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HomeMy WebLinkAbout06.U- Public Works DOC ID: 1954 CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION Request for Proposal From: Jim Smith M/CC Meeting Date: 08/06/2012 Prepared by: Chris Lopez, (909) 384-5140 Dept: Public Works Ward(s): All Subject: Solicitation of Sealed Bids for Solid Waste Material Processing, Green Waste, Commingled Recycling and Construction and Demolition Debris Financial Impact: None Motion: To solicit sealed bids for solid waste material processing, green waste, commingled recycling and construction and demolition. Synopsis of Previous Council Action: 12-16-97 Reso 97-371 Waste Delivery Agreement with the County of San Bernardino 10-17-11 Reso 11-284 Republic Agreement and Resolution 10-17-11 Reso 11-285 Burrtec Agreement and Resolution BackEround• On December 16, 1997, Mayor and Common Council approved City participation in the Waste Delivery Agreement(WDA) with the County of San Bernardino. This agreement requires refuse collected by the City to be disposed of at County landfills. The WDA expires on December 31, 2012, and the County recently provided formal documentation for terms of an extension to June 30, 2016. The terms and conditions will remain the same if all cities in the contract execute the amendment by October 2012. Due to the City's need to have agreements and facilities to receive the materials collected by the Integrated Waste Management(IWM) Division, a comprehensive solution must be in place in advance of the pending expiration of the WDA.Nearly 70%of the materials currently collected by Integrated Waste Management is refuse that will ultimately be landfilled. Consequently, reduced disposal rates significantly benefit the City. On October 17, 2011, Mayor and Common Council approved non-exclusive Agreements with Buirtec Waste Industries, Inc., and Republic Services of Southern California to process recycling materials for the City. Both of these vendors also have the capabilities of waste disposal. Therefore, in order to create more operational efficiencies, staff initiated the process of amending PacketPg. 809 Updated: 8/1/2012 by Richard D.Luczak Pagc 1 1954 current agreements with Burrtec and Republic to include waste disposal. This gave the City more options to dispose waste, enhance recycling processes, and improve route efficiencies for IWM drivers which would result in cost savings. More recently, Burrtec and Republic have provided proposals that could assist the IWM to manage expenditures. However,both vendors have submitted draft proposals for an exclusive agreement. San Bernardino County Existina Agreement The City currently delivers materials to three County landfills, including Colton (located in Colton), San Timoteo Landfill (Redlands), and Mid-Valley Landfill (Rialto). Colton Landfill is estimated to cease accepting refuse in January 2013 and is the landfill utilized most frequently by the City due to its close proximity to the City Corporate Yard (5.6 miles). Colton's closure will require increased travel time for City refuse trucks utilizing this landfill. San Timoteo Landfill is located 11.3 miles from the City Corporate Yard and Mid-Valley Landfill is located 10.3 miles from the City Corporate Yard. These mileage increases significantly affect IWM Division personnel and equipment costs. This may also affect customer service response time. The WDA rate over the length of the contract has increased by 36%. The WDA rate effective July through December 2012 is$38.79 per ton delivered by the City to the landfill gate. �. Burrtec Waste Industries The current Burrtec location used by the City is located at 5455 Industrial Way in San Bernardino. However, Burrtec has recently acquired a facility located at 1150 Tippecanoe in San Bernardino-East Valley Recycling and Transfer(EVRT),which is a permitted solid waste processing and transfer facility. In response to the City's initial request related to existing contracts,Burrtec proposed an exclusive agreement and has expressed that if their fpm is awarded a contract, "50 job openings would become available to city residents." Republic Services of Southern California The current Republic location used by the City is located at 2059 East Steel Road in Colton, which is a permitted solid waste processing and transfer facility. Republic proposed to amend the current contract to accept both refuse and recycling materials generated by the City. Republic has also submitted an option of an exclusive agreement. Conclusion OThe objective is to utilize the most cost effective and viable option. In order to maximize the Packet Pg. 810 Updated:8/1/2012 by Richard D.Luczak Page 2 1954 operational efficiencies, it is necessary for the IWM Division to have agreements in place prior to the expiration of the WDA. Staff is recommending at this time, solicitation of sealed bids,in lieu of amending existing agreements due to the complexity of the proposed exclusive agreements. This item was reviewed by the Ways and Means Committee on July 5, 2012. Staff prepared subsequent information which proposes to solicit sealed bids for solid waste material processing, green waste, commingled recycling and construction and demolition debris which was reviewed by the Ways and Means Committee Chair on July 18,2012. Recommendation Staff recommends to solicit sealed bids for solid waste material processing, green waste, commingled recycling and construction and demolition. .Supportine Documents: Draft Agreement (DOC) WDA 1997 (PDF) WDA Amendment No.5 (PDF) WDA-Rate-Hist-2012-06-19 (XLS) Burrtec contract executed 101711 (PDF) Republic contract executed 101711 (PDF) Staff Timeline Exhibit A (DOC) Draft Combined Services RFP (DOC) Draft RFP Scoring Criteria (DOCX) O 'pace g'r811 Updated: 8/1/2012 by Richard D.Luczak Page 3 6.U.A DRAFT N N Ui O O a AGREEMENT FOR PROCESSING REFUSE, GREEN WASTE, AND RECYCLABLE MATERIALS Between N CONTRACTOR a 0 N and o w N CITY OF SAN BERNARDINO m d DATED: January 1,2013 0 0 m O_ O d' N rn C d E O d ❑ Q A C N E t U 16 Q Packet Pg. 812 OTable of Contents RECITALS ..................................................................................................................................... 1 ARTICLE I DEFINITIONS AND INTERPRETATION............................................................... 1 SECTION1.1. DEFINITIONS................................................................................................... I SECTION1.2 INTERPRETATION........................................................................................... 7 ,y ARTICLE II REPRESENTATIONS AND WARRANTIES......................................................... 8 SECTION 2.1 REPRESENTATIONS AND WARRANTIES OF THE CITY.......................... 8 a SECTION 2.2. REPRESENTATIONS AND WARRANTIES OF CONTRACTOR................ 8 d ARTICLE III DELIVERY AND ACCEPTANCE OF WASTE AND PROVISION OF RECYCLING SERVICE AND DISPOSAL SERVICE................................................................. 9 °i N SECTION 3.1 DELIVERY OF WASTE....................................................................................9 3: SECTION 3.2 PROVISION OF RECYCLING SERVICES AND DISPOSAL SERVICES BY o CONTRACTOR........................................................................................................................ 11 rn 0 w SECTION 3.3 CONTRACTOR RIGHT TO REFUSE WASTE.............................................. 13 ca SECTION 3.4. MISCELLANEOUS OPERATIONAL MATTERS........................................ 14 ARTICLEIV CONTRACT RATES............................................................................................ 16 d Q SECTION 4.1. CHARGING AND SECURING PAYMENT OF CONTRACT RATES ....... 16 6 c SECTION 4.2. CONTRACT RATES....................................................................................... 16 Z. SECTION 4.3. RESPONSIBILITY FOR PAYMENT OF THE DISPOSAL RATES............ 19 .2 0 SECTION 4.4. BILLING OF THE CONTRACT RATES....................................................... 20 v ARTICLE V BREACH, ENFORCEMENT AND TERMINATION...........................................20 SECTION 5.1. BREACH; REMEDIES.................................................................................... 20 d SECTION 5.2. TERMINATION. .............................................................................................20 E d d SECTION5.3.NO WAIVERS.................................................................................................21 a SECTION5.4. DAMAGES......................................................................................................21 0 SECTION 5.5. FORUM FOR DISPUTE RESOLUTION .......................................................22 C ARTICLEVI TERM....................................................................................................................22 t SECTION 6.1. EFFECTIVE DATE AND TERM. ..................................................................22 x ARTICLE VII GENERAL PROVISIONS...................................................................................22 a SECTION 7.1. OPERATION AND MAINTENANCE OF THE DESIGNATED MATERIALS RECOVERY FACILITY..................................................................................22 SECTION 7.2. UNCONTROLLABLE CIRCUMSTANCES GENERALLY......................... 22 �J SECTION 7.3. INDEMNIFICATION......................................................................................23 i Draft Agreement for Processing of Refuse,Green Waste and Recyclablcs Packet Pg. 813 SECTION 7.4.RELATIONSHIP OF THE PARTIES.............................................................24 SECTION7.5.NO VESTED RIGHTS. ...................................................................................24 SECTION 7.6. LIABILITY FOR COLLECTION,TRANSPORTATION AND PROCESSING ..........................................................................................................................24 SECTION 7.7.NO CONSEQUENTIAL OR PUNITIVE DAMAGES...................................24 rn c SECTION7.8. AMENDMENTS..............................................................................................25 N v SECTION 7.9.NOTICE OF LITIGATION.............................................................................25 0 a SECTION 7.10. FURTHER ASSURANCES...........................................................................25 - E SECTION 7.11. ASSIGNMENT OF AGREEMENT. .............................................................25 SECTION 7.12. INTEREST ON OVERDUE OBLIGATIONS ..............................................25 w N SECTION 7.13. BINDING EFFECT........................................................................................25 a SECTION7.14.NOTICES.......................................................................................................25 w `o w a m a m m © N rn 0 c 0 U_ O N V N m C d E d d Q w l6 C d E s U Q fl Draft Agreement for Processing of Refuse,Green Waste and RecycIahlcs Packet Pg. 814 AGREEMENT FOR PROCESSING REFUSE,GREEN WASTE AND RECYCLABLE MATERIALS AND WASTE DISPOSAL THIS AGREEMENT FOR PROCESSING REFUSE, GREEN WASTE AND RECYCLABLE MATERIALS AND WASTE DISPOSAL is made and dated as of the date indicated on the cover page hereof between Contractor ("Contractor"), and City of San Bernardino (the"City"). y d U RECITALS ° a m Contractor owns, manages, operates or contracts with various transfer stations, materials I recovery facilities,and sanitary landfills for the disposal of municipal solid waste. j Contractor wishes to enter into an agreement with the City to accept all of the City's municipal solid waste, green waste and recyclables on the terms and subject to the provisions of this Agreement, and the City desires to use all legal and contractual powers it possesses to 0 deliver or cause to be delivered the municipal solid waste, green waste and recyclables generated w within its boundaries to the Designated Materials Recovery Facility for the term of and subject to the provisions of this Agreement. a m The City, in the exercise of its police power and its powers under the Act collects d ^ municipal solid waste, green waste and recyclables generated within the City in City owned and N operated collection vehicles. o c 0 The City has determined that the execution of this Agreement by the City will serve the public health, safety and welfare of the City by providing increased recycling, greater disposal rate stability, more predictable and reliable long-term disposal service, and the continuation of o rn sound environmental management. rn The parties with to supersede any Prior agreement and enter into this Agreement for Processing Refuse, Green Waste and Recyclables collected by the City. d E d It is,therefore, agreed as follows: s a ARTICLE I DEFINITIONS AND INTERPRETATION o` c SECTION 1.1. DEFINITIONS. As used in this Agreement, the following terms shall E have the meanings set forth below. "Acceptable Waste" means all garbage, refuse, rubbish and other materials, including a Recyclable Materials, construction and demolition debris, and green waste and which are normally disposed of by, or collected from, residential (single family and multifamily), commercial, industrial, governmental and institutional establishments which are acceptable at Class III landfills under Applicable Law. 1 Draft Agreement for Processing of Refuse,Green Waste and Recyclables Packet Pg:815 © 'Act" means the California Integrated Waste Management Act of 1989 (Division 30 of the California Public Resources Code), as amended, supplemented, superseded and replaced from time to time. "Agreement" means this Amended and Restated Agreement for Processing Recyclable Materials and Waste Disposal between Contractor and the City as the same may be amended or modified from time to time in accordance herewith. N "Applicable Law" means the Act, CERCLA, RCRA, CEQA, any Legal Entitlement and any federal or state rule, regulation, requirement, guideline, permit, action, determination or a order of any Governmental Body having jurisdiction, applicable from time to time to the siting, design, permitting, acquisition, construction, equipping, financing, ownership, possession, operation or maintenance of the Landfills, the transfer, handling, transportation and disposal of Acceptable Waste, Unacceptable Waste, or any other transaction or matter contemplated hereby w (including any of the foregoing which concern health, safety, fire, environmental protection, @ mitigation monitoring plans and building codes.). v a "Cal Recycle"means the California Department of Resources Recycling and Recovery. to `o w "CEQA" means the California Environmental Quality Act, codified at Cal. Pub. Res. o Code Section 21000 et sea. as amended or superseded, and the regulations promulgated 0° v thereunder. C "CERCLA"means the Comprehensive Environmental Responsibility Compensation and o Liability Act, 42 U.S.C.A. Section 9601 et se g., as amended or superseded, and the regulations o promulgated thereunder. U "Change in Law" means any of the following events or conditions which has a material w and adverse effect on the performance by the parties of their respective obligations under this Agreement (except for payment obligations), or on the siting, design, permitting, acquisition, construction, equipping, financing, ownership, possession, operation or maintenance of the Landfills or other matters to which Applicable Law applies: d E N (1) the enactment, adoption, promulgation, issuance, material modification or written 2 change in administrative or judicial interpretation on or after the Contract Date of any Applicable a Law; o 0 (2) the order or judgment of any Governmental Body, on or after the Commencement Date, to the extent such order or judgment is not the result of willful or negligent action, error or E omission or lack of reasonable diligence of Contractor or of the City, whichever is asserting the occurrence of a Change in Law; provided, however, that the contesting in good faith or the good r faith decision not to contest any such order or judgment shall not constitute or be construed as a such a willful or negligent action,error or omission or lack of reasonable diligence; or (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 with the issuance, renewal or failure of issuance or renewal on or after the 2 Draft Agreement for Processing of Refuse,Green Waste and Recyclables Packet Pg '816 Commencement Date of 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 failure is not the result of willful or negligent action, error or omission or a lack of reasonable diligence of Contractor or of the City, whichever is asserting the occurrence of a Change in Law; provided, 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 such a willful or negligent action, S error or omission or lack of reasonable diligence. 0 Q. "Change in Law" shall not include actions taken by Governmental Bodies to enforce requirements of Applicable Law. m "City"means the City of San Bernardino, a municipal corporation, d N "City Acceptable Waste"means all Acceptable Waste which was originally discarded by, or collected from, the first generator thereof within the geographical limits of the City, and c Residue from the foregoing. (n 2 0 w "Contract Date"means January 1,2013. CO "Contract Rates" means the Recycling Rates and the Disposal Rates specified in Section d O 4.2 hereof. 0 "Contract Year" means the calendar year commencing on January 1 in any year and o ending on December 31 of that year. U "Controllable Waste" means all City Acceptable Waste with respect to which the City 0 has the legal or contractual ability to determine the disposal location therefor whether collected and hauled by the City or any permitted Franchise Haulers. m "Designated Materials Recovery Facility"means (to be determined by successful bidder). E a, "Disposal Services" means the solid waste disposal services to be provided by Contractor v rn pursuant to the Service Covenant and otherwise hereunder. a w 0 "Landfills" means all sanitary landfills and other solid waste transfer, transportation, o storage, handling,processing and disposal facilities, now or at any time owned, leased,managed, selected by, operated by, or under contract to, Contractor for the acceptance, handling, E processing and disposal of Acceptable Waste delivered by or on behalf of the City under this u Agreement. The landfills shall in all cases be an environmentally sound, fully permitted Subtitle .2 D compliant, Class III Solid Waste Disposal Site. a "Franchise Hauler" means any hauler or collector who provides Acceptable Waste collection services within the City pursuant to, or under authority granted by, a contract, Ofranchise or other agreement with the City. 3 Dmft Agreement for Processing of Refuse,Green Waste and Regdahlcs PacketPg. 817 "Governmental Body" means any federal, State, county, city or regional legislative, executive, judicial or other governmental board, agency, authority, committee, administration, court or other body, or any officer thereof acting within the scope of his or her authority. "Hazardous Substance" has the meaning given such term in the Resource Conservation and Recovery Act, 42 U.S.C. 6901 et se g., CERCLA, and all future amendments to either of them or as defined by California statute or by the California Environmental Protection Agency or c the Cal Recycle, or any of them. N d "Hazardous Waste" means (a) any waste which by reason of its quality, concentration, o 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 substantial 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 contained in 40 CFR Parts 260-281; (2) the Toxic c Substances Control Act (15 U.S.C. Sections 2601 et sea.) and the regulations contained in 40 w CFR Parts 761-766; (3) the California Health and Safety Code, Section 25117; (4) the California Public Resources Code, Section 40141; (5) CERCLA and regulations promulgated thereunder a and (6) future additional or substitute Applicable Law pertaining to the identification, treatment, storage or disposal of toxic substances or hazardous wastes; or (b) radioactive materials which are source, special nuclear or by-product material as defined by the Atomic Energy Act of 1954 m (42 U.S.C. Section 2011 et sea.) and the regulations contained in 10 CFR Part 40. o C O "Legal Entitlement" means all permits, licenses, approvals, authorizations, consents and entitlements of whatever kind and however described which are required under Applicable Law o to be obtained or maintained by any person with respect to the Landfills or the performance of 0 any obligation under this Agreement or the matters covered hereby. m "Legal Proceeding" means every action, suit, litigation, arbitration, administrative proceeding, and other legal or equitable proceeding having a bearing upon this Agreement. v E m "Loss-and-Expense" means any and all loss, liability, obligation, damage, delay, penalty, judgment, deposit, cost, expense, claim, demand, charge, tax, or expense, including all fees and a costs. o o` "Overdue Rate" means the post judgment rate of interest specified by the laws of the State. E s U "Prohibited Medical Waste" means any medical or infectious waste prohibited or a restricted under Applicable Law from being received by or disposed at the Designated Materials Recovery Facility or the Landfills. "Qualified Household Hazardous Waste" means waste materials determined by Cal Recycle,the Department of Health Services, the State Water Resources Control Board, or the Air C Resources Board to be: 4 Draft Agreement for Processing of Refuse,Green Waste and Recd rLiblcs Packet Pg. 818 © (1) Of a nature that they must be listed as hazardous in State statutes and regulations; (2) Toxic/ignitable/coaosive/reactive; and (3) Carcinogenic/mutagenic/teratogenic; which are discarded from households as opposed to businesses. Qualified Household Hazardous Waste shall not include Unacceptable Waste. N "Recycling" means the process of collecting, sorting, cleaning, treating and reconstituting materials that would otherwise be disposed of and returning these materials to the economic o mainstream in the form of raw materials for new, reused or reconstituted products which meet the quality standards to be used in the marketplace. is "Recyclable Materials" or "Recyclables" means the following residential curbside and commercial waste Recycling materials: aluminum cans, cardboard, glass (amber, flint, green, mix 2), HDPE MC, HDPE N, mixed paper, mixed injection plastic newspaper, office pack, PET plastic, scrap metal, film, wood and tin (bi-metal) cans or such other materials as may be agreed o on from time to time. to 0 "Recycling Services" means the recycling services to be provided by Contractor pursuant a to the Service Covenant and otherwise hereunder. m m C "Residue" means any material remaining from the processing of Recyclable Materials at the Designated Materials Recovery Facility, by any means and to any extent, of City Acceptable o Waste. `o m "Resource Conservation and Recovery Act" or "RCRA" means the Resource u Conservation and Recovery Act,42 U.S.C.A. Section 6901 et sea., as amended and superseded. 0 v "Service Covenant" means the covenants and agreements of Contractor set forth in Sections 3.2 and 3.3 hereof. c v "State"means the State of California. d d "Term" shall mean the Term of this Agreement specified in Section 6.1. a w m "Ton"means a"short ton"of 2,000 pounds. o c "Transfer Station" means any transfer station or other waste handling or management E facility to which solid waste collected for the City is delivered for transfer, processing or transformation before disposal in the Landfills. a "Unacceptable Waste" means Hazardous Waste; Hazardous Substances; Prohibited Medical Waste; Qualified Household Hazardous Waste separated from Acceptable Waste (or otherwise identified by Contractor in loads otherwise containing Acceptable Waste); explosives, O ordnance, highly flammable substances, and noxious materials and lead-acid batteries (except if delivered in minimal quantities); drums and closed containers; liquid waste, oil, human wastes; 5 Draft Agreement for Processing of RePose,Green Waste and Rec}d.flblcs PacketPg. 819 machinery and equipment from commercial or industrial sources, such as hardened gears, shafts, motor vehicles or major components thereof, agricultural equipment, trailers,marine vessels and steel cable; hot loads; and any waste which the Landfills is prohibited from receiving under Applicable Law. "Uncontrollable Circumstance" means any act, event or condition affecting the Designated Materials Recovery Facility, the Landfills, Contractor, the City, or any of their Franchise Haulers, contractors or suppliers to the extent that it materially and adversely affects y the ability of either party to perform any obligation under the Agreement (except for payment obligations),if such act, event or condition is beyond the reasonable control and is not also the ac` 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 v complying with any condition required of such party under the Agreement; provided, 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: v 0 (1) an act of God, landslide, lightning, earthquake, fire, explosion, flood, sabotage or w similar occurrence, acts of a public enemy, extortion, war, blockade or insurrection, riot or civil w disturbance; and v 'm (2) a Change in Law. to o It is specifically understood that none of the following acts or conditions shall constitute o Uncontrollable Circumstances: (a) general economic conditions, interest or inflation rates, c currency fluctuations or changes in the cost of fuel, the availability of commodities, supplies or R equipment; (b) changes in the financial condition of Contractor, the City or any Subcontractor affecting their ability to perform their obligations; (c) the consequences of errors, neglect or y omissions by Contractor, the City, or any Subcontractor of any tier in the performance of their obligations hereunder; (d) union work rules, requirements or demands which have the effect of increasing the number of employees employed in connection with the Landfills or otherwise 77- the cost to Contractor of operating and maintaining the Landfills or providing the Disposal Services; (e) strikes, work stoppages or other labor disputes or disturbances occurring d with respect to any activity performed or to be performed by the City or Contractor or any of the City's or Contractor's Subcontractors in connection with the Landfills or the Disposal Services; a (f) any failure of any Subcontractor to furnish labor, materials, service or equipment for any : reason (other than an Uncontrollable Circumstance); (g) equipment failure; (h) any impact of o minimum wage law, prevailing wage law, customs or practices on Contractor's construction or operating costs; or (i) changing conditions in the local, regional, or national waste disposal E market. "Waste Delivery Covenant" means the covenants and agreements of the City set forth in a Section 3.1 hereof. SECTION 1.2 INTERPRETATION. Agreement, unless the context otherwise requires: O (A) References Hereto. The terms "hereby", "hereof, "herein", "hereunder" and any 6 Draft Agreement for Processing of Refuse,Green Waste and Recyclables C similar terms are references to this Agreement, and the term "hereafter" means after, and the term"heretofore"means before,the Contract Date. (B) Gender and Plurality. Words of the masculine gender mean and include correlative words of the feminine and neuter genders and words importing the singular number mean and include the plural number and vice versa. rn (C) Persons. Words importing persons include firms, companies, associations, general N partnerships, limited partnerships, trusts, business trusts, corporations and other legal entities, including public bodies, as well as individuals. ° a. (D) Headings. The table of contents and any headings preceding the text of the c 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) No Third Party Beneficiaries. Except as expressly provided otherwise herein, o 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 hereunder any rights or ° remedies under or by reason of this Agreement. CO (F) Counterparts. This Agreement may be executed in any number of original v m C counterparts. All such counterparts shall constitute but one and the same Agreement. to 0 (G) Applicable Law. This Agreement shall be governed by and construed in o accordance with the Applicable Laws of the State. U (H) Accounting Terms. All accounting terms used but not specifically defined herein w shall be construed in accordance with; all accounting determinations hereunder to be made shall v be prepared in accordance with generally acceptable accounting principles applied on a consistent basis. c U (I) Severabilitv. If any clause, provision, subsection, Section or Article of this m Agreement shall be ruled invalid by any court of jurisdiction, then the parties shall: (1)promptly meet and negotiate a substitute for such clause, provision, subsection, Section or Article which a shall, to the greatest extent legally permissible, effect the intent of the parties therein; (2) if necessary or desirable to accomplish item (1) above, apply to the court having declared such o invalidity for a judicial construction of the invalidated portion of this Agreement; and (3) negotiate such changes in, substitutions for or additions to the remaining provisions of this E Agreement as may be necessary in addition to and in conjunction with items (1) and (2) above to effect the intent of the parties in the invalid provision. The invalidity of such clause, provision, a subsection, Section 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 purpose of the Agreement. O (J) Integration. This Agreement contains the entire agreement between the parties with respect to the transactions contemplated hereby. This Agreement shall completely and fully 7 Draft Agreement for Processing of Refuse,Green Waste and RecycIablcs PacketPg. 821 C supersede all prior understandings and agreements between the Parties with respect to such transactions. (K) Recitals. The recitals to this Agreement are incorporated into this Agreement. In the event of a conflict between the recitals and the operative provisions of this Agreement, the operative provisions shall prevail. c ARTICLE II REPRESENTATIONS AND WARRANTIES 0 SECTION 2.1 REPRESENTATIONS AND WARRANTIES OF THE CITY. The City a represents and warrants that: R (A) Existence. The City is a charter city validly existing under the Constitution and laws of the State. (B) Due Authorization. The City has duly authorized the execution and delivery of o this Agreement and this Agreement has been duly executed and delivered by the City. 0 w (C) No Conflict. Neither the execution nor the delivery by the City of this Agreement o nor the performance by the City of its obligations hereunder nor the consummation by the City of m the transactions contemplated hereby (1) conflicts with, violates or results in a breach of any d G Applicable Law or (2) conflicts with, violates or results in a breach of any term or conditions of in any contract, agreement, franchise,judgment, instrument or decree to which the City is a party or o by which the City or any of its properties or assets are bound, or constitutes a default under any c such contract, franchise,judgment, decree, agreement or instrument. U (D) No Litigation. There is no action, suit or other proceeding, at law or equity,before w or by any court or Governmental Body pending or, to the City's best knowledge, threatened against the City in 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 in connection with the transactions contemplated hereby, or which would materially and adversely affect the performance by the City of its v obligations hereunder or under any such other agreement or instrument. rn a SECTION 2.2. REPRESENTATIONS AND WARRANTIES OF CONTRACTOR. Contractor represents and warrants that: o c (A) Existence. Contractor is a corporation validly existing under the laws of the State. U v (B) Due Authorization. Contractor has duly authorized the execution and delivery of a this Agreement and this Agreement has been duly executed and delivered by Contractor. (C) No Conflict. Neither the execution nor the delivery by Contractor of this Agreement nor the performance by Contractor of its obligations hereunder nor the consummation © by Contractor of the 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 8 Draft Agreement for Processing of Refuse,Green Waste and Rec%clables Packet Pg. 822 © conditions of any contract, agreement, franchise, judgment, instrument or decree to which Contractor is a party or by which Contractor or any of its properties or assets are bound, or constitutes a default under any such contract, franchise, judgment, decree, agreement or instrument. (D) No Litigation. There is no action, suit or other proceeding, at law or equity,before or by any court or Governmental Body pending or, to Contractor's best knowledge, threatened against Contractor in which an unfavorable decision, ruling or finding which would materially y and adversely affect the validity of or enforceability of this Agreement or any other agreement or instrument to be entered into by Contractor in connection with the transactions contemplated hereby, or which would materially and adversely affect the performance by Contractor of its obligations hereunder or under any such other agreement or instrument. ARTICLE III d DELIVERY AND ACCEPTANCE OF REFUSE,GREEN WASTE AND RECYCLABLES v SECTION 3.1 DELIVERY OF WASTE. o N (A) Waste Delivery Covenant. Commencing upon the Contract Date and throughout w the Term of this Agreement, the City shall exercise all legal and contractual power and authority o which it may possess from time to time to deliver or cause the delivery of all Controllable Waste 00 (including Recyclable Materials) to the Designated Material Recovery Facility in accordance herewith and hauled by the City or any Franchise Haulers; It being the intention of the parties that Contractor be the City's one stop environmental solution for processing, recycling, diversion c and disposal through exclusive handling of material generated in the City including with respect o to development and implementation of new technologies or alternatives to current processing or disposal methods during the term of this Agreement. 0 (B) Power to Obligate Waste Disposal and Comply with this Agreement. On or before the Contract Date, (i) any City franchise, contract, lease, or other agreement which is lawfully in effect relating 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 Contract Date to direct the delivery of all Controllable Waste to the Designated Materials Recovery v Facility and otherwise to comply with its obligations under this Agreement with respect to Controllable Waste whether collected and hauled by the City or any Franchise Haulers and (ii) a the City shall designate the Designated Materials Recovery Facility as the disposal location pursuant to such franchise, contract, lease or other agreement. Throughout the Term of this o Agreement the City (a) shall not enter into any franchise, contract, lease, agreement or obligation, issue any permit, license or approval, or adopt any ordinance, resolution or law which £ is materially inconsistent with the requirements of the Waste Delivery Covenant, and (b) shall maintain non-exclusive or exclusive franchises or other contractual arrangements (or collection a 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 other contractual arrangements. The City agrees that Contractor shall be a third party beneficiary of the obligation of Franchise Haulers to deliver Controllable Waste to the Designated Materials Recovery O Facility, and may directly enforce such obligation through any legal or means available; provided, however, that such designation of Contractor as a third party beneficiary does not 9 Draft Agreement for Processing of Refuse,Green Waste and Recyclables Packet Pg. 823 relieve the City of its obligations hereunder to enforce the waste delivery obligation of the Franchise Haulers. The City shall notify in writing each Franchise Hauler of Contractor's third party beneficiary rights. (C) Waste Flow Enforcement. The City, shall establish, implement, carry out and enforce a waste flow enforcement program which is sufficient to assure the delivery of all Controllable Waste to the Designated Materials Recovery Facility pursuant to and in accordance with the Waste Delivery Covenant for delivery of waste at the times and in the manner provided y herein. The waste flow enforcement program shall include, to the extent necessary and appropriate in the circumstances to assure compliance with the Waste Delivery Covenant, but o shall not be limited to providing for and taking appropriate enforcement action under any ° franchise, license, or permit, such as but not limited to the suspension, revocation and d termination of collection rights and privileges, the imposition of fines or collection of damages, and the exercise of injunctive relief against non-complying Franchise Haulers. N R (D) Legal Challenges. The City shall use its best efforts to preserve, protect and 3 defend(by diligent pursuit of claims through the trial court level) its right to exercise and comply v N with the Waste Delivery Covenant against any challenge thereto, legal or otherwise (including any lawsuits against the City or Contractor, whether as plaintiff or defendant). The City shall ,° bear the cost and expense of any such Legal Proceeding or other challenge. v CO (E) Waste Information System. The City shall cooperate with Contractor in collecting d information in order to assure compliance with this Agreement. Such information may include, C to the extent practicable, data pertaining to Controllable Waste collected, transported, stored, `o processed and disposed of by the City or by Franchise Haulers'; Franchise Haulers' franchise, o permit or license terms, collection areas, transportation routes and compliance with Applicable Law; and all other information which may reasonably be required by Contractor in connection with this Agreement. to v (F) City Actions Affecting Contractor. The City agrees not to conduct any disposal or recycling services for Controllable Waste to be provided in competition with the Disposal Services or Recycling Services provided by Contractor hereunder, and not to take or omit to take v any action with respect to Controllable Waste or its collection, transportation, transfer, storage, E treatment, processing or disposal that may materially and adversely affect Contractor's ability to is timely comply with its obligations hereunder. a m (G) No Right of Waste Substitution. Nothing in this Agreement shall authorize or o` entitle the City to deliver or cause the delivery to the Designated Materials Recovery Facility of Acceptable Waste originating from or generated outside the jurisdiction of the City, nor obligate Contractor to receive or dispose of any such Acceptable Waste. The City shall not assign in whole or in part its right to deliver or cause to be delivered Controllable Waste to Contractor B hereunder, and shall not permit any Acceptable Waste originating from or generated outside the G jurisdiction of the City to be substituted for Controllable Waste for any purpose hereunder. (H) Annexations and Restructuring. It is the intention of the parties that this Agreement and the obligations and rights of the City hereunder, including particularly the Waste Delivery Covenant shall, to the extent permitted by Applicable Law (and subject to any rights of 10 Draft Agreement for Processing of Refuse,Green Waste and Recyclables PacketPg. 824 waste haulers operating in such areas prior to such annexation), extend to any territory annexed by the City (or any 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. SECTION 3.2 PROVISION OF RECYCLING SERVICES AND DISPOSAL SERVICES BY CONTRACTOR. N m U (A) Service Covenant. Commencing on the Contract Date, Contractor shall provide or Q cause the provision of the service at the Designated Material Recovery Facility of(1) receiving a and processing of all Recyclable Materials, (2) receiving, processing and disposal of all Controllable Waste other than Recyclable Materials (including Residue), and (3) in accordance with subsection 3.3(D) hereof, disposing of Unacceptable Waste inadvertently accepted at the Designated Materials Recovery Facility. Contractor shall do and perform all acts and things R which may be necessary or desirable in connection with its covenants in this subsection, 3: including without limitation all planning, development, administration, implementation, 0 construction, operation, maintenance, management, financing and contract work related thereto N or undertaken in connection therewith. Contractor shall exercise all reasonable efforts to minimize the costs incurred in complying with the Service Covenant consistent with its o responsibilities hereunder and under this Agreement, Applicable Law and prudent solid waste m management practice and environmental considerations, so as to enable Contractor to provide the C services hereunder at the Contract Rates. 0 (B) TemyoM Unavailability of Designated Materials Recovery Facility: Provision o of Transfer Capacity. Contractor shall immediately advise the City and Franchise Hauler by telephone and facsimile of any situation, event or circumstance which results in the partial or v complete inability of Contractor to receive Controllable Waste at the Designated Materials y Recovery Facility, its effect on Contractor's ability to perform its obligations hereunder, and Contractor's best estimate of the probable duration. Contractor shall confirm such advice in writing within 24 hours of the occurrence of any such inability. Contractor shall use its best efforts to resume normal operation of the Designated Materials Recovery Facility as soon as possible. hi the event that, at any time during the term hereof, Contractor is unable to accept, or v cause to be accepted, City Acceptable Waste for processing and disposal at the Designated 2 Materials Recovery Facility for a period in excess of 14 consecutive days, it shall nonetheless a provide sufficient transfer capacity, and shall accept for transfer, processing and disposal City Acceptable Waste for the Contract Rates. In the event that Contractor cannot provide such o transfer capacity, it shall be obligated to accept such City Acceptable Waste at another facility and to reimburse the City for any increased transportation cost (including without limitation, equipment rental costs, overtime and increased fuel costs resulting from the unavailability of the Designated Materials Recovery Facility) incurred by the City or the Franchise Haulers in transporting City Acceptable Waste to another processing and disposal facility. In the event that a Contractor cannot provide processing and disposal capacity at another facility, 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 resulting from the unavailability of the Designated Materials Recovery Facility) incurred by the City or the Franchise Haulers in transporting City Acceptable Waste to any other processing and disposal 11 Draft Agreement for Processing of Refuse,Green Waste and Recyclable '' Packet Pg. 825 facility used by the City or Franchise Hauler and (ii)the amount, if any,by which the tipping fee at the alternative facility utilized by the City or Franchise Hauler exceeds the then current Contract Rates. The invoice shall include reasonable substantiation of the amount invoiced. SECTION 3.3 CONTRACTOR RIGHT TO REFUSE WASTE. a .y (A) Right of Refusal. Notwithstanding any other provision hereof, Contractor and/or the Designated Materials Recovery Facility may refuse delivery of: ° a m (1) Unacceptable Waste. (B) Identification of Unacceptable Waste. Contractor shall have the right (but not the duty or the obligation) to inspect the vehicles of the City or any Franchise Haulers delivering R material to the Designated Materials Recovery Facility, and may require that the City or any Franchise Hauler remove an Unacceptable Waste from such vehicle before it is unloaded. If Y nacce P o Contractor determines that it is impractical to separate Controllable Waste from Unacceptable to Waste in any vehicle, or if the City or Franchise Hauler delivering such waste is unwilling to make such separation, or if any vehicle is carrying waste which may spill or leak, then o Contractor may reject the entire vehicle, and the City or Franchise Hauler shall forthwith remove m or cause the removal of the entire delivery from the Designated Materials Recovery Facility. 2 C N (C) Hazardous Waste and Hazardous Substance. The parties acknowledge that the `o Designated Materials Recovery Facility has not been designed or permitted, and are not intended o to be used in any manner or to any extent, for the handling, transportation, storage or disposal of Hazardous Waste or Hazardous Substances. Neither Contractor nor the City shall countenance or knowingly permit the delivery of Hazardous Waste or Hazardous Substances to the Designated Materials Recovery Facility. to C) (D) Disposal of Unacceptable Waste and Hazardous Waste. If Unacceptable Waste or Hazardous Waste is discovered in a vehicle at the Designated Materials Recovery Facility, the m driver of the vehicle will not be permitted to discharge the load. If a vehicle is observed m unloading Unacceptable Waste or Hazardous Waste at the Designated Materials Recovery Facility, Contractor will use reasonable efforts to assure that such material has been a characterized, properly secured and its disposition resolved. The return or reloading on to the delivery vehicle of any Hazardous Waste, Prohibited Medical Waste or other waste requiring o handling or transportation shall be conducted in accordance with Applicable Law. Whenever Hazardous Waste is detected at the Designated Materials Disposal Facility, Contractor shall take E immediate action in accordance with Applicable Law. In addition, if Contractor inadvertently accepts Unacceptable Waste, it shall have the right to pursue any remedies which it may against the person delivering such Unacceptable Waste to recoup the cost of handling and properly a disposing of such Unacceptable Waste. (E) Insurance. Contractor shall obtain and maintain, at its own expense, the following insurance policy or policies of liability insurance of the following coverage and limits for the C duration of this Agreement: Workers Compensation — Statutory; Employer's Liability - 12 Draft Agreement for Processing of Refuse,Green Waste and Recyclablc, PacketPg. 826 O $1,000,000 each occurrence; Comprehensive General Liability - $1,000,000 each occurrence combined single limit; Comprehensive Automobile Liability - $1,000,000 each occurrence combined single limit. Contractor agrees to furnish to City, upon request, certificates of insurance attesting to the insurance coverage and limits above. Each certificate shall contain a statement requiring the insurer to notify the certificate hold at least 30 days prior to cancellation of any policy covered thereunder. Each certificate shall also name City as an additional insured rn SECTION 3.4. MISCELLANEOUS OPERATIONAL MATTERS. N N d U (A) Scales and Weighing. Contractor shall operate and maintain scales in compliance with Applicable Law at the Designated Materials Recovery Facility. All vehicles delivering a Controllable Waste by or on behalf of the City (whether or not Contractor accepts such waste) shall be weighed and Contractor shall prepare, or cause to be prepared, a daily weight record II� with regard to such delivery. (In the event that scales are temporarily unavailable, Contractor shall estimate, or cause to be estimated, the weight of Controllable Waste delivered by volume.) R (B) City Truck Procedures. Contractor shall provide a means to avoid "stacking" of o City trucks on public streets as they enter the Designated Materials Recovery Facility. Contractor N shall provide City trucks preference over the general public to facilitate off-loading efficiencies ° and turn-around time. Contractor will provide for alternative off-loading methods in the event of a reasonable down-time due to repair and maintenance of equipment. Contractor shall maintain 00 adequate space to stockpile recyclable materials during such reasonable down time for acceptance of material without a break in service. Contractor shall provide an area for tipping of City vehicles separate from the general public. Contractor shall provide spotting of City trucks in o areas at their facility with tight maneuverability. Contractor shall provide use of a phone to City o employees in the event a City driver needs to contact their supervisor regarding City business. M Contractor shall provide paved surfaces for all areas where City trucks will operate at the :t.2 Designated Materials Recovery Facility. All ingress and egress from the Designated Materials 0 Recovery Facility shall be paved. m (C) Legal Compliance. Contractor shall comply with all Federal, State and local regulations that apply to Recyclable Materials delivered under the terms of this Agreement. Contractor warrants that it shall perform the services required by this Agreement in compliance d with all applicable Federal and California employment laws including but not limited to those " laws related to minimum hours and wages; occupational health and safety; fair employment and employment practices; workers' compensation insurance and safety in employment; and all other @ Federal, State and local laws and ordinances applicable to the services required under this o Agreement. Contractor shall indemnify and hold harmless City from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description E including attorneys' fees and costs, presented, brought, or recovered against City for, or on account of any liability under any of the above-mentioned laws, which may be incurred by a reason of Contractor's performance under this Agreement. (D) Unmarketable Materials. In no case shall Contractor take any Recyclable Materials to a Landfill unless permission in writing is provided by the City on a load-by-load © basis. If Contractor can demonstrate that a material is not marketable, such permission shall not be unreasonably withheld. This provision does not apply to Residue. With the exception of 13 Draft Agreement for Processing of Refuse,Green Waste and Recyclable, ` Packet Pg. 827 Residue,Contractor agrees to divert all Recyclable Materials from landfill. (E) Operating Hours. The Designated Materials Recovery Facility shall be open to receive Controllable Waste (Contractor to enter information on operating hours). Contractor shall make reasonable accommodations to provide tours of their facilities to the public upon request by the City's representative. Contractor shall also make reasonable accommodations for delivery of controllable waste outside of standard operating hours. c N (F) Restriction on Manner of Collection. In order to ensure City complies with the provisions of then-current applicable law relating to diversion and recycling and to accurately o account for and report the amount of solid waste including Recyclable Materials collected within a the City limits and processed, recycled and/or disposed pursuant to this Agreement, City Recyclable Materials shall not be commingled with any other Recyclable Materials until City Recyclable Materials have been weighed and/or accounted for in some other manner. N t6 (G) Pursuit and Management of Grants. Contractor shall assist City in pursuing grants 3 and other funding as may become available for recycling, public education and other recycling 'a 0 related programs. Contractor shall manage any such funding obtained, and implement any N programs that may be funded, if requested to do so by City, and shall be entitled to compensation w for such management services if the funding in question may be utilized to so compensate v Contractor. m d o (H) 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 o race, religion, color, national origin, ancestry, physical handicap, medical condition, marital o status, sexual gender or sexual orientation, except as permitted pursuant to Section 12940 of the Government Code. Violation of this provision may result in the imposition of penalties referred to in Labor Code, Section 1735. ° (I). Business License. Contractor warrants it possesses, or shall obtain, and maintain during the term of this Agreement a business registration certificate pursuant to Title 5 of the City of San Bernardino Municipal Code, and any and all other licenses, permits, qualifications, insurance and approvals of whatever nature that are legally required of contractor/consultants/vendor to practice its profession, skill or business. rn ARTICLE IV CONTRACT RATES o c SECTION 4.1. CHARGING AND SECURING PAYMENT OF CONTRACT RATES. The City acknowledges that Contractor shall have the right to charge, collect or pay, as applicable the Contract Rates for the acceptance, processing, and disposal of Controllable Waste delivered to the Designated Materials Recovery Facility by the City or any Franchise Hauler. ¢ The Contract Rates shall be calculated and established, and may be modified, as provided in Section 4.2 hereof. SECTION 4.2. CONTRACT RATES. 14 Draft Agreement for Processing of Refuse,Green Waste and Recv,Lib1c, Packet Pg. 828 (A) Recvcline Rates. Contractor shall pay City for Recyclable Materials that are received at the Designated Materials Recovery Facility and not rejected by Contractor in accordance with Article III as set forth below: (i) Enter information based upon contract award. Exhibit A. N The parties agree that the characterization of 40% Residue is material to this Agreement and that the City relied on such characterization in entering into the Agreement. Subsequent Q characterizations shall be performed within 60 days of the beginning of each Contract Year to a determine the characterization percentage for purposes of adjusting the Recycling Rates. The City's representatives shall observe the characterization. Any recalculation of the Recycling Rates shall not result in Contractor charging City for receipt of Recyclable Materials, nor shall „ such characterization cause an adjustment in Recycling Rates for a level of residue in excess of 40%; provided, however, that if the characterization shows Residue in excess of 45%, City shall pay for disposal (pursuant to the rates set forth below), of the Residue in excess of 45%. In no 0 event shall the value of the Recyclable Materials be less than$zero ($0). `o N (B) Disposal Rates. The rates payable for the disposal of Controllable Waste other m than Recyclable Materials (including Residue) (the "Disposal Rates") shall be the prices per ton .2 set forth in Exhibit B attached hereto and incorporated herein, subject to potential adjustment © necessary to reflect the circumstances set forth below: o c 0 (i) escalation during the Term of this Agreement calculated in accordance with Section 4.2(C); and .Q.2 y (ii) increased costs incurred by Contractor (in excess of available insurance proceeds) due to the occurrence of one or more Uncontrollable Circumstances, including Changes in Law. m (C) Calculation of Escalation. For purposes of Section 4.2(B)(ii), the Disposal Rates shall be adjusted in accordance with the formula described in this Section each July 1 during the v term hereof, commencing July 1, 2013. The adjustment shall be calculated in accordance with 2 rn the following formula: a m The then-current Disposal Rates, as adjusted under this Section 4.2(A)(ii), shall be o` automatically adjusted annually each July 1st by an amount equal to the average increase in the Consumer Price Index for All Cities Consumer Price Index (CPI) for the Los Angeles-Riverside- Orange County Area. A-Items Indexes, All Urban Consumers, as published by the United States Department of Labor, Bureau of Labor Statistics for the previous 12 months ending in December. The first such adjustment will become effective July 1, 2013. (D) Procedure for Rate Adjustments. In the event Contractor determines that it is entitled to an adjustment of the Contract Rates pursuant to Section 4.2, it shall utilize the O procedures described in this Section 4.2(D). Contractor shall be required to provide the City with at least 60 days prior written notice of the adjustment. 15 Draft Agreement for Processing of Refuse,Green Waste and Recyclables PacketPg. 829 C (E) Challenges to Rate Adjustment. In the event that the City challenges a Rate Adjustment made pursuant to Section 4.2 and a court of applicable jurisdiction determines that any portion of Contractor's adjusted Contract Rates was improperly imposed, Contractor shall, within 30 days of the date of the statement of decision, reimburse to the City the amount improperly imposed, together with interest calculated at the Overdue Rate. Such reimbursement may be made in the form of a reduction in the Contract Rates for a future period reasonably calculated to provide full reimbursement of the amounts described above. N d SECTION 4.3. RESPONSIBILITY FOR PAYMENT OF THE DISPOSAL RATES. a CL 0 (A) Payment by City. In the event and to the extent (1) the City uses municipal collection forces directly for the haulage of Controllable Waste to the Designated Materials Recovery Facility or (2) the City uses non-municipal Franchise Haulers for collection but d nonetheless elects to pay the Disposal Rates from City revenues, the City shall have direct responsibility for payment of the Disposal Rates, and shall take all such budgetary, appropriation 3 and other action as may be necessary to provide for the timely payment of the Disposal Rates. 0 Such action may include, depending upon the means authorized by the City to provide for such N payment, the levy and collection of general or special taxes, the imposition of benefit assessments, or the collection of user fees, generator charges or other similar impositions for o municipal solid waste disposal. The City shall use best efforts in accordance with Applicable m a Law to levy and impose all such taxes, assessments, fees or charges, and will take all steps, d actions and proceedings for the enforcement, collection and payment of all such amounts which 0 shall become delinquent, to the full extent permitted by Applicable Law. From the o Commencement Date to the date of expiration or termination of this Agreement, the obligation o of the City to pay the Disposal Rates, to the extent the City rather than Franchise Haulers is cc responsible directly for payment and provided that the Service Covenant has been complied with, v shall be absolute and unconditional and shall not be subject to delay or diminution by reason of y set-off, abatement, counterclaim, existence of a dispute or otherwise. v m (B) Payment by Franchise Haulers. With respect to Controllable Waste delivered by Franchise Haulers other than City municipal collection forces, the obligation to pay the Disposal Rates shall rest with such Franchise Haulers and not with the City and,unless the City has agreed v with Contractor to be responsible for Franchise Hauler payments, the City shall not be financially responsible for any delay or failure by such Franchise Hauler to pay the Contract a Rates or any portion thereof when due. In the event of any such failure, Contractor and the City m shall cooperate with each other and use their best efforts to obtain timely payment. Such efforts o by Contractor may include, as appropriate, requiring cash payments for disposal rights from such Franchise Hauler and bringing a legal proceeding for payment and damages. Such efforts by the City shall include, as appropriate, legal proceedings to suspend, revoke or terminate the Franchise Hauler's franchise,permit or license rights. (C) Disputes. If the City or the Franchise Hauler disputes any amount billed by Contractor in any Billing Statement, the City or the Franchise Hauler shall nonetheless pay undisputed amounts identified on such Billing Statement and shall provide Contractor with ® written objection within 30 days of the receipt of such Billing Statement indicating the amount that is being disputed and providing all reasons then known to the City or the Franchise Hauler 16 Draft Agreement for Processing of Refuse,Green Waste and Rccydubles PacketPg. 830 for any objection to or disagreement with such amount. Contractor shall then respond to such written objection (providing additional documentation substantiating the amount disputed if applicable) within 30 days of receipt of the written objection. If the City or the Franchise Hauler and Contractor are not able to resolve such dispute within 30 days after Contractor's response, either party may pursue appropriate legal remedies. In addition, in the event of nonpayment by the City or Franchise Hauler, as applicable, Contractor shall have the right to discontinue any credit arrangements it may have had with the City or Franchise Hauler, and require cash payment c for subsequent deliveries. y m U SECTION 4.4. BILLING OF THE CONTRACT RATES. Contractor shall, on a monthly 2 basis, transmit an invoice to City showing the types and number of tons of Controllable Waste and Recyclable Materials received by Contractor at the Designated Materials Recovery Facility hereunder during the preceding month and the total amount due to the City for Recyclable Materials and due to Contractor for Disposal Services. The net amount due to Contractor or the City shall be remitted by the applicable party no later than the fifteenth (15th) day of the month following the month in which Controllable Waste was received by Buyer. 3: o ARTICLE V w BREACH,ENFORCEMENT AND TERMINATION ° N a SECTION 5.1. BREACH; REMEDIES. The parties acknowledge that the money 0o damages provided hereunder may not be adequate to compensate either party for the other d /^ party's nonperformance. The parties agree that in the event either party breaches any obligation an under this Agreement or any representation made by either party hereunder is untrue in any o material respect, the other party shall have the right to take any action at law or in equity o (including actions for injunctive relief, mandamus and specific performance) it may have to enforce the payment of any amounts due or the performance of any obligations to be performed o hereunder. in v SECTION 5.2. TERMINATION. o (A) By City. Except as expressly provided herein, the City shall have no right to m terminate this Agreement except for cause in the event of the repeated failure or refusal by E Contractor substantially to perform any material obligation under this Agreement unless such failure or refusal is excused by an Uncontrollable Circumstance; except that no such failure or a refusal shall give the City the right to terminate this Agreement for cause under this subsection m unless: o c (1) The City has given prior written notice to Contractor stating that a specified E failure or refusal to perform exists which will, unless corrected, constitute a material breach of this Agreement on the part of Contractor 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 a reasonable period of time, and (2) Contractor has neither challenged in an appropriate forum (in accordance with © Section 5.5) the City's conclusion that such failure or refusal to perform has occurred or constitutes a material breach of this Agreement nor corrected or diligently taken steps to correct 17 Draft Agreement for Processing of Refuse,Green Waste and Recyclable, PacketPg. 831 such breach within a reasonable period of time not more than 90 days from the date of the notice given pursuant to clause (1) of this subsection (but if Contractor shall have diligently taken steps to correct such 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 Contractor is continuing to take such steps to correct such breach). (B) By Contractor. Except as expressly provided herein, Contractor shall have no right to terminate this Agreement except for cause in the event of the repeated failure or refusal by the City substantially to perform any material obligation under this Agreement unless such failure or refusal is excused by an Uncontrollable Circumstance; except that no such failure or P refusal shall give Contractor the right to terminate this Agreement for cause under this subsection unless: (1) Contractor has given prior written notice to the City stating that a specified failure m or refusal to perform exists which will, unless corrected, constitute a material breach of this Agreement on the part of the City and which will, in its opinion, give Contractor right to terminate this Agreement for cause under this subsection unless such breach is corrected within a o reasonable period of time, and r_0 (2) The City has neither challenged in an appropriate forum (in accordance with v Section 5.5 Contractor's conclusion that such failure or refusal to perform has occurred or m v constitutes a material breach of this Agreement nor corrected 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 to clause (1) of this subsection (but if the City shall have diligently taken steps to c correct such breach within such reasonable period of time, the same shall not constitute a breach o giving rise to the right of termination for as long as the City is continuing to take such steps to correct such breach). .2 0 SECTION 5.3. NO WAIVERS. No action of Contractor 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 Contractor or the City in exercising any right, power or remedy under this Agreement shall operate as a waiver thereof or d otherwise prejudice such party's rights, powers and remedies. No single or partial exercise of(or W failure to exercise) any right, power or remedy of Contractor or the City under this Agreement a shall preclude any other or further exercise thereof of the exercise of any other right, power or @ remedy. o c SECTION 5.4. DAMAGES. E L U (A) Cam. In the event that the City terminates the Agreement pursuant to Section a 5.2(A), Contractor shall be obligated to pay to the City as damages (i) the amount by which the City's reasonably expected cost of transporting and disposing of City Acceptable Waste (for a period commencing on the date of termination and ending one year after such date of termination) exceeds the aggregate Contract Rate that would have been payable with respect to © such City Acceptable Waste had Contractor met its obligations hereunder and the Agreement had not been terminated (ii) less the amount of Advance Payment which has not been recouped by 18 Draft Agreement for Processing of Refuse,Green Waste and RecycIables Packet Pg. 832 Contractor pursuant to Section 4.2(A)(ii)); provided, however, that regardless of the amount of any unrecouped Advance Payment, in no event shall the City be obligated to pay Contractor any amount pursuant to this Section 5.4(A). (B) Contractor. In the event that Contractor terminates the Agreement pursuant to Section 5.2(B), the City shall pay Contractor as damages an amount equal to (i) the Disposal Rates in effect at the time of such termination multiplied by the number of tons of City Acceptable Waste delivered to the Designated Materials Recovery Facility during the preceding twelve months, (ii) plus the amount of Advance Payment which has not been recouped by Contractor pursuant to Section 4.2(A)(ii)). a m d m SECTION 5.5. FORUM FOR DISPUTE RESOLUTION. It is the express intention of the parties that all legal actions and proceedings related to this Agreement or to any rights or any relationship between the parties arising therefrom shall be solely and exclusively initiated and maintained in courts of the State of California having appropriate jurisdiction. ,v_ 0 N Prior to initiating any legal action or proceeding,the parties shall attempt in good faith to ° resolve any disputes through mediation. To initiate the mediation process, any party shall deliver v written notice to the other party summarizing any matter(s) in dispute ("Mediation Notice"). m Within ten (10) days thereafter, the parties to the dispute shall engage a neutral mediator and expeditiously pursue mediation in good faith at a mutually convenient time and place,taking into N account any exigencies posed by the matter(s) in dispute. All statutes of limitation and other o time-related defenses related to the matters being mediated shall be tolled beginning upon the c transmission of the written Mediation Notice and continuing through the earlier of the date settlement is reached or, in the event of impasse or failure of a party to participate in mediation, the fifth (5th) day after any party to the dispute, or the mediator, delivers written notice of the N same to the other party. m ARTICLE VI TERM d d SECTION 6.1. EFFECTIVE DATE AND TERM. a w (A) Term. This Agreement shall become effective, shall be in full force and effect and o shall be legally binding upon the City and Contractor from the Contract Date and shall continue in full force and effect until (to be determined by Council), unless earlier terminated in E accordance with its terms. Subject to the provisions herein, this Agreement may be renewed for UP to (to be determined). a (B) Survival: Accrued Rights.lts. The rights and obligations of the parties hereto pursuant to Sections 3.1(E), 5.1, 5.2, 5.4, 7.2, 7.3, 7.5, 7.7, 7.8, 7.9, and 7.10 hereof shall survive the termination or expiration of this Agreement, and no such termination or expiration shall limit or otherwise affect the respective rights and obligations of the parties hereto accrued prior to the date of such termination or expiration provided, however, that Section 7.3 shall not survive if the 19 Draft Agreement for Processing of Refuse,Green Waste and Recyclables Packet Pg. 833 termination of the Waste Disposal Agreement is due to the occurrence of an Event of Default on `�— the part of the City. At the end of the Term of this Agreement, all other obligations of the parties shall terminate. ARTICLE VII GENERAL PROVISIONS rn SECTION 7.1. OPERATION AND MAINTENANCE OF THE DESIGNATED N MATERIALS RECOVERY FACILITY. Contractor shall at all times operate, or cause to be operated,the Designated Materials Recovery Facility in accordance with Applicable Law. o a m SECTION 7.2. UNCONTROLLABLE CIRCUMSTANCES GENERALLY. m (A) Performance Excused. Except as otherwise specifically provided in this d Agreement, neither Contractor nor the City shall be liable to the other for any failure or delay in the performance of any obligation under this Agreement(other than any payment at the time due 3 and owing) to the extent such failure or delay is due to the occurrence of an Uncontrollable o Circumstance. 0 w (B) Notice. Mitigation. The party experiencing an Uncontrollable Circumstance shall o notify the other party by telecommunication or telephone and in writing, on or promptly after the m date the party experiencing such Uncontrollable Circumstance first knew of the commencement d thereof, followed within IS days by a written description of(1) the Uncontrollable Circumstance to (v and the cause thereof(to the extent known), (2) the date the Uncontrollable Circumstance began o and the cause thereof, its estimated duration, the estimated time during which the performance of o such party's obligations hereunder will be delayed, (3) the estimated amount, if any, by which R the Contract Rates 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(5)potential 0 mitigating actions which might be taken by Contractor or City and any areas where costs might be reduced and the approximate amount of such cost reductions. Each party shall provide prompt written notice of the cessation of such Uncontrollable Circumstance. Whenever such act, event or condition shall occur, the party claiming to be adversely affected thereby shall, as promptly as reasonably possible, use its best efforts to eliminate the cause therefor, reduce costs and resume E performance under this Agreement. In addition, with respect to Changes in Law, Contractor shall diligently contest any such changes the imposition of which would have a material adverse a impact on the Landfills. While the delay continues, Contractor or City shall give notice to the other party, before the first day of each succeeding month, updating the information previously o submitted. d E (C) Impact on Contract Rates. If and to the extent that Uncontrollable Circumstances interfere with, delay or increase the cost to Contractor of meeting its obligations hereunder and w providing Recycling Services or Disposal Services to the City in accordance herewith, Q Contractor shall be entitled to an adjustment in the Contract Rates as provided in Section 4.2 herein or an extension in the schedule for performance equal to the amount of the increased cost or the time lost as a result thereof. The proceeds of any insurance available to meet any such increased cost shall be applied to such purpose prior to any determination of cost increases C payable under this subsection. Any cost reductions achieved through the mitigating measures 20 Draft Agreement for Processing of Refuse,Green Waste and Recyclables 1-Packet Pg. 834 Oundertaken by Contractor pursuant to subsection 7.2(B) hereof upon the occurrence of an Uncontrollable Circumstance shall be reflected in and adjustment of the amount by which the Contract Rates would have otherwise been adjusted or shall serve to adjust the Contract Rates to reflect such mitigation measures, as applicable. SECTION 7.3. INDEMNIFICATION. Contractor shall indemnify, defend with competent counsel reasonably selected by Contractor, protect and hold harmless City, its officers, employees and assigns from and against all Loss-and-Expense, including natural N resources damages, injuries, costs, response, assessment, remediation and removal costs, losses, demands, debts, liens, liabilities, causes of action, suits, legal or administrative proceedings, o interest, fines, charges, penalties and expenses (including but not limited to attorneys' and expert a witness fees and costs incurred in connection with defending against any of the foregoing or in enforcing this indemnity) of any kind whatsoever paid, incurred or suffered by, or asserted against, City or its officers or employees arising from or attributable to any, cleanup, or preparation and implementation of any remedial, response, arising from or related to Hazardous Substance or Hazardous Wastes or petroleum products at any place where Contractor transfers, 3: stores or disposes of municipal solid waste pursuant to this agreement, The foregoing indemnity o is intended to operate as an agreement pursuant to but not limited to Section 107(e) of the rn Comprehensive Environmental Response, Compensation and liability Act ("CERCLA"), 42 ° U.S.C. Section 9607(e), and California Health and Safety Code Section 25364, to defend, o protect, hold harmless and indemnify City from liability. This indemnity shall not apply to m willful, deliberate or grossly negligent delivery by the City or Franchise Haulers of Hazardous d Substances or Hazardous Waste to the Designated Materials Recovery Facility. This indemnity C shall also not apply with respect to (i) vehicle accidents or other waste delivery activities or (ii) o to any Hazardous Substances, Hazardous Waste, petroleum product or other Unacceptable Waste c not accepted for disposal or processing at the Designated Materials Recovery Facility. The City agrees that Contractor may provide counsel to jointly represent itself, the City and any and all other parties who disposed of or processed waste at the Designated Materials Recovery Facility. <°n The City hereby agrees to waive, in writing, any conflict, actual or apparent, created by the joint v representation of such parties pursuant to this indemnity. The City also hereby agrees to CD cooperate fully and completely with Contractor and with counsel provided by Contractor in resolving any legal matter that arises pursuant to this indemnity. The City further agrees that r Contractor has complete discretion in the conduct of any matter to which this indemnity applies, d and may resolve or settle such matters to which this indemnity applies in its sole discretion without the permission or approval of the City. Contractor agrees that it will not bring any action a against the City claiming or alleging that the City has any responsibility for matters, actions or liabilities within the scope of the indemnity provided above. o` C SECTION 7.4. RELATIONSHIP OF THE PARTIES. Neither party to this Agreement shall have any responsibility whatsoever with respect to services provided or contractual obligations or liabilities assumed by the other party hereto, whether accrued, absolute, contingent or otherwise, or whether due or to become due. Contractor is an independent contractor of the a City and nothing in this Agreement shall be deemed to constitute either party a partner, agent or legal representative of the other party or to create any fiduciary relationship between the parties. SECTION 7.5. NO VESTED RIGHTS. The City shall not acquire any vested property, license or other rights in the Landfills by reason of this Agreement. 21 Draft Agreement for Processing of Refuse,Green Waste and Recyclables PacketPg. 835 SECTION 7.6. LIABILITY FOR COLLECTION. TRANSPORTATION AND PROCESSING. Any liability incurred by the City as a result of collecting Acceptable Waste or processing it for diversion from landfill, or as a result of causing, franchising, permitting, licensing, authorizing or arranging any of the foregoing, shall be its sole liability, except as expressly otherwise provided herein. rn SECTION 7.7. NO CONSEQUENTIAL OR PUNITIVE DAMAGES. In no event shall N either party hereto be liable to the other or obligated in any manner to pay to the other any special, incidental, consequential, punitive or similar damages based upon claims arising out of o or in connection with the performance or non-performance of its obligations or otherwise under a m 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. d SECTION 7.8. AMENDMENTS. Neither this Agreement nor any provision hereof may R be changed, modified, amended or waived except by written agreement duly authorized and 3 2 executed by both parties. o rn i SECTION 7.9. NOTICE OF LITIGATION. Each party shall deliver written notice to the i other of any Legal Proceeding to which it is a party and which questions the validity or enforceability of this Agreement executed by the City or Contractor or any Legal Entitlement m issued in connection herewith. °- 1 0 SECTION 7.10. FURTHER ASSURANCES. At any and all times the City and o Contractor so far as may be authorized by law shall pass, make, do, execute, acknowledge and c deliver any and every such further resolutions, acts, deeds, conveyances, instruments, assignments, transfers and assurances as may be necessary or reasonably requested by the other o in order to give full effect to this Agreement whether hauled by the City or Franchise Haulers'. N v SECTION 7.11. ASSIGNMENT OF AGREEMENT. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by either party hereto without the prior = written consent of the other party, which consent shall not be unreasonably withheld, delayed or conditioned. In such circumstances the party not requesting the assignment shall have the right d to demand assurances of the financial, technical and legal ability of the proposed assignee to 0 undertake the responsibilities and obligations of the assigning party. m SECTION 7.12. INTEREST ON OVERDUE OBLIGATIONS. Except as otherwise o provided herein, all amounts due hereunder, whether as damages, credits, revenue or reimbursements,that are not paid when due shall bear interest at the Overdue Rate on the amount E outstanding from time to time, on the basis of a 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. a SECTION 7.13. BINDING EFFECT. This Agreement shall bind and inure to the benefit of the parties hereto and any successor or assignee acquiring an interest hereunder consistent with the provisions of Section 7.11 hereof. 22 Draft Agreement for Processing of Refuse,Green Waste and Recyclable, Packet Pg. 836 SECTION 7.14. 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 parties set forth below. 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. CITY: WITH A COPY TO: c N N U O a` Attn.: Attn.: Telephone: Telephone: Facsimile: Facsimile: N CONTRACTOR: WITH A COPY TO: a 0 0 w [Signature Page Follows] o M IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by m their duly authorized officers or representatives as of the day and year first above written. I\../ o c 0 CITY OF SAN BERNARDINO, a Municipal corporation 0 v By: Mayor c Date: E d d rn m ATTEST: o By: E City Clerk a APPROVED AS TO FORM: CITY ATTORNEY I O 23 Draft Agreement for Processing of Refuse,Green Waste and Recyclables Packet P'.,, 37 I i By: Date: or C .N N d U O IL R d m m « N m -o to 0 w N m d N d N w O a O « A U O M V 77 C d E d d m Q A C d E s v m « Q i 24 Draft Agreement for Processing of Refuse,Green Waste and Recyclables Packet Pg. 838 s.u.6 REPORT/RECOMMENDATION TO THE BOARD OF SUPERVISORS OF SAN BERNARDINO COUNTY, CALIFORNIA - 7.'. AND RECORD OF ACTION © Agree. 97-1051 December 16, 1897 FROM: GERRY NEWCOMBE,Contract Administrator Public Services Group,Waste System Division SUBJECT: WASTE DELIVERY AGREEMENT BETWEEN THE COUNTY AND THE CITY OF SAN BERNARDINO RECOMMENDATION. Approve 15 year Waste Delivery Agreement (WDA) with the City of San c Bernardino for use of the County landfill system,from January 1, 1998 to December 31,2012. N m U BACKGROUND INFORMATION: On November 4, 1997, the Board approved a standard WDA and o directed staff to present the agreement to cities for approval and return any signed agreements to the o_ Board for final approval. The San Bernardino City Council approved the WDA on December 15, 1997. Approval of the recommendation will result in the adoption of the WDA whereby the City of San m Bernardino is obligated to deliver all of its controllable waste to the Colton and Mid Valley Landfills for 15 years, and the County is obligated to provide capacity for that waste at a specified contract rate reimbursed by the City. a When WDA's representing 60 percent of the system tonnage of 1,390,000 tons (less the .o unincorporated tonnage which will be controlled by the County through franchise agreements) have been executed, it will be necessary to modify the compensation provisions in NORCAL's contract. 0 Staff has met with NORCAL and reached agreement on the rational for a revised compensation w program that Is consistent with the controls placed on the contract rate contained in the WDA's. The ° WSD will present the modified compensation program for Board consideration when the 60 percent co C threshold is within reach. Prior to reaching that threshold,the system can continue to function with the m existing compensation program in place. in w REVIEW BY OTHERS: This item has been reviewed by Deputy County Counsel Robert L.Jocks on December 5, 1997, o FINANCIAL IMPACT: This action will have no impact on the General Fund. The difference between u the existing 533 1ton tip fee and the $28.501ton contract rate will result in reduced revenue to the o Division in Fiscal Year 1997198. This reduction will be offset by a combination of expenditure w reductions and new revenue sources, c in in SUPERVISORIAL DISTRICT(S): Fifth -- n rn rn Q D Record Of Action of the Board of Supervisors ;.; cc: WSD-Newcombe w/4 agrees. AGREEMENT 97-1051 a Contractor do WSD wl2 DEFERRE E BOARD OF SUPERVISORS E agrees, ERNARDINO Auditor wlagree. 4 s Contract Compl. wlagree. MOTION No AYE Q Co. Counsel-Jocks tr,::�4'�^ s File wlagree. EA `f.- ' F O D BY — iw DATED : De {RI)IN0 .O Rev 0711C ITEM 050a Packet'Pg.839 s.u.B 97-371 EXECUTION COPY WASTE DISPOSAL AGREEMENT ° c N N v U Beaceen 0 L Q. m THE COUNTY OF SAN BERNARDINO,CALIFORNIA m m and 3 THE CITY OF SAN BERNARDINO t° o` w N a m v Dated December 16, 1997 °- m m rn 0 0 C 0 U_ O Q) V n C) m Cuunty Authorization Date: City Authorization Date: Q December 16. 1997 L1.4S3tM r 15. 1997 c County Notice Address: City Notice Address: E s U t0 Q Emergency Contact: Emergency Contact: Packet Pg. 840 97- 3.1] oWASTE DISPOSAL AGREEMENT THIS WASTE DISPOSAL AGREEMEN1•is made and dated as of the date indicated on the cover page hereof between the County of San Bernardino,a political subdivision of the State of Califomia (the"County").and the City designated on the cover page of this.Agreement,a general law or charter city and political subdivision of the Stale of California(the"City"). RECITALS c The County owns, manages and operates a sanitary landfill system for the disposal of N municipal solid waste generated in the unincorporated area within the County and which it has made available for the disposal of municipal solid waste generated within cities located within the County(the o "Disposal System"). The Disposal System currently includes 12 active landfills and is expected to consist a of five active landfills upon implementation of the Solid Waste Partnership Strategy and Implementation m Plan, c m The Disposal System is used for the disposal of municipal solid waste which is not composted, reused. recycled, transfomted or otherwise diverted from landfill disposal, pursuant to the California integrated Waste Management Act of 1989(Division 30 of the California Public Resources Code). 3: The Act,which mandates the diversion of 50%of waste from landfill disposal by 2000,has already reduced :2 the volume of waste delivered to the landfills. to 0 The County wishes to enter into an agreement with the City to accept all of the City's w municipal solid waste in the Disposal System for the term and subject to the provisions of this A6reement, :4 and the City desires to use all legal and contractual powers it possesses to deliver or cause to be delivered ro O the municipal solid waste generated within its boundaries to the Disposal System For the tern of and subject m to the provisions of this Agreement. N w The City. in the exercise of its police power and its powers under the Act, either(i)has 0 entered into a franchise or other agreement with or issued permits or!icenses to one or more private haulers Q for the collection ar%J disposal of municipal solid waste generated within the City or(ii)collects municipal is solid waste generated within the City in Ciiv owned and operated collection vehicles. .3 0 to The City has determined that the execution of this Agreement by the City will serve the public health,safety and welfare of the City by providing greater disposal rate stability, more predictable and reliable long-tern disposal service,and the continuation of sound environmental management. ° r 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 Q solid waste and the resulting service payment revenue to the Disposal System,thereby enabling the County p to plan, manage.operate and finance improvements to the Disposal System on a more prudent and sound long term, businesslike basis. d Official action approving this Agreement and determining it to be in the public interest and authorizing its execution and delivery was duly taken by the County on the County authorization date A indicated on the cover page hereof. Q Official action approving this Agreement and determining it to be in the public interest and authorizing its execution and delivery was duly taken by the City on the City authorization date indicated on the cover page hereof. O 1 PacketPg. 841 i 97-371 It is,therefore, agreed as follnws: �4 ,L OI C N N d V O a m d m w N R O to 2 0 N L V U) d R d U) w O C O R V p N \\ n m rn Q D m E t V N Q 2 Packet Pg. 842 97-371 © ARTICLE I DEFINITIONS AND INTERPRETATION SECTION I.1. DEFINITIONS. 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 or rejection and which are nomnally disposed of by or collected from residential (single family and multi- family),commercial,industrial,governmental and institutional establishments which are acceptable at Class N 111 !anthills under Applicable Law(including without limitation,the Legal Entitlements for each facility). eau 0 "Act"means the California Integrated Waste Management Act of 1989(Division 3O of the a California Public Resources Code).as amended.supplcmcnteti,superseded and replaced from time to time. -° m "Agreement"means this Waste Disposal Agreement between the County and the City m the g same may be amended or modified from time to time in accordance herewith. 0 w "Appendix"means an appendix to this Agreement.as the same may be amended or modified from time to time in accordance with the terms hereof o rn 'Applicable Law" means the .Act, the San Bernardino Cuunty Code, CERCLA, RCRA, o CEQA, any Legal F.ntitlement and any federal or state rule, regulation. requirement, guideline, permit. w notion,determination or order of any Governrnentat Body having jurisdiction,applicable from time to time to the siting, design. permitting. acquisition. construction. equipping, financing. ownership. possession. O operation or maintenance of the Dispersal System, the transfer. handling. transportation and disposal of @ Acceptable Waste.Unacceptable Waste,or any other transaction or matter contemplated hereby(including m any of the foregoing which concern health. safety. tire,environmental protection, mitigation monitoring o plans and building codes.). o "Raard"means the California Integrated Wa-�tc 'Management Roard. U "C•EQA"means the California Environmental Quality Act,codified at Cal. Pub,Res.Cade rn section 2100o gLagil.(Wcst 1996i ns amended or superseded,and the regulations promulgated thereunder. a N "CLRC'LA" means the Comprehensive Environmental Responsibility Compensation and Liability Act,42 U.S.C,A,Section 9501 et sea.(West 1995 &Stipp. 1995),as amended or superseded.and � the regulations promulgated thereunder. rn "Change in Laid" means any of the following events or conditions which has a material and p adverse effect on the performance by the parties of their respective obligations under this Agreement(except � for payment obligations) eron the siting.design,permitting,acquisition,construction.equipping,financing. ovvttership, possession, operation or maintenance of the Disposal System or other matters to which E Applicable Law applies: � m (I) the enactment.adoption,promulgation,issuance,material modification or written Q change in administrative or judicial interpretation on or after the Commencement Date of any Applicable Law(other thin Applicable Law enacted by the County); O 3 PacketPg 843 97-371 O (2) the order or-judgment 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 msertiriA the occurrence of a Change in Law;prkyjjjkd,however,that the contesting in goad faith or the goad faith decision not to contest any such order orjudgment shaft not constitute or be construed as such a willful or negligent action, error or omission or lack of reasonable diligence;or (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 N with the issuance,renewal or failure of issuance or renewal on or after the Commencement Date of any Legal Entitlement to the extent that such denial,delay,suspension,termination, interruption, o imposition or failure materially and adversely interferes with the performance of this Agreement, a if and to the extent that such denial, delay, suspension, termination, interruption, imposition or L° failure is not the result of willful or negligent action, error or omission or a lack of reasonable diligence of the County or of the City, whichever is asserting the occurrence of a Change in law; g provided,however that the contesting in good faith or the good faith decision not to contest any such d denial,delay,suspension.termination, interruption,imposition or failure shall not be construed as w m such a willful or negligent action,error or omission or lack of reasonable diligence. a "Change in Law" shall not include actions taken by Governmental Bodies to enforce requirements of to Applicable Law. o W "City" means,as applicable,the city designated on the cover page of this Agreement and v m o party to this Agreement, o d "City Acceptable Waste" means all Acceptable Waste which was originally discarded by y the Forst generator thereof within the geographical limits of the City. and Residue from the foregoing(or o Tonnage equivalencies of such Residues.as and to the extent provided in subsection 3,I(C)hereof). 2 "Contract Date" means the date of delivery of this Agreement as executed by the parties hereto. ° 6 in "Contract Rate" has the meaning specified in Section•1=hereof v m "Contra:(Year"means the fiscal year commencing oil July I in any year and ending oth June 30 of the following year. r- rn "C.ontrollable Waste"means all City Acceptable Waste with respect to which the City has 4 the legal or contractual ability to determine the dispozul location therefor and which is: � (1) Non-Diverted City Acceptable Waste: (2) not generated from the operations of the Governmental Bodies which, under E Applicable Law,have the independent power to ai -ange for the disposal of the waste they generate L U (such as school districts and State correctional facilities). (3) not Residue excluded from the Waste Dehvery Covenant pursuant to Section Q 3.1(C); (4) not inert materials, construction and demolition debris, green waste and other materials which can be disposed at landfills other than Class 111 landfills;and (5) collected and)hauled by Franchise Haulers. O a Racket Pg. 844 47-371 O "Count" means the County of San Bernardino, a political subdivision of the State of California and party to this A.greement. "County Waste'Aanagement Enterprise Fund"means the waste management enterprise fund established and managed by the County pursuant to Section 25261 of the Government Code separate from its other funds and accounts for receipts and disbursements in connection with the Disposal System. "County-wide Recycling Services" has the meaning set forth in subsection 3.6(A)hereof. m c "Designated Disposal Facility"means the sanitary landfill or other facility operated by or N for the County as part of the Disposal System which is designated in Appendix E hereto as the disposal location for Controllable Waste delivered to the County pursuant hereto as of the Commencement Date,or o such other additional, alternate or replacement sanitary landfills or other disposal facilities as may be a designated by the County as the Designated Disposal Facility (subject to the approval of the City) in —° accordance with Section 3.2 hereof m "Disposal Agreements"means each of the waste disposal agreements entered into between d the County and any city within the County in accordance herewith. 3 "Disposal Services"means the solid waste disposal services to be provided by the County ° pursuant to the Service Covenant and otherwise hereunder. rn 0 "Disposal System"means all sanitary landfills and other solid waste transfer,transporhttion, w storage,handling,processing and disposal facilities, now or at any time owned, leased,managed,operated by or under contract to the County for the acceptance,handling,processing and disposal of Acceptable Waste '0 © delivered by it on behalf of the City under this Agreement. including the Designated Disposal Facilities 2 listed on .Appendix I and any expansion thereof. all as more particularly described in the Solid Waste rn Partnership Strategy and Implementation Plan. o c "Disposal System Component" means anv landfill,facility,structure,work,equipment,site or other real or porsonal property constituting a component part of the Disposal System. ° U "Diverted City Acceptable Waste" means any otherwise Controllable Waste which is r° separated from Acceptable Waste by the generator thereof or by processing anti which is"diverted" within the meaning of Section 40180 of the Public Resources Code, m "Franchise Hauler"means any bauleror collector who provides Acceptable Waste collection services within the City pursuant to,or under authority granted by.a contract, franchise or other agreement with the Ciry. The tern Franchise I lauler includes the City itself if Acceptable Waste collection and a transportatiott services are provided directly by City operated municipal collection service. "Governmental Body" means any federal. State, county, city or regional legislative, c executive,judicial or other governmental board,agency,authority.committee,administration,court or other v E body,or any officer thereof acting within the scope of his or her authority. m "I laazardous Substance" has the meaning given such tern in the Resource Conservation and Q Recovery Act,42 U.S.C.6901 et seq.,CFRCLA, and all future amendments to either of them or as defined by California statute or by the California Environmental Protection Agency or the California integrated Waste Management Board,or any of them. I Packet Pg. 845 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 suhstantial 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 contained in 40 CFR Parts 26028 1;(2) the Toxic Substances Control Act(15 U.S.C. Sections 2601 et_=_ea_)and the regulations contained in 40 CFR Parts 761-766;(3)the California Health and Safety Code,Section 25117(West 1992&Supp. 1996);(4)the California Public Resources Code, Section 40141 (West 1996); (5)CF.RCLA and regulations promulgated N thereunder and(6)future additional or substitute Applicable Law pertaining to the identification,treatment, storage or disposal of toxic substances or hazardous wastes;or(b)radioactive materials which are source. o special nuclear or by-product material as defined by the Atomic Energy Act of 1954(42 U.S.C.Section 2011 a gt seq.)and the rcgulntiuns contained in 10 CFR Pan 40. "imported Acceptable Waste" means Acceptable Waste that is generated outside of the g geographical boundaries Of tire County and delivered to the Disposal System. N N "In-County Processing Facility" means any Processing Facility located within the geographical boundaries of the County,whetbor owned and/or operated by the County,any city,or private •= 0 operator. U) `o "Independent Haulers"means those waste coltectionYhauier companies primarily engaged N as o 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. "Tenn" has the meaning specified in Section 6.}(;l)hereof, m m w "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 ° obtained or maintained by any person with respect to the Disposal System or the performance of any ;e. obligation under this Agreement or the matters covered hereby. u 0 m "Legal Proceeding" rneans every action, suit, litigation, arbitration, administrative proceeding, and other legal or equitable proceeding having a bearing upon this Agmcment. "Loss•and-Expense"means any and all loss, liability,obligation, damage, delay, penalty, r judgment,deposit,cost.expense,claim,demand, charge, tax.or expense. including all fees and costs "Out-of-County Processing Facility" means a Processing Facility located outside the 0 geographical boundaries of the County. c "Non•Divened City Acceptable Waste"mcansall City Acceptable Wasteotherthan Diverted City Acceptable Waste. m "Overdue Rate" means the post-judgment rate of interest specified by the laws of the State. 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. 846 97-371 Q "Prohibited Nledical Waste"means any medical or infectious waste prohibited or restricted under Applicable Law from being received by or disposed at the Disposal System. "Qualified Household Hazardous Waste"means waste materials determined by the Board, the EXpartment of f lealth Services,the State Water Resources Control Board,or the Air Resources Board to be: (I) Of a nature that they must be listed as hazardous in State statutes and regulations, (2) Toxic./ignitablelcortosivo reactive;and (3) Careinogenic tmutagetticlteratugcnic; E N N d which are discarded from households as opposed to businesses. Qualified Household Hazardous Waste shall 0 not include Unacceptable Waste. Q m "Residue" means any material remaining from the processing in permitted solid waste facilities or other facilities, by any means and to any extent, of City Acceptable Waste or Diverted City M Acceptable Waste. N "Resource Conservation and Recovery Act"or"RCRA means the Resource Conservation m and Recovery Act,32 U.S.C.A.Section 6991 9=.(West 1983&Supp 1989),as amended and superseded. ,3 0 "Self-Hauled Waste"means City Acceptable Waste collected and hauled by Self-Haulers. N 0 w "Self-Haulcr"means any person not engaged commercially in waste haulage who collects and hauls Acceptable Waste generated from residential or business activities conducted by such person. m m "Service Covenant"means the covenants and agreements of the County set forth in Sections � 32 and 3.3 hereof. w w 0 "State" means the State of California. 0 "Term"shall mean the Terot of this Agreement specified in Section 6.t •�_ 0 "Ton"means a"short ton"of 2,000 pounds. v "Transfer Station"means any transfer station or other waste handling or management facility to which solid waste collected for the City is delivered for transfer, processing or transformation before disposal in the disposal System. m m 'Tna«eptab)e Waste"means Hazardous W'a.stc;Hazardous Substances;Prohibited Medical o Waste; Qualified Household Hazardous Waste separated from Acceptable Waste(or otherwise identified � by the County in toads otherwise containing Acceptable Waste);explosives,ordnance,highly flammable substances,and noxious materials and lead-acid batteries(except if delivered in minimal quantities); drums a� and closed containers; liquid waste, oil, human wastes; machinery and equipment from commercial or s industrial sources,such as hardened gears,shafts,motor vehicles or major components thereof,agricultural equipment trailers,marine vessels and steel cable; hot loads; and any waste which the Disposal System is a prohibited front receiving under Applicable Law. "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 O 7 Packet Pg. 847 97-371. Oit materially acid adversely affects die ability of either pan to perform any obligation under the Agreement (except for payment obligations). if such act,event or condition is beyond the reasonable control and is not also the result of the willful or negligent act,error or omission or failure to exercise reasonable diligence on die part of the party relying thereon as justification for not performing an obligation or complying with any condition required of such parry under the Agreement; rop vided,however,that the contesting in good faith or the good faith decision riot 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: (1)an act of God, 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; N and U O L (2)a Change in Law. a A it is specifically understood that none of the following acts or conditions shall constitute Uncontrollable `m Circumstances: (a)general economic conditions,interest or inflation rates,currency fluctuations or changes 6 in the cost of fuel, the availability of commodities, supplies or cquipntenr, (b) changes in the financial condition of the County,the City or any Subcontractnr affecting their ability to perform their obligations; (c)the consequences of errors,neglect or omissions by the County,the City,or any Subcontractor of any tier in,ho Performance ofthcirobligations hereunder;(d)union work rules,requirements or demands which have v the effect of increasing the number of employees employed in connection with the Disposal System or y otherwise increase the cost to the County of operating and maintaining die Disposal System or providing the Disposal Services:(e)strikes,work stoppages or other labor disputes or disturbances occurring with respect to any activity performed or to tie performed by the City or the County or any of the City's or County's ,-`ao Subcontractors in connection with the Disposal System or the Disposal Services; (f)any failure of any m 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 late, prevailing wage law,customs y or practices on the County's construction or operating costs;or(i)changing conditions in the local,regional, w or national waste disposal market. o c 0 "Unincorporated Area" means those portions of the County which are not contained within m the jurisdictional boundaries of incorporated cities. .2 6 "Waste Disposal Covenant" means the covenants and agreements of the City set forth in Section 3.1 hereof. -It rn SfCIfON I?. jVjFRPRFfATtOti. In this Agreement, unless the context otherwise r- requires: (A)References Hereto. The terns"hereby',"licreof."herein","hereunder"and any similar terms are references to this .Agreement, and the term "hereafter" means after, and the term "heretofore" � means before,the Contract Date. d (13) Gender and Plurality, Words of the masculine gender mean and include correlative E E words of the feminine and neuter genders and words importing the singular number mean and include the plural number and vice versa. Q (C) Persons, Words importing persons include firms, companies, associations, general partnerships, limited partnerships,trusts, business trusts, corporations and other legal entities, including public bodies,as well as individuals. O $ Packet Pg. 848 97-371 © (D) Headings 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%ith 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 hereunder any rights or remedies _ under or by reason of this Agreement. S c N N (F)Counterparts. This Agreement may be executed in any number of original counterparts. u All such uxmcerparts shall constitute but one and the same Agreement o a (G) Applicable Law. This Agreement shall be governed by and construed in accordance A with the Applicable Laws of the State of California. m (H} 4CQS1[ljIli1 L'crms, All accounting terms used but riot specifically defined herein shall d be construed in accordance with.all accounting determinations hereunder w be made shall be prepared in m accordance with generally acceptable accounting principles applied on a consistent basis. 3 (I)Setwct,bi itv. If any clause. provision,subsection,Section or.Article of this Agreement un shall be ruled invalid by any court of jurisdiction,then the parties shall: (I)promptly meet and negotiate a o substitute for such clause,provision,subsection,Section or Article which shall,to the greatest extent legally N permissible,effect the intent ofthe parties therein;(2)if necessary-or desirable to accomplish item(1)above, :2 apply to the court having declared such invalidity for a judicial construction of the invalidated portion of this a O Agreement;and(3)negotiate such changes in,substitutions for or additions to the remaining provisions of this Agreement as may be necessary in addition to and in conjunction with items(1)and(2)above to effect rn the intent of the parties in the invalid provision.The invalidity of such clause,provision,subsection,Section o or Article:shall not affect any of the remaining provisions hereof.and this Agreement shall be construed and r enforced as if such invalid portion did not exist, unless such invalidity frustrates the underlying primary 4 purixrse of the Agreement, =° U (d) Integration. This Agreement contains the entire agreement between the parties with rn respect to the transactions contemplated hereby.This Agreement shall completely and fully supersede all . prior understandings and agreements between the Parties with respect to such transactions. (K)Recitals.Tice recitals to this Agreement are not intended to bind the parties hereto. in the event of a conflict between the recitals and the operative provisions of this Agreement, the operative m provisions shall prevail. The recitals shall not be used to interpret the provisions of the Agreement. Q 0 c v E s U IE Q © 9 I PacketPg. 849 97-371 oARTICLE It RF.PRESEN I'ATIONS AND WARRANTIES SECTION 2.1. REPRESENTATIONS AND WARRANTIES OF TO-01"Y. The City represents and warrants that: (A) Existence. The City is a general law or charter city validly existing under the Constitution and laws of the State. rn c (3) Due Authorization. The City has duly authorized the execution and delivery of this N Agreement and this Agreement has been duly executed and delivered by the City. 0 L {Cy g n Neither the execution nor the delivery by the City of this Agreement nor t1 the performance by the City of its obligations hereunder nor the consummation by the City of the 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, � franchise,judgment, instrument or decree to which the City is a party or by which the City or any of its properties or assets are hound,or constitutes a default under any such contract, franchise.judgment decree, m agreement or instrument. (D)10 Litigativa. There is no action.suit or other proceeding, at late or equity, before nr to by any court or Governmental Body pending or,to the Cin's beat knowledge, threatened against the City in $ which an unfavorable decision,ruling or finding which would materially and adversely affect the validity N of or enforceability of this Agreement or any other agreement or instrument to be entered into by the City ° in connection with the transactions contemplated hereby,or which would materially and adversely affect the Operformance by the City of its obligations hereunder or tinder any such other agreement or instrument. °- SECTION 2 2. REPRES) NI I IONS AND WAR12 CQlUN Y, T'he c County represents and warrams that: c 0 (A) Existence. The Count• is a political subdivision of the State of California validly existing under the Constitution and laws of the State. U- 0 rn (B)Die.Authorization. The County has duly authorized the execution and delivery of this Agreement,and this Agreement has been duly executed and delivered by the County. (C)No Conflict. Neither the execution nor the delivery by the County of this Agreement nor the performance by the Count of its obligations hereunder nor the consummation by Elie County of the rn transactions contemplated hereby(1)conflicts with, violates or results in a breach of any Applicable I_aw Q or(2)conflicts with,violates or results in a breach of any tern) or conditions of any contract, agreement, 0 franchise,judgment instrument or decree to which the County is a part'or by which the County or any of its properties or assets are bound, or constitutes a default under any such contract, franchise,judgment, c decree, agreement or instrument. E z U (D)ti+ .i igation. There is no action, suitor other proceeding,at law or equity, before or by any court or Governmental Body pending or, to the County's best knowledge, threat ened against the C County in 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 County in connection with the transactions contemplated hereby. or which would materially and O10 .,O 6.U.B 97-371 © adversely affect the performance by the County of its obli.-ations hereunder or under any such other a,greetnorq or instrurnent. rn 1 c •N N d U \ O a` R R m N A O N 0 N m O ) d R d to w O C O A O Iny a rn r CO w Q O 3 c d E U M Q g. 851 97-371 OARTICLE iii DELIVERY AND ACCEPTANCE OF WASTE AND PROVISION OF DISPOSAL SERVICE SECTION 3.L DELIVERY OF 41STE. (A)Waste Dim_- ._nnsal Cm" "I, Subject to the occurrence of the Commencement Date and throughout the Term of this Agreement,the City,shall exercise all legal and contractual power and authority which it may possess from time to time to deliver or cause the delivery of all Controllable Waste to the Disposal System in accordance herewith beginning on January 1, 1998. m (B) Diverted City Acceptable Waste. The parties hereto acknowledge the responsibility w of the City to meet the recycling and landfill diversion goals contained in the Act. Nothing in this Agreement is intended or shall be interpreted to prohibit or impair the ability of the City to meet or exceed p such responsibilities, or to restrict the right of the residents, businesses or organizations in the City to a practice source separation, source reduction,recycling. composting or other materials recovery activities, m 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 m by or on behalf of the Cin which may result from any sttch source separation or recycling program(whether or not such program meets or exceeds the diversion requirements of the Act)shall cause the City any liability hereunder and shall not constitute a breach of this Agreement. n {SECTION TO RE USED IF ALL WASTE. CURRENTLY STAYS WITHIN COUNTY] N (C) 1Vastk,�34(jyrat)u Transfer Smtion ar Praeessine Facilities. Subject to the provisions of o this Section, all Residue from any processing of Controllable Waste by materials recovery, composting, N recycling or other means, performed at in-County Processing Facilities or Out-of-County Processing p Facilities shall constitute Controllable Waste and be subject to the Waste Disposal Covenant.The County eo O specifically acknowledges that the City shall have the right to deliver or cause the delivery of City m Acceptable Waste to Out-of-County 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 y w processing or re-processing of such Residue as long as such Residue from Out-of-County Processing ° Facilities does not exceed. in any Contract Year,the lesser of(i) .10% of the amount of City Acceptable o Waste delivered to such Out-of-County Processing Facility in such Contract Year or(ii)2%of the total m amount of Controllable Waste generated in the City during such Contract Year.To the extent that Residue v from the processing of Controllable Waste exceeds the amount specified in the prectxling sentence,the City to stool exercise all legal and eontractuni authority which it may passers f um time to time to require that such excess Residue be delivered to the Disposal System, and shalt include a requirement to that etfeot in any N contracts, agreements or other arrangements for processing at Out-of-County Proeessing Facilities which O it enters into or amends after the Contract Date. Where City Acceptable Waste is processed at an In-County or Out-of-County Processing Facility which concurrently processes other Acceptable Waste in a manner m which produces commingled residue which cannot be traced to a gLographic source,generic residues from such Processing Facility in I omaage equal to the residues that would have been produced had City p Acceptable Waste ono%'been processed at 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,l(Q-)Such generic residues shall be d delivered to the Disposal System redntlarly, in approximately the same frequency as deliveries of City Acceptable Waste to the Processing Facility. (In nmking any determination of Residue attributable to the M City. the City may rely on the reports or certifications of the owner or operator of the Transfer Station or Q Processing Facility.) (FOLLOWING SECTION TO RE USED IF WASTE CURRENTLY PROCF.ssm OUT-OF- COUNTY j C 12 97-371. o (C) ered to Transfer Station or Processing Facilities. 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 to-Cowry 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 ofa franchise,contract or 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 1, 1497,and is,as of the Contract Date being actually delivered to an Out-of County Processing Facility pursuant to such franchise, contract or other agreement. With respect to the portion of Controllable Waste which is subject to the franchise,contract or other agreement described in this Section the City is not obligated to require that Residue from sueh Out-af-C'ounty Processing Facilities be N 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 excead;in any Contract Year,the lesser of(i) o 40%of the amount of City Acceptable Waste delivered to such Out-of-County Processing Facility in such n. Contract Year or (ii) 7% of die total amount of Controllable Waste generated in the City during such m Contract Year. However, the City agrees that upon the expiration date of such franchise, contract or d agreement (as 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 Processing Facilities be delivered to the Disposal System.after final processing or re-processing of.such R Residue as long as such 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 Contract Year or(ii)2.5 of the total amount of Controllable Waste generated in rn the City during such Contract Year To the extent that Residue from the processing of Controllable Waste o exceeds the arnount specified in this Section.the City shall exercise all legal and contractual authonty which N it may possess from to time to time to require that such excess Residue be delivered to the Disposal System. :° and shall include a requirement to that effect in any contracts, agreements or other arrangements for m o processing at Out-of-County Processing Facilities which it enters into or amends after the Contract Date. m Where City Acceptable Waste is processed at an in-County or Out-of-County Prnxossing Facility which concurrently processes other Acceptable Waste in a manner which producers commingled residue which cannot be traced to a geographic source.generic residues from such Processing Facility in Tonnage equal 0 to the residues that could have been produced had City Acceptable Waste only been processed at the facility 2 shalt constitute Controllable Waste and be subject to the Waste Disposal Covenant(subject to the exclusion g front Contrtllable Waste of the amounts of Residue from Out-of-County Proemlog Facilities specified this Section "A(C).)Such ge�tteric residues shall be delivered to the Disposal System regularly; in approximately' o rn the same frequency as deliveries of City Acceptable Waste to the Processing Facility. (in making any determination of ioithic attributable to the City,the City may rely on the reports or certifications of the V owner or operator of the Transfer Station or Processing Facility.) v r (D) pgLi_er to Obligate Waste Disiiosnl cad Cunr 4,jtli tjtiS..LSgreement.On or before ei rn January t. 1998,(i)any City franchise,contract,lease-or other agreement which is lawfully in effect relating 4 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 3 Controllable Waste to a disposal location selected by the C it),(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 Haulers,(ii)the City shall designate the Designated Disposat Site as the disposal location pursuant to such franchise,contract. g Icasc or other agreement and(iii) the City's Franchise I lauter shall execute the Hauler Acknowledgment attached hereto as Appendix 2.pursuant to which the Franchise Hauler acknowledges the City's execution of this Agreement,and agrees to comply with the Waste Disposal Covenant. Throughout the Term of this Agreement the City(a)shall not enter into any franchise,contract,lease,agreement or obligation, issue any permit,license or approval,or adopt any ordinance,resolution or taw which is materially inconsistent with 13 O 97-371 Othe 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. is of the Contract Date, is subject to non-exclusive or exclusive franchise or other contractual arrangements.The City agrees that the County shall be a third party beneficiary of the obligation of Franchise Haulers to deliver Controllablo Waste to the Disposal System,and may directly enforce such obligation through 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 Franchise i lauler of the County's third party beneficiary rights. .N (E) Waste Flow Enforcement. The City,in cooperation with the County,shall establish, d implement. carry out and enforce a waste flow enforcement program which is sufficient to assure the p delivery of all Controllable Waste to the Disposal System pursuant to and in accordance with the Waste a Disposal Covenant for disposal at the times and in the manner provided herein. The waste flow enforcement m program shall consist of amending City franchises with al l Franchise Hauters, to the extent required by this am sct don•and shall include in addition,to the extent necessary and appropriate in the circumstances to assure compliance with the Waste Disposal Covenant. but shall not be limited to: (1) licensing or permitting m Franchise Haulers.upon the condition of compliance with the Waste Disposal Covenant,(2)providing for R and taking appropriate enforcement action under any such franchise, license, or permit, such as but not 3: limited to the suspension,revocation and termination of collection rights and privileges,the imposition of 2 fines orcollecuon ofdamages,and the exercise of injunctive relief against non-complying Franchise Haulers in and (3) causing any Cransfer Station to which Controllable Waste is delivered for processing to deliver o certification, under the penalty of perjury, of the amounts of Controllable Waste received and Residue N remaining from processing at such Transfer Station. "The City acknowledges and agrees that in the event of p a breach of the Waste Disposal Covenant by the City,the City shall pay the County an amount equal to 100% m �\ multiplied by the Contract Rate in effect at the time of such breach multiplied)by the number of tons of m [�dr Controllable Wasfe which were not delivered to the Disposal System as a result of the failure of the City to d comply with the Waste Disposal Covenant.The parties recolmize that if the City fails to meet its obligations n w hereunder, the County will suffer damages and that it is and will be impracticable and extremely difficult to ascertain and determine the exact amount of such damages. Therefore,the parties agree that the damages o specified above represent a reasonable estimate of the amount of such damages, considering all of the m circumstances existing on the date hereto,including the relationship of the sinus to the range of harm to the 'o County that reasonably could be anticipated and anticipation that proof of actual damages would be costly rn or inconvenient.in signing this,i._mcement,each party specifically confirms the accuracy of the statements made above and the fact that each party had ample opportunity to consult with legal counsel and obtain an explanation of this liquidated damage provision at the time that this Agreement was made. r (F) Leza(-011 to Franchise System. The City' shall use its best efforts to preserve,protect 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 3 other person,based upon breach of contract.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 Legal E Proceeding relating to the Waste Disposal Covenant or the City's exercise thereof establishes in a final r determination that such covenant or exercise thereof is void,unlawful or unenforceable,or if any Franchise Hauler fails to deliver Controllable Waste to the Disposal System in breach of its franchise with the City on Q 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 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 O 14 Packet Pg. 854 1 97-371 Disposal System during the preceding Contract Year, the County shall be entitled to terminate this Agreement upon 60 days prior written notice to fie 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 the 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. (G) Franchise Haulers The City shall compile and provide the County with Tile following information concerning all Franchise Haulers: name,address and phone number; identification F number; area of collection and transportation:and franchise and permit terms. m U O (Pl) \V �htfsmn,ZtittnSXst�m. The City shall cooperate with the County in collecting a` information and otherwise monitoring Franchise Haulers in order to assure compliance with dtis Agreement. m Such information may include,to the extent practicable, data pertaining to Controllable Waste collected, `m transported, stored, processed and disposed of, Diverted Citv Acceptable Waste collected, transported, 0 stored, processed and marketed or disposed of, Franchise Platters' franchise, permit or license terms, m collection areas,transportation routes and compliance with Applicable Law:and all other information which may reasonably be required by the County in connection with this Agreement, 3 v (1) City Actions Affecting County The City agrees not to conduct any disposal services rn for Controllable Waste to be provided in competition with the Disposal Services provided by the County o hereunder,and not to take or omit to take any action with respect to Contrullable Waste or its collection, m transportation,transfer,suxage,treatment or disposal that may materially and adversely affect the County's v ability to achieve such timely compliance. The County acknowledges that development by the City (or ea o cooperation by the City in connection with the private development of) any materials recovery facility or m transfer station located ithin or without the City shall not violate the provisions of this section as long as m w die ultimate disposal site for any Controllable Waste(or Residue therefrom) which is delivered to such in materials recovery taciliry or transfer station is the Disposal System,Notwithskutding the foregoing,the City O Shall not be required to(i)approve or deity any permit or license or grant or refuse to grant any approval o while exercising its police powers or(ii)waive,mortify or otherwise limit in any manner the City's land use m authorih U, _ 6 (i) NoRiplptof Waste Substitution. Nothing in this Agreement shall authorizeor entitle N the City to deliver or cause the delivery to the Disposal System of Acceptable Waste originating from or N generated outside the jurisdiction of the City, nor obligate the County to receive or dispose of any such r Acceptable Waste, The City shall not assign in whole or in part its right to deliver or cause to be delivered Controllable Waste to the County hereunder_and&hail not permit any Acceptable Waste originating from or generated outside the jurisdiction of the City to be substituted for Controllable Waste for any purpose hereunder. Cl (K) Annexations and Restructurine. It is the intention of the parties that this Agreement and the obligations slid rights of the City hereunder,including particularly the Waste Disposal Covenant and d the Contract Rate, shall,to the extent permitted by Applicable Law' (and subject to any rights of waste t haulers operating in such areas prior to such annexation),extend to any territory annexed by the City(or any m territory with respect to which the City assumes solid waste management responsibility frown a sanitary Q 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. 0 13 97-371 O SECTION 3.2. PROVISION OF DISPOSAL SERVICES BY THE COUNTY:(A)Service CimalafLi. Commencing January 1, 1998,the County shall provide or cause the provision of the service of O)receiving and disposing of all Controllable Waste at the Designated Disposal Facility,(2)disposing in accordance with subsection 3?fC)hereof of 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 3.3(C)hereof,disposing of Unacceptable Waste inadvertently accepted at the Designated Disposal Facility. The County shall do and perform all acts and things which may be necessary or desirable in connection with its covenants in this subsection, including without limitation all planning, development, administration, implementation,construction,operation, maintenance,management, financing and contract work related thereto or undertaken in connection therewith. The County shall exercise all reasonable efforts to minimize N the costs incurred in complying with the Service Covenant consistent with its responsibilities hereunder and m under this Agreement, Applicable Law and prudent solid waste management practice and environmental o considerations, so as to enable the County to provide the services hereunder at the Contract Rate. a m (B) Tem}torarY-linav i18hi1ita of Desi vii$led D,V.Qs l FyciIity: Provision of Transfer d t'< 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 in m receive Controllable Waste at the Designated Disposal Facility, its effect on the County's ability to perform its obligations hereunder,and the County's best estimate of the probable duration. The County shall confirm such advice in writing within 24 hours of the occurrence of any such inability. TTte County shall use its best efforts to resume normal operation of the Designated Disposal Facility as soon as possible in accordance r° with subsection 3.2(C) hereof, In the event that, any time during the term hereof.the County is unable to 0 accept City Acceptable Waste for disposal at any particular Designated Disposal Facility for a period in N excess of 14 consecutive days, it shall nonetheless provide sufficient transfer capacity at such Designated 6 Disposal Facility, and shall accept tar transfer and disposal City Acceptable Waste at such Designated m a O Disposal Facility for the Contract Rate. In the event that the County cannot provide such transfer capacity, m it shall be obligated to accept suoh City Acceptable Waste at another facility within the Disposal System and y to reimburse the City for any increased transportation cost(including without limitation, equipment rental w costs,overtime and increased fuel costs resulting from the unavailability of the Designated Disposal Facility) o c incurred by the City or the Franchise Haulers in transporting City Acceptable Waste to another disposal 4 facility within the Disposal System.In the event that the County cannot provide disposal capacity at another 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 increasul fuel costs o rn resorting from the unavailability of the Designated Disposal Facility) incurred by the City or the Franchise Haulers in transporting City-Acceptable Waste to any other disposal facility used by the City or Franchise Harder and(ii)the amount, if arty.by which the tipping fee at the alternative facility utilized by the City or Franchise Hauler(because of the unavailability of any tacilily within the Disposal System)exceeds the then r- current Contract Rate.The invoice shall include reasonable suhslantiation of the amount invoiced. o' rn (C) Termination by Counly m Certain Circumstances, in the event that the Designated Disposal p Facility becomes unavailable pursuant to Section 32(B) for a period exceeding id days,the County shall have the right to terminate this Agreement pursuant to this Section.The County may exercise such right by j providing 10 days prior wTittcn notice thereof to the City. In the event that the County exercises such right, a the County shall be obligated to pay the City an amount equal to(i)any aggregate increased transportation cost(including without limitation,equipment rental costs,overtime and increased fuel costs resulting from the unavailability of the Designated Disposal Facility)reasonably expected to be incurred by the City or the Q l Franchise Haulers in transporting City Acceptable Waste to any other disposal facility used by the City or Franchise Hauler for a period of one year following 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 i of the unavailability of any facility within the Disposal System)is reasonably expected to exceed the then 1 V PackefPg.856 97-371 ocurrent Contract Rate for a period of one year following the date of termination. Stich amounts shall be payable by the County within 60 day s of the date of termination. (D) Change in Designated Dis"al Facilitv by Mutual Consent. The Designated Disposal Facility has been initially designated in Appendix I hereto. The Designated Disposal Facility may be changed, and other Designated Disposal Facilities added, at any time with the mutual consent of the parties. (E) CJt anAe in Designated Disposal Facility at City Reiluest, In the event the City 0 wishes to change the Designated Disposal Facility to another Disposal System Component,the City shall N provide written notice and the reasons therefor to the County, and shall indicate whether the requested change is pcnnanent or temporary, The County shall consider any such request in good faith and provide c a response to the City within la days, taking into account the reasons fur the request, the County's a` obligations to other cities which have executed Disposal Agreements,the requirements of Applicable Law, E and the implications of any such change for the Disposal System as a whole. The County shall honor any d such request to the extent commercially practicable based on such considerations and the overall interests m Of the Disposal System. N t6 (F) Annual Notification of Remaining 1isposal Capacity,. At the end of each Contract ?� Year,the ON shall advise the County in writing as to the expected delivery levels of Controllable Waste v during the next Contract Year,and the County shalt submit to the City a statement specifying(l)the amount o of disposal capacity at the Designated Disposal Facili ty expected to be available for use by the City during o the next Contract Year,(2)the aggregate amount of Disposal System capacity expected to be available for use by the cities which have executed Disposal Agreements during the remaining Tenn of this Agreement a and (3) any plans the County may have with respect to redestgnating the Designated Disposal Facility, to © increasing or decreasing the number of cities using the Designated Disposal Facility, or curtailing or m espatiding the use of the Designated Disposal Facility.The annual notification to be provided by the County y pursuant to this Section shall also describe the status of any permits required with respect to the Designated rn Disposal Facility, including a description of any permit revisions expected to be proposed by the Ccumy; and (ii) any abatement orders or other permit compliance or enforcement actions taken or proposed by o Governmental Bodies. U SECTION 3.3. COUNTY RIG14T TO REFUSE WASTE. (A) Rjght .y f Reftisat. rn Noavithstanding any other provision hereof,the County may refuse delivery of: v N (1) Unacceptable Waste;and (2) Controllable Waste delivered at hours other than those provided in the facility. r` operating pennit. (fi)identification of hnaccg1ji,t�)s • the County shall have the right(but not the duty or the obligation)to inspect the vehicles of all Franchise Haulers delivering material to the Disposal System, and may require that the Franchise Hauler remove any Unacceptable Waste from such vehicle before it is unloaded.If the County determines that it is impractical to separate Controllable Waste from Unacceptable E Waste in any vehicle,or if the Franchise Hauler delivering such waste is unwilling to make such separation, r or if any vehicle is carrying waste which may spill or leak,then the County may reject the entire vehicle,and m the County shall require that the Franchise Hauler shall forthwith remove or cause the removal of the entire a delivery from the Disposal System. (C) Hazard us 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 any manner or to any 17 g. 857 97-371 Qextent. 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 Dkposat System. (D) (1)'; 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 landfill within the Disposal System County personnel will use reasonable efforts to assure that such material has been characterized, properly secured and its disposition resolved. The return or reloading on to the delivery vehicle of any Hazardous Waste.Prohibited Medical E Waste or other wasfe requiriruz handling or transportation shall be conducted in accordance with Applicable Law, Whenever Hazardous Waste is detected at any landfill within the Disposal System, the County shall p take immediate action in accordance with Applicable Law, In addition, if tire County inadvertently accepts a Unacceptable Waste, it shall have the right to pursue any remedies which it may against the person R delivering such Unacceptable Waste to recoup the cost of handling and property disposing of such `m Unacceptable Waste. 2 d (E) Environmental Insurance. Prior to the Contract Date, the County witl obtain insurance for potential CERCLA or other environmental liability of the Disposal System,in an amount equal �y to$10,000,000 with deductibles of. (i) $1,000,000 for events giving rise to coverage which events occurred a prior to October 1, t995 and iii),33'_50,000 for events giving rise to coverage which events occurred on or to after October 1, 1995. Me County shall maintain comparable insurance throughout the term hereof so long as commercially available on reasonable terms,as detenn ined in the reasonable discretion of the County risk N manager. The County shall notify the City in tite event that the County does not maintain the insurance described in this Section. to O m SECTION 3.4. NfflSCELLANEOUS OP .RATIONAL_ ]fj $ .(A)Permit Revision_ 16 v nr Stinulatcd.QIS.9r:.The County shall provide the City with any application of the County to revise the in Legal Entitlements for the Designated Disposal facility (or any draft or final stipulated notice and order o rotating to the Designated Disposal Facility which may be under consideration by the local enforcement o agency with jurisdiction over the Designated Disposal Facility). Such applications shall be prov idol to the @ City concurrently with its submittal to the appropriate regulatory agency. 0 (B)Scales and \l'gj",,The County shall operate and maintain permanent scales at the Disposal System in e0inpliance with Applicable Law. The County shall weigh all vehicles delivering Controllable Waste by or on behalf of the City(whether or not the County accepts such waste)and prepare r a daily weight record with regard to such delivery.(In the event that scales are temporarily unavailable, the County shall reasonably estimate the wei..ght of Controllable Waste delivered by volume.) m m SECTiON 3.5. OTHEB_t)SEKS OF TII ' DISPOSAL SYSTEM. (A) G,rlS,. The p 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 morc 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 first offered the City such more favorable contract(or amendments to this Agreement). i Q (B) Receipt of immured A"colable Waste on a Contract Basis,The County shalt have the right to enter into a contract or other agreement with any municipal or private non-County cutely for the delivery of imported Acceptable Waste on terms 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 C 18 Packet Pg.858 97-371 Chave executed Disposal Agreements. The County shall not enter into any 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. SECTION 3.6, COUNTY PROVISION OF WASTE DIVERSION SERVICES, (A)County-Wide Recycling Services. This Agreement does not require the County to provide for any source reduction, materials recovery,recycling, composting,or other waste diversion services by the County nor N any payment therefor by the City,by Franchise Haulers or by ratepayers; provided, however,any County- v Wide Recycling Services, or recycling services provided at any Designated Disposal Facility (such as o providing drop boxes for wood waste,green-waste or other recyclable materials delivered to such Designated ti Disposal Facility), may be funded through the County Waste Management Enterprise Fund. Any such m recycling services may be expanded,contracted or modified by the County at any time in its sole discretion. m m (A) Se ate C4Sounty Diversion Service Agreements. Nothing in this Agreement is intended to limit the right of the County to enter into a separate agreement with the City or any other @ person to provide source reduction, materials recovery, recycling, composting or other waste diversion 3 services. Any such program conducted by the County,whether in participation with the City,any other of the cities which have executed Disposal Agreements, other cities, Sanitary Districts. Transfer Stations, Independent Haulers,Unincorporated Area or non-County entity.shall be operated,managed and accounted o for as a program separate and distinct from the Disposal Services program contemplated by the Disposal m Agreements and shall not he funded titrouah the general revenues of the Disposal System. ? to O (C) Diversion Programs in Ilnincor4Wlated_,ALk,4j. To the extent the County implements m diversion or other related programs in the Unincorporated Area of the County,the cost oi'suoh diversion programs shall he paid by the residences and businesses receiving the benefit of such diversion programs, and shall not he payable from the revenues of the Disposal System. r 0 m U O rn a N n m m Q c d E s u Q 19 PacketPg. 859 6.U.B 97-371. ARTICLE IV CONTRACT RATE SECTiON4.f. gI{ARGING AND SECURING PA"e IRNTOFCONlRACTRATE. 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 to the System by any Franchise Hauler. The Contract Rate shall he calculated and established,and may be modified,as provided in Section 4.2 hereof in addition,rile City acknowledges that the County shall have the right to establish as part of the operating 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 S materials,such as bulky materials,construction and demolition debris,tires and sludge.Such special charges shall be calculated to reflect the reasonable incremental costs to the County of accepting such bard to handle p L materials. a m SECTION 4.2. CDNJR&CLZAI'E. (A) Generally. Effective January 1, 1998, the v Contract Rate payable by each Franchise Hauler shall be S211.50 per ton,subject to potential adjustment c necessary to reflect the circumstances set forth below: d m (i) increased costs incurred by the County (in excess of available insurance proceeds) 3 due to the occurrence of one or more Uncontrollable Circumstances, including Change,in Law;and a o to (ii) mc-aladon during the Term of this Agreement calculated in accordance with Section o 4?(B). N a Prior to adjusting the Contract Rate as a result of any of the circumstances described in to /tttt� Section 4.2(Axi),the County shall utilize the following remedy: reduce the costs of operating the Disposal m System to the extent practicable. w Any adjustments to the Contract Rate permitted by this Section 4.2(A)(i)shall be calculated by the Comity to reflect the actual costs or expense; of addressing the circumstance or circumstances o pursuant to which the adjustment is authorized,and shall also reflect,where applicable, Ate then remaining m capacity in the Disposal System.Such adjustment may not reflect cittmurnstances other than the circumstances n described in Section 4.2(A)(i). o to (B) ['etculation of Escalation. For purposes of Section 4.2(A)(ii), the Contract Rate shall be adjusted in accordance with the formula described in this Section each July I during the term hereof, r commencing July t, 1999.The adjustment shall be calculated in accordance with the following formula: r rn rn Contract Rate= Fixed Portion + [Escalating Portion x Index] Q Where. 3 c Fixed Portion E E Escalating Portion - S17,63 � a index Price Index, which shall be determined in accordance with the following formula I .7[PYI,/PI't;j+•.3[F:h/EI,) 20 MEN 97••371 oPPI, _ 'rile Producer Price Index,Industrial Commodities,as published by the United States Npartment of Labor Statistics in the publication Prnd+rcer Price Indices.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 February, 1998 N E1, Employment Cost Index,Compensation,Private Industry Workers. as published by the United States Department of Labor Statistics in the publication k rn h v "atLr-Rovielv, Table 22 for the last a quarter of the year preceding the year the adjustment is being made R the first adjustment will use the last quarter, 1998 value) ` f e R Ell m Employment Cost Index,Compensation,Private Industry Workers � established for the last quarter of 1997 If the Employment Cost Index or Producer Price Index are no longer published,or are otherwise o unavailable, then the Cost of Living Adjustment shall be dctemrined by using standard official statistics N measuring changes to,respectiveiv, labor costs and cost of materials, as the parties shall mutually agree. c w N (C) Procedure for Raze 4diusunents. In the avert the County determines that it is v entitled to an adjustment of die Contract Rate pursuant to Section 4.2(A)(i), it shall utilize the procedures m o described in this Section 4?(C). The County shall be required to provide the City with at least 60 days prior T written notice of the adjustmenc which notice shall identify the specific event(s)or circumstances which require the adjustment. The notice shalt also specify the earliest date on which time County Board of m Supervisors shall consider the proposed adjustment_ At least 45 days prior to such meeting of the Board of o Supervisors,the County shall provide the City with a report which shall contain the following information! o a description of the specific event(s)or circumstances which require the adjustment;a description(including m cost estimates) of ally activities (which may include, but not be limited to capital improvements to the u Disposal System)required in order to remedy such event or circumstance;certification by the County that to it has implemented the remedy described in Section 4,2 prior to requiring the rate adjustment; and a description of the methodology used by the County to calculate the adjustment to the Contract Rate N (hereinafter the"County Report''). In the event the City disputes the adjustment,it shall provide the 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 shall be provided to the Board of Supervisors for consideration at such meeting in connection with the proposed rate adjustment. At arty time from anti after the date that the County provides the City with the Qo County Report, upon the request of either parry,the City and County shall meet and confer in good faith to resolve any dispute that may arise regarding 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 E become effective on the date identified in the initial notice sent by the County, but subject to potential s reimbursement pursuant to Section 4,2(D). m (D) In the event that the City challenges it Rate Adjustment made pursuant to Section 4.2(A)and a court of applicable jurisdiction determines that any portion of the 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 Packet Pg. 861 97-371 © calculated at the Overdue Rate. Such reimbursement may be made in the form of a reduction in the Contract Rate for a future period reasonably calculated to provide full reimbursement of the amounts described above. SF.CTION1.3. RFSPO\SIHII I'fY FOR PAYWIiNTSOFTHECONTR ACT.(A)P_ayMtcpl by Cin. In the event and to the extent(l)the City uses municipal collection forces directly For the haulage of Controllable Waste to the Disposal System or(3) the City uses non-mnnictpal 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 action as may be necessary to provide for the timely payment of the Contract Rate. Such action may include, depending upon the means authorized by the City to provide for such payment,the levy and collection of y general or special taxes, the imposition of benefit assessments, or the collection of user fees, generator charges or other similar impositions for municipal solid waste disposal. The City shall use best efforts in o accordance with Applicable Law to levy and impose all such taxes, assessments,fees or charges,and will a take all steps, actions and proceedings fur the enforcement, collection and payment of all such amounts R which shall become delinquent,to the full extent permitted by Applicable Law. To the extent provided in Section 75 hereof, the obligation of the City for such Contract Rate or Transfer Rates shall be limited to @ amounts in the City's Solid Waste Enterprise Fund. From the Commencement Date to the date of expiration d or termination of this Agreement,the obligation of the City to pay the Contract Rate or Transfer Rate.to the extent the City rather than Franchise Haulers is responsible directly for payment and provided that the Service Covenant has been complied with, shall be absolute and unconditional and shall mat be subject to M delay or diminution by reason of set-tiff.abatentent,counterclaim:existence of a dispute or otherwise.'rhe n obligation of the City hereunder shall be limited in all circumstances to amounts available in any enterprise o fond created by the City for solid waste management purposes, and there shall be no recourse hereunder N against the City's general hard or other funds-not related to solid waste management purposes for amounts v owed by the City hereunder. m v O (B) Payment by Franchise Haulers. With respect to Controllable Waste delivered by ai Franchise Flaulers ether than City municipal collection fortes,the obligation to pay the Contract Rate shall m rest IN ith such Franchise Haulers and not with the City and,unless the City has agreed with the County to 0 he responsible for franchise Hauler payments,the City shall not be financially responsible for any delay or o failure by such Franchise Hauler to pay the Contract Rate nr any portion thereof when due, In the event of m any such failure,the County and the City shall cooperate with each other and use their best efforts to obtain 'u timely payment. Such efforts by the County may include, as appropriate, requiring cash payments for y disposal rights from such franchise Hauler and bringing a legal proceeding for payment and damages. Such efforts by the City shall include, as appropriate, legal proceedings to suspend, revoke or terminate the Franchise Haulees franchise,permit or license rights. (C) Disputes. If the City or the Franchise Hauler disputes any amount billed by the County in any Billing Statement,the City or the Franchise Hauler shall nonetheless pay undisputed amounts identified on such Rilling Statement and shall provide the County with written objection within 30 days of o the receipt of such Billing Statement indicating the amount that is being disputed and providing all reasons then known to the City or the Franchise Hauler for any objection to or disagreement with such amount. Fhe County shall then respond to such written objection(providing additional documentation substantiating the amount disputed if applicable)within 30 days of receipt of the written objection.If the City or the Franchise E Hauler and the County are not able to resolve such dispute within 30 days after the County's response,either m party may pursue appropriate legal remedies. In addition, in the event of nonpayment by the City or Q 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 subsecluent deliveries. 22 g. 862 97-371 O SECTION 4.4. BILLING OF THE CONTRACT RATE.•Ihe County shall continue to bill Contract Rate after January 1. 1998, in the saute 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 on reasonable notice to affected parties. SECTION 4.5. $00(,11) WASTE DISPOSAL FEE OPTION. Notwithstanding the other provisions of this Article TV,City shall have the option to adopt the following procedure: rn City agrees that it or its Franchise Hauler will pay the then current Solid Waste Disposal Fee(which Fee is, c .N at this time,set forth in Section 16.0222 of the County Code),as same may be amended from time to time, m relative to the City's Controllable Waste delivered to the Disposal System. In turn,the City wilt receive a o monthly payment from the County equal to the product of. the City's Controllable Waste delivered to the a Disposal System for the month in question multiplied by the difference between the then current Solid m Waste Disposal Fee and the then current Contract Rate (as the Contract Rate is determined under the `m provisions of this Agreement). City acknowledges that the County shall have the right to establish as part 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 m Waste Disposal Fee. v City shall elect the option set forth in this Section 4.5 by notifying the County of such election as provided N in Section 7.16. The election shall be effective on the first day of the second month following receipt of the notice by County. ° N 9 m L © N n N 0 O C O U_ O U) V T Ot _m Q O G a) >_ L U t6 Q O 23 Packet Pg. 863 97-371. ARTICLE I BREACH,ENFORCEMENT AND TERNHNATION SF,CTiON 5.1. BREACH: RENIEDIU.'The parties 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 pam breaches any obligation under this Agreement or any representation made by either party hereunder is untrue in any material respect,the other parry shall have the right to take any action at law or in equity(including actions for injunctive relief,mandamus and specific performance)it may have to enforce the payment of any amounts due or the performance of any obligations m to be performed hereunder. Neither party shall have the right to terminate this Agreement except as provided y in Section 3.1M. Section 3.(C). Section 5.2 and Section 5.3 hereof or as otherwise provided in this U Agreement. o EL SECTION 5.1. Cl'[Y CONVFNIGNC)~ TF.RivflyATION.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 d Term hereof upon 90 days' written notice to the County. If the City exercises its rights to terminnte the m Agreement pursuant to this-Section, the City shall pay the County a termination fee equal to(x) 514.25 � multiplied by (y) the amount of Controllable Waste delivered to the Disposal System during the prior Contract Year multiplied by(z)remaining term of the Waste Disposal Agreement,stated in years(assuming such termination for convenience did not occur).Upon any termination by the City pursuant to the provisions 'a of this Section, the obligations of the County pursuant to Section '.3 hereof shall not survive such w termination, notwithstanding Section 6.l(B). `o w N SECTION 5.3. TI"RMI T_TfON. (A)By City. Except as expressly provided herein,the a City shall have no right to terminate this Agreement for cause except in the event of the repeated failure or 00 O refusal by the County substantially to perform any material obligation under this Agreement unless such m failure or rcfwsal is excused by an Uncontrollable Circumstance:except that no such failure or refusal shall give the C.ity the right to terminate this Agreement for cause under this subsection unless 0 (1) The City has given prior written notice to the County stating that a specified failure s=o or refusal to perform exists which will, unless corrected, constitute a material breach of this m Agreement oil the pan of the County and which will. in its opinion, give the City the right to v terminate this Agreement for cause under this subsection unless such breach is corrected within a to reasonable period of time,and e m (2) The County has neither challenged in an appropriate forum (in accordance with r Section 5.6)the City's conclusion that such failure or refhsal to perform has occurred or constitutes r a material breach of this Agreement nor corrected or diligently taken steps to correct such breach m within a reasonable period of time not more than 90 days from the date of the notice given pursuant to clause(1)of this subsection(bat if the County shall have diligently taken steps to correct such p breach w ithin such reasonable period of time,the same shall not constitute a breach giving rise to the right of termination for as tong as the County is continuing to take such steps to correct such breach). E r (B) By County. Except as expressly provided herein,the County shall have no right to m terminate this Agreement for cause except in the event of the repeated failure or refusal by the City Q substantially to perforttr any material obligation under this Agreement unless such failure or refusal is excused by an Uncontrollable Circumstance;except that no such failure or refusal shall give the County the right to terminate this Agreement for cause under this subsection unless: © 24 I Packet Pg. 864 97-371 © (1) The County has given prior written notice to the City stating that a specified failure or refusal to perform exists which will. unless corrected, constitute a material breach of this Agreement on the part 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 material breach of this Agreement nor corrected 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 N to clause(1)of this subsection(but if the City shall have diligently taken steps to correct such breach within such reasonable period of time,the same shall not constitute a breach giving rise to the right o of termination for as long as the City is continuing to take such steps to correct such breach), a m SECTION 3.4. 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 m g ' (� g g' � a waiver by either party of the other party's compliance with any term or provision of this Agreement. No m 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. 3 No single or partial exercise of(or failure to exercise)any right power or remedy of the County or the Cih °- under this Agreement shall preclude any ether or further exercise thereof of the exercise of any other right, rn power or remedy. `o N SECTION 5.5 DAMAGES.(A)Cjsy. In the event that the City terminates the Agreement pursuant to Section 5.3(.A),the Court shall be obligated to t to the City as damages the amount by which a� O E County g y Y g the City's reasonably expected cost of transporting and disposing of City Acceptable Waste(For a period commencing on the date of termination and ending one year after such date of termination)exceeds the rn aggregate Contract Rate that would have been payable with respect to such City.Acceptable Waste had the o County met its obligations hereunder and the Agreement had not been terminated. 0 (B)Coitritv.In the event that the County terminates the Agreement pursuant to Section 5.3(8),the City shall par 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 r°p during the preceding twelve months. v SECTION 5.6. FORUM FOR DISPUTE RE,$C)(.t f' . It is the express intention of the parties that all legal actions and proceedings related to this Agreement or to the Disposal System or to any rights or any relationship between the parties arising therefrom shall be solely and exclusively initiated and rn maintained in courts of the State of California having appropriate jurisdiction. Q c m E r U Q O 25 5 97-371 l ARTICLE ll ``•� TERM SECTION 6.1. FFEECTIV . DATE AND TERNI. (A) J=. This Agreement shall become effective,shall he 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. (B) Survival* Accrued Rights. The rights and obligations of the patties hereto pursuant to rn Sections 3.1(E). 5.1, 5.3, 5.5, 7.2. 73, 7.5,7.7, 7.8, 7.9,and 7.10 hereof shall survive the termination or e N expiration of this Agreement, and no such termination or expiration shall limit or otherwise affect the m respective rights and obligations of the parties hereto accrued prior to the date of such termination or c expiration provided. however,that Section 7.3 shall not survive if the termination of the Waste Disposal a Agreement is due to the occurrence of an Event of Default on the par of the City. At the end of the'ferm m of this Agreement,all other obligations of the parties shall terminate. m m m N R O to O w N L to a m m N 0 s= 0 U O rn C n m rn Q 3 d E s U R Q PacketPg. 866 17-371. Q ARTICLE ITT GENERAL PROVTSTONS SECTION 7.1. OP£RATION AND MAINTENANCE OF'11117 DISPOSAL SYSTEM. The County,at its cost and expense through the Counry Solid Waste Enterprise Fund, shall at all times operate. or cause to be operated,the Disposal System in accordance with Applicable Law and the operating rules and regulations of the County. SECTION 7.2. UNCONTROLLABLE ABl E CIRCUMSTANCES GENERALLY, a (A)Rafotrttance Excused. Except as otherwise specifically provided in this Agreement,neither the County w nor the City shall be liable to the other for any failure or delay in the performance of any obligation under m this Agreement(other than any payment at the time due and owing)to the extent such failure or delay is due o to the occurrence of an Uncontrollable Circumstance. a m (B) Notice Mitigation_ 'lTe party experiencing an Uncontrollable Circumstance shall m notify the other party by telecommunication or telephone and in writing,on or promptly after the date the a pwty experiencing such Uncontrollable Circumstance first knew of the commencement thereof, followed within IS days by a written description of(1)the Uncontrollable Circumstance and the cause thereof(to the m extent known). (2) the date the Cncontrollablc Circumstance began and the cause thereof, its estimated duration, the estimated time during which the performance of such party's obligations hereunder will be v delayed,(3)the estimated amount,if any,by which the Contract Rate may need to be adjusted as a result of n such Uncontrollable Circumstance.(4)its estimated impact on the other obligations of such party tinder this Agreement and(S)potential mitigating actions which might be taken by the County or City and any areas ° where costs might be reduced and the approximate amount of such cost reductions, Each party shalt provide v prompt written notice of the cessation of such Uncontrollable Circumstance. Whenever such act,event or m © condition shall occur,the party claiming to be adversely affected thereby shall,as promptly as reasonably d possible,use its best efforts to eliminate the cause therefor.reduce costs and resume performance under this Agreement. In addition, with respect to Changes in Law, the County shall diligently contest any such rn changes the imposition of which would have a material adverse impact on the Disposal System.While the delay continues, the County, or City shall give notice to the outer party. before the first day of each .2 succeeding month, updating the information previously submitted. U (C) Impact on Contract Rate. If and to the extent that Uncontrollable Circumstances to interfere with,delay or increase the.cost m the County of meeting its obligations hereunder and providing .. Disposal Services to the cities which have executed Disposal Agreements in accordance herewith,the County shall be entitled to an increase in the Contract Rate us provided in Section 4.2 herein or an extension in the T schedule for performance equal to the amount of the increased cost or the time lost as a result thereof. The n proceeds of any insurance available to meet any such increased cost shall be applied to such purpose prior M to any determination of cost increases payable under this subsection. Any cost reductions achieved through the mitigating measures undertaken by the County pursuant to subsection 7 1(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 c measures,as applicable. E s SECTION 7.3. LNDEMN7F(CATION,Tbe County shall indemnify.defend with competent U counsel reasonably selected by the County, protect and hold harmless City, its officers, employees and Q assigns from and against all Lass-and-Expense, including natural resnurces 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 O 27 PacketPg. 867 97-371 O any of the foregoing or in enforcing this indemnity)of anylkind whatsoever paid, incurred or suffered by or asserted against,City or its officers or employees arising from or attributable to any repair,cleanup or detoxification,or preparation and implementation of any removal,remedial,response,closwe 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 trans#irs,stares 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 intended to operate as an agreement pursuant to but not limited to Section 107(e)of the Comprehensive Environmental Response,Compensation and liability Act("CERCLA"). 42 U.S.C. Section 9607(e), and N California Health and Safety Code Section 2364,to defend,protect,hold hanttless and indemnify City from ay liability. This indemnity shall not apply to willful,deliberate or grossly negligent delivery by tfte City of c Hazardous Substances or Hazardous Waste to the Disposal System.This indemnity shall also not apply with a respect to (i) vehicle accidents or other waste delivery activities or (ii) to any Hazardous Substances, m Hazardous Waste,petroleum product or other Unacceptable Waste not accepted for disposal in the Disposal m System.The City agrees that the County may provide counsel to jointly represent itsel f,the City and any and m all other patties who disposed of waste it%the Disposal System.The City hereby agrees to waive, in writing, any conflict,actual of apparent,created by the joint representation of such parties pursuant to this indemnity. @ The City also hereby agrees w cooperate fully and completely with the County and with counsel provided by the County in resolving any legal matter that arises pursuant to this indemnity.'flit City further agrees that the County has complete discretion in the conduct of any matter to which this indemnity applies,and in may resolve or settle such matters to which this indemnity applies in iG sole discretion without the 0 permission or approval of the City. The County agrees that it will not bring any action against the City claiming or alleging that the City has any responsibility for matter,actions m liabilities within the scope of the indemnity provided above. m © ° SECTION 7<.. REI_aTTONSHIP OF THU PARTIES. Neither party to this Agreement shall � love any responsibility whatsoever with respect to services prow ided or contractual obligations or liabilities rn assumed by the other party hereto,whether accrued,absolute.contingent or otherwise,or whether due or to ° become due_ The Count'is an independent contractor of the City and nothing in this Agreement shall be o deemed to constitute either pan-v a partner,agent or legal representative of the other party or to create any m fiduciary relationship between the parties. 9 0 SFCTIOL' 7,5. L[NUTED RPC0IBS6. (A) To the ON Except in the event the City has N not established or maintained a City Solid Waste Enterprise Fund, no recourse shall be had to the general funds or general credit of the City for the payment of any amount due the County hereunder, or the r performance of any obligation incurred hereunder, including any Loss-and-Expense of any nature arising from the performance or non-performance of the City's obligations hereunder. The sole recourse of the County for all such amounts shall be to the funds held in any such Solid Waste Enterprise Fund. All amounts held in any City Solid Waste Enterprise Fund shall be held for the uses permitted and required thereby.and p no suolt 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 payrnent of any amount or the performance of any obligation which may be due hereunder. ar E t (B) To the Count•. No recourse shall be had to the general funds or general credit of w the County for the payment of any amount duc the City hereunder,or the performance of any obligation a incurred hereunder, including any Loss-and-Expense of any nature arising front the performance or non- performance of the County's obligations hereunder. The sole recourse of the City for all such amounts shall 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 O 38 PacketPg. 868 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 am obligation which may be due hereunder. SECTION 76. PRE-EXISTING RIGHTS AND LIABILITIES. Except as specifically set forth herein.nothing in this Agreement is intended to affect, release,waive or modify any rights,obligations or liabilities which any party hereto may have to or against the other party as of the Contract Date relating to the disposal of waste in the Disposal System or any other related matter. m C SECTION 7.7. NO VESTED RKAITS. The City shall not acquire any vested property, N license or other rights in the Disposal System by reason of this Agreement. 0 0 SECTION 7.8. 1_.IANILCfY FOR COLLECTION.ECTION TRANSPORTATION AND ti PROCESSING. Any liability incurred by the City as a result of collecting Acceptable Waste or processing m it for diversion from landfill, or as a result of causing, franchising. permitting, licensing, authorizing or arranging any of the foregoing,shall be its sole liability,except as expressly otherwise provided herein. d SECTION 7.9. NO CO*SFOUFVTtAJ,,OR PUNITIVE DAMAGES. In no event shall either party hereto be liable to the other or obligated in any manner to pay to the other any special,incidental, 3 consequential, punitive or similar damages bused upon claims arising out of or in connection with the 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, o negligence, warranty or other legal theory. w v SECTION 7,l U.ALIFNDME [�. Neither this Agreement nor any provision hereof may °0 O be changed.modified,amended or waited except by written agreement duly authorized and executed by both d m parties. U) w SECTION 7.11. CE OF LITiGAT Each party shall deliver written nodee to the 0 other of any Legal Proceeding to which it is a party and which questions the validity or enforceability of this C Agreement executed by the Cite or the County or any Legai Entitlement issued in connection herewith. U SECTION 7.t3.pI,RTHER ASSCRANCES. At any and all times the Citv and the County in so far as may be authorized by law shall pass. make, do, execute,acknowledge and deliver any and every such further resolutions,acts,deeds,conveyances,instruments,assignments,transfers and assurances as may be necessary or reasonably requested by the other in order to give full effect to this Agreement. r` SECTION' 7.13.ASStGNA4FNI'OF AQUEMFNT. Neither this Agreement nor any of rn the rights or obligations hereunder may be assigned by either party hereto%vithout the prior tvriiten consent Q of the other party.which may be withheld in the other party's sole discretion.'Notwithstanding the foregoing, o that either party may assign this Agreement to another successor public entity, subject to the reasonable 'S consent of the other pant..In such circumstances the party not requesting the assignment shall have the right to demand assurances of the financial.technical and legal ability of the proposed assignee to undertake the responsibilities and obligations of the assigning party. m SECTION 7.14, INTEREST ON OVERDUE OBLIGATIONS. Except as otherwise Q provided herein,all amounts due hereunder,whether as damages,credits,revenue or reimbursements,that are not paid when due shall bear interest at the Overdue Rate on the amount outstanding from time to time, on the basis of a 765-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. C 29 PacketPg. 869 97. 371 SECTION 7.15. BINDING EFFECT. This Agreement shall bind and inure to the benefit of the parties 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 parties set forth on the cover page of this Agreement. 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. N Ql U O a m m v N R L O N 0 O w H m d A d N w O C O Y U_ O N in in rn r Q D C d E L U t6 .Y+ Q i{t PacketPg. 870 )7-37i IN WITNESS WHEREOF,the parties have caused this Agreement to be executed by their duty authorized officers or representatives as of the day and year first above written. COUNTY OF SAN BERNARDINO Date �Er 1 b 1997 By o� hai an, Hoard of Supervisors�^,fOs' 'N tt w 0 0 SIGNED A\' TA COPY OF a. THIS CON'I f FRED TO 6 IIIIECI 1997 . Date V — qR I fN Clerk of Supcnisors `o Of San Bernardino County,California w v m 4) d d N G:.`, 5 i; 1997 ! o Date By ��� e Tom Minor, Mayor City of San Bernardino U O (n APPROVED AS TO FORM: COUNTY COUNSEL m SAN BERNARDINO COUNTY, FORNIA n m rn By Q 0 3 E r U N Q 31 O Packet Pg. 871 97-371 O rn C .y N d U O a APPENDIX i T? m m m DESIGNATED DISPOSAL FACILITY v 0 y 0 O w N V m O � � d R N U) w O C O A w U_ O th N a rn n m � d E t m Q O 97-371 APPENDIX2 c .y FORM OF HAULER ACKNOWLEDGMENT y (CAN BE USED TO SATISFY CITY WASTE DELIVERY OBLIGATION o PURSUANT TO SECTION 3A(E)J a` m `w m m N R O N O w N m d A d w O C O m U_ O N N 01 r w rn Q c m E =Eli U Q O 97-371 OFRANCHISE HAULER ACKNOWLEDGMENT THIS FRANCHISE HAULER ACKNOWLEDGMENT,dated asof_,. _ . 1997 (the "Acknowledgment"). by and between the City of —(the "City") and (the "Franchise Hauler"). W FIMMETH ai c WHEREAS, the City and the Hauler have heretofore entered into an agreement entitled_ 'S dated as of (the"Franchise`);and 0 WHEREAS,the Franchise provides for the collection and disposal of certain municipal solid ti waste as described therein("Franchise Waste")generated within the City;and WHEREAS.San Bemardino County(the"Cotmty")owns,manages and operates a sanitary landfill disposal system for municipal solid waste generated w ithin the County;and a N A WHEREAS. the City and the County have heretofore entered into a Waste Disposal 3: Agrcetnent,dated as of 1997 (the "Disposal Agreement")determining that the execution '2 of such Disposal Agreement will serve die public health,safety and welfare of the residents of the City and m County:and o w N W'IIEREAS, under the Disposal Agreement, the County has agreed to provide long-term disposal of all municipal solid waste generated within the City and the City has agreed to exercise all legal, to O 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 County Landfill Disposal System(the"Disposal System"): and w WHEREAS,the provisions of the Waste Disposal Agreement which guarantee capacity for o c the long tern disposal of waste at specified rues generated in the City provide significant benefits to the o Hauler; f0 U W IIERF.AS,notwithstanding any Franchise prov isions w the contrary,the Franchise Hauler o explicitly acknowledges the aforementioned benefits to the City,the County and the Hauler in providing for w the disposal of all Franchise Waste to the Disposal System:and It rn WHEREAS,the City and the Franchise Hauler desire to enter into this Acknowledgment to assure that the City and the Hauler will be entitled to the benefits of the Waste Disposal Agreement and rn 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 p WHEREAS,the Franchise Ffauler's agreement to deliver Franchise Waste to the Disposal System under this Acknowledgment is given in consideration of the Franchise Hauler's right to receive the e1 Contract Rate for such disposal as provided in the Disposal Agreement. M R w O Packet Pg. 874 6.U.B 97-37. O 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 he legally bound hereby,agree as follows: I. Capitalized terms used and not otherwise defined herein are used as defined in the Disposal Agreement. ?. The Franchise Hauler hereby waives any right which it may possess under Applicable Law to contest on any ground,constitutional,statutory, case law,administrative or otherwise, (a)the right,power or authority of the County or the City to enter into or perform their respective obligations N under the Disposal Agreement, (b) the enforceability against the County or the City of the Disposal aN Agreement,or(c)the right,power or authority of the City to deliver or cause the delivery of ap Controllable p Waste to the Designated Disposal Facility in accordance with this Acknowledgment. a 3. The City and the Franchise Hauler each hereby represent that this Acknowledgment `m has been duly authorized by all necessary action of their respective governing bodies. m m d. The Franchise Hauler shall deliver or cause to be delivered all Controllable Waste (including residue from the processing by any means,wherever conducted, of Controllable Waste to the extent provided in the Disposal Agreement),to the Disposal Sysrem.and shall otherwise assist the City in complying with its obligations under the Waste Disposal Covenant in Section 3.1 of the Disposal Agreement. 5. The Franchise Hauler shall not haul Controllable Waste to any materials recovery ° facility,composting facility,intermediate processing facility,recycling center,transfer station or other waste v handling or management facility unless the contract or other agreement or arrangement between the eo O Franchise Hauler and the operator of such facility is sufficient in the opinion of the City to 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 w extent required by the Waste Disposal Covenant. o 0 0 G. The Franchise Hauler shall pay the Contract Rate imposed by the County at the m Designated Disposal Facility for the disposal of all Controllable Waste, which rate shall be subject to v potential adjustment necessary to reflect the circumstances set forth in the Disposal Agreement, to 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 r in paragraph 5 above with respect to Residue from any such recycling operations. r rn m g. The obligations of the Franchise Hauler under this Acknowledgment shall apply notwithstanding Any provision of the Franchise which may conflict herewith. p 9. This Acknowledgment may be enforced by the City by any available legal means. In any enforcement action by the City,the burden of proof"shall be on the Franchise Hauler to demonstrate m compliance herewith. m ii . 75 97-371 10. This Acknowledgment shall be in full force and effect and shall be legally binding upon the City and Franchise Hauler front the daied hereof and shall continue in full force and effect until the earlier of(i)the end or the term of the Franchise or(ii)the end of the term of the Disposal Agreement. 11. 'I he City and Hauler agree that the County shall be an express 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 Mauler hereunder.'fhe parties acknowledge that the money damages provided hereunder may not be adequate to compensate either party for the other party's nonperformance.In addition,in the event that the f tauter delivers Controllable Waste outside of the Disposal System in violation of the Disposal Agreement,the Hauler agrees that the County shall be entitled to draw N on anv bond or other security instrument or deposit held by the County in an amount equal to the Contract Rare multiplied by the number of tons of Controllable Waste delivered outside of the Disposal System by o the Hauler in violation of the Disposal Agreement. The Hauler shall execute a revised security agreement a to effectuate the provisions of(his Section. m .c d R d N A 0 U) `o w w v m m R m w 0 c 0 .R U O rn C N T r n m _m Q D c a) E z u m Q iii Packet Pg. 876 97-37 OTABLE OF CONTENTS Pace RECITALS ... . . . . . . . . .. . .. . . . ... ... ..... .. . . .. . .. . .. . .. . . . . .., . , ARTICLF I DEFINITIONS AND INTERPRETATION . ... . ... ... ... . . . .. . ..... .. . . .... ... 3 SECTION I.I. DEFINITIONS . . . .. . . . .. . . . . . ....... ... .. .. . . . . ......... .... .— 3 SECTION 12. INTERPRETATION . .. . . . . . ...... . ..... . .. . . ... . ..... .... . . . . . . .. 8 rn ARTICLE 11 REPRESENTATIONS AND WARRANTIES . . . . . . . . SECTION 2.1.RFPRESENTAjIQNS AND WARRANTIES OF THE CITY . . . . ..... ... . 10 SECTION '-.2. REPRFSENIAT[ONS AND WARRANTIES OF'I'k1E-CDQJ JTY . . . . . ... . 10 0 (L ARTICLF.III DELIVERY AND ACCEMANCE OF WASTE u, AND PROVISION OF DISPOSAL SERVICE .. . . . . .. . . . . . . . . . . . . . . . ... ... ... . 11 a SECTION 3.1. DELIVERY OF WASTE .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. ..... . 11 m SECTION 32. PROVISION Or DISPOSAL SERVICES BY THE CQUNTY . ..... ... . . 14 m SECTION 3.3. 'OTC ;NTY RIG I{]_('O REFUSE WASTE 16 SECTION 3.4. MISCELLANEOUS OPERATIONAL MATTERS . . . . . . . . . .. ... . . ..... 17 SECTION 3S. OTHER [ISERS OF',[L1[ DISPOSAL SYSTEM . . . . . . . . . . .... . . ... ... 17 v SECTION 3.6. COIINTYPROVISIONOF WASTE DIYE.R$ION SERVICES 17 �n `o ARTICLEIV CONT'RACI'RA,r E . . . . . .. . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . .. .. . ... 14 SECTION 4.1. CITARGTN.Q AN).$ECUR[NG PAYMENT OF CONTRA T RATE... .. . 19 N � SEC-110N 4,2. CONTRACT RA"[E . . . .. . . . . .. .. . 19 m © SECTION'4.3. jtESPO\SIBILITY FOR I'AYkIENT QF THE.CONTRACT' .... . . ... 21 m SECTION 4.4. BILLING OF]HE CONTRACT RATE 21 d y w ARTICLE V BREACH. ENFORCEMENT AND TERMINATION . . , . .. . ., 22 ° SECTION 5.1, 13ICEACH: REMEDIES . .. . . . . . . . . . . .. ... ... . . .... ...... .. .. .... 22 0 SECTION 5.2. CITY CONVENIENCE JEENIINA HON ... . ... .. .... ..... .... . .... . 22 g SECTION 5.3. TERMINA[ION . . . . . . . .. .. . . .. . . . . . . ... . .. . . ... . ....... . . . .... . 22 SECTION S 4. NO WAIVERS . . . . . . . . .. .. . . . . . . . . . . ... . . . . .. ... .. .. ... . .... .. 23 SECTION 5.5 DAMAGES . . . . . . . ... ... . ..... .. ..... . . . ... .. 23 SECTION 5.6. FORUM FOR DISPUTE RFR -LQ11ON . . .. . .. . . . .. . .. ..... . .. .. .. . 23 rn ARTICLE V1 TERM . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . .. . . . . . . . . . . . . . .... ... . ... ... 24 SECTION 6.[. EFFECTIVE DATE AND T . . . . . . . . . . . . . . . . . . . .. .... . . .. . .. 24 ARTICLF.VII GENERAL PROVISIONS . . . . . . . . . . . .. . . . . . . . . . . . .. . . . . . . . .. ... 25 C SECTION 7.L OPERA LION AND MAINTENANCE OF THE DISPOSAL SYSTEM . ... 25 SECTION ??. UNCONTROLLABLE C[RCUMSTANCFS GFIYF.RAI,I.I .. . .. . . . .. . .. 25 SECTION 7.3. INDFMNIFiCATION . . . . . . . . .. . . . .. .... . . . . .. . . 25 . ....... ... ... ... SECTION 74, RELATIONSHInOF THE,PARTIES . . . ... . ... . .. ... ......... ....... 26 E SECTION 73. LIMITED RECOURSE . . . . . . . . . . . . . . . . . . . . . . . . ... .. ...... . 26 A SECTION 7.6. PRE-EXISTING RIGHTS AND LIABILITIES . . . .. . . ... ...... . ... ... 26 Q SECTION 7.7. NO VESTED RiC+�f,T,$. . . . . . . . . . . . . . . . . . . ...... . ..,... 27 SECTION 7.8. LIABILITY FOR COLLECTION.TRANSPORTATION AND PRQCESS[NG . . . .. . .. . . . . .. . . . . . . . . . . . . . . . .... .. . . . . .. . .. 27 Packet Pg. 877 97-371 SECTION 7.9. NOCONSEO VFNTIAL Olt PUNITIVE DA.MAGFS .. ..... .... . ... ... 27 S1vC770N 7.IU.ALv(L'•ND�/F.ti1'S . . . . . . . . . . . .. . .. . . . .. .... . . .. .. ... .. ... . .m. .. . . 27 SECTION 7.11. NOTICE OF 1.11 lGATION . . ... ... . ...... ... ... . . ... . . . .. . .... .. . 27 SECTION 7.12.FURIMER ASSU \NCliS . . . . . ... ..... . ... . ... . . ....... .. . . .. .. . 27 SECTION 7.13.ASSIC,N`9FN1'OF 4GRI;ENIIiNT ...... . . . .. .. . . ... . . . . .. . . . .. .. . 27 SECTION 7.14.aT � BILATIONS .... .. . ... ... . . . . I . . . . . 27 SECTION 7.15.BINDING EFFECT . . . . . . . . . .. ...... .. ... ... .... . .. . . . . . ... 27 SECTION 7.16.NOTICES . . .. . . . .. . .. .. ... . ... . .. .. . .. ... ...... . . . .... . ... ... 27 m c 'H APPENDIX 1 DESIGNATED DISPOSAL FACILITY O APPENDIX 2 FORM OF HAULER ACKNOW'LEDGME'NT a R d Y c� G d V N R O U) O w N m d R d w O C O A M O \\ fA \ N rn n rn m Q O c m E r v m " ket Pg. 878 i7EC-94-199.7 12::9 INFO SMIC,E^a 202 606 7990 P.0a2/010 C7errrn2 Labor Sratiatica: Compentadoa&1ndu2rrlat Retaiiocs 2t fmptoWapt Cott I dal w1QaE l.id&%Wk'L ItY O-W-lbal7 loo kodit"Yal O iAnl IM.I Wl 97-371 roc I»2, Ifs. rwe.,a. • 't-i a 12 bw �• .•••• alb w. a.w Stoll Otc w wr. f.w ale .m ...1 tIr 11p At" li 11 11L 11).1 I17A tie too 1. a! fa wa 2,%w 0..40 A0pwF lrai 11L 11 n 11 110 4! 1+7,. it ts Its .s G Ya'de+l�ass/•.-_.�_... A ilia Alt Ht 1 ISLI la!a lots "A a L IL+.ttr!a,taat,a aN "As 1154 MA 1111 oar Ixi A Ali MA A as ases•s11we MMllse d+waWlna -,;_,-�_. 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Obm!Rev Source Activity GRC/PROJlJO@ Number F A S Commodity Code Estimated payment Total by Fiscal Year CONTRACT TRANSMITTAL FY Amount t/D Fy Amount im Project Name N O CONTRACTOR City of San Bernardino _ a. m Binh Date _ __ Federal ID No. or Social Security No. Contractor's Representative Fred Wilson,Acting Ctty Administrator m Address 300 North D Street, San Bernardino,CA 92418 Phone (909) 384-5 122 3 Nature of Contract: (Briefly describe rho general terms of the contract) .� 6 to A 15 year Waste Delivery Agreement between the County and the City of San Bernardino for use of the County landfill system, January 1, 1998 to December 31, 2012. � to v v to v U) r_ 0 c 0 Z, O O N V N a1 r_ T r Q w C d E s U Q rAtlach this transmittal ll contracts not prepared an the "Standard Contract" form.) A ro d as to Leg m Reviewed as to Affirmative Action Reviewed for Procauing County Gouriew 7 Agency AdmisustratortCAO 7 © Date I�, J Date Date--------- .—_. pxnazewoo ew ttno Packet Pg. 882 AMENDMENT No. 1 TO WASTE DISPOSAL AGREEMENT On December 16, 1997, the City of San Bernardino ("City') and the County of San Bernardino ('County") entered into a Waste Disposal Agreement (the `Waste Disposal Agreement") which is hereby amended as of this 19th day of March, 2002('Amendment No. 12). N N d Recitals c Q. A. On March 27, 2001 the County entered into a Solid Waste Operations Contract ("Operations Contract') with Burtec Waste Industries, Inc. ('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. w In Amendment No. 4 to the Operations Contract, entered into on March 5, 2002 the amount of solid waste to be delivered for disposal in the Disposal System e from March 19, 2002 to and through June 30, 2002 Is at least 20,1330 but not o more than 150,000 tons of solid waste. y "o w B. The solid waste which may be delivered to the Disposal System by the Contractor is defined in Article 19 of the Operations Contract as solid waste that m is: (1) allowed to be disposed of in the Disposal System pursuant to federal, state a and local law; (ii)not being delivered to the Disposal System as of the date of the Operations Contract; (iii) bein g p rocessed at the West Valley Material Recovery y Facility or the Robert A. Nelson Transfer Station; and (iv) delivered to the c Disposal System in transfer trailers. Such solid waste is referred to as the"Article r- 19 Solid Waste." o C. The amount to be paid to the County by the Contractor for the disposal of .2 Article 19 Solid Waste is $20.50 per ton, to be adjusted for Cost of Living c increases in the same percentage amount as the actual change made to the per ton disposal fee charged by the County to Cities which have a Waste Disposal Agreement ("WDA") with the County pursuant to the "Calculation for Escalation" r' contained in Section 4.2 (8) of the W DA. Such per ton disposal fee is referred to n as the"Article 19 Disposal Fee.' D. The current Contract Rate payable by City to County for the disposal of a solid waste under the Waste Disposal Agreement Is higher than the Article 19 Disposal Fee. E. City contends that absent agreement by the Cities to the contrary,Section E 3.5(A) of the Waste Disposal Agreement prohibits the County from allowing the disposal of Article 19 Waste at the Article 19 Disposal Fee unless the County w 1 8303v1 024537x1)01317 AGMT sat. makes available to the City a Contract Rate equal to the Article 19 Disposal Fee. The County disputes this contention. F_ Notwithstanding their dispute, the County and City agree that there will be benefits to the Disposal System and accordingly to the County, as the owner/operator of the Disposal System, and to the City, as a user of the Disposal 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 E the acceptance of Article 19 Solid Waste to a limited waiver of their respective e rights and further, the County agrees to share a portion of such Article 19 v Disposal Fee (the 'Article 19 City Fee') with each city that entered into a Waste a Disposal Agreement, Including City('WDA Cities'). G. The purpose of this Amendment No. 1 is to acknowledge that: (i) City agrees to waive its night under the provisions of Section 3.5(A) hereof with respect to the Operations Contract, including the right of the County to accept u 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 Article 19 Disposal Fee; (ii) County agrees to waive any right it may have to 0 accept Article 19 Solid Waste except as provided herein: and (iii)that the County rrr and City agree on the method of calculating and sharing with City its share from `o the receipt of the Article 19 Disposal Fee, as described herein. This Amendment m No. 1 shall become effective only if and when all WDA Cities, including City, have v adopted and executed a counterpart of this Amendment No. 1 without modifications and the County has adopted and executed each counterpart of this m Amendment No. 1. Attached as Exhibit A is a list of WDA Cities and their rn respective share of Article 19 City Fee. c H. Pursuant to Amendment No. 4 to the Operations Contract, the County c must mail notice to Contractor on or before March 19, 2002 of Its decision to R 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 date (absent a further to amendment of the Operations Contract to extend such date) then Contractor's rights to dispose of Article 19 Solid Waste in the Disposal System become effective. NOW THEREFORE, in consideration of the forgoing recitals and the M following covenants and promises the parties agree as follows: Q 1. Limited Waiver ofCitys Rights Under Waste Delivery Agreement and Right of County to Accept Article 19 Solid Waste. The parties agree that for the 3 term of the Operations Contract (including any extensions of term currently contained in the Operations Contract) the County may accept Article 19 Solid E Waste from Contractor for disposal in the Disposal System in the amount of at least 250,000 but not more than 340,000 tons of solid waste to the Disposal System and for the period of March 19, 2002 to and through June 30, 2002, in Q 2 83030 024537!00431?AGMT 6.U, 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. S N d 2. Limited Waiver of County's Rights Under Waste Delivery Agreement and 0 Rlaht of County to Accept Article 19 Solid Waste. The parties agree that, for the a` term of the Operations Contract (including any extensions of term currently contained in the Operations Contract) the County agrees to accept Article 19 d Solid Waste from Contractor for disposal In the Disposal System only in the i 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 w Operations Contract and of this Amendment No. 1. m 3 v 3. Calculation of Not Per Ton Article 19 Disposal Fee. For purposes if this o Amendment, the Net Per Ton Article 19 Disposal Fee shalt consist of the Article rn 19 Disposal Fee, then in effect, under the terms of the Operations Contract, less o the following payments: w a m (i) the amount of the required payment to Contractor for disposing of such Article 19 Solid Waste then in effect under the terms of the Operations Contract; rn 0 (ii) the other specified payments to governmental agencies in the amounts then required (including any newly required payment or any payment 0 made in substitution of an Identified payment); and v (III) the amounts representing the allocation of costs for closure, 0 postclosure maintenance and construction of addition disposal capacity (in the rn amounts set forth on Exhibit`B', such amounts to be adjusted for Cost of Living n increases in the same percentage amount as the actual change made to the per ton disposal fee charged by the County to Cities which have a Waste Disposal Agreement ("WDA")with the County pursuant to the "Calculation for Escalation" contained in Section 4.2(B)of the WDA). 0 Formuta; AAlete 19 Disposal Fee � 3 " j Less Payment under Operations Contract to Contractor m Payment to California Integrated Waste Management Board E Payment to Local Enforcement Agency Payment to the City of Fontana a 3 i 5303Y 024537=4317 AGMr I Pa tit;5 s.u.a 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 Ailocatlon for costs of construction of Additional Capacity Equals Net Per Ton Articie 19 Dlsoosal Fee. c The parties acknowledge that the County currently owes $2.00 per ton N to the City of Rialto, as adjusted by the Cost of Living Index, but Is not obligated to make any out of pocket payment of such amount until its Credit For ° 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 R Article ig Disposal Fee. Exhibit B, attached hereto sets forth the calculation of the Net Per Ton Article 19 Disposal Fee in effect as of the date hereof. 4. Allocation of Article 19 City Fee.in consideration of the agreements of the '9 City hereunder, the County will pay to the WDA Cities, in the aggregate, 50% of rn the Net Per Ton Article 19 Disposal Fee for each ton of Article 19 Solid Waste `o accepted for disposal at the Disposal System. Such fee is referred to herein as N the "Article 19 City Fee". The remaining 50% of the Net Per Ton Article 19 v Disposal Fee is being retained by the County. The Article 19 City Fee may be m used by each City as it shall deem appropriate, in its sole discretion. w m m The Article 19 City Fee shall be further allocated among each of the WDA N w Cities on the basis of two separate criteria: 0 c 0 (i) 50 1k of the Article 19 City Fee shall be divided equally among the WDA Cities, without regard for any other criteria; and 0 (ii) 50% of the Article 19 City Fee shall be divided among the WDA r!? Cities based on population, on a per capita basis, as published by the California N Department of Finance, as of each May 1, each year during the term of the WDA. rn The allocation of the Article 19 City Fee among each WDA Cities for fiscal year 2001-02 is set forth in Exhibit "A,' attached hereto and made a part hereof. For illustration purposes only, Exhibit A assumes an Article 19 City Fee of a $1,000.000. ° 3 The City's share of the Article 19 City Fee shall be paid to City in quarterly payments, within forty five (45) days after the end of the calendar quarter (i.e., s March, June, September and December);provided that the payment for the fiscal u year 2001-02 shall be paid in full on or before August 15, 2002, a 4 81010 024537*10 1 r Aomr s.us 5. Effective Date. This Amendment shall be effective If and only when all cities listed on Exhibit 'A' have adopted and executed a counterpart of this Amendment No. 1 and such amendment has been adopted and executed by the County. In all events, the conditions In the forgoing sentence necessary for this Amendment No. 1 to be effective shall occur on or before March 19, 2002, otherwise this Amendment No. 1 shall be null and void and without any effect whatsoever. 6, No other amendments. Except as modified In this Amendment No. f (or in any prior amendment) all other terms and conditions of the Waste Disposal •9 tM Agreement shall remain in full force and effect. m U O N WITNESS WHEREOF, the parties hereto have executed this a` agreement on the day and year set forth below. m COUNTY OF SAN BERNARDINO CITY d • N � A CS, �( a Fre guiar,Chairman, Boa f Supervisors Title:! (X, A 1 tt.lJa t 'p rn Date: MAR 19 2002 D LbZ N ,.� _...-_ .O m SIGNED AND CERTIFIED THAT o A COPY OF THIS DOCUMENT HAS R BEEN DELIVERED TO THE m CHAIRMAN OF THE BOARD c RENEE BA$TIAN; '' 4 Clerk of tho Board Of Supervisors w u 0 v Date: iAR 1 AVE Approved as to form: r' Q ALAN nt Counsel San Bern rd' o allfomia c d E Deputy m / a Date: 8343vt 024 5 37404 3 1 7AGb1T 5 6.u.6 �) � O {Np �ry�yy � t•nl N pNp y� N � � t�`!- N y �j .Z` tm0 O M fD a n m W V5 < m � c 0 m �8 �D yyv' ,ups Op U LL Q©i M N �M�pp N o t+l 4 Of v m � N Q' T r O 'AAp Oi _ 4 f4 M f Tfpp 9 O d U M C4 m ry R d L[I m 9 c0 O� ! If1 m N � V CS O) O! W LL U O 0 T y J N C o 0 4 V O L6 C6 O (O N *ll Q t: pNo m i0 l� L 7aay lT- �. CO LL A p J 6 X 0 0 W w N d R o y C) ro c`i m m M m n m m 1y n � m m M LL LL._ ri ni M ai m ri M ri ri M ri m F: U ¢ O U) d e o � � a O CI C] ! Q r N of P vi W N t0 01 �- r • pl Packet Pg. 888 iI O Exhibit"B" NET PER TON ARTICLE 18 DISPOSAL FEE AS OF THE DATE HEREOF a� � � c Article 19 Disposal Fee $20.50 U Less; Payment under Operations Contract to Contractor $6.50 0 Payment to California Integrated Waste Management Board $ 1.34 Payment to Local Enforcement Agency $0.78 m Payment to the City of Fontana $2.07 Any other payment required to be made to local, State or 2 Federal agencies relative to the disposal of solid waste y Or fees collected relative to such disposal $0.00 Allocation of costs for closure and postclosure $0.34 Allocation of costs for construction of additional capacity $ 2.10 0 (0 Net per ton Article 19 Disposal Fee $7.37 `o N "Article 19 City Fee' consisting of 50%of the Net Per Ton Article 19 m Disposal Fee $3.686 m m m 0 c 0 0 rn v m r m m Q 0 3 I ° d E r v A i Q 8303VI 0245371004317 AGMT 6.u.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's entered into a Waste Disposal Agreement (the 'WDA") which is hereby amended as of this 17th day of November, 2003 ("Amendment No. 2"). 1 N Recitals d U O A. On March 27, 2001 the County entered into a Solid Waste Operations a` i Contract ("Operations Contract") with Burrtec Waste Industries, Inc. ("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 the amount of Article 19 Solid Waste to be delivered for disposal in the Disposal System from March 19, 2002 to and through June 30, 2002 was at least 20,830 v but not more than 150,000 tons of solid waste. in Amendment No. _ to the 0 w Operations Contract, to be entered Into concurrently with this Amendment, the o amount of Article 19 Solid Waste that is acceptable for disposal in the Disposal N System for the month of June 2003 is to be at least 20,834 but not more than ° 31,250 tons of solid waste. m C a m B. to Amendment No. 1; (i) City agreed to waive its right under the provisions � of Section 3.5(A) of the WDA with respect to the operations Contract, including o the right of the County to accept Article 19 Solid Waste on payment of Article 19 C Disposal Fee without being required to offer to City to adjust the current or future Contract Rate to equal the Article 19 Disposal Fee; (ii) County agreed to waive ° any right it may have to accept Article 19 Solid Waste except as provided in 9 Amendment No. 1; and (iii) the County and City agreed on the method of -6 calculating and sharing with City its share from the receipt of the Article 19 Disposal Fee, as described in Amendment No. 1, C. The Contractor under the Operations Contract has stated that it has 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 a and that it desires to bring such waste to the Disposal System for disposal as 0 Article 19 Solid Waste. C D. The County and City agree that it is in the interests of both parties to allow E the Contract to bring the additional 75,000 tons of Article 19 Solid Waste for v 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 a the WDA is to increase the maximum amount of Article 19 Solid Waste that is 83030 0245371004317 AGMT Packet Pg. 890 2003-306 r acceptable for disposal in the Disposal System from 300,000 tons per Contract f 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 Regardino Limited Waiver of City's Rights Under WDA and Right of County to Accept Article 19 Solid Waste. The parties agree that Section 1 of Amendment No. 1 shall be revised by adding the following. 0 Notwithstanding the forgoing, commencing on the effective date of Amendment Q. No. 2, and for the term of the Operations Contract (including any extensions of 0 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 g amount of at least 250,000 but not more than 375,000 tons of solid waste and for the month of June 2003, in the amount of at least 20,834 but not more than 31,250 tons of solid waste. All other terms and conditions of Section 1 of Amendment No. 1 shall remain in U) full force and effect and are not amended by the provisions of this Amendment o No. 2. m C 2. Effective Date. This Amendment shall be effective if and only when all c cities listed on Exhibit "A" to Amendment No. 2 have adopted and executed a m counterpart of this Amendment No. 2 and such amendment has been adopted 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 o before December 31, 2003, otherwise this Amendment No. 2 shall be null and .2 void and without any effect whatsoever. 0 3. No other amendments. Except as modified in this Amendment No,2 (or in any prior amendment) all other terms and conditions of the WDA, including v without limit those contained in Amendment No. 1, shall remain in full force and o effect. 1 h i a 1 0 I � r d / e L 1 U f a 1 8303v1 0245371004317 AGMT Packet Pg. 891 6.u.B '003-306 W WITNESS WHEREOF, the parties hereto have executed this agreement on the day and year set forth below. COUNTY OF SAN BERNARDINO CITY / a T Dennrs Hansberper,Chairman, Board of Supervisors Title:/Gti �-, m U O Date: DEC 16 2003 Date: SIGNED AND CERTIFIED THAT A COPY OF THIS DOCUMENT HAS BEEN DELIVERED TO THE N CHAIRMAN OF THE BOARD 3 RENE 8A$,T[Aff-'R,.,n w Cler etR'q• 'oENd,b isors o B ' m Date .�, � 6Q1� rRDINo . o Approved as tc)T8rT 0 0 my Counsel :0 BY' rn =De puty m Date: 1- 20-D3 a 0 d E r U m Q 8303v1 0245371004317 AGMT PacketPg. 892 2003-306 ! AMENDMENT'No. 2 EXHUIT six- LIST OF WASTE DELIVERY AGREEMENT CITIES AND TOWNS Town of Apple Valley City of Barstow City of Big Bear Lake City of Colton S City of Fontana City of Grand Terrace o City of Hesperia a City of Highland 76 City of Loma Linda City of Rialto City of San Bernardino y City of Twentynine Palms City of Victorville City of Yucaipa °- Town of Yucca Valley °m 0 w N m L N R d T 0 O a O U 0 U) 1 N CD 1 rn r Q O C d E L U A Q 930:W1 0245371004317 AGMT i � Packet Pg. 893 6.U.0 DEPARTMENT OF PUBLIC WORKS FLOOD CONTROL • LAND DEVELOPMENT&CONSTRUCTION • OPERATIONS COUNTY OF SAN BERNARDINO SOLID WASTE MANAGEMENT a SURVEYOR • TRANSPORTATION - SOLID WASTE MANAGEMENT DIVISION GERRY NEWCOMBE Director of Public Works 222 West Hospitality Lane,Second Floor*San Bernardino,CA 924150017•(909)986.8701 AdministrationtEngineering Fax(909)366-89DO rn July 13, 2012 N U V O Andrea Travis-Miller a` Acting City Manager City of San Bernardino 300 North D Street g San Bernardino, CA 92418 d N t0 RE: AMENDMENT TO WASTE DELIVERY AGREEMENT (WDA) BETWEEN THE v CITY/TOWN AND THE COUNTY OF SAN BERNARDINO In `o Dear Ms. Travis-Miller: N As a result of the recent review process regarding the WDAs, County staff and the City and m Town Managers have agreed to recommend amending the current WDA to extend the tern until June 30, 2016. This amendment will also put each City(Town on the same termination date. rn Enclosed are two copies of the amendment to the WDA for consideration and approval by your o City/Town Council. As with any amendment to the WDA, this amendment shall be effective only o if all fifteen affected WDA entities agree to it and the County is able to adopt it on or before December 18, 2012. .2 0 Once you obtain Council approval, please return both signed copies, no later than October 31, rn 2012, and we will present the fifteen WDA amendments to the Board of Supervisors (BOS) for � approval. After BOS approval, the County will return one fully executed original document to you for your o records. If you have any questions regarding this letter, please contact me at(909)387-7906, z c d Sincerely, E E a GERRY NEWC MBE Q o Director d E Enclosures as noted U t0 a cc: Arthur L. Rivera, Interim Division Manager, Solid Waste Management C. Rozzi/E. Barrington, DPW-Administrative Services Division Board of Supervisors BRAD MITZELFELT................................First District NEIL DERRY...........................................Third District GREGORY C.DEVEREAUX JANICE RUTHERFORD.....................Second District GARY C.OVITT...................-...............Fourth District Chief Executive Officer JOSIE GONZALES......................Fifth District PacketPg.894 s.u.c O WASTE DISPOSAL AGREEMENT BETWEEN THE COUNTY OF SAN BERNARDINO, CALIFORNIA N N N U AND THE CITY OF SAN BERNARDINO d N DATED: December 16, 1997 a 0 N a County Authorization Date: City Authorization Date: 0 m m 0 0 c 0 County Notice Address: City Notice Address: U Solid Waste Management Division City of San Bernardino u°, 222 Hospitality Lane, 2nd Floor 300 North D Street San Bernardino, CA 92415-0017 San Bernardino, CA 92418 0 0 Emergency Contact: Emergency Contact: z d Arthur L. Rivera Interim Division Manager (909) 386-8703 a a 0 3 r 0 E L U A a Packet Pg.895 s.u:c 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 WDA, on the Effective Date as provided herein, by their respective execution of this agreement (hereinafter"Amendment'). .N Vi d V O a Recitals A w Y A. In connection with the on-going administration of the WDA, the Parties have determined it is now in their best interests to change the termination date to June 30, 2016. a, N A B. This change in the termination date will assist both the City and the County in planning for future fiscal years' budgeting of solid waste disposal services and costs. 0 N O w NOW THEREFORE, in consideration of the forgoing recitals and the following covenants and promises the Parties agree as follows: m v v 1. Amended ARTICLE VI TERM Section 6.1 EFFECTIVE DATE AND TERM. (A) Term. This section is amended in its entirety to read: y w 0 SECTION 6.1. EFFECTIVE DATE AND TERM. (A)Term. This Agreement shall o become effective, shall be in full force and effect and shall be legally binding upon R 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. 0 2. Effective Date. This Amendment shall be effective if and only when all fifteen cities listed m on Exhibit 'W' have each adopted and executed a counterpart of this Amendment No. 5 ._ (the amendment number may differ for each city listed on Exhibit"A") on or before U� October 31, 2012 and such amendment has been adopted and executed by the County z 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 E whatsoever. c d 3. No other amendments. Except as modified in this Amendment(or in any prior a Amendment(s)) all other terms and conditions of the WDA, including without limit those o contained in any prior Amendment, shall remain in full force and effect. Y / E E / L n / Y`0. / a 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 m By: N By: Name: Chairman, Board of Supervisors o Print Name a` m Title: Date: 2 m d V Date: m 3 a 0 ATTEST: SIGNED AND CERTIFIED THAT A COPY OF ("n THIS CONTRACT HAS BEEN DELIVERED TO ° THE CHAIRMAN OF THE BOARD m Clerk of the Board of Supervisors d Of the County of San Bernardino w 0 By: o City Clerk By. A Deputy .2 �o v U7 rn u� APPROVED AS TO FORM: APPROVED AS TO FORM: zo CITY ATTORNEY COUNTY COUNSEL SAN BERNARDINO c COUNTY, CALIFORNIA E v c d By: By: a 0 3 Date: Date: c v E r m ¢ i O s.u.c EXHIBIT A CITIESITOWNS WITH A WASTE DELIVERY AGREEMENT WITH THE COUNTY OF SAN BERNARDINO OFFERED THIS AMENDMENT JULY 2012 FOR AN AGREEMENT END DATE OF JUNE 30, 2016 N d U 0 a` 1. APPLE VALLEY 2. BARSTOW 1 BIG BEAR LAKE 4. COLTON 5. FONTANA m 6. GRAND TERRACE 3 7. HESPERIA o 8. HIGHLAND (n 9. LOMA LINDA N 10, RIALTO 11. SAN BERNARDINO m 12. TWENTYNINE PALMS 13. VICTORVILLE cn 14. YUCAIPA o 15. YUCCA VALLEY co U O U) 7 N T N O 2 v E v c v E Q c m E L U t0 a Packet Pg. 898 FOR COUNTY USE ONLY E4New FAS Vendor Code Dept. Contract Number Change Sic SWM 97-1052 A-5 3 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)387-7906, VARIOUS _ FAS Contract Type Revenue I® Encumbered Unencumbered c Other: .N N CONTRACT TRANSMITTAL If not encumbered or revenue contract type,provide reason: Commodity Code Contract Start Date ntracl End Date Original Amount Amendment Amoun 0 QL 01/01/1998 06/30/2016 Fund Dept. Organization Appr. Obj/Rev Source GRC/PROJ/JOB No. Amount EAA SWM SWM 9700 None Fund Dept. Organization Appr. Obj/Rev Source GRC/PROJ/JOB No. Amount d N Fund Dept. Organization Appr. Obj/Rev Source GRC/PROJ/JOB No. Amount Project Name Estimated Payment Total by Fiscal Year 0 Amendment No. 5 to the Waste FY Amount I/D FY Amount I/D to L Q D'cnncal AnmpmpnT Frfpndc °- N Anrppmpnt Fnd rlato ,D t„annna — — 00 v d R CONTRACTOR City of San Bernardino rn 0 feral ID No. or Social Security No. r_ 0 Contractor's Representative Andrea Travis-Miller, Acting City Manager a .2 Address 300 North D Street, San Bernardino, CA 92376 Phone (909) 384-5549 0 Nature of Contract: (Briefly describe the general terms of the contract): v Ln The Waste Disposal Agreement that is the subject of this amendment is a"fifteen year agreement between the County and the City of San Bernardino for use of the County landfill system. Amendment No. 1 was to implement c the "Article 19 Solid Waste" component of the County's waste management system and define the City's share of ? that revenue. Amendment No. 2 was to increase the annual maximum limits of "Article 19 Solid Waste" in the d County landfill system. Amendment No. 3 allowed the County to charge the fee of$110.00 per ton (pro rated) for E identified controllable waste of the City (e.g., roll off container trucks"prid other Coonty/City vehicles such as pick- ups and dump trucks) and have such waste subject to being processed in the recycling program. Amendment No. a 4 allowed the County to calculate the annual cost of living adjustment earlier in the calendar year. a 0 The purpose of this Amendment No. 5 is to ,aIIQw the Parties to extend the end date of the Waste Disposal Agreement to June 30, 2016. 1 ' (Attach this transmittal to all contracts not prep8l ed on the "Standard Contract"form.) Approved as to Legal Form(sign In blue ink) RdWewed as to Contract Compliance Presented to BOS for Signature a County Counsel Department Head 'e Date Date AWiror-Conbdkr?reasereNrax collector Use Only ❑Contract Database 0 FAS Input Date Keyed By m c .N N d U O L a m m R d N R O N L O w N m LD d to W t7 w O C O w A .0 O y to N I N 0 Z c m E c d E a a 0 3 Y C d E t U W Q Auditor-Cmvoller1Treasurer1Taz Collector Lse Od ❑Contract Database 0 FAS Input Date Keyed By PacketPg. 900 6.U.D County of San Bernardino Solid Waste Management Division WDA Disposal Rates N N d U O Rate a` change R % w/o Running Fiscal Year Base Rate Perchlorate Total Rate Perch Average m 2012-2013 $38.79 $0.00 $38.79 4.82% 2.01% m 2011-2012 $36.92 $0.00 $36.92 0.49% 1.81% i 2010-2011 $36.74 $0.00 $36.74 3.70% 1.91% 2 0 2009-2010 $35.38 $0.00 $35.38 -3.28% 1.76% N 2008-2009 $36.54 $0.69 $37.23 [1] 4.57% 2.22% m 2007-2008 $34.87 $0.69 $35.56 [1] 0.52% 1.98% m 2006-2007 $34.69 $0.69 $35.38 [1] 5.10% 2.14% 2005-2006 $32.92 $0.69 $33.61 [1] 3.28% 1.77% m 2004-2005 $31.84 $0.00 $31.84 3.14% 1.56% w 2003-2004 $30.84 $0.00 $30.84 3.57% 1.29% c 2002-2003 $29.74 $0.00 $29.74 0.74% 0.84% 2001-2002 $29.52 $0.00 $29.52 0.00% 0.86% v 2000-2001 $29.52 $0.00 $29.52 3.46% 1.15% Cn 1999-2000 $28.50 $0.00 $28.50 0.00% 0.00% 1998-1999 $28.50 $0.00 $28.50 0.00% 0.00% v' 1997-1998 $28.50 $0.00 $28.50 rn 0 N [1] Included $0.69 Perchlorate Fee eff. 02/01106. Ended June 2009 per N settlement agreement. w Ofx m m 0 3 G v E L U A Q Packet Pg. 90, fi.U.E RESOLUTION NO. 2011-285 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING EXECUTION OF AN PROFESSIONAL 3 SERVICES AGREEMENT WITH BURRTEC WASTE INDUSTRIES, INC., c 4 PURSUANT TO SAN BERNARDINO MUNICIPAL CODE SECTION 3.04.010 a` PARAGRAPH B3, TO ALLOW BURRTEC WASTE INDUSTRIES, INC., TO m 5 PROVIDE COMMINGLED RECYCLING AND COMMERCIAL RECYCLING A PROCESSING. 6 N R 7 WHEREAS,the City has an existing non-exclusive Professional Services Agreement 8 0 with Burbank Recycling Inc.(BRI)to process recycling materials for the City; w `o 9 WHEREAS,pursuant to San Bernardino Municipal Code Section 3.04.010 Paragraph a 10 rn 11 B3,the City would like to enter into one or more Professional Services Agreements to process d N 12 recycling; 1, 13 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE °- 0 14 CITY OF SAN BERNARDINO AS FOLLOWS: 0 15 SECTION 1. That the Mayor and Common Council authorize execution of the ai LO v 16 Professional Services Agreement attached as Exhibit"A"with Burrtec Waste Industries,Inc., 17 pursuant to San Bernardino Municipal Code Section 3.04.010 Paragraph B3,to allow Burtec i 18 Waste Industries, Inc.,to provide commingled recycling and commercial recycling 19 20 processing. m .. 21 SECTION 2. The authorization to execute the above-mentioned Agreement is m C 22 rescinded if the parties to the Agreement fail to sign it within sixty(60) days of the passage of 0) v m 23 this resolution. 24 m C 25 E 26 27 28 /Il .v � 2011-285 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING EXECUTION OF AN PROFESSIONAL 2 SERVICES AGREEMENT WITH BURRTEC WASTE INDUSTRIES, INC., c PURSUANT TO SAN BERNARDINO MUNICIPAL CODE SECTION 3.04.010 3 PARAGRAPH B3, TO ALLOW BURRTEC WASTE INDUSTRIES, INC., TO c 4 PROVIDE COMMINGLED RECYCLING AND COMMERCIAL RECYCLING n`. PROCESSING. 0 m 5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and g 6 Common Council of the City of San Bernardino at a regular meeting 7 8 thereof, held on the 17t1Bay of October 2011,by the following vote,to wit: o rn L 9 Council Members: AYES NAYS ABSTAIN ABSENT H 10 MARQUEZ x a 11 x v 12 JENKINS c w 13 BRINKER x r- 14 SHORETT x 0 15 KELLEY x w 16 JOHNSON x _ CD 17 x MCCAMMACK 18 L 20 Rac el G.Clark,CMC, City Clerk w 21 The foregoing resolution is hereby approved this _day of fjc 2011. c 22 d 23 Mris, ycc .7 Patri k J. 24 t of San Bernardino °a Y C 25 Approved as to form: L 26 JAMES F.PENMAN, Y City Attorney a 27 By: -- 28 sE 2011-285 Exhibit A Form of Agreement PROFESSIONAL SERVICES AGREEMENT FOR PROCESSING RECYCLING MATERIALS N N U THIS AGREEMENT is made and entered into this 17`h day of October, 2011 0 ("Effective Date"), by and between the CITY OF SAN BERNARDINO, a municipal . corporation ("City"), and Burrtec Waste Industries, Inc., a California corporation ("Contractor"). m v WITNESSETH: 3 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 N California Public Resources Code as Section 40000 et seq., has declared that it is in the o public interest to authorize and require local agencies to make adequate provision for N the disposal of Solid Waste within their jurisdictions; and m WHEREAS, City and Contractor are mindful of the provisions of the laws m governing the safe collection, transport, recycling, and disposal of Solid Waste, to including AB 939 (as amended), the Resource Conservation and Recovery Act c ("RCRA"), and the Comprehensive Environmental Response, Compensation and C Liability Act ( CERCLA"). City and Contractor desire to leave no doubts as to their m respective roles and to memorialize that by entering into this Agreement. City is not .5 thereby becoming an "arranger' or a "generator' as those terms are used in CERCLA, rn and that it is Contractor, not City, who is "arranging for" the disposal, composting, and recycling of Recyclable Material which may contain hazardous substances; and further to confirm that Contractor has agreed to indemnify the City in connection with any claims relating to the inadvertent or intentional disposal of hazardous materials that may occur in connection with Contractor's performance under this Agreement. 0 WHEREAS, City and Contractor understand and agree that it is Contractor, and not City, who will take title to the Recyclable Materials, that City has not, and, by this Agreement does not, instruct Contractor on its methods of performing the duties under x this Agreement. Any title in and to such Recyclable Materials that otherwise might exist d in or with City in the absence of this Agreement is hereby transferred to Contractor. L c WHEREAS, Contractor has agreed, as part of this Agreement, to provide such 0 services as are necessary to ensure City complies with the requirements of Public Resources Code Section 40000, et seq. g CD WHEREAS, City proposes to have Contractor perform the services described in the City's Request for Proposal and incorporated herein by reference; and s U WHEREAS, Contractor represents that it has that degree of specialized expertise contemplated within California Government Code, Section 37103, and holds all a necessary licenses to practice and perform the services herein contemplated; and 1 Professional Services Agreement For Processing Recycling Materials 9-21-2011 Final Packet Pg. 904 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 provisions of California Government Code, Sections 1090-1092, in the subject matter of N this Agreement. o NOW, THEREFORE, for and in consideration of the mutual covenants and L conditions contained herein, the parties hereby agree as follows: m SECTION 1.00 RECITALS d N The Parties acknowledge the above recitals are true and correct and incorporate 3 them herein as if they were fully restated. a O rn SECTION 2.00 DEFINITIONS o N Whenever any term used in this Agreement has been defined by Division 30, m Part 1, Chapter 2 of the California Public Resources Code, or Chapter 8.24 of the City of San Bernardino Municipal Code, the definition of such term set forth therein shall apply unless the term is otherwise defined in this Agreement. The terms defined herein N shall have the meaning set forth in this Agreement. Otherwise, the terms herein shall o have their ordinary meaning. o 2.1 AB 939. "AB 939" shall mean the California Integrated Waste Management Act .2 of 1989, currently codified as California Public Resources Code Section 40000 et 0 seq. as it may be amended from time to time. rn 2.2 City. "City" means the City of San Bernardino, a municipal corporation. 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. v d 5 U 2.4 Effective Date. "Effective Date" shall mean November 1, 2011. d X to 2.5 Hazardous Waste. "Hazardous Waste" means (i) all waste defined or ; characterized as hazardous waste by the federal Solid Waste Disposal Act (42 U.S.C. § 3251 et seq.), as amended, including the Resource Conservation and U Recovery Act of 1976 (42 U.S.C. § 6901 et seq.) and all future amendments r thereto, or regulations promulgated thereunder and (ii) all waste defined or t characterized as hazardous waste by the principal agencies of the State of m 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 o m 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 Agreement For Processing Recycling Materials 9-21-2011 Final Packet Pg.905 6.U.E 2011-285 methods; B. Shall include radioactive wastes; and C. Shall be construed to have the broader, more encompassing definition where there exists a conflict in the definitions employed by two or more N governmental agencies having concurrent or overlapping jurisdiction over hazardous waste. 0 2.6 Municipal Code. "Municipal Code" shall mean the "San Bernardino Municipal m Code" of the City of San Bernardino 2.7 Recycling. "Recycling" means the process of collecting and turning used products, including, but not limited to, newspapers, cans, corrugated cardboard and bottles, into new products by reprocessing or remanufacturing them. o rn 2.8 Recyclable Material. "Recyclable Material" or "Recyclables" shall mean all Solid c Waste, garbage, trash, refuse, construction and demolition debris, and any other Solid Waste which is capable of being recycled. m 2.9 RFP. "RFP" means the City's Request for Proposal attached hereto as Exhibit "A" and incorporated herein as though set forth in full. cn w 0 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 commercial recycling and remit payments to the City based upon the overall recycling percentage. 3.0. SERVICES PROVIDED BY CONTRACTOR r 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 ° an approved recycling facility, and dispose of non-recyclable residue at an approved County of San Bernardino disposal facility per the Waste Disposal Agreement. m Contractor will accept materials for recycling from the City's recycling Program serving d single-family residences and commercial accounts. E Contractor will provide a facility at the location specified below for Off-loading City 0 recycling trucks. The facility will be available to begin accepting materials by November 1, 2011. The designated facilities are: m Burrtec Waste Industries, Inc. Burrtec Waste Industries, Inc. `610 4858 Agua Mansa Road 5455 Industrial Parkway E Riverside, CA 92509 San Bernardino, CA 92407 Unloading Time/Truck Turn-around Time—Each City recycling truck entering the a 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 PacketPg. 906 6.U.E 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 self-haul trucks, c y Contractor shall provide a means to avoid "stacking" of recycling trucks on public streets as they enter their facility(s). Contractor shall provide City trucks preference over the o general public to facilitate off-loading efficiencies and turn-around time. a. A Accounting System - Contractor shall design an accounting system for all Recyclable materials delivered by City trucks. The accounting system must be developed by the Contractor and approved by the City prior to program start-up. Commingled materials on City trucks shall be accounted for based on factors derived from periodic sampling, separate processing, or by other means as agreed to by the v City, to establish factors for the percent of each material. 0 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 m agreement. v a, m Unmarketable Materials - In no case shall the Contractor take any City delivered recyclable materials to a disposal facility unless permission in writing is provided by the o City on a load-by-load basis. If the Contractor can demonstrate that a material is not c r (F marketable, such permission shall not be unreasonably withheld. This provision does not apply to residue that is incidental to processing recyclables. 0 Contractor will provide for alternative off-loading methods in the event of reasonable down -time due to repair and maintenance of equipment. Contractor shall maintain adequate space to stockpile recyclable materials during such reasonable down time for acceptance of material without a break in service. "Reasonable down time" shall be defined as less than one day each operating month. 0 Contractor shall be responsible for disposal of residue from processing of City recyclables at no charge to City and in compliance with the Waste Disposal Agreement. m Contractor's facilities shall be open to receive materials from City trucks Monday d through Saturday, year round. Facilities shall be open to receive City materials from L 6:30 a.m. to 5:00 p.m. c 0 U Contractor shall provide an area for tipping of City vehicles separate from the general public. Contractor shall provide spotting of City trucks in areas at their facility with tight r maneuverability. m' c Contractor shall allow the City's representatives to inspect their facilities during normal business hours to assure compliance with the service agreement. i m 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. i ter► 4 Professional Services Agreement For Processing Recycling Materials 9-21-2011 Final PacketPg. 907 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 Contractor's facility shall be paved. E- N d Contractor shall make reasonable accommodations to provide tours of their facilities to 0 the public upon request by the City's representative. a R The City will not furnish facilities or equipment for this Agreement. 3.2 Equipment. Contractor shall furnish all labor, materials and equipment N necessary to perform the services contemplated by this Agreement. 3: E 3.3. Professional Practices. All professional services to be provided by w Contractor pursuant to this Agreement shall be provided by personnel experienced in o their respective fields and in a manner consistent with the standards of care, diligence N and skill ordinarily exercised by professional Contractors in similar circumstances in :4 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 any changes in any laws that may affect Contractor's performance of this Agreement. w 0 3.4 Restriction on Manner of Collection. In order to ensure City complies with c the provisions of AB 939, and to accurately account for and report the amount of Solid R Waste including Recyclable Material collected within the City Limits and processed, , recycled and/or disposed pursuant to this Agreement, City Recyclable Material shall not be commingled with any other Recyclable Material until City Recyclable Material has been weighed and/or accounted for in some other manner. 3.5 Pursuit and Management of Grants. Contractor shall assist City in pursuing grants and other funding as may become available for recycling, public r 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. x m 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; 0 occupational health and safety, fair employment and employment practices; workers' compensation insurance and safety in employment, and all other Federal, State and r local laws and ordinances applicable to the services required under this Agreement. m Contractor shall indemnify and hold harmless City from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description including attorneys' fees and costs, presented, brought, or recovered against City for, or on account of any liability under any of the above-mentioned laws, which may be incurred by reason of Contractor's performance under this Agreement. a 3.7. Non-discrimination. In performing this Agreement, Contractor shall not Professional Sery ices Agreement For Processing Recycling Materials 9-51-2011 Final � PacketPg. 908 6.U.E 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 1735. m U 3.8. Business License. Contractor/Consultant/Vendor warrants it possesses, o or shall obtain, and maintain during the term of this Agreement a business registration a certificate pursuant to Title 5 of the City of San Bernardino Municipal Code, and any and all other licenses, permits, qualifications, insurance and approvals of whatever nature that are legally required of contractor/consultants/vendor to practice its profession, skill or business. 3 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 rn the prior written consent of City. Contractor may engage a subcontractor(s) as o permitted by law and may employ other personnel to perform services contemplated by N this Agreement at Contractor's sole cost and expense. m v 3.10 Duty to Notify City. Contractor shall have a duty pursuant to this Agreement to notify the City of any charges, accusations, or lawsuits commenced, filed, prosecuted, or instituted by the California Deparment of Resources, Recycling and o Recovery (aka "Cal Recycle"), 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. v 0 rn 4.0 CITY RESPONSIBLILITIES v 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. 0 4.2 Access to City Owned Property. City will provide access to and make v provisions for Contractor to enter upon City-owned property as may be required by Contractor to perform the services contemplated by this Agreement. x d 5.0. TERM, TERMINATION AND CURE 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 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 m' 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 E prior to the expiration of this Agreement, or any renewal period thereof. m 5.2. Termination. The City reserves and has the right and privilege of a 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 Services Agreement For Processing Recycling Materials 9-21-2011 Final Packet Pg. 909 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 N 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 o EL within 30 days after the same shall become due, or becomes unable to fulfill its obligations under this Agreement, or defaults in the performance of any of the other terms or provisions therein required, City shall have the following options without any further notice or authorization from Contractor, and its choice of any option shall in no way waive its rights to select any other option at any time. 3 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 rn discovered (forthwith for a default involving any condition involving c safety) or make reasonable progress to cure said default N (reasonable progress to be determined at City's sole and absolute m discretion), City may terminate this Agreement on a date of its d choice, d in 5.3.2 The acceptance of all or part of recycling revenues by City for any o 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 •5 same or any other term, covenant and condition. Any waiver by :t.2 City of a default on the part of Contract shall not be construed as, 0 or constitute a waiver of, any subsequent default of the same or any other term, covenant and condition. 5.3.3 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 is issued to City by Contractor by registered mail, and if City does not cure said default within thirty (30) days of receipt of said notice or makes reasonable progress in curing such default, then Contractor may immediately terminate this Agreement, and recover x at law any and all claims which may be due. U t0 5.4 Compensation. In the event of early termination, Contractor shall pay City E compensation for all Recyclable Materials delivered by the City as of the date of °u termination. 5.5 Documents. In the event of termination of this Agreement, all writings m' 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 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, 7 Professional Services Agreement For Prauasing Recycling Materials 9-21-2011 Final Packet Pg. 910 6.U.E 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. 6.0. COMPENSATION AND ACCOUNTING N 6.1. Revenue Calculation. Revenue calculation shall be calculated as set u 0 forth below: a` 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 Y calculation will apply: 1500 tons less 40% = 900 tons x $15 per ton = $13,500 net 1� payment. At the end of 60 days, a mutually audited waste characterization will be Y 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 3 below, the Contractor's payment to the City increases from $15 per ton to $22.50 per o ton. If the said waste characterization demonstrates that the City's residual reduces to 20% or below, the Contractor's payment to the City increases from $15 per ton to $25 m 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 c 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 Y Contractor charge the City or increase the residual deduction to more than 40%. 0 to The parties agree that the characterization of 40% residue is material to this Agreement and that the City relied on such characterization in entering into the Agreement. Contractor shall be responsible to perform periodic characterizations in accordance with best management practices. The City's representatives shall observe any future characterizations. Any recalculation of revenue from subsequent characterizations shall o 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). m X 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. r Payments to the City will include California Redemption Value applicable to curbside u Recycling programs. d r 6.3 Late Payments. Interest on amounts past due will be assessed at the rate n' of 1.5% per month. d 6.4 Monthly Summary ports. Contractor will provide the City with a monthly E Re report on the overall amount of Recyclable Materials delivered by the City recycling R 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 within thirty (30) calendar days following the end of each month. 8 Professional Services Agreement For Processing Recycling Materials 9-21-2011 Final PacketPg. 911 6.U.E 2011-285 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. N d U 6.6. Records and Audits. Records of Contractor's services relating to this Agreement shall be kept on a generally recognized accounting basis and shall be made a 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 Agreement. Contractor shall maintain books and accounts of all project related weights by material type. Such records shall be available at all reasonable times for examination by the City at the office of Contractor. a 7.0. TIME OF PERFORMANCE con ,_ 0 7.1. Commencement of Work. The professional services to be performed N pursuant to this Agreement shall commence within five (5) days from the Effective Date m of this Agreement. R 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. o Such acts shall include, but not be limited to, acts of God, fire, strikes, material r 0 shortages, riots, acts of war, or any other conditions beyond the reasonable control of a party. 0 U) B.D. INSURANCE v 8.1. Minimum Scope and Limits of Insurance. Contractor shall obtain and 77 maintain during the life of this Agreement all of the following insurance coverages: (a) Comprehensive general liability, including premises-operations, ° products/completed operations, broad form property damage, blanket contractual liability, independent contractors, personal injury with a policy limit of not less than One Million ($1,000,000.00) Dollars per occurrence and Two Million ($2,000,000.00) Dollars, U aggregate. C (b) Automobile liability for owned vehicles, hired, and non-owned vehicles, with a policy limit of not less than One Million ($1,000,000.00) Dollars, combined single limits, per occurrence and aggregate. m c (c) Workers' compensation insurance as required by the State of E California- m 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 PacketPg. 912 6.U.E 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 with City." c N (b) Notice: "Said policy shall not terminate, nor shall it be cancelled, nor the coverage reduced, until thirty (30) days after written notice o is given to City." a (c) Other insurance: "Any other insurance maintained by the City of San Bernardino shall be excess and not contributing with the d insurance provided by this policy." m m 3 8.3. Certificates of Insurance. Contractor shall provide to City certificates of v insurance showing the insurance coverages and required endorsements described y above, in a form and content approved by City, prior to performing any services under o this Agreement. v 8.4. Non-limiting. Nothing in this Section shall be construed as limiting in any m 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. w 0 9.0. GENERAL PROVISIONS o 9.1. Entire Agreement. This Agreement constitutes the entire Agreement between the parties with respect to any matter referenced herein and supersedes any 0 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. n 9.2. Representatives. The City Manager or his designee shall be the representative of City for purposes of this Agreement and may issue all consents, approvals, directives and agreements on behalf of the City, called for by this Agreement, except as otherwise expressly provided in this Agreement. x m 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 0 expressly provided in this Agreement. r 9.3. Proiect Managers. City designates the Public Works Director to act as the ' m Project Manager to work directly with Contractor in the performance of this Agreement. 01 Contractor shall designate a Project Manager who shall represent it and be its agent in all consultations with City during the term of this Agreement. Contractor ;? or its Project Manager shall attend and assist in all coordination meetings called by City. a 9.4. Notices. Any notices, documents, correspondence or other 10 Professional Services Agreement For Processing Recycling Materiels 9-21-2011 Final Packet Pg. 913 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 the time of actual delivery. Changes may be made in the names and addresses of the N person to whom notices, bills, and payments are given by giving notice pursuant to this paragraph. a m IF TO CONTRACTOR: IF TO CITY: Burrtec Waste Industries, Inc., City of San Bernardino 9890 Cherry Ave, Public Works Director Fontana, Ca 92324 300 North "D" Street W San Bernardino, CA 92418-0001 3 Attn: Michael Arreguin Attn: Nadeem Majaj n 9.5. Attornevs' Fees. In the event that litigation is brought by any party in o connection with this Agreement, the prevailing party shall be entitled to recover from the v opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary and N expenses of the City Attorney and members of his office in enforcing this Agreement o shall be considered as "attorneys fees" for purposes of this Agreement. o R 9.6. Governing Law. This Agreement shall be governed by and construed under the laws of the State of California without regard to principles of conflict of laws. o rn 9.7. Venue. The parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated either in the State courts located in the County of San Bernardino, State of California or the U.S. District Court for the Central District of California. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. ° a 9.8. Assignment. Contractor shall not voluntarily or by operation of law assign, d transfer, sublet or encumber all or any part of Contractor's interest in this Agreement x without City's prior written consent. Any attempted assignment, transfer, subletting or d encumbrance shall be void and shall constitute a breach of this Agreement and cause m 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 0 obligations to be performed by Contractor hereunder for the term of this Agreement. In U the event of mutual agreement between the parties to sublet a portion of the services to r be performed pursuant to this Agreement, Contractor shall add the subcontractor as an m' additional insured to Contractor's insurance policy and provide City with the insurance endorsements prior to any work being performed by the subcontractor. Assignment does not include printing or other customary reimbursable expenses that may be provided in this Agreement, m 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 Processing Recycling Materials 9-21-2011 Final PacketPg. 914 6.U.E 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 subcontractors in the performance of this Agreement. N d v 9.10. Employment Indemnification. Contractor expressly waives all rights to 0 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 .2 0. injuries to Contractor's employees and agrees that the obligation to indemnify, defend, 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. This shall not apply to any damage resulting from the sole negligence of City, its agents 3 and employees. -o 0 rn 9.11. Hazardous Substances Indemnification. Without regard to any insurance `o coverage or requirements, and without limiting the above general indemnification 0 obligation in any way, Contractor specifically agrees to and shall, to the maximum m extent permitted by law, defend (with counsel acceptable to City) reimburse, indemnify, M and hold City and its past and present officers, council members, employees, consultants and agents (hereinafter "Indemnified Parties") harmless from and against w any and all claims, actions, liabilities, damages, demands, judgments, losses, costs, o liens, expenses, suits, actions, attorneys' fees, consultant fees, penalties and any and c all other losses, damages, fees and expenses of whatever kind or nature ("Claims") (including but not limited to response costs, investigative costs, assessment costs, .0 monitoring costs, treatment costs, cleanup costs, removal costs, remediation costs, and similar costs, damages and expenses) that arise out of or are alleged to arise out of or in any way relate to any action, inaction or omission of Contractor that: (a) results in any demand, claim, notice, order, or lawsuit, asserting that any Indemnified Party is liable, responsible or in anyway obligated to investigate, assess, monitor, study, test, treat, remove, remediate, or otherwise cleanup, any ° Hazardous Contaminant (as defined herein); or U (b) relates to material collected, transported, recycled, treated or x disposed of by Contractor. U 16 Contractor's obligations pursuant to this Section shall apply, without limitation, to: 0 U (a) any Claims brought pursuant to or based on the provisions of the v Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq., the Resource Conservation and Recovery Act ("RCRA"), 42 m 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- Cologne Act (California Water Code Section 13000 et seq.), and any and all w amendments and regulations thereto, and any other Federal, State, regional or local a environmental statutory or regulatory provision; 12 Professional Services Agreement For Processing Recycling Materials 9-21-2011 Final PacketPg. 915 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 the marketing, sale, distribution, storage, transportation, disposal, processing or use of N N any materials recovered by Contractor; 0 (d) any Claims based on or arising out of or alleged to be arising out of a any breach of any express or implied warranty, representation or covenant arising out of m or in connection with this Agreement. The foregoing indemnity shall apply irrespective of the negligence or willful N misconduct of Contractor or any affiliate of Contractor. v For purposes of this Section, the term "Hazardous Contaminant" shall mean any 0 "hazardous material," as that term is defined under California Health & Safety Code o 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 -0 under Title 42, Section 6093(5) of the United States Code and under California Health & 2 Safety Code Section 25550(m); any chemical which the Governor has identified as a 0 chemical known to the State to cause cancer or reproductive toxicity pursuant to 0 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- '5 containing material. The term "Hazardous Contaminant' shall also include any and all .t amendments to the above-referenced statutory and regulatory provisions made before 0 or after the date of execution of this Agreement. c The provisions of this Section shall not terminate or expire and shall survive the termination or expiration of this Agreement. r n 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 v his expense, and be responsible for any and all payment of Income Tax, Social Security, State Disability Insurance Compensation, Unemployment Compensation, and 0 other payroll deductions for Contractor and its officers, agents, and employees, and all d business licenses, if any are required, in connection with the services to be performed hereunder. c 0 U 9.12 Public Records Act Disclosure. Contractor has been advised and is aware 0 d that all reports, documents, information and data including, but not limited to, computer r tapes, discs or files furnished or prepared by Contractor, or any of its subcontractors, m' 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, Z 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 Professiunal Services Agreement For Processing Recycling Materials 9-21-2011 Final Packet Pg. 916 6.U.E • 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 pursuant to this Agreement are confidential and Contractor agrees that they shall not be y made available to any individual or organization without the prior consent of City. c 9.14. Responsibility for Errors. Contractor shall be responsible for its work and a results under this Agreement. Contractor, when requested, shall furnish clarification and/or explanation as may be required by the City's representative, regarding any services rendered under this Agreement at no additional cost to City. In the event that an error or omission attributable to Contractor occurs, then Contractor shall, at no cost y to City, provide all necessary design drawings, estimates and other Contractor professional services necessary to rectify and correct the matter to the sole satisfaction o of City and to participate in any meeting required with regard to the correction. Tn `o 9.15. Prohibited Employment. Contractor will not employ any regular employee of City while this Agreement is in effect. n 9.16. Order of Precedence. In the event of an inconsistency in this Agreement d and any of the attached Exhibits, the terms set forth in this Agreement shall prevail. If to and to the extent this Agreement incorporates by reference any provision of the RFP or o 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 govern over both the Response and the RFP and the Response shall govern over the 0 RFP. v N 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. o 9.18. No Third Party Beneficiary Rights. This Agreement is entered into for the sole benefit of City and Contractor and no other parties are intended to be direct or incidental beneficiaries of this Agreement and no third party shall have any right in, m under or to this Agreement. m 9.19. Headings. Paragraphs and subparagraph headings contained in this Z Agreement are included solely for convenience and are not intended to modify, explain U or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement. 3 CO 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 as if drafted jointly by the parties and in accordance with its fair meaning. There shall a 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. 14 Professional Services Agreement For Processing Recycling Materials 9-21-2011 Final Packet Pg. 917 6.U.E 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 a whom enforcement of a waiver is sought. The waiver of any right or remedy in respect N to any occurrence or event shall not be deemed a waiver of any right or remedy in d U respect to any other occurrence or event, nor shall any waiver constitute a continuing o a waiver. m 9.24. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable in any circumstance, such determination w shall not affect the validity or enforceability of the remaining terms and provisions hereof m or of the offending provision in any other circumstance. 3 a 9.25. Counterparts. This Agreement may be executed in one or more r°n counterparts, each of which shall be deemed an original. All counterparts shall be c construed together and shall constitute one agreement. N v 9.26. Corporate Authority. The persons executing this Agreement on behalf of 'm the parties hereto warrant that they are duly authorized to execute this Agreement on m behalf of said parties and that by doing so, the parties hereto are formally bound to the to to w provisions of this Agreement. s= 0 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be R executed by and through their respective authorized officers, as of the date first above v written. U) v CITY OF SAN BERNARDINO, CONTRACTOR A municipal corporation �, n 0 m VCiof J. Morris, Ml I rreg in, i e President San Ber nardino Bur a Waste Industne d X m Rachel G. Clark, City Clerk o City of San Bernardino U d t= APPROVED AS TO FORM: m C d E U 10 James F. Penman, City Attorney " a 15 Proftssional Services Agreement For Processing Recycling Materials 9-21-2011 Final PacketPg. 918 6.U.F 2011-284 Exhibit A Form of Agreement PROFESSIONAL SERVICES AGREEMENT FOR PROCESSING RECYCLING MATERIALS —o C N N d THIS AGREEMENT is made and entered into this 17th day of o _October , 2011 ("Effective Date"), by and between the CITY OF SAN R BERNARDINO, a municipal corporation ("City"), and Republic Services of Southern California, LLC, a limited liability company ("Contractor"). d WITNESSETH: 3 WHEREAS, The Legislature of the State of California, by enactment of the 2 California Integrated Waste Management Act of 1989 ("AB 939"), incorporated into the 0 Califomia Public Resources Code as Section 40000 et seq., has declared that it is in the public interest to authorize and require local agencies to make adequate provision for a the disposal of Solid Waste within their jurisdictions; and m a v WHEREAS, City and Contractor are mindful of the provisions of the laws d governing the safe collection, transport, recycling, and disposal of Solid Waste, including AB 939 (as amended), the Resource Conservation and Recovery Act ° ("RCRA"), and the Comprehensive Environmental Response, Compensation and s Liability Act ("CERCLA"). City and Contractor desire to leave no doubts as to their w respective roles and to memorialize that by entering into this Agreement. City is not `0 thereby becoming an "arranger' or a "generator" as those terms are used in CERCIA, and that it is Contractor, not City, who is "arranging for' the disposal, composting, and N recycling of Recyclable Material which may contain hazardous substances; and further to confirm that Contractor has agreed to indemnify the City in connection with any claims relating to the inadvertent or intentional disposal of hazardous materials that may ti occur in connection with Contractors performance under this Agreement. o a WHEREAS, City and Contractor understand and agree that it is Contractor, and not City, who will take title to the Recyclable Materials, that City has not, and, by this d 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 in or with City in the absence of this Agreement is hereby transferred to Contractor. 0 U 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 a Resources Code Section 40000, et seq. WHEREAS, City proposes to have Contractor perform the services described in the City's Request for Proposal and incorporated herein by reference; and E 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 Frofessional Services Agreement For Processing Recycling Materiels 9.21.2011 Final Packet Pg. 919 6.U.F 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 provisions of California Government Code, Sections 1090-1092, in the subject matter of N this Agreement. 0 NOW, THEREFORE, for and in consideration of the mutual covenants and a conditions contained herein, the parties hereby agree as follows: SECTION 1.00 RECITALS N fe The Parties acknowledge the above recitals are true and correct and incorporate 3: them herein as if they were fully restated, o In SECTION 2.00 DEFINITIONS ° N Whenever any term used in this Agreement has been defined by Division 30, m Part 1, Chapter 2 of the California Public Resources Code, or Chapter 8.24 of the City of San Bernardino Municipal Code, the definition of such term set forth therein shall apply unless the term is otherwise defined in this Agreement. The terms defined herein U) shall have the meaning set forth in this Agreement. Otherwise, the terms herein shall 0 have their ordinary meaning. g m U 2.1 AB 939. "AB 939" shall mean the California Integrated Waste Management Act o of 1989, currently codified as California Public Resources Code Section 40000 et seq. as it may be amended from time to time. 2.2 City. "City" means the City of San Bernardino, a municipal corporation. 2.3 Contractor. "Contractor" shall mean Republic Services of Southern California, LLC, the entity entering this Agreement with the City, or any party permitted pursuant to the terms hereof to become the successor or assignee thereof. d 2.4 Effective Date. "Effective Date" shall mean October 17, 2011. d U A 2.5 Hazardous Waste. 'Hazardous Waste means (i) all waste defined or characterized as hazardous waste by the federal Solid Waste Disposal Act (42 0 U.S.C. § 3251 et seq.), as amended, including the Resource Conservation and Recovery Act of 1976 (42 U.S.C. § 6901 et seq.) and all future amendments a thereto, or regulations promulgated thereunder and (ii) all waste defined or characterized as hazardous waste by the principal agencies of the State of California (including without limitation the Department of Health Services and the £ California Waste Management Board) having jurisdiction over hazardous waste generated by facilities within such state, provided that the term "Hazardous Waste": 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 Agreemem Fos Processing Recycling Materiels 9-21.2011 Final Packet Pg. 920 6.U.F 2011-284 methods; B. Shall include radioactive wastes; and C. Shall be construed to have the broader, more encompassing definition where there exists a conflict in the definitions employed by two or more governmental agencies having concurrent or overlapping jurisdiction over hazardous waste. . a 2.6 Municipal Code. "Municipal Code" shall mean the "San Bernardino Municipal Code" of the City of San Bernardino 2.7 Recycling. "Recycling" means the process of collecting and turning used y products, including, but not limited to, newspapers, cans, corrugated cardboard 3 and bottles, into new products by reprocessing or remanufacturing them. a 0 2.8 Recyclable Material. "Recyclable Material" or "Recyclables" shall mean all Solid o Waste, garbage, trash, refuse, construction and demolition debris, and any other Solid Waste which is capable of being recycled. m n d 2.9 RFP. "RFP" means the City's Request for Proposal attached hereto as Exhibit "A" and incorporated herein as though set forth in full. to 0 C 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 commercial recycling and remit payments to the City based upon the overall o recycling percentage. u). 0 3.0. SERVICES PROVIDED BY CONTRACTOR 3.1 Scope of Services. Contractor shall provide the services described in Contractors 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 County of San Bernardino disposal facility per the Waste Delivery Agreement, which K Contractor expressly acknowledges. U f0 Contractor will accept materials for recycling from the City's recycling Program serving o single-family residences and commercial accounts. U Contractor will provide a facility at the location specified below for Off-loading City a recycling trucks. The facility will be available to begin accepting materials by November 1, 2011. The designated facility is: G d Republic Services of Southern Califomia, LLC 3059 E. Steel Road Colton, CA 92324 a Unloading Time/Truck Turn-around Time—Each City recycling truck entering the Contractor's facility shall have a maximum of 15 minutes turnaround time from the time 3 Professional Services Agreement For Processing Recycling M=rials 9-21-2011 Final PacketPg. 921 6.U.F LU 11—ZS4 the truck arrives at the facility until the time the truck exits the facility. The 15-minute turnaround time shall apply under all circumstances. The Contractor shall either provide separate scales, ingress and egress from their facility or otherwise accommodate City vehicles to avoid queuing City vehicles behind self-haul trucks y d Contractor shall provide a means to avoid "stacking" of recycling trucks on public streets o as they enter their facility(s). Contractor shall provide City trucks preference over the a general public to facilitate off-loading efficiencies and tum-around time. Accounting System— Contractor shall design an accounting system for all d Recyclable Materials delivered by City trucks. The accounting system must be N developed by the Contractor and approved by the City prior to program start-up. 3 Commingled materials on City trucks shall be accounted for based on factors derived -2 from periodic sampling, separate processing, or by other means as agreed to by the 0 City, to establish factors for the percent of each material. o N The Contractor shall comply with all Federal, State and local regulations that apply to m recyclable materials delivered to them by City recycling trucks under the terms of this agreement. in co Unmarketable Materials — In no case shall the Contractor take any City delivered recyclable materials to a disposal facility unless permission in writing is provided by the 0 City on a load-by-load basis. If the Contractor can demonstrate that a material is not 2 marketable, such permission shall not be unreasonably withheld. This provision does o not apply to residue that is incidental to processing recyclables. e Contractor will provide for alternative off-loading methods in the event of reasonable down —time due to repair and maintenance of equipment. Contractor shall maintain adequate space to stockpile recyclable materials during such reasonable down time for acceptance of material without a break in service. "Reasonable down time" shall be o defined as less than one day each operating month. Contractor shall be responsible for disposal of residue, which shall be in compliance x with the WDA, from processing of City recyclables at no charge to City. a U t0 Contractor's facilities shall be open to receive materials from City trucks Monday Z through Saturday, year round. Facilities shall be open to receive City materials from 0 6:30 a.m. to 5:00 p.m. .2 CL a C Contractor shall provide an area for tipping of City vehicles separate from the general public. Contractor shall provide spotting of City trucks in areas at their facility with tight maneuverability. 0 d E r 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 Agreement For Processing Recycling Materiels 9.21-2011 Final PacketPg. 922 6.U.F 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. m Contractor shall provide paved surfaces for all areas where City trucks will operate at N their facility. All ingress and egress from the Contractor's facility shall be paved. 0 L Contractor shall make reasonable accommodations to provide tours of their facilities to L the public upon request by the City's representative. R The City will not furnish facilities or equipment for this Agreement. d N R 3.2 Equipment. Contractor shall furnish all labor, materials and equipment necessary to perform the services contemplated by this Agreement. 0 33. Professional Practices. All professional services to be provided by o Contractor pursuant to this Agreement shall be provided by personnel experienced in 0 their respective fields and in a manner consistent with the standards of care, diligence m and skill ordinarily exercised by professional Contractors in similar circumstances in accordance with sound professional practices. Contractor also warrants that it is familiar with all laws that may affect its performance of this Agreement and shall advise City of to any changes in any laws that may affect Contractor's performance of this Agreement. 0 0 3.4 Restriction on Manner of Collection. In order to ensure City complies with w the provisions of AS 939, and to accurately account for and report the amount of Solid o Waste including Recyclable Material collected within the City Limits and processed, �? recycled and/or disposed pursuant to this Agreement, City Recyclable Material shall not be commingled with any other Recyclable Material until City Recyclable Material has been weighed and/or accounted for in some other manner. r 3.5 Pursuit and Management of Grants. Contractor shall assist City in o 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 x so by City, and shall be entitled to compensation for such management services if the d funding in question may be utilized to so compensate Contractor. 0 3.6. Warranty. Contractor warrants that it shall perform the services required u 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; a occupational health and safety; fair employment and employment practices; workers' compensation insurance and safety in employment; and all other Federal, State and local laws and ordinances applicable to the services required under this Agreement. Contractor shall indemnify and hold harmless City from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description including attorneys' fees and costs, presented, brought, or recovered 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 Professional Smims Ag=nent For Processing Rccycling Malcrials 9-21-2011 Final Packet Pg. 923 6.U.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 provision may result in the imposition of penalties referred to in Labor Code, Section y N 1735, 0 3.8. Business License. Contractor/Consultant/Vendor warrants it possesses, 0 or shall obtain, and maintain during the term of this Agreement a business registration certificate pursuant to Title 5 of the City of San Bernardino Municipal Code, and any and all other licenses, permits, qualifications, insurance and approvals of whatever nature that are legally required of contractor/consultants/vendor to practice its profession, skill or business. 3.9. Delegation and Assignment. This is a personal service contract, and the rn duties set forth herein shall not be delegated or assigned to any person or entity without o the prior written consent of City. Contractor may engage a subcontractor(s) as a permitted by law and may employ other personnel to perform services contemplated by to this Agreement at Contractor's sole cost and expense. d R a, 3.10 Duty to Notify City. Contractor acknowledges that it has a duty pursuant to 0 this Agreement to notify the City of any charges, accusations, or lawsuits commenced C or instituted by the California Department of Resources, Recycling and Recovery (aka = "CalRecycle"), the State of California, the Attorney General, and any other similar M regulatory agency. This duty to notify the City shall extend to and include investigations o by the applicable regulatory agency prior to any formal action being taken. 4.0 CITY RESPONSIBILITIES 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. d 5 U 4.2 Access to City Owned Proaerty. City will provide access to and make K provisions for Contractor to enter upon City-owned property as may be required by Contractor to perform the services contemplated by this Agreement. 0 0 5.0. TERM, TERMINATION AND CURE U a 5.1. Term. This Agreement shall commence on the Effective Date and end on a December 31, 2012, unless previously terminated as provided herein or as otherwise agreed to in writing by the parties. Subject to the provisions herein, this Agreement may be renewed for up to three (3) successive one (1) year terms. Such renewal will be deemed automatic unless this Agreement is sooner terminated as provided for hereinafter, or upon written notice of intent not to renew given by City at least 90 days prior to the expiration of this Agreement, or any renewal period thereof. c 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 s Professional Services Agr era For Processing Recycling Materials 9.21.2011 Final Packet Pg. 924 6.U.F 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. m 5.3. Cure. In the event Contractor defaults in the performance of any of the N terms or conditions of this Agreement or fails to conform to the rules, and regulations, or any of the directions or instructions that may be properly made by City in the exercise of its powers, or fails, neglects or refuses to pay the consideration of any part thereof within 30 days after the same shall become due, or becomes unable to fulfill its obligations under this Agreement, or defaults in the performance of any of the other M terms or provisions therein required, City shall have the following options without any further notice or authorization from Contractor, and its choice of any option shall in no m 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 o discovered (forthwith for a default involving any condition involving 0 safety) or make reasonable progress to cure said default m (reasonable progress to be determined at City's sole and absolute v discretion), City may terminate this Agreement on a date of its choice. w 0 C 5.3.2 The acceptance of all or part of recycling revenues by City for any -° period after a default shall not be deemed a waiver of any of these options, nor a waiver of the default of any subsequent default of the o same or any other term, covenant and condition. Any waiver by City of a default on the part of Contract shall not be construed as, or constitute a waiver of, any subsequent default of the same or any other term, covenant and condition. .- r 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 is issued to City by Contractor by registered mail, and if City does 5 not cure said default within thirty (30) days of receipt of said notice x or makes reasonable progress in curing such default, then Contractor may immediately terminate this Agreement, and recover at law any and all claims which may be due. o 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 a termination. 5.5 Documents. In the event of termination of this Agreement, all writings prepared by Contractor in its performance of this Agreement including, but not limited to, data, reports and materials as may have been accumulated by Contractor in the performance of this Agreement, shall be delivered or otherwise made available to City 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 Professional Services Agreement For Processing Recycling Materials 9-21-2011 Final Packet Pg. 9 55 6.U.F 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. m 6.0. COMPENSATION AND ACCOUNTING N d 6.1. Revenue Calculation. Revenue calculation shall be calculated as set o a 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 calculation will apply: 1500 tons less 40% = 900 tons x $15 per ton = $13,500 N 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 a characterization demonstrates that the City's residual reduces to 30% or below, the 0 Contractor's payment to the City increases from $15 per ton to $20 per ton. If the said o waste characterization demonstrates that the City's residual reduces to 25% or below, N the Contractor's payment to the City increases from $15 per ton to $22.50 per ton. If the m said waste characterization demonstrates that the City's residual reduces to 20% or 0 below, the Contractor's payment to the City increases from $15 per ton to $25 per ton. If d the said waste characterization demonstrates that the City's residual reduces to 15% or rn below, the Contractor's payment to the City increases from $15 per ton to $30 per ton. If o the said waste characterization demonstrates that the City's residual reduces to 10% or `o_ below, the Contractor's payment to the City increases from $15 per ton to $40 per ton. Quarterly waste characterizations and potential per ton price change will 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%. The parties agree that the characterization of 40% residue is material to this Agreement and that the City relied on such characterization in entering into the o Agreement. Contractor shall be responsible to perform periodic characterizations in accordance with best management practices. The City's representatives shall observe any future characterizations. Any recalculation of revenue from subsequent characterizations shall not result in the Contractor charging City for receipt of material, d 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). 0 0 6.2 Payment to City. Contractor shall pay the Compensation for the preceding 0 month to the City no later than thirty (30) calendar days from the end of each month. Payments to the City will include California Redemption Value applicable to curbside a Recycling programs. 6.3 Late Payments. Interest on amounts past due will be assessed at the rate E of 1.5% per month. 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 Recycling Materiels 9-21.2011 Find PacketPg. 926 6.U.F 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, 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. ° a 6.6. Records and Audits. Records of Contractor's services relating to this 4 Agreement shall be kept on a generally recognized accounting basis and shall be made R available to City or its Project Manager for inspection and/or audit at mutually convenient times for a period of three (3) years from the commencement of this Agreement. Contractor shall maintain books and accounts of all project related weights by material type. Such records shall be available at all reasonable times for examination ° by the City at the office of Contractor. n `o w 7.0. TIME OF PERFORMANCE •m 7.1. Commencement of Work. The professional services to be performed pursuant to this Agreement shall commence within five (5) days from the Effective Date ca Of this Agreement. 0 c 7.2. Excusable Delays. Neither party shall be responsible for delays or lack of °- performance resulting from acts beyond the reasonable control of the party or parties. Such acts shall include, but not be limited to, acts of God, fire, strikes, material o shortages, riots, acts of war, or any other conditions beyond the reasonable control of a �? party. 8.0. INSURANCE 8.1. Minimum Scope and Limits of Insurance. Contractor shall obtain and maintain during the life of this Agreement all of the following insurance coverages: Y (a) Comprehensive general liability, including premises-operations, x products/completed operations, broad form property damage, blanket contractual liability, independent contractors, personal injury with a policy limit of not less than One Million ($1,000,000.00) o Dollars per occurrence and Two Million ($2,000,000.00) Dollars, U aggregate. .2 Q (b) Automobile liability for owned vehicles, hired, and non-owned vehicles, with a policy limit of not less than One Million ($1,000,000.00) Dollars, combined single limits, per occurrence and E aggregate. (c) Workers' compensation insurance as required by the State of a California. 9 Professional Services Agreement For Processing Rccycling Materiels 9-21-2011 Final PacketPg. 927 6.U.F ZU11—Z64 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 and appointed boards, officers, agents, and employees are N additional insureds with respect to this subject project and contract with City." ° a m (b) Notice: "Said policy shall not terminate, nor shall it be cancelled, nor the coverage reduced, until thirty (30) days after written notice is given to City." N f6 (c) Other insurance: "Any other insurance maintained by the City of 3 San Bernardino shall be excess and not contributing with the o insurance provided by this policy." 0 8.3. Certificates of Insurance. Contractor shall provide to City certificates of a insurance showing the insurance coverages and required endorsements described m above, in a form and content approved by City, prior to performing any services under d this Agreement. d U) 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 0 Contractor may be held responsible for payments of damages to persons or property. 6 9.0. GENERAL PROVISIONS u� v 9.1. Entire Agreement. This Agreement constitutes the entire Agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. This Agreement may be modified only in writing, and signed by the parties in interest at the time of such modification. The ° terms of this Agreement shall prevail over any inconsistent provision in any other v contract document appurtenant hereto, including exhibits to this Agreement. d 9.2. Representatives. The City Manager or his designee shall be the representative of City for purposes of this Agreement and may issue all consents, approvals, directives and agreements on behalf of the City, called for by this o Agreement, except as otherwise expressly provided in this Agreement. Contractor shall designate a representative for purposes of this c Agreement who shall be authorized to issue all consents, approvals, directives and agreements on behalf of Contractor called for by this Agreement, except as otherwise expressly provided in this Agreement. s 9.3. Project Managers. City designates the Public Works Director to act as the in 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 Agreement For Processing Recycling Materials 9-21-2011 Final PacketPg. 928 6.U.F Lull-[a4 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 communication is sent through regular United States mail, it shall be deemed served or N delivered 48 hours after deposit in the U.S. Mail as reflected by the official U.S. a) postmark. In all other instances, notices, bills, and payments shall be deemed given at the time of actual delivery. Changes may be made in the names and addresses of the a person to whom notices, bills, and payments are given by giving notice pursuant to this paragraph. d IF TO CONTRACTOR: IF TO CITY: Republic Services of City of San Bernardino Southern Califomia Public Works Director a 3059 E. Steel Road 300 North "D" Street w Colton, Ca 92324 San Bernardino, CA 92418-DO01 0 N a Attn: Peter Sterenberg Attn: Nadeem Majaj m 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 w opposing party all costs and expenses, including reasonable attorneys' fees, incurred by 0 the prevailing party in the exercise of any of its rights or remedies hereunder or the 4 enforcement of any of the terms, conditions, or provisions hereof. The costs, salary and r expenses of the City Attorney and members of his office in enforcing this Agreement o shall be considered as "attorneys' fees" for purposes of this Agreement. v 9.6. Governing Law. This Agreement shall be governed by and construed under the laws of the State of California without regard to principles of conflict of laws. n 9.7. Venue. The parties hereto agree that all actions or proceedings arising in o connection with this Agreement shall be tried and litigated either in the State courts located in the County of San Bernardino, State of California or the U.S. District Court for ; the Central District of California. The aforementioned choice of venue is intended by x the parties to be mandatory and not permissive in nature. d U t6 9.8. Assignment. Contractor shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of Contractor's interest in this Agreement ° without City's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause a for termination of this Agreement. Regardless of City's consent, no subletting or assignment shall release Contractor of Contractor's obligation to perform all other obligations to be performed by Contractor hereunder for the term of this Agreement. In the event of mutual agreement between the parties to sublet a portion of the services to E 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. PrONS10nLL Services Agreement For Processing Recycling Meterisds 9-21-2011 Fmel Packet Pg.929 6.U.F 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 rn nature including, but not by way of limitation, all civil claims or workers' compensation N 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. a 9.10. Employment Indemnification. Contractor expressly waives all rights to subrogation against City, its Officers, employees and volunteers for losses arising from v work performed by Contractor for City by expressly waiving Contractor's immunity for injuries to Contractor's employees and agrees that the obligation to indemnify, defend and hold harmless provided for in this Agreement extends to claims brought by or on behalf of any employee of Contractor. The parties mutually negotiate this waiver. This shall not apply to any damage resulting from the sole negligence of City, its agents and o employees. m 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 w extent permitted by law, defend (with counsel acceptable to City) reimburse, indemnify, 0 save and hold City and its past and present officers, council members, employees, ° consultants and agents (hereinafter "Indemnified Parties") harmless from and against w any and all claims, actions, liabilities, damages, demands, judgments, losses, costs, o liens, expenses, suits, actions, attorneys' fees, consultant fees, penalties and any and rn all other losses, damages, fees and expenses of whatever kind or nature ("Claims") (including but not limited to response costs, investigative costs, assessment costs, monitoring costs, treatment costs, cleanup costs, removal costs, remediation costs, and similar costs, damages and expenses) that arise out of or are alleged to arise out of or in any way relate to any action, inaction or omission of Contractor that: o (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 v Hazardous Contaminant (as defined herein); or 0 (b) relates to material collected, transported, recycled, treated or u disposed of by Contractor. 2 a 3 Contractor's obligations pursuant to this Section shall apply, without limitation, to: (a) any Claims brought pursuant to or based on the provisions of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), r 42 U.S.C. § 9601 et seq., the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 9601 et seq., the California Hazardous Substances Account Act (California 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 at sec.), and any and all 12 Profmionel Services Agreement For Processing Rmycling Materiels 9.21-2011 Final Packet Pg. 930 6.U.F cVii-cnv 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 Contractor of any facility; ` .N N U (c) any Claims based on or arising out of or alleged to be arising out of the marketing, sale, distribution, storage, transportation, disposal, processing or use of CL- any materials recovered by Contractor; (d) any Claims based on or arising out of or alleged to be arising out of d any breach of any express or implied warranty, representation or covenant arising out of or in connection with this Agreement. R� The foregoing indemnity shall apply irrespective of the negligence or willful v0 misconduct of Contractor or any affiliate of Contractor. N For purposes of this Section, the term "Hazardous Contaminant" shall mean any m "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) w 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 & ° Safety Code Section 25550(m); any chemical which the Governor has identified as a r chemical known to the State to cause cancer or reproductive toxicity pursuant to 0 California Health & Safety Code Section 25249.8; any crude oil or refined or unrefined petroleum product or any fraction or derivative thereof; and any asbestos or asbestos- containing material. The term "Hazardous Contaminant" shall also include any and all amendments to the above-referenced statutory and regulatory provisions made before or after the date of execution of this Agreement. 0 The provisions of this Section shall not terminate or expire and shall survive the v termination or expiration of this Agreement. ; V d 9.11. Independent Contractor. Contractor is and shall be acting at all times as v an independent contractor and not as an employee of City. Contractor shall secure, at his expense, and be responsible for any and all payment of Income Tax, Social Security, State Disability Insurance Compensation, Unemployment Compensation, and 0 other payroll deductions for Contractor and its officers, agents, and employees, and all business licenses, if any are required, in connection with the services to be performed c hereunder. 9.12 Public Records Act Disclosure. Contractor has been advised and is aware d 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 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 Profminnal Services Agreement For Processing Recycling Mmer ds 9-21-2011 Final Packet Pg. 931 6.U.F 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. N 9.13. Confidentiality. All findings, reports, information and exhibits prepared or assembled by Contractor in connection with the performance of its professional services a 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. M 9.14. Responsibility for Errors. Contractor shall be responsible for its work and d results under this Agreement. Contractor, when requested, shall furnish clarification and/or explanation as may be required by the City's representative, regarding any 3 services rendered under this Agreement at no additional cost to City. In the event that o an error or omission attributable to Contractor occurs, then Contractor shall, at no cost Cn to City, provide all necessary design drawings, estimates and other Contractor o 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. m M d 9.15. Prohibited Employment. Contractor will not employ any regular employee d of City while this Agreement is in effect. `n `o C 9.16. Order of Precedence. In the event of an inconsistency in this Agreement and any of the attached Exhibits, the terms set forth in this Agreement shall prevail. If and to the extent this Agreement incorporates by reference any provision of the RFP or o the Response, such provision shall be deemed a part of this Agreement. Nevertheless, (n if there is any conflict among the terms and conditions of this Agreement and those of any such provision or provisions so incorporated by reference, this Agreement shall govern over both the Response and the RFP and the Response shall govern over the RFP. 0 9.17. Costs. Each party shall bear its own costs and fees incurred in the v preparation and negotiation of this Agreement and in the performance of its obligations hereunder except as expressly provided herein. x e 9.18. No Third Party Beneficiary Rights. This Agreement is entered into for the R 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. 3 CL 9.19. Headings. Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modify, explain or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement. 9.20. Construction. The parties have participated jointly in the negotiation and 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 Profess=al Services Agreement For Processing Recycling Materials 9-21-2011 Find Packet P9. 932 6.U.F 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. N 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 a to any occurrence or event shall not be deemed a waiver of any right or remedy in respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver. d N 9.24. Severability. If any provision of this Agreement is determined by a court of 3 competent jurisdiction to be unenforceable in any circumstance, such determination :°- shall not affect the validity or enforceability of the remaining terms and provisions hereof v0 or of the offending provision in any other circumstance. o N V 9.25. Counterparts. This Agreement may be executed in one or more m counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. V) 9.26. Corporate Authority. The persons executing this Agreement on behalf of 0 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 w U provisions of this Agreement. o rn IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be I executed by and through their respective authorized officers, as of the date first above M written. 0 CITY OF SAN BERNARDINO, CONTRACTOR v A municipal corporation N X d U atrick J. orris, Mayor— Thomas J. Vogt, President f Bernardino Republic Services of Southern California, LLC 0 U 4 C CL Rachel G. Clark, City Clerk City of San Bernardino d E s U APPROVED AS TO FORM: to a James F. Penman, City Attorney 15 Professioml Services Agreement For Processing Recycling Materials 9-21-2011 Final PacketPg. 933 6.U.F I RESOLUTION NO. 2011-284 1 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY & OF SAN BERNARDINO AUTHORIZING EXECUTION OF A PROFESSIONAL w 3 SERVICES AGREEMENT WITH REPUBLIC SERVICES OF SOUTHERN d, 4 CALIFORNIA, LLC, PURSUANT TO SAN BERNARDINO MUNICIPAL CODE a SECTION 3.04.010 PARAGRAPH B3, TO ALLOW REPUBLIC SERVICES OF 5 SOUTHERN CALIFORNIA,LLC TO PROVIDE COMMINGLED RECYCLING AND COMMERCIAL RECYCLING PROCESSING. 6 Y N R 7 WHEREAS,the City has an existing non-exclusive Professional Services Agreement with a 8 0 Burbank Recycling Inc.(BRI)to process recycling materials for the City; rn 9 .2 WHEREAS,pursuant to San Bernardino Municipal Code Section 3.04.010 Paragraph B3,the 10 m City would like to enter into one or more Professional Services Agreements to process recycling; a 11 R 12 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF N SAN BERNARDINO AS FOLLOWS: c C 13 ° SECTION 1. That the Mayor and Common Council authorize execution of the Professional 14 Services Agreement attached hereto as Exhibit"A"with Republic Services of Southern California, 0 15 •• LLC,pursuant to San Bernardino Municipal Code Section 3.04.010 Paragraph B3,to allow Republic v 16 Services of Southern California, LLC to provide commingled recycling and commercial recycling 17 n 18 processing. o 19 SECTION 2. The authorization to execute the above-mentioned Agreement is U 20 rescinded if the parties to the Agreement fail to sign it within sixty(60)days of the passage of axi U 21 this resolution. b c 22 /// 2 0 23 a 24 Of 25 E 26 27 �.. 28 Ill 6.U.F 2011-284 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY , 2 OF SAN BERNARDINO AUTHORIZING EXECUTION OF A PROFESSIONAL SERVICES AGREEMENT WITH REPUBLIC SERVICES OF SOUTHERN CALIFORNIA, .9 3 LLC, PURSUANT TO SAN BERNARDINO MUNICIPAL CODE SECTION 3.04.010 m PARAGRAPH B3,TO ALLOW REPUBLIC SERVICES OF SOUTHERN CALIFORNIA,LLC o 4 TO PROVIDE COMMINGLED RECYCLING AND COMMERCIAL RECYCLING o 5 PROCESSING. m 6 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and g Y N 7 Common Council of the City of San Bernardino at a regular meeting 3 n 8 thereof, held on the 17thday of October 2011,by the following vote,to wit: y 9 w Council Members: AYES NAYS ABSTAIN ABSENT y 10 m 11 Nt4LRQUEZ x w m v 12 JENKINS x "' 0 13 BRINKER x A 14 SHORETT x .2 0 15 X KELLEY v 16 LO 17 JOHNSON x — 18 MCCAMMACK x v 19 �" w Jo� U K 20 Rac el G. Clark, CMC,City Clerk d 21 A The foregoing resolution is hereby approved this day of b4+' ,2011. Z 22 U 23 24 Patri c J.Morris,Ma r-=� city of San Bernardino 25 Approved as to form: E JAMES F. PENMAN, r City Attorney 27 By. 28 ",Packet Pg.935 6.U.G OEXHIBIT A IWM Contract Status July 5,2012 Background • City entered in an agreement with the County of San Bernardino for a Waste Delivery Agreement on December 16, 1997. City trucks deliver refuse material to three landfills, Mid-Valley, Colton, v and San Timoteo 0 • Greenwaste material is sent to Inland Regional MRF operated by Republic Services in Colton a` was approved by Mayor and Common Council on December 18, 2006 • City entered in an agreement with Burbank Recycling to accept commingled recycling materials in m November 6, 2006 m d Public Works y • July 18, 2011, Public Works staff sent a letter requesting a status updated regarding the new Waste Delivery Agreements a • October 17, 2011 -Contracts were approved with Burrtec and Republic to begin taking o commingled recycling in lieu of Burbank Recycling • January 30, 2012-Public Works meet internally to discuss the strategy of the WDA ° • January 31, 2012-County holds a financial condition meeting &update on the WDA status v • February 2, 2012-Meet with Gerry Newcombe regarding WDA m • March 19, 2012-City reviews draft RFP language for IWM contracts v • March 21, 2012-Quarterly meeting with Burrtec v • March 22, 2012 Staff meet with consultant to discuss RFP strategy N • April 2, 2012-Republic characterization conducted and meeting 6 • April 3, 2012-Burrtec characterization conducted and meeting o • April 9, 2012-Meeting with Burrtec to discuss contract m • April 10, 2012-Meeting with City Attorney to discuss IWM contract strategy for expanded 'u contract per the definitions listed 0 • April 18, 2012-Meeting with Republic to discuss contract • April 19, 2012-City reviews draft letter to be sent to vendors for expanded contracts • May 2, 2012-City staff meet with consultant and City Attorney to discuss RFP strategy V • May 8, 2012-City sends letter to Burrtec and Republic for renewing contracts C • May 24, 2012-Proposals were due and received by the Finance Department • May 29, 2012-Open proposals and discuss with Director a L • May 30, 2012-Meeting to review proposals with consultant w • June 6, 2012-Meeting with City Attorney regarding project progress • June 13, 2012-Follow-up meeting with Burrtec regarding proposal questions - • June 19,2012-Follow-u p meeting with Republic regarding proposal questions(Todd/John) d F • June 19,2012-Item and back-up documentation was placed in agenda management software program • June 25,2012-Meeting with Division Manager to finalize staff report in r d Status B L • June 28, 2012-City receives a revised Republic proposal Y • July 2, 2012 -City Manager's office put IWM contracts placed on Committee agenda a • July 5, 2012-Ways and Means Committee Meeting • July 18, 2012-Discussion with Ways and Means Committee Chair • August 6, 2012-Item slated to be presented to Mayor and Common Council Packet Pg. 936 6.U.H (Draft) Request for Proposal For Exclusive Receiving, Processing, Transfer and Disposal Services of: 1) Refuse 2) Green Waste, Food Waste and U 3) Recyclable Materials a 4) Construction and Demolition This Request for Proposal is official notification of the need for services for the City of San d Bernardino (City). The purpose of this request is to attract experienced respondents qualified to provide the City with the following exclusive Solid Waste services and any other unspecified 3 added value services beginning January 1, 2013: a 0 • Receive, process, and transfer all solid waste, collected by the City within the City's 2 collection boundaries for ultimate disposal in a licensed landfill operated in compliance with all permits and local, state and federal regulations. Any response must demonstrate the following: • Sufficient capacity and "use rights" to a permitted delivery or tipping site (a cn transfer station, landfill, or tipping floor), and o • Sufficient capacity and "use rights" to a permitted Materials Recovery Facility o (MRF) able to receive all waste delivered by the City and located within twelve .2 (12) miles of the City of San Bernardino Corporate Yard, 234 South Mountain 9 View Avenue, San Bernardino, CA 92408, and m • Long-term disposal capacity (and "use rights" if the landfill is owned by a third N party) to accept all of the solid waste generated and collected within the collection boundaries of the City, with alternate disposal site(s) if the designated landfill is a permanently or temporarily closed to all disposal traffic for any reason, and X • Solid Waste Facility Permit (SWFP) number(s) for all facilities submitted by the v bidder listed on the RFP response cover page and checklist, and • Price per ton for all refuse, "commodities" including green waste, food waste, v, residential, commercial, commercial select, recycling stream and construction and demolition processing. 5 a • Receive, process and transfer all residential and commercial green waste and/or food waste o collected by the City within the City's collection boundaries. Any response must demonstrate the U processing method,process for paying the City for recycled materials,and price per ton for all green 2 waste"commodities"collected by the City. ° • Receive,process and transfer all residential and commercial single stream recyclables collected by d the City within the City's collection boundaries. Any response must demonstrate the processing r method, process for paying the City for recycled materials, and price per ton for all recyclable m "commodities"collected by the City. a • Receive, process and transfer all construction and demolition recyclable material collected by the /^ City within the City's collection boundaries. Any response must demonstrate the processing method, process for paying the City for recycled materials, and price per ton and method of PacketPg. 937 Request for Proposal for Refuse,Green Waste,and Recyclables. 08/03/12 Page 2 payment for all recyclable"commodities"commingled and/or source separated that are collected by the City. • Provide monthly reports to the City showing the tonnage of all solid waste and materials received, processed, transferred and/or disposed for the purpose of reporting City's N diversion of waste pursuant to the requirements of AB 939, AB 341 and any other federal, v state, or local requirements. a This Request for Proposal does not include collection of City refuse, green waste or q recyclables. It is for processing only. Proposals must include a response for exclusive receiving, processing, transfer and disposal services of refuse, green waste and recyclable N materials for an initial contract term of three (3) years,with two (2)one(1)year extensions. The City reserves the right to reject all proposals. v 0 rn The submittal of a proposal does not guarantee that the firm will be selected to perform the $ services requested, and does not bind or obligate the City in any manner. The submittal of a proposal only serves notice to the City that the firm desires to be considered. The City staff will :2 evaluate the proposals received and will recommend that the Mayor and Council award a contract to the firm with the highest rated and best proposal. You are requested to provide the City with five (5) copies of your narrative proposal, separate price proposal and completed check-list provided in this RFP, in a sealed envelope no later than °- Anaust(TBD),2012. Sealed submittals may be hand delivered or mailed to: 0 City of San Bernardino a Finance Department 4th Floor '" a 300 North D Street San Bernardino, CA 92418 Attention: Deborah Morrow, Purchasing Manager LATE SUBMITTALS WILL NOT BE ACCEPTED E 0 U w R D c N E t U R Q Packet Pg. 938 Request for Proposal for Refuse,Green Waste,and Recyclables. 08/03/12 Page 3 For Receiving, Processing, Transfer and Disposal Services of Refuse, Green Waste and Recyclables The City requires the respondents to demonstrate their qualifications to perform the requested services, and meet their contractual and financial commitments. Provide information in sufficient y detail to allow the City to assess the company's ability to process and ultimately dispose of all of the City's refuse, "commodities" including green waste, food waste, residential, commercial, P commercial select, recycling stream and construction and demolition processing. Also, describe your company and staff qualifications as they relate to successfully implementing the proposed services described.Information provided must include the following: d 1. Basic information. State the name and address of the company that would sign any agreement with the City. Include the name, address, phone number, fax number, e- mail address and title of a contact person. State the names of any other company or entity that will share significant substantive responsibilities as team members r° under any agreement with the City. ; 0 2. Company Description. Identify the organizational structure of your company, and m any other information you believe is important in the City's decision-making process. Identify principal owners,corporate officers and majority shareholders. d rn 3. Company Qualifications. Fully describe the services provided by your company o currently or in the past that are directly relevant to the proposed services. Provide o names and phone numbers of municipal clients over the past five years as references of your company's experience. .o 4. Landfill, Material Recovery Facility (NEM Transfer Facility References. List all the waste landfills and/or MRF/transfer stations your company operates within twelve(12)miles of the City of San Bernardino Corporate Yard,located at 234 South Mountain View Avenue, San Bernardino,CA 92408.Include the following information for each reference facility. a LL !r • Costs for transfer from MRF to disposal site by bidder including any adjustments (Consumer Price Index (CPI), fuel surcharges, etc.) • Length of time your company has been operating the facility and if it is company owned or a contract operation • Operating hours E • Tons per year received and maximum permitted tonnage for each listed facility E 0 • Remaining contractual term for operating the facility or any land lease terms if it is not company owned • For landfills,estimated remaining ca p aci ty(in tons)and estimated remaining operating life in ° Yom) d • All fines,penalties, citations, license and/or permit suspensions, or other enforcement actions t taken against the facility in the previous five years. °m • Client reference name and phone number a 5. Green Waste Sites.List all the green waste sites,including materials recovery facilities(MRFs) Packet Pg. 939 Request for Proposal for Refuse,Green Waste,and Recyclables. 08/03/12 Page 4 your company operates within twelve(12)miles of the City of San Bernardino Corporate Yard, located at 234 South Mountain View Avenue,San Bernardino,CA 92408.Include the following information for each reference facility. rn c • Costs for transfer from MRF or other facility to disposal/compost site by bidder N including any adjustments (Consumer Price Index (CPI), fuel surcharges, etc.) o • Length of time your company has been operating the facility and if it is company a` owned or a contract operation • Operating hours • Tons per year received and maximum permitted tonnage for each listed facility • Remaining contractual term for operating the facility or if it is not company owned N • Materials accepted for diversion at the facility • Organic or food waste processing opportunities • All fines,penalties,citations, license and/or permit suspensions, or other enforcement actions (n taken against the facility in the previous five years. o • Client reference name and phone number v m 6. Recyclable Materials Sites. List all the recyclable materials sites, including materials v recovery facilities(MRFs)your company operates within twelve(12)miles of the City of San Bernardino Corporate Yard, located at 234 South Mountain View Avenue, San Bernardino, w CA 92408.Include the following information for each reference facility. 0 • Any applicable costs deducted from payments or rebates to the City, including but not limited to, transportation or other costs o • Length of time your company has been operating the facility and if it is company �? owned or a contract operation • Operating hours • Tons per year received and maximum permitted tonnage for each listed facility • Method of payment to the City for recycled material rebate N • Remaining contractual term for operating the facility or any land lease terns if it is not company owned d • Materials accepted for diversion at the facility • All fines,penalties, citations, license and/or permit suspensions, or other enforcement actions taken against the facility in the previous five years. a E • Client reference name and phone number 0 U 7. Construction and Demolition Recycling. List all the construction and demolition materials o sites,including materials recovery facilities(MRFs)your company operates within twelve(12) miles of the City of San Bernardino Corporate Yard, located at 234 South Mountain View Avenue, San Berardino, CA 92408. Include the following information for each reference E facility. w a • Length of time your company has been operating the facility and if it is company owned or a contract operation • Operating hours Packet Pg. 940 6.U.H Request for Proposal for Refuse,Green Waste,and Recyclables. 08/03/12 © Page 5 • Tons per year received and maximum permitted tonnage for each listed facility • Manner in which materials are separated and resulting price per ton for recovered materials for commingled or source separated materials. • Remaining contractual term for operating the facility or any land lease terms if it is not company owned N • Materials accepted for diversion at the facility o • Method of payment to the City aL • Costs for transfer of material or deductions from payments or rebates • All fines,penalties, citations, license and/or permit suspensions, or other enforcement actions taken against the facility in the previous five years. v • Client reference name and phone number 8. Added Value Programs. Describe any added value programs that your company will provide to the City at no extra cost to enhance the City's efforts to reduce, reuse, recycle,and resource to recovery. 0 N 9. Local Jobs. Describe the number of current employees at facility listed. Describe the CO number of potential local jobs that would be added at existing or new facilities if this contract is awarded. For the purpose of this RFP, a "local job" is defined as a job that rn will be performed within the twelve(12)mile radius from the City's Corporate Yard. `o 10. Term. Proposals shall include an initial contract term of three (3) years, with two (2) one(1)year extensions. .2 0 w 11. Legal Investigations. State whether your company, parent company, subsidiaries, or any of the officers thereof, are currently or have been (over the past five years)under investigation by any local, state, or federal jurisdiction related to its business activities. Describe the circumstances of any such investigation in detail. Provide the name of the company, a affiliate,and officers under investigation.Describe findings of any past investigation(s),or the W status of any pending investigation(s). For national companies limit the disclosure to business d activities in California. L QI The City requires the respondents to demonstrate their qualifications to perform the requested services, and meet their contractual and financial commitments. Provide information in sufficient c detail to allow the City to assess the company's ability to satisfy the terms of this Request for Proposal. a Proposals shall be rated according to the attached criteria: 0 L 0 d E t v m Packet Pg. 941 City of San Bernardino Request for Proposal—(Draft) Scoring Criteria Public Works Department 300 North D Street, San Bernardino, Ca 92418 Phone: (909)384-5140 Fax: (909)384-5190 RFP Number: TBD RFP Title: Combined Services s RFP Issue Date: August 7, 2011 N RFP Deadline: TBD at 3:00 p.m. PST o a` Vendor Name: Vendor Address: City, State, Zip: w N Phone: Contact: 0 Scoring Criteria Points Possible Score ; 100 N Address(es) and distance(s) of facilit(ies) designated in your bid from City 20 E of San Bernardino Corporate Yard,234 South Mountain View Avenue, d m San Bernardino, CA 92408: Legal name and Solid Waste Facility Permit(SWFP)number for all 2.5 0 facilities listed in your bid: o m Price per ton for refuse- from MRF to disposal site by bidder including any 20 .9 adjustments(Consumer Price Index (CPI), fuel surcharges, etc.): rn a Price per ton for residential and commercial commingled recycling. 20 LO Include commodity price and percentage that City will receive: Price per ton for commercial select: 5 @ Price per ton for green waste 5 Price per ton for food waste: 5 rn Price per ton for construction and demolition processing including 5 commingled U a Price per ton for construction and demolition processing including source 5 separated by commodity: m Value added programs that can be provided to the City at no extra cost to 5 0 enhance the City's efforts to reduce,reuse, recycle, and resource to recovery: E Potential to create local jobs 7.5 TOTAL POSSIBLE POINTS 100 a Comments PacketPg. 942