents. c These jobs would include equipment operators, equipment maintenance staff, scale- w house operators and contracted sorters. C o Local Waste Materials Delivery — Collection route efficiencies would be realized due to E the facility's location, generating cost savings and the possibility to use these savings to stabilize customer rates. o Materials Processing — State of the Art operations designed to maximize recyclables a recovery and solid waste diversion resulting in increased material value and decreased disposal cost. Packet Pg.428 S.F.e o Long Term Disposal Capacity — The East Valley MRF will utilize multiple public and or private permitted landfills for waste transfer, optimum disposal pricing and long term disposal capacity. Initial waste disposal rates under this system would be less than current County WDA rate projections. Absent State Regulatory Mandates, these rates would only be escalated annually by an approved CPI index. c 0 .y C d M W U U i 1, G ri n. II LL i C O N t N N N O N N C O O. N U U a C CO CO v N N O N C d E U U m Q Packet Pg.429 _ , o AMENDED SERVICE AGREEMENT FOR PROCESSING RECYCLABLE MATERIALS o d a LL _T U c 0 c 0 J U W Y N v _ O 0 y U Hl a A O E U Packet Pg.430 8.F.e r Amended Service Agreement for Processing Recyclable Materials As previously mentioned, Burrtec is currently a contracted Recyciables Materials Processor for the City of San Bernardino. The current Materials Processing Agreement that will expire on December 31, 2012 specifies our San Bernardino facility located on Industrial Blvd., for off loading City Recycling Vehicles and our Riverside facility located on Ague Mansa Road, for materials processing. It is Burrtec's desire to amend the existing Agreement by replacing the o aforementioned facilities with Burrtec's recently acquired East Valley Recycling & Transfer r Facility located at 1150 and 1250 South Tippecanoe Avenue in the City of San Bernardino. R X With the arrival of the East Valley R&T and its complete materials processing capabilities, we L, will be able to accept a much wider range of Residential, Commercial and Industrial Waste Streams. This widespread list of acceptable materials is included in Exhibit A of this proposal, o In addition to the extensive recyclables processing capabilities, the East Valley R&T is an y extremely viable waste transfer location offering collection route efficiencies, long term disposal capacity and cost savings. It is Burrtec's recommendation to include the City's Residential, Commercial and Industrial Refuse Disposal as a component of the Agreement modification. n d This action will benefit the City by providing a feasible, waste transfer alternative to the expiring a. ® Waste Delivery Agreement with the County and the imminent closure of the Colton Landfill. X _T An amended and restated Professional Services Agreement For Processing Recyclable c) Materials and Waste Disposal would seem to be in good order. This amendment would serve to 0 combine the needs and benefits of both Agreements that are currently in place into one 0 comprehensive document. Burrtec is prepared to draft such an agreement for the City's review N and analysis. H 0 Agreement Term Long term disposal capacity and rate stabilization are key factors in waste processing and N disposal agreements similar to the expiring fifteen year waste delivery agreement the City has with the County. In an effort to secure these same key factors on a go forward bases, commitments for waste disposal and processing capacity need to be made. Burrtec's proposed $ amended and restated Agreement will reflect a fifteen year term that will provide the City of San 11 Bernardino with long term disposal capacity and rate stabilization security. c u r Recyclable Material Rebates CO The current Agreement for Processing Recyclable Materials contains an exhibit that identifies N the single stream recyclable material rebate methodology in which the City is paid for its o recyclables. Under the proposed amended and restated Agreement, Burrtec would continue with this rebate methodology. In addition, Burrtec proposes to forward to the City of San Bernardino an advance payment of the recyclables materials rebate in the amount of four million E dollars ($4,000,000) or a host fee program, upon the execution of the fifteen year Exclusive = Solid Waste Materials Processing and Disposal Agreement. a Schedule of Rates The Schedule of Rates for the processing and disposal of recyclables and solid waste is also included in Exhibit A of this proposal. Packet Pg.431 8.F.e I Exhibit A Solid Waste Transfer and Disposal • $38.56 /Ton The East Valley Recycling and Transfer will utilize multiple public and or private 2 permitted landfills for waste transfer, optimum disposal pricing and long term disposal I capacity. w z Construction and Demolition I $50.56 /Ton o I East Valley Recycling & Transfer will assist with local ordinance requirements, LEED certification and CalGreen building standards by processing the following material: ; Mixed C&D Cardboard a ' Wood Injection Molded Plastic Inerts Mattresses T Asphalt Based Composite Roofing Gvpsum Wall Board Metals Carpet and Pad o Tires 2 0 y N Commercial Select Load Processing y • $52.00 /Ton (July-December 2012 due to the County WDA) o • $45.00 /Ton ( Beginning January 2013 Processed at East Valley R&T) Dry commercial loads identified by the City, routed separately and delivered to the East N ` Valley Recycling & Transfer facility for processing. Commercial Select is a hybrid of N I commercial trash and commercial recycling and an effective option ! program for the a City to improve diversion and recycling. Food Waste Pilot Program c • Rate To Be Determined m If the City decides to implement a food waste collection program, Burrtec will assist with N training and support. The specifics of a pilot or full program will need to be discussed. N iThe acceptable materials are: Dai Products Breads and Grains E Fruits and Vegetables Coffee Grounds R Meats and Bones Plant Trimmings Seafood Soiled Paper Products a Poultry Packet Pg.432 Green Waste • $36.35 /Ton Vegetation such as leaves, grass clippings, tree and shrub pruning's, plants and flowers. Residual waste contamination above 10% will be subject to current disposal fees. 0 Branches I Leaves d Garden Waste Tree Pruning's w Grass Clippings Weeds d Single-Stream Recycling o • As per Material Rebate Methodology in Agreement N Glass Bottles & Jars All Paper Brochures 3 Aluminum Cans & Foil Milk and Juice Cartons Cardboard Boxes Tin, Steel and Bi-Metals Newspaper Egg Cartons a Aerosol Cans Pa er Ba s Mail Plastic Container#1 -#7 Telephone Books Magazines Plastic Bags Wrapping Paper u C 0 C 0 .N N U N_ N O N_ d N C O a Vl d U d M rn a N N O N C d L U N Q Packet,Pg.,433• REPUBLIC SERVICES a REPUBLIC SERVICES OF 2 May 24, 2012 0 CALIFORNIA, N X 4059 E Steel RaM W r Callon.CA 92344 9M j Mr.Todd Housley Te Op (WI 32083n o Integrated Waste Division Manager FwslMde 09)370 3M w City of San Bernardino xwwd poaN a ea e, 300 North"D"Street San Bernardino,CA 92418 a LL Dear Todd, _a U In response to your letter dated May 7,2012,please accept this letter as Republic o Services' response confirming our interest in the processing of expanded materials and C modifying the overall Agreement for Processing Recyclable Material. Below I have outlined pricing for the services requested realizing we would need to meet to discuss how we can incorporate these additional services into our current agreement. m 'o Republic Services' permit for the Inland Regional MRF/TS has the capacity to accept N all of the waste generated by the City of San Bernardino. We are willing to offer N pricing for 3, 5,and 10 year terms and guarantee the City will have disposal and a recycling capacity during the term of our agreement. Our facility is located less than o four miles from the City yard which will allow for improved operational efficiency N and reduced wear on your fleet. Additionally, there is a direct benefit to the local economy as Republic Services continues to invest and expand our local facility to u meet the needs of the City of San Bernardino. a a v Expanded Commercial and Multi Family Programs a Republic Services would be willing to accept materials that may not be highly source N separated for processing. If the material meets the residual characterization outlined in q our agreement(less than 400/6),then we will be able to process this material over our single stream line and pay the City in accordance with the agreement. If the material exceeds the 40%residual threshold,the material will be processed over our E commercial line as mixed waste. The rate for processing this material will be $58.00/ton with guaranteed diversion rates based on actual waste characterization. a Republic Services would provide the City with monthly diversion reports to assist the City in compliance with AB 341 commercial recycling requirement. ®PNMEO CJV I4`¢YUEanMN PacketPg.434 Mr.Todd Housley - 2- May 24,2012 c 0 N C d X W Landfill Disposal Republic Services would be willing to offer a disposal option with a 3, 5 and 10 year term. We would guarantee disposal capacity for the City during the term of the agreement. The disposal o rate will include the cost of disposal and transportation. The disposal rate will be subject to a Fuel d Recovery Fee(based on current fuel pricing)and an annual CPI adjustment. 3 3 Year $38.00/ton 5 Year $37.50/ton 10 Year $37.00/ton a. LL Oreanics Processine y Republic Services would be willing to extend the current agreement for processing organic material. We have the ability to process food waste at our facility and would be interested in c meeting with the City to determine the program that would be most beneficial. We would prefer to 0 work with the City to create a pilot program and evaluate the composition of the material before quoting pricing. From our experience with food waste,we would need to add onto the current y processing rate to incorporate this material into the current organics processing. o N Construction and Demolition(C&D) $ Republic Services can provide processing for Construction and Demolition materials. Since there d is a wide range of material that can be recovered,the pricing would vary based on the composition of the material. If the material is source segregated and has market value,we will rebate 80%of °o the market value back to the City. If the segregated material does not have value,we would charge the applicable organic or disposal rate. For material that is not segregated,we would process the 0 material to meet the City's diversion requirements. The processing cost for C&D for material that a is not segregated would be$58/ton. w a! Republic Services looks forward to continuing our partnership with the City of San Bernardino to N provide processing services and we are confident that utilizing Republic Services local facility can o provide the City with cost savings,operational efficiencies and reduced fleet costs. Please feel free to contact me at(951)218-2172 to further discuss the items outlined above. v E Sincerely, -� Peter Sterenberg General Manager Packet Pg.435 S.F.g . v�)iNAXq�yo _ REPUBLIC SERVICES O y C U W San Bernardino and Republic Services N N 3 v Using Resources Wisely LL _T U 0 O Ul O d Vi O O. 1 s U N Q July 28, 2012 An Environmental Partner You Can Count On Packet Pg. 436 8.F.g REPUBLIC June 28,2012 c 2 Mr.Todd Housley � c Integrated Waste Division Manager City of San Bernardino w 300 North"D"Street San Bernardino,California 92418 > Dear Todd, m N Republic Services is pleased to provide a proposal herein to manage the City of San Bernardino's solid 3 waste disposal and processing of its residential and commercial recyclable materials in addition to organics and construction and demolition debris. As a waste material advisor to the City, Republic has a@ the operational experience and credibility,record of safety,financial strength and proven service to u_ manage the City's recyclable materials in the future. This proposal includes a$4,215,000 million payment to the City immediately upon execution of an exclusive agreement to manage its disposal U tonnage and recyclable materials. o c The proposal highlights and clarifies the previous discussions and request from the City for Republic to expand its current agreement for processing. It also outlines the option and benefits of an exclusive contract and provides the City with information on why a continued partnership with Republic Services m will provide benefits to its taxpayers. N In 2001 Republic Services made an investment in San Bernardino with the development of the Inland N Regional Material Recovery Facility and Transfer Station. The facility permit allows the site to receive up to 1,925 tons per day of solid waste material. Republic will guarantee the City will have capacity at this w facility during the term of this agreement. Republic Services will also provide indemnification for o compliance with the new Assembly Bill 341 mandating commercial recycling and setting a goal of 75% diversion. U As you are aware,Republic Services is a fully integrated environmental management company a committed to protecting today's environment for a better tomorrow. The local infrastructure owned and operated by Republic in the region provides long-term rate stability,job security,revenue D: enhancement and a strategic partner whose motto is"customer service,second to none." N W 0 As the City's current green waste and recyclable processing partner, Republic is excited and appreciates the opportunity to present this proposal to manage,process and dispose of San Bernardino's waste stream. Republic looks forward to continuing the discussion on how this partnership can continue to grow in order to provide the City with long-term waste material management solutions. E U Sincerely, G Peter Sterenberg Q General Manager An Environmental Partner You Can Count On Packet Pg. 437 8.F.g REPUBLIC SERVICES Republic Services. . . o Responsible, Reliable, Respectful, Resourceful, Relentless X W Republic Services provides non-hazardous solid waste collection services for commercial, industrial, municipal and residential customers through 334 collection companies in 39 states and Puerto Rico. Republic owns/operates 194 transfer stations, 194 active solid waste landfills and 74 recycling facilities o including 69 landfill gas and renewable energy projects. N F Republic serves millions of residential customers under terms of contracts with more than 2,800 3 municipalities for waste collection and residential services. O m Municipal Contracts + 2,800 Residential Customers: +12,000,000 Commercial Customers: + 1,000,000 ii C 0 In 2001 Republic Services made an investment in San Bernardino with the development of the Inland c Regional Material Recovery Facility and Transfer Station. This facility is permitted to receive up to 1,925 2 tans per day of solid waste material. N Republic Services is an investment grade company trading on the New York Stock Exchange with a net o worth of over$6.5 billion. The company's assets are valued at nearly$20 billion and bonding capacity stands at$3 billion. Republic has never had a bond called on the parent company guarantee. N The company's borrowing capacity of $2.75 billion with $1.2 billion available provides a debt to = capitalization ratio that is the lowest, or best in the waste and recycling industry. Due to Republic's o, c strong free cash flow position, $1.3 billion in debt has been repaid during the past two years and the 0a company has always maintained investment grade status as evident by the rating status in the solid m waste industry. u • BBB/stable with Standard and Poor's • Baa3/stable with Moodys w • BBB/stable with Fitch Ratings N 0 N C N E u n An Environmental Partner You Can Count On Packet Pg. 438 B.F.g REPUBLIC SERVICES Waste Materials Disposal and Processing Plan a 0 .N Section 1 — Proposal & Clarification v X w Republic Services' permit for the Inland Regional MRF/TS has the capacity to accept all of the waste generated by the City of San Bernardino. Republic will offer pricing under the existing terms of the agreement as well as an option for five and 10 year terms and guarantee the City will have disposal and .� recycling capacity during the term of the agreement. All material will be received at the Inland Regional MRF/TS from City trucks. Processing will happen at either the Inland Regional MRF or the CVT facility located in Anaheim,California. Republic's local facility is located less than four miles from the City yard 3 which will allow for improved operational efficiency and reduced wear and tear on the City's vehicle 'o c fleet. Additionally,there is a direct benefit to the local economy as Republic Services continues to Invest and expand the local facility to meet the needs of the City of San Bernardino. a. Recycling Revenue Calculation (6.1 in current agreement) Pricing for residential and commercial recycling will follow the calculations outlined in the current agreement. Republic Services will offer a CPI adjustment to the recycling rate beginning January 1, o c 2013. In addition to the annual adjustment noted above for the rate paid to the City for recycling, o Republic Services would add pricing for reduction in residual at 5%intervals at the rate of$2.50 per ton for every 5% reduction in residual. For example, if the waste characterization demonstrates that the N City's residual reduces to 35%, Republic Services' payment to the City would increase from $15 per ton 'p to$17.50 per ton. N O Expanded Commercial and Multi Family Programs 54 In addition to the material currently being received for processing,Republic Services would be willing to — accept materials that may not be highly source separated for processing. If the material meets the residual characterization outlined in the agreement (less than 40%), then Republic will be able to 0 process this material over our single stream line and pay the City in accordance with the agreement. If the material exceeds the 40% residual threshold, the material will be processed over the commercial line as mixed waste. Mixed Waste will be defined as material that is not highly source separated and 2 has residual waste in excess of 40%. These would be dry commercial loads that would be routed s separately from the wet commercial trash. Republic Services would charge$58/ton for all mixed waste processing with a residual characterization of 65%or greater. Republic Services will complete quarterly X characterizations of the mixed wasted delivered for processing and would reduce the price by$5.00/ton `� for each 5% reduction in residual. Example -$53/ton for 60% residual, $48 for 55% residual, $43 for 50% residual. Republic Services would guarantee the diversion based on the characterization and actual recovery. The company would provide the City with monthly diversion reports to assist the City in compliance with the state mandatory commercial recycling requirement. With this proposal San E Bernardino will have an opportunity to process an estimated 40% of its commercial and multi-family generated waste stream. :°• An Environmental Partner You Can Count On Packet Pg.439 S.F.g REPUBLIC SERVICES Landfill Disposal c Republic Services would be willing to offer a disposal option under the terms of the current as well as 4 under either a five and 10-year contract. We would guarantee disposal capacity for the City during the term of the agreement. The disposal rate will include the cost of disposal and transportation. w Current $38.00/ton m 5 Year $37.50/ton 10 Year $37.00/ton m N Organics Processing ; Republic Services will extend the current agreement for processing organic material. Republic has the ability to process food waste at its local facility and would be interested in meeting with the City to m determine the program that would be most beneficial. Republic's preference is to work with the City to LL create a pilot program and evaluate the composition of the material before quoting pricing. In both the cities of Anaheim and San lose, Republic has made a commitment to process food waste in order to V achieve both city goals of"zero waste." c C Construction and Demolition (C&D) Republic Services can provide processing for Construction and Demolition.materials. Since there is a H wide range of material that can be recovered, the pricing would vary based on the composition of the material. If the material is source segregated and has market value, Republic will rebate 80% of the D 0 market value back to the City. An example would be if the net price for metal is $250/gross ton, then the rebate to the City would be$250 x .8=$200/per gross ton. Additional material that would yield a c rebate would be cardboard, mixed plastic, copper wire or other material that has a net positive market value. In addition to rebating the City for loads that have a positive market value (OCC, Metal etc.), _ Republic Services will reduce pricing for segregated material that can diverted from the landfill. This would include the following materials: °o. N Wood $20.00/ton Drywall $36.00/ton u Inerts $32.00/ton o. Carpet and Padding $25.00/ton ro N If the segregated material does not have value, Republic would charge the applicable organic or disposal ° N rate. For material that is not segregated, Republic would process the material to meet the City's diversion requirements. The processing cost for C&D for material that is not segregated would be m $58/ton. Material recovered from mixed C&D processing would be materials associated with the E building or demolition of residential and commercial structures. Items that would be recycled include lumber, drywall, metals, masonry (brick, concrete, etc.), carpet, plastic, pipe, rocks, dirt, paper, cardboard,or green waste related to land development. Q An Environmental Partner You Can Count On Packet Pg.440 8:Rg REPUBLIC SERVICES Annual Price Adjustments The Base Price for trash, green waste and recycling will adjust annually. The Los Angeles— Riverside— Orange County CPI-U for October— October will be used for these adjustments. The base price for g recycling (currently $15.00/ton) will adjust January 1, 2013. The first price adjustment for trash and green waste will occur on January 1, 2014. In addition to CPI adjustment to the base rate for trash,the x fuel component of the trash rate ($9.75) will adjust annually beginning January 1, 2014. The Fuel w Component adjustment will be based on the 12-month trailing change in diesel fuel prices. For example, v assume: Z D Retail On Highway Diesel Price, California Index (California No 2 Diesel Retail Prices),$4.00 Fuel rate in m proposed price(1st year January—October) 3 {I 9 G January 3.95 0. February 3.99 0: March 4.02 April 4.04 U c May 4.15 0 c June 4.08 0 July 4.09 a August 4.06 m September 4.08 'p October 4.06 •November - o N • December - Weighted average 4.052 m Change in rate 1.013% c Rate Adjustment $9.75 x 1.013=$9.88 0 m o' u a The first year adjustment will be for 10 months January through October. o. m C ro N O N C d E L U N Q An Environmental Partner You Can Count On PacketPg.447-' S.F.g REPUBLIC SERVICES Section 2 — Exclusive Licensing Partnership for Processing and Disposal 0 N Republic Services recognizes there Is a direct benefit for an exclusive partnership with the City of San Bernardino and would be willing to offer a financial commitment for this consideration. Republic w Services will commit to a three million dollar ($3,000,000) upfront payment for a ten year exclusive license to provide processing and disposal of the waste generated by the City of San Bernardino. In addition,we will offer an option to pull forward the payments for recycling in the amount of one million .� two hundred fifteen thousand dollars ($1,215,000). If the City chooses to continue to receive monthly ❑ a payments for recycling,we will use the formula outlined in the proposal. Pricing Would not change from the non-exclusive proposal with the exception of solid waste disposal which would increase from the ten (10)year proposed$37.00 to$37.93. A This option will allow the City to leverage the assets of the Integrated Waste Division and allow the City n LL to maintain the current structure for the rate payers while adding $4,215,000 million in upfront o! payments. As the City considers the value of this asset, it will want to select a very secure partner. The D indemnification you receive is only as strong as the company offering that financial commitment. v c Republic Services is that company as our two categories of financial strength — Indemnification and o c Capitalization demonstrate that pledge. o .N N U _N N O N d N C O v. N v o: _2 Z n m co N O N c d E L V Q © An Environmental Partner You Can Count On Packet Pg. 442 S.F.g REPUBLIC SERVICES Summary: o N C r The aforementioned proposal provides the City of San Bernardino with immediate access to$4,215,000 x million upon execution of the agreement. It ensures long-term recycling processing and disposal rate w stability while highlighting an exclusive and non-exclusive partnership to manage the City's waste d materials into the future. Republic's experience, local waste infrastructure, record of safety, customer service excellence and knowledge of the San Bernardino solid waste market makes it uniquely qualified o to provide the recycling processing and disposal services requested of the City. m There is also another potential long-term solid waste and recycling option for the City to consider as it evaluates the future of its waste management system. Republic Services welcomes the opportunity to m discuss a public/private partnership with respect to the City's solid waste and recycling collection Q. services. Republic has a plan to secure local jobs, stabilize solid waste and recycling services rates and guaranteeing long-term revenue enhancement and financial security for the City. This partnership D ensures customer service excellence, safety as the top priority and the City maintains ownership in v collaboration with Republic of its solid waste system. o C Republic's plan is not a sale of San Bernardino's solid waste and recycling services department or w system. It is a strategic partnership that provides for Republic to become the City's waste stream 3 advisors and an extension of the current public works department. Republic would assume the financial risk including salary, wages and retirement obligations. The City's current solid waste assets including trucks and containers along with capital needed for equipment maintenance and purchasing would N become the responsibility of Republic. Program enhancements such as educational scholarships, N recycling rewards for both residential and commercial customers and a partnership with the City's neighborhood clusters would be included in a formal binding agreement. w c Republic public/private partnership proposal provides a long-term solution to the management of the °v. solid waste and recycling system in San Bernardino. It secures jobs,ensures rates are stable,and affords m long-term financial benefit to the taxpayers without the City losing the ability to maintain control and U oversight of its solid waste system. True public/private partnerships only work when both partners are engaged, committed and work together to ensure the services promised exceed the customers' expectations. Republic's solid waste and recycling services plan accomplishes all of this and more. Republic is available to meet with the City to discuss this public/private partnership at anytime and looks forward to exceeding the City's N expectations well in to the future. c v s u m Q © An Environmental Partner You Can Count On PacketPg:443