HomeMy WebLinkAbout7/3/2013 - STAFF REPORTS - 1.B. O` PAIM SA
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MEMORANDUM
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T O: Mayor and Members of the City Council
F R O M: David H. Ready
City Manager
D A T E: July 3, 2013
SUBJECT: CITY COUNCIL AGENDA ITEM NO. I.B.
APPROVAL OF A 15 YEAR EXCLUSIVE SOLID WASTE
FRANCHISE AGREEMENT WITH PALM SPRINGS DISPOSAL
Please note there has been a revision to the Fiscal Impact portion of the staff report, as
shown in bold below.
FISCAL IMPACT:
If the proposed 15 year exclusive franchise agreement is approved with PSDS, the
franchise and other fees paid to the City by PSDS (including recycling and
sustainability) will remain at the same estimated dollar amount. Actual revenues related
to such fees may fluctuate based on service fees received.
Additionally, residential customers will realize a 14% rate reduction subject to future
annual Consumer Price Index adjustments and disposal "tipping fee" changes as in the
current agreement.
DAVID H. READY
City Manager
li July 3, 2013 ADDITIONAL MATERIAL
Item No. I.B.
THIS AGREEMENT IS MADE THIS 3RD DAY OF JULY, 2013, BY AND BETWEEN THE CITY OF PALM
SPRINGS (THE "CITY"), A CHARTER CITY ORGANIZED AND EXISTING UNDER THE LAWS OF THE
STATE OF CALIFORNIA, AND PALM SPRINGS DISPOSAL SERVICES ("CONTRACTOR"), A
CALIFORNIA CORPORATION.
RECITALS
A. The City is responsible for providing Solid Waste Management Services to its citizens,
including source reduction, recycling, composting activities and the collection, transfer and
disposal of solid waste within the City boundaries in a manner consistent with Solid Waste
handling requirements, as set forth in California Public Resources Codes, Section 40000, et seq.,
which is commonly known as the California Integrated Waste Management the Act of 1989,
including without limitation the provisions of SB 1016, AB 341 (the Act) as may be amended
from time to time.
B. The City's Charter and Municipal Code, consistent with the provisions of the Act,
including § 40059, provides that aspects of solid waste handling of local concern include but not
limited to frequency of collection, means of collection and transportation, level of services,
charges, and fees, and nature, location, and extent of providing solid waste services, and
whether the services are to be provided by means of nonexclusive, partially exclusive, or wholly
exclusive franchise, contract, license, or otherwise which may be granted by the City under
term and conditions prescribed by the City Council. Pursuant to such authority, the City Council
has determined that once-weekly residential service and the concomitant reduction in vehicle
trips, emissions, and potential traffic conflicts is appropriate and adequate and the reduction in
residential rates of 14% is fair and equitable for the residents of the City.
C. The City Council has determined to provide Solid Waste Management Services by
providing an exclusive franchise agreement to a Solid Waste enterprise to maintain reasonable
rates for collection, transportation, recycling, composting, and disposal of Solid Waste,
Recyclables, and compostable materials generated within the City.
Contractor has demonstrated through its past performance under its previous franchise
agreement dated July 18, 2003, as amended, and in negotiations conducted with the City, that
Contractor is qualified and competent to perform the solid waste management services desired
by the City.
D. Contractor represents and warrants to City that it has the experience, responsibility, and
qualifications to conduct recycling programs, to provide City with information sufficient to meet
the City's reporting requirements under the Act, to assist the City in meeting City's other
requirements under AB 939, to collect, transport, and dispose of solid waste in a safe manner
which will minimize the adverse effects of collection vehicles on air quality and traffic and has
the ability to indemnify the City against liability under CERCLA.
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E. City and Contractor are mindful of the provisions of the laws governing the safe
collection, transport, recycling, and disposal of Solid Waste, including the Act, the Resource
Conservation and Recovery Act ("RCRA"), and the Comprehensive Environmental Response,
Compensation and Liability Act ("CERCLA"). City and Contractor desire to leave no doubts as to
their respective roles and to memorialize that by entering into this Agreement, City is not
thereby becoming an "arranger" or a "generator" as those terms are used in CERCLA, and that
it is Contractor, not City, who is "arranging for" the collection from residences in the City,
transport for disposal, composting, and recycling of municipal Solid Waste 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 collection,
transportation and/or disposal of hazardous materials that may occur in connection with
Contractor's performance under this Agreement.
F. The State of California ("State") has found and declared that the amount of Solid Waste
generated in California, coupled with diminishing landfill space and potential adverse
environmental impacts from landfilling, have created an urgent need for State and local
agencies to enact and implement an aggressive integrated waste management program.
Through enactment of the Act, the State has directed the responsible state agency, and all local
agencies, to promote recycling and to maximize the use of feasible source reduction, recycling
and composting options in order to reduce the amount of Solid Waste that must be disposed of
by land disposal; and may be subject to additional requirements during the Term of the
Agreement.
G. The fees charged Contractor under this Agreement, including without limitation, the
Franchise Fee, City Administration Fees, State Administration Fees, and Diversion Facility and
Sustainability Fees are fees that provide Contractor with a special benefit or privilege and/or
fees that are related to the access and use of City owned and maintained property and rights-
of-way.
H. The City, by this Agreement does not instruct Contractor on its collection methods, nor
supervise the collection of waste.
1. The Parties intend that this Agreement will contribute to providing the most cost-
efficient, best Solid Waste Management Services to the residents and business establishments
of Palm Springs.
J. The City Council of the City of Palm Springs determines and finds pursuant to California
Public Resources Code Section 40059(a)(1), that the public health, safety, and well-being,
including the minimization of adverse impacts on air quality and traffic from excessive numbers
of collection vehicles, and the protection of the City against CERCLA liability, require that
Contractor be awarded an exclusive agreement for collection, recycling, and disposal of solid
waste from premises in the City of Palm Springs.
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NOW, THEREFORE, in consideration of the mutual promises, covenants, guaranties, and
conditions contained in this Agreement and for other good and valuable consideration, the City
and Contractor agree as follows:
ARTICLE 1. DEFINITIONS AND CONTRACT INTERPRETATION
1.1 Definitions. As used herein, first letter capitalized words shall have the meanings set
forth in Exhibit A. In the event of any conflict with the definitions used in the recitals hereto, the
definitions in Exhibit A shall control.
1.2 Interpretation.
1.2.1 Gender and Plurality. Words of the masculine gender mean and include
correlative words of the feminine and neuter genders, and vice versa. Words importing the
singular number mean and include the plural number, and vice versa, unless the context
demands otherwise.
1.2.2 Headings. Any caption or headings following the Exhibit, Section, Subsection,
paragraph and Article numbers and preceding the operative text hereof shall be for
convenience of reference only and shall not in any way control or affect the scope, intent,
meaning, construction, interpretation or effect hereof.
1.2.3 References to Parts. References to Sections and Articles refer to Sections and
Articles hereof, unless specified otherwise. References to Exhibits refer to Exhibits attached
hereto.
1.2.4 Examples. Uses of examples are for purpose of illustration only. In the event of
any ambiguity or conflict between the examples and the provisions which they illustrate, the
provisions shall govern.
1.2.5 Integration. This Agreement contains the entire Agreement between the parties
with 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, including those contained in any documents as part of the contract
negotiations completed on the effective date described at Section 3.7. All exhibits and
attachments referenced herein are incorporated by reference.
1.2.6 Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of California (without giving effect to the
State's principles of conflicts of laws), the Charter of the City of Palm Springs, and the Palm
Springs Municipal Code. Venue for suit shall be the County of Riverside and the Central District
of the United States District Court.
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1.2.7 Consistency with Law and Severability. The exclusive franchise, right and
privilege to provide Solid Waste Handling Services at Premises within City granted to Contractor
by this Agreement shall be interpreted to be consistent with all applicable state and federal
laws, now in effect or adopted during the term of this Agreement, and the scope of this
Agreement shall be limited by all applicable current and developing laws and regulations. If due
to inconsistency with law, any clause, sentence, provision, subsection, Section or Article hereof
or Exhibit hereto shall be determined to be invalid, whether ruled invalid in any judicial
proceeding, or be deemed likely to be invalid due to legislative, administrative or judicial
precedent, then the Parties shall:
A. Promptly meet and negotiate in good faith a substitute for such provision which
shall, to the greatest legally permissible, affect the intent of the Parties therein.
B. If necessary or desirable to accomplish preceding item (A) above, apply to the
court or administrative body having declared such invalidity, for a construction of the
substituted portion of this Agreement.
C. Negotiate such changes in, substitution or additions to the remaining provisions
hereof as may be necessary in addition to and in conjunction with preceding items (A)
and (B) above to affect the intent of the Parties in the invalid provision.
1.2.8 Construction of Terms. This Agreement shall be interpreted and construed
reasonable and neither for nor against either Party, regardless of the degree to which either
Party participated in its drafting. Contractor acknowledges that it determined to participate in
the procurement of this Agreement upon its choice and initiative with full knowledge of the
terms, conditions and risks of participation. The Parties have negotiated this Agreement at arms
length and with advice of their respective attorneys, and no provision herein shall be construed
against the City solely because it prepared this Agreement in its executed form.
1.2.9 Interpretation. The terms and provisions of this Agreement shall be construed in
accordance with the meaning of the language used and in a manner which carries out the
purpose of this Agreement.
1.3 Mediation. In the event of any dispute or controversy arising out of or relating to this
Agreement, or the breach of performance of it, the Parties shall reasonable attempt to resolve
each such dispute or controversy without resort to third party review or resolution. The Parties
shall first meet and confer on any such dispute or controversy . Such meetings shall include any
principal of the Contractor and at the discretion of the City may include the City Manager. Any
dispute that has not been resolved through the mediation process provided herein shall be
resolved through the process provided in Palm Springs Municipal Code Section 6.04.232.
ARTICLE 2. REPRESENTATIONS AND WARRANTIES
2.1 Of Contractor. The Contractor represents and warrants as of the date hereof, in
accordance with Exhibit B.
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2.2 Of City. The City represents and warrants as of the date hereof, in accordance with
Exhibit C.
2.3 Waiver. The obligations of the Parties hereunder are preconditioned upon the truth and
correctness of the representations and warranties made by the Parties, respectively, in this
Article 2 provided that either Party may respectively waive such precondition, in whole or in
part, if such waiver is acceptable by the other party, as demonstrated in writing by accepting
party.
2.4 Mandatory Service. It is understood and agreed that Refuse Collection services of
Contractor is a mandatory service of all Premises within the City of Palm Springs as provided in,
and subject to the limitations of, the Palm Springs Municipal Code. City agrees to assist
Contractor in enforcing the mandatory service requirement of this Agreement through the
implementation of mandatory Collection and mandatory billing for delinquent accounts as a
lien placed on the property tax bill as provided in the Palm Springs Municipal Code.
ARTICLE 3. GRANT OF FRANCHISE AND TERM OF AGREEMENT
3.1 Grant of Franchise. Following the Effective Date and for the term provided herein, City
hereby grants Contractor the franchise, right and duty to enter upon and use city property
(including city streets, roads, and rights-of-way) to collect, transfer, transport, recycle, process,
and dispose of Solid Waste and Recyclable material accumulating within the City, which grant
shall be exclusive, except as provided in Section 3.2, and which grant shall be subject to all the
terms and conditions of this Agreement.
3.2 Limitations of Exclusive Franchise. Notwithstanding any provision to the contrary
contained in this Agreement, the exclusive franchise, right and privilege to provided Solid
Waste Handling Services at Premises within City granted to Contractor by this Agreement
specifically excludes the following services, which services may be provided by Persons other
than Contractor and which may be subject of other permits, licenses, franchises or agreements
issued or entered by City:
3.2.1 The sale or donation of Recyclable Material by the Waste Generator to any
person or entity other than Contractor; provided, however, to the extent permitted by law, if
the Generator is required to pay monetary or non-monetary consideration for the collection,
transportation, transfer, or processing of Recyclable Material, the fact that the Generator
receives a reduction of discount in price (or in other terms of the consideration the Generator is
required to pay) shall not be considered a sale or donation;
3.2.2 Recyclable Materials and Green Waste, which is removed from the Premises by
the Waste Generator, and which is transported personally by such Generator (or by his or her
full-time employees) to a processing or Disposal Facility in a manner consistent with all
applicable laws and regulations;
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3.2.3 Containers delivered for Recycling under the California Beverage Container
Recycling Litter Reduction Act (California Public Resources Code, Section 14500, et seq.);
3.2.4 Green Waste removed from a Premised by a gardening , landscaping, or tree
trimming contractor, utilizing its own equipment, as an incidental part of a total service offered
by that contractor rather than as a hauling service;
3.2.5 Construction and Demolition Debris removed from a premises by a contractor,
building company, janitorial service or other entity utilizing its own equipment, as an incidental
part of a total service offered by that contractor;
3.2.6 The collection, transfer, transport, Recycling, processing, and disposal of animal
waste (excluding horse manure which is included in the scope of this Agreement) and remains
from slaughterhouse or butcher shops for use as tallow;
3.2.7 The collection, transfer, transport, Recycling, processing, and disposal of by-
products of sewage treatment, including sludge ash, grit and screenings;
3.2.8 The collection, transfer, transport, Recycling, processing, and disposal of
Hazardous Substances, Hazardous Waste, and radioactive waste regardless of its source;
3.2.9 The collection, transfer, transport, Recycling, processing, and disposal of Solid
Waste by the City through City officers or employees in the normal course of their employment;
3.2.10 Solid Waste Handling Services for governmental agencies other than City, which
may have facilities in City, but over which City has no jurisdiction in connection with the
regulation of Solid Waste;
3.2.11 Solid Waste Handling Services provided by any person having a legal right to
continue doing so, pursuant to California Public Resources Code Section 49520, et seq., or
otherwise, so long as and to the extent such legal right continues to exist.
3.3 Effects of Changes in Law on Franchise Agreement. In addition to the provisions of this
Article 3, in the event that future interpretations of current law, future enactments or
developing legal trends limit the ability of City to lawfully grant Contractor the scope of services
as specifically set forth herein, Contractor agrees that the scope of this Agreement will be
limited to those services and materials which may be lawfully provided, and that City shall not
be responsible for any lost profits claimed by Contractor as a result thereof. While the grant
contained in Section 3.1 shall not be exclusive with respect to the matters noted in Section 3.2,
Contractor shall still be obligated to provide those services which may be included in the above
(i.e., collection of Bulky Items) pursuant to the rates, and other terms, as set forth in this
Agreement.
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3.4 Acceptance and Effective Date. Contractor shall accept this franchise on the terms and
conditions set forth in this Agreement, and the grant of franchise shall be effective upon the
Effective Date. The prior Franchise Agreement between Contractor and City (Agreement No.
4727) as amended shall terminate upon the Effective Date of this Franchise Agreement except
as otherwise expressly provided in the prior Agreement.
3.5 Franchise Area Defined. The Franchise Area granted by this Agreement shall be all
residential, commercial, industrial and construction Premises as set forth herein. As provided
for below, the Franchise Area may be changed by annexation.
3.6 Annexation of Territory to the City. Any territory annexed to the City shall be added to
h provisions of California Public
the areas covered b this Franchise Agreement subject to e
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Resources Code Section 49520, as may be amended from time to time.
3.7 Term. This Agreement shall become effective on ("Effective Date') with collection,
processing, and disposal services beginning on such date and continuing for a period of fifteen
(15) years and ending on March 30, 2029 ("Term"). Nothing herein shall prevent the Parties
from mutually agreeing to otherwise amend or modify the Agreement except as otherwise
provided under the City's Charter or Municipal Code.
3.8 Survival of Certain Provisions. All representations and warranties of the Parties herein,
all indemnifications provided for here, and any other rights and obligations of the Parties
expressly stated to survive the termination of this Agreement, shall survive such termination.
3.9 Statutory Continuation Rights. Contractor acknowledges that it is familiar with Article 3
of Chapter 4 of Part 8 of Division 30 of the California Public Resources Code, commencing with
Section 49520, and that such provisions are inapplicable to the Contractor in this Agreement,
To the maximum extent allowed by law, Contractor in this Agreement, of the maximum extent
allowed by law, Contractor further agrees that if and to the extent that such provisions are
deemed applicable to this Agreement, Contractor waives any rights they may afford.
3.10 Transition to Next Contractor. Upon expiration of this Agreement, if Contractor and City
do not enter into a succeeding agreement, Contractor shall cooperate fully with City and the
subsequent contractor(s), franchisee(s), licensee(s), permittee(s) or other Person or Persons
providing services similar to the Services so as to assure an efficient, orderly, timely, and
effective transition in accordance with Section 12.2.
ARTICLE 4. SERVICES
4.1 Collection and Transportation.
4.1.1 Service Standards.
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A. General. Contractor acknowledges that one of the City's primary purposes in
procuring Services hereunder, selecting Contractor and executing this Agreement, is to
maintain the quality of Customers' waste management services. Contractor shall
perform all Services in a prompt, thorough, comprehensive, reliable, courteous, and
professional manner such that Customers receive high-quality Service at all times. The
Services to be performed pursuant to this Agreement shall include the furnishing of all
supervision, labor, materials, equipment, tools, expertise, and any other items and
equipment necessary to perform the Services described in this Agreement. All Services
shall be accomplished in a courteous, thorough, and workmanlike manner and adhere
to the highest standards consistent with the best practice in the industry.
B. Litter. Except as otherwise expressly provided in Section 4.1.3.G of this
Agreement, Contractor shall clean up litter in the immediate vicinity of any Solid Waste
storage area, including the areas where Solid Waste Bins are placed for collection, which
litter was intended to be placed in, or spilled or fell off of the Bins, whether or not
Contractor caused the litter. Contractor shall discuss instances of repeated litter caused
by a Customer directly with the responsible Customer and shall report such
communications to City. City will assist Contractor to seek a remedy of such situation if
Contractor has already attempted to do so without success.
C. Contractor shall also use due care to prevent Solid Waste from being spilled or
scattered during collection and transportation. All vehicles, Bins and Debris Boxes shall
be covered during transport to the Disposal Facility, Composting Facility, or Processing
Facility. Contractor shall not transfer loads from one vehicle to another on any street
unless the transfer is necessary due to the mechanical failure or accidental damage of a
Vehicle. If any solid waste is spilled or scattered, Contractor shall immediately clean up
the Solid Waste. Contractor shall be solely responsible for paying or opposing any fines
assessed by the operator of a Disposal Facility, Composting Facility, Processing Facility or
other regulatory body having jurisdiction for improperly covering loads or spills of Solid
Waste.
4.1.2 Respect for Property.
A. Private Property. Contractor shall use due care in entering and exiting
Customers' private property and enclosures. After making collections, Contractor shall
close all gates opened by Contractor. Where available, Contractor shall use the paved
access ways on public or private property. Contractor shall promptly repair or
compensate Customer for all damage to Customer's personal property or improvements
to real property caused by the actions or omissions of Contractor's employees and/or
Vehicles.
B. Bins and Residential Containers. After making collections, Contractor shall return
all Bins and Residential Containers to the prior location or, if necessary, to an alternate
location which does not obstruct traffic or access to the Customers property.
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C. Pavement. Where Bins and Residential Containers are located on public or
private property and a Customer can demonstrate, to the satisfaction of the City
Engineer, or his or her designee, that a driving surface or other paved area has been
damaged because: (1) a Vehicle exceeded the legal maximum weight limits established
by the State, or (2) the negligent operation of a Vehicle by Contractor's employee,
Contractor shall be solely responsible to promptly repair or compensate Customer for all
damage to the pavement.
D. Noise. Contractor shall conduct collection as quietly as possible and shall
conform to noise level regulation. Contractor will promptly resolve any noise complaints
to City's satisfaction. City may conduct random checks of noise emission levels to ensure
compliance herewith.
E. Scope of Regular Collection Services. Except as otherwise provided in this
Contract, Contractor shall timely and fully perform Collection Services described in
Exhibit D in accordance with the provisions of this Agreement. Except as otherwise
provided in this Contract, Contractor shall notify the City when any refuse is not
collected by Contractor. Contractor shall leave a tag, approved by City, on which is
stated the reason for Contractor's refusal to collect. A duplicate copy of this notice shall
be provided to the City so that the proper follow up can be accomplished to the
satisfaction of City.
4.1.3 Exceptions to the Collection of Solid Waste.
A. Special Wastes. Contractor shall not be required to collect Special Wastes,
including grease wastes from grease traps or grease interceptors.
B. Recyclable Materials Not Discarded by Customer. Recyclable materials belong to
the Customer until set out for transfer to Contractor. Customer may dispose of such
recycle materials through other appropriate means including, but not limited to, taking
them to drop off facilities and donating or selling them to private or public entities.
C. Waste Not Properly Placed in Residential Containers. Contractor shall not be
required to collect any solid waste that: is not placed inside a Residential Container with
lid closed, has been over-loaded in Residential Containers by weight or volume; or has
been compacted or otherwise placed, kept, or accumulated in a manner that the solid
waste will not, of its own weight, fall out of the Residential Container in which it is
placed when such Residential Container is turned upside down. In such circumstance,
Contractor shall complete and leave a Non-Collection Notice securely attached to any
adjacent Residential Container of Customer. The use of permanent stickers to affix a
Non-Collection Notice will not be allowed.
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D. Bin or Residential Container Not Placed in Proper or Safe Collection Location.
Contractor shall provide Collection Services for all properly placed Bins or Residential
Containers except that Contractor shall not be required to collect any solid waste or
Recyclable material from any Bin or Residential Container which is places in a manner
which would otherwise preclude the safe pickup thereof. Contractor shall complete and
leave a Non-Collection Notice securely attached to such improperly placed Bin or
Residential Container. The use of permanent stickers to affix a Non- Collection Notice
will not be allowed.
E. Unsafe Condition. If Contractor determines that any condition at or near any
collection location presents a health or safety threat to Contractor's employees,
Contractor shall immediately notify the City Representative thereof. Upon City
authorization, the Contractor may discontinue collection for any such location until the
safety hazard is eliminated. Contractor shall complete and leave a Non-Collection Notice
securely attached to Customers' Bin or Residential Container on the door to the
Customer's premises. The use of permanent stickers to affix a Non- Collection Notice
will not be allowed.
F. Hazardous Waste or Unsafe Materials. If Contractor determines that a Bin or
Residential Container contains Hazardous Waste or other materials that present a
health or safety threat to Contractor's employees, Contractor may refuse to collect such
Bin or Residential Container and Contractor shall notify the City Fire Department
immediately. Contractor shall further notify City of this fact in its monthly report
prepared pursuant to Section 7.2.1.
G. Excess Solid Waste. Contractor shall collect all Solid Waste regardless of
whether such waste is in Refuse Containers or in excess of the volume of waste
subscribed to by the Customer. Contractor shall complete the disposal of all such solid
waste and leave a Notice of Excess Waste and Extra Charge securely attached to
Customer's Refuse Container or on the door to Customer's premises and may charge
the Customer an additional fee or charge for such excess as provided in Exhibit K. The
use of permanent stickers to affix a Notice of Excess Waste and Extra Charge will not be
allowed. In the case of "walk-in" residential service or commercial service, Contractor
shall dispose of all Solid Waste in Refuse Containers and fill the empty Refuse Containers
with any Solid Waste remaining on the premises for pick-up and disposal on the next
following Solid Waste collection date.
4.1.4 Special Collection Service.
A. City-Wide Clean-Up. In response to the written request of the City, Contractor
shall deliver and collect Roll-Off Containers at a mutually acceptable location for City-
Wide use. Contractor shall provide two (2) such collection services as required in this
Section 4.1.4.A per year at no cost to City. City may negotiate a cost for additional
events, beyond two, with the Contractor, or, if agreement on price is not reached, City
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may direct the Contractor to perform the services at the rate of compensation City
deems appropriate including an allowance for reasonable overhead and profit.
These collection services shall consist of a single collection day beginning at 8:00 a.m.
and ending at 2:00 p.m., unless otherwise agreed in writing by the parties. Contractor
shall augment any clean-up event by offering surbside collection of Bulky Waste from
individual Residential Premises during the week leading up to the clean-up event. In the
event the City requested such service, the City will notify Contractor in writing not less
than thirty (30) calendar days prior to the date of the services requested. The notice to
the Contractor will specify the date and the location(s) of the event. As part of this
service, Contractor shall provide sufficient labor, equipment, and on-site supervision
during the entire clean-up event to adequately ensure the timely disposal of all Solid
Waste delivered to the event and to clean the location at the conclusion of the event to
the reasonable satisfaction of the City Manager. Solid Waste collected as part of this
special Collection Service shall be included in the City's minimum diversion
requirements.
B. City Sponsored Events. Contractor will provide refuse and recycling collection
services at no additional charge for City sponsored events. Service includes providing
litter and recyclables containers at the events, providing Bins and/or Debris Boxes for
refuse and recyclables, and collection and disposing of refuse and processing recyclables
collected. Service levels, duration and number of events may vary. See Exhibit N for
current list of events and anticipated service demands
C. Collection From City Facilities. Contractor shall provide Solid Waste and Recycling
services at no additional charge to all City Facilities and properties referenced in Exhibit
O to this Agreement.
D. Commercial and Industrial Waste Audits. Contractor shall provide, at no charge,
upon any Commercial Customer's request, a waste audit. The purpose of the audit shall
be to identify opportunities for decreasing waste generation, increasing waste diversion
at the Commercial Customer's serviced facilities, and thereby permitting Customer to
modify service level to obtain lower rates. Contractor shall inform all Commercial
Customers of this service through billing announcements a minimum of two (2) times
per Agreement year. Contractor shall include a listing of all Customer requests for waste
audits and a summary of the waste audit results for the preceding year in each annual
report.
4.1.5 Frequency.
A. Commercial Schedule. Contractor shall collect Solid Waste and Recyclables at
least once a week from each Commercial Customer as scheduled and noticed to the
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Customer. Frequency of Collection and Service Fee shall be no higher than the maximum
rates permitted in Exhibit K. A copy of each signed Commercial Service Contract shall be
available to the City for inspection or audit by the City Manager or his/her designee at
Contractor's Local Office upon twenty-four (24) hours notice from City of its desire to
review such Service Contracts.
B. City Schedule. Contractor shall collect Solid Waste and Recyclables from City
Facilities according to a schedule mutually agreed upon by the City and Contractor.
Contractor agrees to alter regular pick up schedule at City Yard to accommodate large
volumes of waste so as not to exceed the City's bin capacities. City will inform
Contractor of any necessary schedule alterations at City Yard at such times when waste
volumes warrant additional pickups.
C. Residential Schedule. Contractor shall collect Solid Waste and Recyclables from
Residential Customers once a week. Collections of Refuse, Recyclables, and Green
Waste shall occur on the same day of the week for each Customer.
D. Holiday Schedule. City-designated holidays are as follows: Christmas Day, New
Year's Day, Memorial Day, Independence Day, Labor Day, and Thanksgiving Day.
Contractor shall notify Customers annually, in advance, of the Holiday Collection
schedule, which shall be approved by the City in advance. Regularly scheduled
Collection Services will resume the following week. Under no circumstances shall
Contractor fail to provide solid waste collection less that once per week due to a Holiday
Schedule.
E. Same Day Service. Residential, Commercial and Industrial Customers shall
receive same day priority Services, upon request, for a fee to be established by
Contractor as shown on the Rate Schedule Exhibit K.
4.1.6 Hours
A. Monday-Saturday. Contractor shall provide Collection Services between 7:00
a.m. and 6:00 p.m., except as follows:
B. Collection Services at all schools may begin at 6:00 a.m.
C. Commercial and Industrial Collection Services may begin at 6:00 a.m. in
collection areas that do not border Residential areas. Exceptions shall be effected only
upon the mutual agreement between City and Contractor.
D. Collection Services at Commercial and Industrial Premises in the downtown
corridor may begin at 6:00 a.m. on days that a street closure will be in effect before 1:00
p.m. for special events, Construction activities and rights-of-way maintenance activities.
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E. All Collection Services may begin at 6:00 a.m. during the period between the
Monday following Memorial Day and the Saturday following Labor Day.
F. No Sunday Pickup. Contractor shall not perform scheduled Collection Services on
Sunday, except for Special Events and emergencies as determined by the City Manager.
G. Route Audits. City reserves the right to conduct audits of Contractor's collection
routes. Contractor shall cooperate with City in connection therewith, including
permitting City employees or agents designated by the Contract Officer to follow and
monitor the Collection Vehicles during the conduct thereof.
4.1.7 Vehicles and Equipment
A. Specifications. All of Contractor's route vehicles shall comply with South Coast
Air Quality Management District ("SCAQMD") regulations for fleet vehicle emissions.
The noise level generated by Collection Vehicles using compaction mechanisms during
the stationary compaction process shall not exceed seventy-five (75) decibels at a
distance of twenty-five (25) feet from the Vehicle measure at an elevation of five (5)
feet above ground level using the "a" scale of a standard sounds level meter at slow
response, or Applicable Law, whichever is more stringent.
B. Contractor shall provide a fleet of alternative fuel, automated Collection Vehicle
except as otherwise noted herein sufficient in number and capacity to perform the
Services required under this Agreement. if Contractor fails, except for reasons beyond
its control as provided in Section 11.3, or refuses to provide satisfactory assurances of
timely and proper performance, such failure or refusal shall be considered a breach as
described in Article 11.
C. Registration, Certifications. Contractor shall register all Vehicles, except those
Vehicles used solely on Contractor's premises, with the California Department of Motor
Vehicles in accordance with Applicable Law. Contractor shall obtain, if applicable, a
certificate of compliance (smog check) issued pursuant to Part 5 of Division 26 of the
California Health and Safety Code (Section 43000, et seq.) and the regulations
promulgated thereunder and/or a safety compliance report issued pursuant to Division
14.8 of the California Vehicle Code (Section 34500, et seq.) and the regulations
promulgated thereunder, as applicable to each Vehicle. Contractor shall maintain copies
of registration certificate and reports and shall make them available for inspection upon
request by the City. Contractor shall also obtain and maintain certificates of compliance
to comply with SCAQMD fleet vehicle emissions requirements.
D. Safety Markings. Contractor shall ensure that all Vehicles bear all necessary
appropriate safety features, including highway lighting, flashing and warning lights,
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clearance lights, and warning flags, in accordance with the requirements of the
California Vehicle Code and other Applicable Law.
E. Identification. Contractor shall ensure that its name, telephone number, and the
Vehicle number shall be visibly displayed on all Vehicles in letters and figures not less
than four (4) inches high on each side and the rear of each vehicle.
F. Maintenance. Contractor acknowledges that it is important to the City that
Contractor presents a professional and pleasing image. Therefore, Contractor shall
maintain all of its equipment used in providing service under this Contract in a safe,
neat, clean and operable condition at all times. The exterior and interior of Contractor's
vehicles shall be thoroughly steam cleaned at least once a month or more often as
needed to maintain a clean appearance. City Manager may inspect vehicles at any time
to determine compliance with sanitation requirements and aesthetic conditions. All
Contractor's vehicles shall be repainted by Contractor at least once every five (5) years,
unless the City Manager determines that repainting specific vehicles at that frequency is
not necessary because the vehicle's appearance is satisfactory or unless the City
Manager determines that repainting a specific vehicle earlier (due to graffiti, wind
damage, etc.) is necessary to ensure that the vehicle gives the appearance of having
been repainted within the preceding thirty-six (36) months. All graffiti shall be removed
or painted over within forty-eight (48) hours of occurrence.
G. Truck Bodies. All truck bodies used by Contractor shall be constructed of metal,
water-tight and leak proof, and shall be constructed to prevent odors and falling, leaking
or spilling of Solid Waste. Each Vehicle shall carry, at all times, a broom and shovel to be
used for the immediate removal of any spilled material. Each Vehicle shall also carry a
fire extinguisher and first aid kit.
H. Backup Alarm. Each Vehicle used for the collecting, hauling or disposing of Solid
Waste shall be equipped with an audible warning device that is activated when the
Vehicle is backing up.
I. Gross Vehicle Weight Limit. No Vehicle used for the collecting, hauling or
disposing of Solid Waste shall be loaded in excess of the manufacturer's gross vehicle
weight rating or in excess of the maximum weight specified by the California Vehicle
Code, whichever is less. Evidence of the manufacturer's name and gross vehicle weight
rating shall be maintained in, or upon, every Vehicle.
J. Vehicle Maintenance Protocol. Contractor shall comply with the Vehicle
maintenance protocol set forth in Exhibit F so that each vehicle operates properly and
safely. The Vehicle maintenance protocol shall set forth specifications regarding
Contractor's obligation to inventory its Vehicles, Contractor's replacement plan,
preventative maintenance and repair program, details regarding Vehicle cleaning and
Vehicle storage. The Vehicle maintenance protocol shall also provide details regarding
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the City's ability to inspect Contractor's Vehicle replacement and acquisition plan as well
as the City's ability to inspect and test any and all of Contractor's Vehicles. Said
inspections include inspections of the brake systems of each Vehicle to be used in the
performance of this Agreement.
K. Bins. Contractor shall provide Bins that are clean, recently painted, and in good
repair. Contractor shall repair any Bin within seven (7) days of a request from a
Customer or from the Contract Officer. If the repair cannot be completed within seven
(7) days, Contractor shall provide such Customer with a replacement Bin without
charge.
4.1.8. Personnel.
A. General. Contractor shall furnish such qualified drivers, mechanical, supervisory,
clerical and other personnel as may be necessary to provide the Services required under
this Agreement in a courteous, safe and efficient manner.
B. Driver Licensing. Contractor shall ensure that each driver is trained and qualified
in the operation of Collection Vehicles and that each has, in full force and effect, a valid
license of the appropriate class issued by the California Department of Motor Vehicles.
Contractor shall maintain photocopies of licenses for all Vehicle operations. Contractor
shall provide suitable operational and safety training for all of its personnel who utilize
or operate Vehicles or other equipment for collection or who are otherwise directly
involved in collection.
C. Identification, Appearance, Conduct. Contractor shall require each driver and all
other personnel who come into contact with the public to wear a uniform and to carry a
suitable identification badge or card. Contractor shall use its best effort to assure that all
personnel present a neat and orderly appearance and conduct themselves in a
courteous manner. Contractor shall regularly train its employees in Customer courtesy,
prohibit the use of loud or profane language, and instruct collection crews to perform
their work as quietly as possible. If any of Contractor's employees are found not to be
courteous or otherwise fail to perform the Services in the manner required hereby,
Contractor shall take all appropriate corrective measures.
D. No Gratuities. Contractor shall not permit its personnel to demand, solicit, or
accept directly or indirectly, any additional compensation or gratuity from Customers or
any members of the public.
E. Nondiscrimination. In the performance of all work and Services hereunder,
Contractor shall not discriminate against any person on the basis of such person's race,
sex, color, ancestry, physical handicap, medical condition, national origin, religion,
marital status, sexual orientation, or as otherwise prohibited by and in accordance with
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Applicable Law. Contractor shall comply with all Applicable Law regarding
nondiscrimination, including those prohibiting discrimination in employment.
F. Safety. Contractor shall provide suitable operational and safety training for all of
its employees who use or operate Vehicles or equipment for collection of Solid Waste or
who are otherwise directly involved in such collection. Contractor shall train its
employees involved in Solid Waste collection to identify, and not to collect, Hazardous
Waste. Contractor shall immediately report any incident of Hazardous Waste within the
City to the City. All work performed pursuant to the Agreement shall be performed in a
manner which provides safety to the public and meets or exceed safety standards
outlined by the California Construction Safety Orders under the State Code of
Regulations (CAL-OSHA). City reserves the right to issue restraint or cease and desist
orders to Contractor when unsafe or harmful acts are observed or reported to City.
Contractor shall maintain its maintenance facility and yard free of hazards to persons
and/or property. Contractor shall instruct its employees to report immediately any
hazardous conditions they observe within the City during the course of their work for
the City.
4.2 Diversion
4.2.1 Processing
A. Facility Selection. Contractor shall transport and deliver to a Processing Facility
or similar Facilities all Recyclable material collected. Such Facilities shall be Permitted
under and in substantial compliance with Applicable Law. If a Processing Facility is
constructed within the City during the Term of this Agreement or any extension hereof,
all Recyclables and /or Solid Waste as appropriate, collected within the City pursuant to
the Agreement shall be delivered to any Processing Facility that is constructed within
the City. If a Processing Facility is constructed by Contractor within fifteen miles of the
City limits (calculated by shortest distance by public streets or highways), the Parties
may negotiate the extent to which Recyclables and/or Solid Waste collected in the City
will be delivered to any Processing Facility, any adjustments to costs, and the extent
such costs shall be paid by customers in the City.
B. Weighing and Record Requirements. Contractor shall ensure that, at a minimum,
all Solid Waste and Recyclables shall be weighed upon delivery to the Processing Facility
or similar Facilities, and that all weight and related delivery information (including date,
time, material, type, route and truck number) shall be recorded and maintained by
Contractor during the Term of this Agreement and any extension thereof.
C. Recyclables Specifications. Contractor shall be responsible to ensure that the
quality of Recyclables continues to meet the specifications agreed upon by Contractor
and the Contract Officer. Contractor and Contract Officer shall meet on an annual basis
to discuss the status of the effectiveness of the Solid Waste diversion program. City shall
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have no responsibility for the quality of Recyclables delivered by Contractor to any
Facility, nor for any Recyclables rejected by an Facility, broker or other purchaser
because the Recyclables do not meet specifications. Contractor acknowledges that City
makes no warranty, either express or implied, with respect to the Recyclables, including
but not limited to any warranty of merchantability and any warranty of fitness for a
particular purpose.
D. Disposal of Residue. Contractor shall dispose of, or provide for the disposal of,
any and all residue remaining from the processing of Recyclables in accordance with
Applicable Law. The cost to dispose of residue shall be included in fees for Processing
Facility or Facilities as the case may be.
E. Processing Fees. Contractor shall pay for processing of Recyclables at City-
reviewed Processing Facilities and the disposal of residue therefrom, unless otherwise
mutually agreed in writing by City, Contractor and any impacted Customer. Contractor
shall not, under any circumstances, cause to be charged to City any material that was
collected by Contractor or by any other person without the express prior written
authorization of the Contract Officer.
F. Transformation. Contractor acknowledges that the Act requires solid waste
diversion from landfill disposal and that "transformation", as defined by California Public
Resources Code Section 40201, provides for a maximum of ten percent (10%) of the
average calculated per capita generation as a diversion credit towards meeting the fifty
percent (50%) diversion goal. To the extent possible, Contractor shall not process by
means of transformation any Recyclables targeted for collection through Contractor's
Recycling collection programs, nor shall Contractor ship, transport, deliver or otherwise
make available any such Recyclables to any person for the purpose of transformation,
without the express prior written authorization of Contract Officer, except for the direct
hauling consistent within the maximum allowable tonnage as described in this Section
4.02b. However, if residue from any Processing Facility is disposed through
transformation, Contractor will provide City with the data to support diversion credit, if
any. Contractor shall make reasonable efforts to ship, transport, deliver or otherwise
make available non-Recyclables for the purpose of transformation in an amount
necessary for the City to receive the ten percent (10%) diversion credit for
transformation. Contractor will provide City with the data to support diversion credit
from transformation, if any.
G. Minimum Diversion Requirements. Contractor shall implement and operate
programs that will meet the fifty percent (50%) minimum diversion requirements, as
may be revised as explained in this Section 4.2, or additional goals under Applicable Law
for the Contractor's service area, based on the total weight of collected Solid Waste and
measured for the period from Effective Date, and thereafter measured on a calendar
year basis beginning January 1 of each year of the Term. The Contractor shall recycle,
process, and/or market in a manner that entitles City to diversion credit as specified in
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California Public Resources Code, Section 41780. This diversion requirement is for fifty
percent (50%) of all Solid Waste collected by Contractor under this Agreement as
determined by the formula established by the California Department of Resources
Recycling and Recovery (CalRecycle). If data indicates that Contractor's Services are not
resulting in fifty percent (50%) diversion rate and if such failure is not demonstrably
beyond Contractor's ability to control or effect, Contractor shall propose and implement
additional programs, with approval of City, at Contractor's own expense to achieve the
fifty percent (50%) diversion rate. Contractor agrees further that, should City fail to
meet the Act's fifty percent (50%) diversion obligations, Contractor shall indemnify City
as set forth in Section 8.3 of this Agreement. The City may increase the fifty percent
(50%) diversion requirement based on results of a waste characterization study
performed by the City ("Waste Characterization Study"). Any Waste Characterization
Study shall be performed in a manner approved by the California Integrated Waste
Management Board and shall be paid for by City. After reviewing the results of the
Waste Characterization Study, should the City change the minimum diversion
requirements, the revised minimum diversion requirements shall remain in effect for
the remaining Term of the Agreement unless a subsequent Waste Characterization
Study is conducted by the City.
H. If the City finds that additional programs are necessary to meet any required
diversion goals, the City may require Contractor to enact additional diversion programs
to meet the diversion requirements. If necessary, City and Contractor shall enter into
good faith negotiations. If Agreement regarding such programs and/or rate adjustment
cannot be reached, City may direct the Contractor to perform the services at the rate of
compensation City deems appropriate including an allowance for reasonable overhead
and profit.
I. The parties acknowledge Contractor's compliance with the Act and diversion
requirements as shown on Exhibit S.
J. To the extent that the failure of Contractor to perform its obligations under this
Section is the direct cause for penalties to be imposed against City, Contractor shall
reimburse City for such portion of the fine attributable to such failure to perform as
provided in California Public Resources Code Section 40059.1.
4.3 Disposal
4.3.1 Disposal Facility. Contractor shall transport and deliver to a Disposal Facility
and/or Transfer Station approved by City all Solid Waste, including Commercial, Industrial, City
Solid Waste, and Solid Waste collected in performing emergency services which cannot be
diverted. Contractor shall utilize a Disposal Facility and /or Transfer Station which result in the
least expensive processing option, taking into account Tipping Fees, transportation cost,
diversion provisions of the Act, and all other applicable provisions of this Agreement. City shall
approve of the Disposal Facility and /or Transfer Station by designating the same after
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reviewing a list of potential facilities prepared by Contractor. If a Transfer Station is constructed
within the City during the Term of this Agreement or any extension hereof, all Solid Waste
collected within the City pursuant to this Agreement shall be delivered to any Transfer Station
that is constructed within the City. If a Transfer Station is constructed by Contractor within
fifteen miles of the City limits (calculated by shortest distance by public streets or highways),
the Parties may negotiate the extent to which Solid Waste collected in the City will be delivered
to such Transfer Station, any adjustments to costs, and the extent such costs shall be paid by
customers in the City.
Contractor shall observe and comply with all regulations in effect as such Disposal Facility and
cooperate with the operator thereof with respect to operations thereat, including directions to
unload Collection Vehicles in designated areas, accommodating construction and maintenance,
and Hazardous Waste exclusion programs. Contractor shall at all times operate according to
safe industry practices.
4.3.2 If Contractor becomes unable to dispose of City's Solid Waste at a designated
Transfer Station and /or Disposal Facility as the result of causes within its control and which
could have been avoided by the exercise of due care, then Contractor shall dispose of such Solid
Waste at another Transfer Station and /or Disposal Facility. Any additional transportation costs
incurred in delivering the Solid Waste to the other Transfer Station and /or Disposal Facility will
not be paid by Customers within the City.
4.3.3. If Contractor becomes unable to dispose of City Solid Waste at the designated
Transfer Station and /or Disposal Facility as the result of causes which are beyond its control
and which could not have been prevented by the exercise of due care, then Contractor shall, to
the extent it is legally able to do so, dispose of Solid Waste at another Transfer Station and/or
Disposal Facility at the lowest Disposal fee then in effect at such Transfer Station and /or
Disposal Facility under contracts entered into after the effective date of this Agreement which
would be deemed substantially similar.
4.3.4. Contractor will promptly apply for, and diligently persue, any amendments to
permits necessary to transfer Solid Waste from City at such other Transfer Station and/or
Disposal Facility if required to carry out the Section.
4.3.5. Disposal Fees. Contractor shall pay for disposal of solid waste by Contractor at a
City-reviewed Disposal Facility unless otherwise mutually agreed by City and Contractor in
writing. Contractor shall not, under any circumstances whatsoever, cause to be charged to City
any material that was collected by Contractor or by any other person, other than solid waste
collected hereunder without the express prior written authorization of the Contract Officer.
4.4. Customer Service and Public Relations.
4.4.1. Phone Access.
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A. Toll-Free Number. Contractor shall maintain a local telephone number, toll-free
to Customers calling from out of town, at least during Office Hours ("Phone Hours"). The
telephone number shall be listed under Contractor's name and the City's governmental
listings in the city telephone directory and on the City's website. Contractor shall
maintain a telephone answering system capable of at least five (5) incoming calls at one
time. Contractor shall provide an answering machine or answering service to take
reports of missed pick-ups and other complaints which are received outside of Phone
Hours."
B. Emergency Number. Contractor shall also maintain a list with contact telephone
numbers for at least three responsible company representatives capable of immediately
addressing and responding to public health or safety emergency situations outside of
Phone Hours. This list shall be provided to the City's emergency dispatch, Police, fire and
Public Works Departments, and the City Manager's Office.
C. Multi-lingual, TDD Services. Contractor shall at all times maintain the capability
of responding to telephone calls in English, Spanish, and such other languages as City
may direct. Contractor shall at all times maintain the capability of responding to
telephone calls through Telecommunications Device for the Deaf (TDD) Services. These
capabilities shall be maintained for both the local telephone number and the emergency
telephone number.
D. Customer Complaints and Inquiries. Contractor shall record in a computerized
daily log all complaints, including date, time, complainant's name and address, if the
complainant is willing to give this information, and the nature, date, and manner of
resolution of complaint. Any such calls received via Contractor's answering service shall
be recorded in the log and responded to no later than the following work day. This log
shall be available for inspection by City during Office Hours. City requires Contractor to
have an employee available to answer incoming calls during Office Hours. When
incoming phone call volumes exceed that employee's ability to answer such calls, the
call shall be switched to a message center.
E. All incoming calls shall be answered within a maximum of four rings. Any call
"on-hold" in excess of 3 minutes shall be switched to a message center where
Contractor shall maintain information in a daily log to enable a customer service
representative to return customer calls. All "call backs" shall be attempted a minimum
of one time prior to 6:00 p.m. on the day of the call. If the caller is not contacted on the
first attempt, Contractor shall make subsequent attempts on the next working day after
the original call. Contractor shall make a minimum of three attempts within twenty-four
hours of the receipt of the call. If Contractor is unable to reach the caller on the phone,
Contractor shall send a postcard to the caller. All attempts to contact the caller shall be
recorded on the log kept by Contractor. In addition Contractor shall provide a customer
service email address to be included on all bills and newsletters. Contractor shall
respond by email or telephone within 24 hours. Contractor shall designate a Customer
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Satisfaction Officer (CSO) to City. CSO shall monitor the customer experience by random
selecting daily at least 10% of customers who contacted Contractor's office daily to
solicit opinions about their experience. Opinion solicitation shall be by email or regular
mail. A summary of Results of the random CSO survey shall be submitted to City in its
monthly report prepared pursuant to Section 7.2.1.
F. Office Hours. Contractor shall maintain and staff an office, open non —holiday
weekdays from Monday through Friday at a minimum from 8:00 am to 5:00 pm daily.
On Saturdays when collection schedules are delayed because of recognized holidays,
telephones shall be staffed at a minimum from 8:OOam until Noon.
4.4.2. Public Education and Community Relations
A. Community Relations. Contractor's plan for public education and outreach, and
community relations activities during the transition period to Once Weekly Service will
include implementing route changes and will be reviewed by City. The Plan shall be
submitted to the City Council by January 15, 2014, for Council review and approval.
Upon approval by the City Council, the Plan shall be attached to this Contract as Exhibit
G. Contractor shall timely and fully implement such plan. If requested by the City
Manager, the Contractor shall provide public education materials for City-wide
community clean-up events, billing inserts and an annual newsletter to Commercial
customers; the cost of such publications shall be the responsibility of the Contractor.
The City Manager shall approve all public education and outreach materials. If
requested by the City Manager, the Contractor will sponsor a recycling program at
specified schools and community outreach events. Any promotional materials or news
releases will be developed with the approval of the City Manager and distributed by the
Contractor.
B. News Media Relations. Contractor shall notify the Contract Officer by telephone,
followed by email, of all requests for news media interviews related to the Services
within twenty-four (24) hours of Contractor's receipt of the request. Before responding
to any inquiries, Contractor will discuss Contractor's proposed response with City.
C. Emergency Services. Contractor shall provide, or begin providing emergency
services within twenty-four (24) hours of notification by City. Emergency services are
services beyond the Services specified in this Agreement and include Services needed
following natural disasters such as earthquakes. Contractor shall be paid at a rate
mutually agreed upon in advance between the City and the Contractor.
4.4.3. City Right to Perform Services.
A. Events. City reserves the right, which it may exercise in its sole discretion, to
perform or contract for the performance of, any or all of Contractor's Service
obligations, including the collection of solid waste or any portion thereof and
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transportation to a City-reviewed Processing Facility, or Disposal Facility, as the case
may be, in the following events:
1. Contractor, due to Uncontrollable Circumstances or for any reason
whatsoever, fails, or is unable for a period of 48 hours to collect and/or at any
time to transport solid waste or any portion thereof to a Processing Facility, or
Disposal Facility, as the case may be, selected in accordance with this
Agreement;
2. Solid waste generated by Customers for which Contractor is obligated to
provide Services accumulates in the City to such an extent, in such a manner or
for such time that the City Manager or City Council determines that such
accumulation endangers or threatens the public health, safety, or welfare; or
3. The City suspends or terminates this Agreement or any portion of
Contractor's Service obligations due to an Event of Default or continuance of an
Uncontrollable Circumstance.
4. Contractor shall be obligated to pay the City pro-rata fees it collects for any
services performed by City under Paragraphs (1-3) of this subsection.
City has no obligation to continue providing such services and may at any time, in its
sole discretion, cease to provide such Services. However, City's right to provide such
Services shall continue until Contractor can demonstrate to the City's satisfaction that
Contractor is ready, willing, and able to resume timely and full service or until the City
can make alternative arrangements for providing solid waste services comparable to the
Services in scope and price, which may include contracting with another service
provider.
B. Notice. The City may give Contractor written notice that City is exercising its right
to perform services, which notice shall be effective immediately.
C. Records and Reports. Upon City request, Contractor shall promptly provide City
with immediate access and/or possession of Records, including those related to routing
and billing. Records are to be provided in a time period agreed upon by both Contractor
and the City.
D. Waiver of Taking Claim. Contractor agrees that the City's exercise of rights under
this section does not constitute a taking of private property for which City must
compensate Contractor; and does not exempt Contractor from any indemnifications
made with respect to diversion, disposal, or Services generally, which Parties
acknowledge are intended to extend to circumstances arising under this Section.
Contractor is not required to indemnify City against claims and damages arising from the
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negligent performance by City officers, employees or agents of City's rights under this
section.
ARTICLE 5. MISCELLANEOUS SERVICE PROVISIONS.
5.1. Title to Waste. The Parties agree and intend that all Solid Waste become the property of
Contractor upon being set out for
o collection. Without limiting
p g t g Contractor's obligations to the
City for Solid Waste collected by Contractor, all Solid Waste shall become the property of the
owner/operator of the ultimate disposal site once such Solid Waste and Recyclables are
deposited at the designated Disposal Facility or Processing Facility.
5.2 Compliance with Law. Contractor shall perform all Services in accordance and
compliance with Applicable Law, including obtaining and maintaining throughout the Term all
necessary Permits, licenses, and approvals required to perform the Services. Contractor shall
show proof of such Permits, licenses, or approvals upon the request of the City.The City
Manager shall have the power to establish rules and regulations relating to the accumulation,
collection, recycling, disposal, and management of Solid Waste not inconsistent herewith and
with Applicable Law, which the City Manager finds are reasonably necessary for enforcement
hereof of Applicable Law or for preservation of the public peace, health, and safety. Contractor
agrees to comply with any and all such rules and regulations, subject to adjustments in the
Service Fee where the Change in Law is an Uncontrollable Circumstance. Reference to
particular provisions or requirements of Applicable Law herein shall not be construed to limit
Contractor's obligation to comply with all provisions of Applicable Law. In the event of any
inconsistency between Applicable Law and this Agreement, the more stringent provision shall
apply. Nothing herein shall be construed to relieve the Contractor of any obligations imposed
by Applicable Law.
5.3 Cooperation with Waste Studies.
A. Upon direction by the City Manager, in the months of February, May, August,
and November for any year selected by the City, Contractor shall perform a waste audit
consisting of a minimum of 1000 Single Family Dwelling Units from two (2) mutually
agreed upon Residential Collection routes within the City. The purpose of this audit is to
determine the amount, in number of pounds, of Solid Waste generated per household by
obtaining the weight of the Solid Waste delivered to the disposal site from each of the
two (2) selected routes and dividing it by the respective number of homes in each route
from which Solid Waste was collected. Within fifteen (15) days following the end of each
study month, Contractor shall submit a letter report to City including all the data
collected and the calculations of the average pounds of solid waste generated by each
Single Family Dwelling Unit. A household waste audit shall not be required in the first
year following a year in which a household waste audit was performed.
B. Upon direction by the City Manager in the months of January, April, July and
October for any year selected by the City, Contractor shall perform a waste audit
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consisting of a minimum of 25 Commercial properties within the City. The purpose of this
audit is to determine the average pounds per cubic yard being generated. For the
purpose of this provision, Contractor shall calculate the number of pounds of Solid waste
per cubic yard by obtaining the weight of the Solid Waste delivered to the disposal site
from a mutually agreed Commercial route consisting of accounts exclusive to the City
and dividing it by the respective actual number of Commercial accounts from which Solid
Waste was collected. Within fifteen (15) days following the end of each study month,
Contractor shall submit a letter report to City generated by each Commercial account. A
commercial waste audit shall not be required in the first year following a year in which a
commercial waste audit was performed.
5.4. Technical Assistance. In addition, Contractor, at Contractor's sole expense, shall, upon
request, provide technical assistance to Commercial subscribers. Such assistance may include
but is not limited to: educational materials, workshops which promote source reduction
practices at Commercial sites, and on-site waste audits which identify types of waste categories
that can be reduced or recycled at a specific location.
5.5 Performance Review.
5.5.1. Time for Performance Review.
A. Contractor's performance review shall be subject to review at the following times:
1. By Contractor's serious breach of the terms of this Agreement;
2. As part of any review for an Extraordinary Rate Adjustment;
3. During the fifth and tenth Contract years; and
4. At any time such review is ordered by the City Manager.
B. The financial review component of the Performance Review conducted during
the fifth Contract Year (April 1, 2018 through March 31, 2019) shall be based upon the
results of Contractor's most recently completed fiscal year ended September 30, 2018.
The Financial review component of the Performance Review conducted during the
tenth Contract Year (April 1, 2023 through March 31, 2024) shall be based upon the
results of Contractor's most recently completed fiscal year ended September 30, 2023.
A financial review undertaken at any other time shall be based upon Contractor's most
recently completed fiscal year.
5.5.2 Components of Performance Review. Performance Review may consist of any of
the following elements:
A. Technical Review.
1. Objective. Determine the effectiveness of the technologies employed for
solid waste collection, recycling or disposal services.
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2. Procedures. Conduct a review of(i) Solid Waste collection, source reduction,
recycling or disposal services; (ii) The application of new technologies; (iii) The effect of
legislative and regulatory changes; and, (iv) Compliance with the terms of this
Agreement.
B. Service Review.
1. Objective. To assure that services are provided of satisfactory quality and
effectiveness in substantial compliance with the terms of this Agreement.
2. Procedures. Conduct a review of (i) The services provided; (ii) The feasibility
of providing new services; (iii) Customer complaints and Contractor's response to
customer complaints; (iv) Recordkeeping; and (v) Mail-back survey of Customer
satisfaction (as discussed below).
If a mail-back survey of Customer satisfaction is desired by City, City shall notify
Contractor of its desire for such a survey at least ninety (90) days in advance of the
performance review. Any mail-back survey of Customers intended to measure Customer
satisfaction shall be prepared by Contractor and approved by City and reproduced,
mailed with return postage prepaid at Contractor's expense. In the event that
Contractor and City fail to reach an agreement on the content of a Customer satisfaction
survey, the parties will engage the services of a professional market research firm
experienced with customer satisfaction surveys to prepare and conduct the survey, with
the cost shared equally by the City and the Contractor.
The Parties agree that the purpose of the mail-back survey is to accurately and
objectively measure Customer satisfaction with Contractor's performance. Survey
instruments shall provide the respondent with a choice of "Unsatisfactory' or
"Satisfactory", and space for the respondent to answer "Why" for marks of
"Unsatisfactory".
Care will be given in the design of the survey instrument to determine the reason
behind reports of "Unsatisfactory" performance and to differentiate between
dissatisfaction with Contractor performance and dissatisfaction with policies and/or
procedures determined by City or dictated by this Agreement. Surveys with responses
without explanatory comments or for which such a differentiation cannot be clearly
made shall be excluded from tabulation.
The Customer satisfaction survey will be distributed to a minimum of one
thousand (1,000) Residential Customers, stratified by full-time occupied and part-time
occupied, and at least fifty percent (50%) of Contractor's Commercial Customers,
selected at random.
C. Rate Review:
1. Objective. To assure that rates charged Customers are reasonable for the
services and terms and conditions of the Agreement in comparison to those in other
communities within the Coachella Valley market area.
2. Procedures. Collect the service rates and service terms and conditions for
Residential, Commercial and Industrial Refuse Collection, Recycling and disposal services
and other distinguishing characteristics and pertinent data for the cities and
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unincorporated County areas in the Coachella Valley market area taking into
consideration the comparative: (i) services provided, collection standards and collection
methods, (ii) Residential Customer billing methods; (iii) Commercial and Industrial billing
policies; (iv) Mix of Commercial and Industrial service revenue in relation to Residential
service revenue (v) cost and extent of free services providered; (vi) Amount of City Fees
included in the rate and paid by service providers; (vii) current and recent diversion
rates and number and quality of diversion programs; and, (viii) Other factors affecting
the cost of service as may be appropriate.
D. Compliance Review.
1. Objective. To assure that Contractor is in substantial compliance with this
Agreement and all other applicable provisions of law and all representations and
warranties and the provisions of Article 9.
2. Procedures. Conduct a review of Contractors performance with regard to the
provisions of this Agreement and applicable laws, regulations and requirements.
E. Financial Review.
1. Objective. To measure: (i) Contractor's Financial Performance Rating in
relation to an independent, measurable and objective industry standard; (ii)
Contractor's accuracy of Customer billings; and, (iii) Contractor's accuracy of City Fees
paid to City. The Parties agree that the Public Company Financial Performance Standard
is an independent, measureable and objective measure of average management
effectiveness of the three largest publicly traded firms in the industry and, for purposes
of this Agreement, shall serve as the standard for determining if Contractor's Financial
Performance Rating is above, below or comparable to the standard. Performance shall
be in lieu of any further review and/or audit of Contractor's finances.
2. Procedures. (i) Collect data and prepare the Public Company Financial
Performance Standard; analyze Contractor's financial records to determine Contractor's
performance in relation to the Public Company Financial Performance Standard; and
make a determination regarding Contractor's performance compared to the Public
Company Financial Performance Standard; (ii) Collect Contractor's Rate Schedules for
the period under review; randomly select Residential, Commercial and Industrial
accounts; obtain billing and payment records for the accounts selected for review;
review the accuracy of Contractor's Customer billings for the accounts selected; and (iii)
Review Contractor's records and reports of Customer Billings, Disposal and Diversion
activities; compute amount of City Fees due City; analyze Contractor's payment of City
Fees; and, make a determination regarding the accuracy of Contractor's payment of City
Fees.
F. Conduct of Performance Review. An independent consultant selected by City
shall perform the performance review and the financial review component of the
performance review shall be performed by a certified public accountant. Contractor
shall comply with all record and documentation requests in a timely manner. The
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performance review shall be completed within one hundred-fifty (150) days from the
date City notifies Contractor of its intent to perform the review, and if not completed
within that timeframe, the review shall be abandoned and it shall be assumed that
Contractor favorably performed in all components and aspects of the review, unless
otherwise agreed to by the Parties.
G. Cost of Performance Review. Contractor shall be solely responsible for the full
cost of each Performance Review conducted as part of any review for an Extraordinary
Rate Adjustment and during the fifth (5th) Contract Year (April 1, 2018 through March
31, 2019) and tenth (10[h) Contract Year (April 1, 2023 through March 31, 2024).
Contractor shall deposit sufficient funds with City to pay for City's reasonable cost for
such Performance Review. When a Performance Review is undertaken by City for
reasons other than provided above, the full cost of conducting the review shall be borne
solely by the City.
H. Rates. If the results of the financial review determine that Contractors Financial
Performance Rating is greater than the Public Company Financial Performance Standard
(reflective of performance inferior to the standard) for Contractor's Fiscal Year under
review, a rate adjustment, effective with the next Rate Year, shall be made to
Contractor's Total Annual Rate Review to bring Contractor's performance in line with
the Public Company Performance Standard during the upcoming twelve (12) month
Rate Year for which a rate adjustment notice has not yet been submitted by Contractor.
I. Review Procedure. Whenever a Performance Review is called for under the
provisions of this Contract, a public Performance Review Hearing will be held, at least
sixty (60) days in advance of the commencement date of the Performance Review.
Thirty (30) days prior to the Performance Review Hearing, Contractor shall submit a
report to the City Manager which may contain such information as it wishes to have
considered, and shall contain the following:
1. Recommended changes and/or new services to improve City's ability to meet
Diversion goals and to contain costs and minimize impacts on rates.
2. Any specific plans for provision of changed or new services by Contractor.
3. Responses to any issues that have been raised concerning Services performed
by Contractor.
4. The reports required by this Agreement shall be used as one basis for review
of Contractor's performance, and Contractor may submit other relevant
performance information and reports for consideration. In addition to the above,
City may request Contractor to submit other relevant performance information
and reports for consideration. In addition to the above, City may request
Contractor to submit any other specific information relating to its performance.
J. Performance Review Hearing. The City may conduct the performance review
administratively, or, if in the opinion of the City Manager significant actions are required
by Contractor affecting the Agreement, or if there would be significant public interest,
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the City Manager may request review through a Performance Review Hearing held by
the City Council at a public meeting. The City Manager may cause notice of the hearing
to be given by publication in a newspaper of general circulation at least ten (10) days
before the hearing, and shall give Contractor ten (10) days' written notice of such
hearing. Contractor may submit comments or complaints during or before the Hearing,
either orally or in writing. Contractor shall be present at and participate in the
Performance Review Hearing.
The Performance Review Hearing may include all components of Performance Review as
described herein, including obtaining new or expanded services. The City Council may
use all relevant evidence produced at the Hearing and shall approve a report concerning
Contractor's performance and adopt findings by Resolution. As a result of its findings
following any Performance Review Hearing, City may require Contractor to provide
expanded or new services within a reasonable time and City may direct or take
corrective actions for any performance inadequacies (although nothing contained in this
provision should be construed as requiring City to hold a Performance Review Hearing in
order to enforce any rights or remedies it has pursuant to the terms hereof.) Should City
require expanded or new services as a remedy for Contractor's failure to perform its
obligations hereunder, no additional compensation shall be due for such services.
Otherwise, any new or expanded services required of Contractor shall be subject to the
provisions of Section 6.1. If any breach of or noncompliance is found in Contractor's
performance, the provisions of Article 11 shall apply.
5.6. Service Materials Belong to City. All data, reports, documents, brochures, public
education materials, and other computerized, written, printed, or photographic materials
developed by City or Contractor in connection with the Services, whether developed directly or
indirectly by City or Contractor, shall be and shall remain the property of City without limitation
or restriction on the use of such materials by City. Contractor shall not use such materials in
connection with any project not connected with this Agreement without the prior written
consent of City.
5.7. Recycled Materials. Contractor shall use Reasonable Business Efforts to procure supplies
and Bins with post-consumer recycled content, including paper products for all publicity, billing
and other management and operational Services.
5.8. Hazardous Waste. Contractor shall implement the Hazardous Waste screening,
identification, and prevention protocol attached as Exhibit H. If Contractor inadvertently
delivers materials to any Processing Facility or Diversion Facility which comprise Hazardous
Waste and Contractor cannot identify or fails to remove it, Contractor shall arrange for its
proper disposal in accordance with Applicable Law and/or cooperate with such Facility owner
or operator with respect thereto.
ARTICLE 6. CHANGE IN SCOPE OF SERVICES
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6.1 Change in Scope of Services.
6.1.1. Upon City Direction. The City reserves the right to direct Contractor to implement
a change in Scope of Services at any time, including new or amended diversion programs or
special Services, subject to adjustments, if any, of the Contractor's Service Fees by mutual
agreement of the parties.
6.1.2. Upon Contractor Proposal. The Contractor may propose to the City a change in
the Scope of Services, including new developments in collection, recycling, and processing
technologies and techniques, whether on the collection routes or at a Processing Facility at any
time, for any reason whatsoever, subject to City approval.
ARTICLE 7. RECORDS AND REPORTING
7.1. Records
7.1.1. Maintenance. Contractor shall maintain any and all ledgers, books of account,
invoices, vouchers, canceled checks, and other records or documents evidencing or relating to
charges for Services, or performance hereunder, including routing, level of each Customer's
services, inventory, maintenance logs, etc. ("Records), for four (4) years, or any longer period
required by Applicable Law. Contractor shall further maintain computerized data base(s) in a
computerized format compatible with the City's computer system containing a complete
Customer file, including all information required for the reports specified in this Article 7 and
sufficient to allow input or information for City and Contractor to reconcile diversion
percentage and customer service information.
7.1.2. City Inspection and Audit. Upon Notice by the City, Contractor shall use
Reasonable Business Efforts to provide copies of record to City or City's designees for
inspection or audit at City Hall. Otherwise, Contractor shall make Records available to City or
City's designees for inspection or audit at the Contractor's address indicated for receipt of
Notices during Office Hours. Where City has reason to believe that Records may be lost or
discarded due to dissolution, disbandment or termination of Contractor's business or other
reason, City may require that Contractor give City custody of the Records and that the Records
and documents be maintained in City Hall, in which event access to such Records shall be
granted to City and any Person duly authorized by Contractor. Contractor shall use Reasonable
Business Efforts to promptly provide the City any additional information relevant hereto which
is not specified in this Article 7.
7.2. Reportine.
7.2.1. Monthly. Contractor shall prepare monthly reports in written form and in a
computerized format compatible with the City's computer system, containing, at a minimum, a
record of the Solid Waste Disposed and Diverted. These reports shall be provided to the City at
the request of the Contract Officer.
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7.2.2. Annual. For each Contract Year, Contractor shall prepare and submit an
operational report and management report. The reports shall be due to City within ninety (90)
days following the end of Contractor's Fiscal Year. Contractor's obligation to submit an
operational report and management report shall survive the termination or expiration of this
Agreement. The Operational Report shall be submitted as an Excel workbook and shall include:
(i) Tonnage disposed and diverted reported by Disposal or Diversion Site and allocated by
Business Sector and further allocated by Customers subject to payment of fees for service and
City Facility; (ii) Number of Routes allocated by Business sector and further allocated as Refuse,
Recycling, Green Waste, Food Waste, Construction and Demolition Material and Special Waste.
The information in the operational report shall be reported by Contractor's Fiscal Year quarter.
The Management Report report shall include: (i) General information about Contractor
including a list of current officers and the core group of management employees and
consultants; (ii) Highlights of noteworthy issues and events; and, (iii) Highlights of public
awareness activities. The annual reports to City shall be in written form and in a computerized
format compatible with the City's computer system.
7.2.3. Additional Information. Contractor shall use Reasonable Business Efforts to
incorporate additional information in the reports required under this Section 7.2 from the
Records promptly upon Notice from City.
ARTICLE 8. INDEMNITY, INSURANCE, BONDS
8.1. Indemnification of City.
8.1.1. General. Contractor agrees that it shall protect, defend, indemnify and hold
harmless City, its elected officials, officers, employees, volunteers and agents from and against
any all losses, liabilities, fines, penalties, claims, damages or judgments, including attorneys'
fees and costs ("Claims") arising out of or resulting in any way from City's grant of this franchise
to Contractor or Contractor's exercise of the franchise including the provision of Services under
this Agreement, unless (i) such Claim is due to the sole negligence or willful acts of City, its
elected officials, officers, employees, agents or contractors, (ii) the City has received
compensation from an insurance carrier for the full amount of such Claim, or (iii) as specified
under the provisions of Section 8.O1.b below concerning Hazardous Waste and/or Household
Hazardous Waste.
8.1.2. Subject to the scope of this indemnification and upon demand of the City made
by and through the City Attorney, Contractor shall protect City and appear and defend the City,
its elected officials, officers, employees, volunteers and agents, in any Claims by third parties,
whether judicial, administrative or otherwise, including, but not limited to disputes and
litigation over the definition of "solid waste" or "Recyclable Material" or the limits of the City's
authority with respect to the grant of franchises, including the process for the grant of
franchises involving the collection of Commercial Solid Waste, arising out of the exercise of this
Agreement by Contractor or claims by other entities disputing the rights and privileges granted
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by City in this Agreement. This provision shall survive the expiration of the period during which
collection services are to be provided under this Agreement. City and Contractor agree to
confer following any trial to decide jointly whether to appeal, or to oppose any appeal. In the
event City and Contractor jointly agree to appeal, or to oppose any appeal, City and Contractor
agree to share equally in the cost of appeals. Should either City or Contractor decide to appeal,
or to oppose appeal, and the other decide not to appeal, or to oppose appeal, the party which
decides to appeal, or oppose appeal, shall bear all fees and costs of the appeal or the
opposition to the appeal.
8.1.3. Nothing in this Section 8.01a of this Contract shall be deemed an indemnification
obligation of the Contractor pursuant to Section 40059.2 of the California Public Resources
Code.
8.2. Hazardous Substances Indemnification,
8.2.1. Without regard to any insurance coverage or requirements, and without limiting
the above general indemnification obligation in any way, Contractor specifically agrees to and
shall, to the maximum extent permitted by law, defend (with counsel acceptable to City)
reimburse, indemnify, and hold City and its past and present officers, council members,
employees, consultants and agents (hereinafter "Indemnified Parties') harmless from and
against any and all claims, actions, liabilities, damages, demands,judgments, losses, costs, liens,
expenses, suits, actions, attorneys' fees, consultant fees, penalties and any and all other losses,
damages, fees and expenses of whatever kind or nature ("Claims") (including but not limited to
response costs, investigative costs, assessment costs, 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 results in any demand, claim, notice, order, or lawsuit, asserting that any
Indemnified Party is liable, responsible or in any way obligated to investigate, assess, monitor
study, test, treat, remove, remediate, or otherwise cleanup, any Hazardous Contaminant (as
defined herein); or relates to material collected, transported, recycled, processed, treated or
disposed of by Contractor.
8.2.2. Contractor's obligations pursuant to this Section shall apply, without limitation,
to:
A. Any Claims brought pursuant to or based on the provisions of the
Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42
U.S.C. §9601 et seq., the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §
9601 et seq., the California Hazardous Substances Account Act (California Health &
Safety Code Sections 25300 et seq.), the California Hazardous Waste Control Laws
(California Health and Safety Code Sections 25100 et seq.), the California Porter-Cologne
Act (California Water Code Section 13000 et seq.), and any and all amendments and
regulations thereto, and any other Federal State regional or local environmental
statutory or regulatory provision;
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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 our alleged to be arising out of the
marketing, sale, distribution, storage, transportation, disposal, processing or use of any
materials recovered by Contractor;
D. Any Claims based on or arising out of or alleged to be arising out of any breach of
any express or implied warranty, representation or covenant arising out of or in
connection with this Agreement.
E. The foregoing indemnity and defense obligations shall apply irrespective of the
negligence or willful misconduct of Contractor.
F. For purposes of this Section, the term "Hazardous Contaminant' shall mean any
"hazardous material" as that term is defined under California Health & Safety Code
Section 25501(1); any "hazardous substance," as that term is defined herein or under
California Health & Safety Code Sections 25281 (f), 25501(e), 25501.1 and under Title
42, Section 9601(14) of the United States Code; any "hazardous waste," as that term is
defined under Title 42, Section 6093(5) of the Unites States Code and under California
Health & Safety Code Section 25550(m); any chemical which the Governor has identified
as a chemical known to the State to cause cancer or reproductive toxicity pursuant to
California Health & Safety Code Section 25249.8; any crude oil or refined or unrefined
petroleum product or any fraction or derivative thereof, and any asbestos or asbestos-
containing material. The term "Hazardous Contaminant' shall also include any and all
amendments to the above-referenced statutory and regulatory provisions made before
or after the date of execution of this Agreement.
G. The provisions of this Section shall not terminate or expire, shall be given the
broadest possible interpretation and shall survive the expiration or earlier termination
of this Agreement. In the event the City directs Contractor to dispose of Solid Waste
Collected pursuant to this Agreement at a facility designated by City, Contractor shall
not be required to provide the indemnification with respect to Claims arising from
allegations relating to the handling and/or disposal of such Solid Waste after it is
delivered to a City designated facility (although this exception shall not apply to any
other Claims relating to said Solid Waste); provided, however, this exception to the
indemnification requirements that would otherwise apply shall not apply in the event
the City designated disposal facility in question is either owned or operated, in whole or
part, by Contractor.
8.3 AB939 Indemnification and Guarantee.
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8.3.1. State Mandate. California Public Resources Code Section 41780 establishes the
initial goal of diverting 25% of the City's waste from landfill facilities by January 1, 1995 and the
secondary goal of diverting 50% of the City's waste by January 1, 2000 and thereafter. After
2007, the goal is expressed as the 50 percent per capital disposal target which is based upon
the average of 50 percent of solid waste generated in 2003 through 2006 and expressed in
terms of per capital disposal. These goals may be modified in the future by additional
legislation. If the City has failed to implement its required plans to achieve the aforementioned
goals, under Public Resources Code Section 41850, the California Department of Resources,
Recycling and Recovery (CalRecycle) may impose administrative civil penalties of up to ten
thousand ($10,000) per day until the City implements its plan.
8.3.2. Contractor Indemnification. Contractor agrees to indemnify and hold harmless
the City, and its elected officials, officers, employees, and agents against all fines and/or
penalties imposed by CalRecycle or the City: (i) based on Contractor's failure to comply with
laws, regulations or permits issued or enforced by CalRecycle or the City; (ii) caused or
contributed to by the Contractors failure to perform its obligations under this Contract,
including the annual diversion rate requirement. This indemnity obligation is subject to the
limitations and conditions in Public Resource Code Section 40059.1; however this obligation is
enforceable to the maximum extent allowable by Section 40059.1.
8.3.3. Joint Responsibilities. The City and Contractor shall jointly develop waste
Diversion strategies and develop a program adequate to meet the requirements established by
the State. Should City and Contractor not be able to agree on a joint program, City shall specify
the program to be implemented. Contractor may protest the City's plan by identifying specific
provisions with which Contractor disagrees and the reasons for that disagreement.
8.3.4. City Waste Diversion Responsibilities. The City shall cooperate with the waste
diversion efforts of the cities of the Coachella Valley, and shall coordinate activities and
programs to extent possible. The City shall continue to enact, administer, and enforce
appropriate regulations, incentives, and sanctions necessary to encourage the participation of
Residential, Commercial and Industrial Units of the City in Waste Diversion programs, including
without limitation PSMC Section 6.04.270 — The City shall enforce and monitor reporting
performance of Contractor to ensure compliance with the requirements of the State.
8.3.5. Contractor Waste Diversion Responsibilities. The Contractor shall cooperate
with the Waste Diversion activities of the cities of the Coachella Valley, and shall coordinate
activities and programs to the extent possible. The Contractor shall comply with the Waste
Diversion reporting requirements established by the City. The Contractor shall cooperate with
the City's efforts to develop and implement public education and information programs
designed to promote Source Reduction, Recycling and Composting in general, as well as specific
Waste Diversion strategies. The Contractor shall implement the strategies jointly developed
and agreed to by the parties.
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8.3.6. Meet and Confer Process. Contractor and City shall meet and confer periodically
to monitor the effectiveness of the Waste Diversion program and its implementation.
8.3.7. Indemnification Service but only for Liabilities During Term. The indemnification
described in this Section 8.1 shall be limited to Liabilities resulting from Services from and after
the date thereof through the Term, it being specifically understood that any liabilities
attributable to the Contractor's actions prior to the date hereof are excluded from such
indemnification. However, INDEMNIFICATION RESULTING FROM SERVICES DURING THE TERM
SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
8.4. Insurance.
8.4.1. Insurance Requirements. The Contractor shall, at Contractor's sole cost and
expense, secure and maintain insurance acceptable to the City (Attorney and Risk Manager) in
full force and effect throughout the term of this Agreement, against claims for injuries to
persons or damages to property, which may arise from or in connection with the performance
of the work hereunder by the Contractor, its agents, representatives or employees. The
Contractor shall maintain the types and amounts of insurance coverage, together with related
specified deductibles, listed below and in Exhibit K or required by Applicable Law, whichever is
greater.
A. Minimum Limits of Insurance. Contractor shall maintain limits of insurance no
less than:
1. General Liability: $9,000,000 aggregate and $9,000,000 per occurrence for
bodily injury, personal injury and property damage.
2. Commercial Auto Liability: $9,000,000 per accident for bodily injury, including
accidental death, and property damage that may arise from operations pursuant
to this agreement.
3. Workers' Compensation and Employers' Liability Insurance: Workers'
Compensation as required by the Labor Code of the State of California and
Employers Liability limits of, at a minimum, $1,000,000 per accident.
B. Other Insurance Provisions. The insurance required by this Agreement shall be
with insurers which are Best A-rated or better. The City shall be included as an
additional insured on each of the policies and policy endorsements. The Contractor
shall obtain the written consent of the City's Risk Manager prior to changing insurers
providing insurance under this Agreement, which consent shall not be withheld
unreasonably. The following language will be made a part of all insurance policies
required by this Section:
1. "The City of Palm Springs, its employees, agents, franchisees and officers are
hereby added as additional insures with respect to liability arising out of
activities performed by or on behalf of Contractor."
2. "This policy shall be considered primary insurance with respect to any other
valid and collectible insurance the City of Palm Springs may possess including any
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self-insured retention the City of Palm Springs may have, and any other
insurance the City does possess shall be considered excess insurance and shall
not contribute with it."
3. "This policy shall act for each insured as though a separate policy had been
written for each. This, however, will not act to increase the limit of the liability
of the insuring company."
4. "Thirty (30) days' prior written notice by certified mail, return receipt
requested, shall be given to the City of Palm Springs in the event of suspension,
cancellation, reduction in coverage or in limits or non-renewal of this policy for
whatever season. Such notice shall be sent to the City Manager, City Attorney
and City Clerk."
8.4.2. Adjustment in Amount of Insurance. In the event the City's Risk Manager
determines that the Services under this Agreement create an increased or decreased risk of loss
to the City, Contractor agrees that the minimum limits of the insurance policies required by this
Section may be changed accordingly upon receipt of written notice from the City's Risk
Manager; provided that Contractor shall have the right to appeal a determination of increased
coverage in accordance with Section 1.3 of this Agreement to the City Manager within ten (10)
days of receipt of notice from the City's Risk Manager.
8.4.3. Reduction of CERCLA and Other Liability. City and Contractor agree to meet
annually in the second calendar quarter of each calendar year to discuss ways to reduce their
respective potential CERCLA and other liabilities to third parties.
8.5. Performance Bond. Prior to the Effective Date of this Agreement, Contractor shall
secure and throughout the Term maintain full force and effect a performance or surety bond to
guarantee and assure the timely and complete performance of Services in an amount no less
than Two Hundred Fifty Thousand Dollars ($250,000) fully prepaid and renewable for each
Contract Year. Contractor shall ensure that the bonding company provides the City with notice
of non-renewal within ten (10) days of any non-renewal. Such bond shall be in substantially the
form for commercial blanket bond form attached as Exhibit L, naming the City as obligee and
providing at least thirty (30) days prior to notice of any cancellation. Contractor shall procure
such bond from underwriters approved by the City Manager, licensed in California, rated not
less than "A-7" by A.M. Best Company, Inc. The form of the bond and the surety are subject to
the approval of City's Risk Manager and the City Attorney. The condition of the performance
bond shall be such that if Contractor shall well and truly perform the covenants, promises,
undertakings, and obligations contracted by Contractor to be performed under this Agreement,
then the obligation of the bond shall be void; otherwise it shall remain in full force and effect.
Said bond shall terminate and be canceled upon the completion of the Term, as may be
extended pursuant to the provisions of this Agreement. City shall execute and deliver to
Contractor or Contractor's surety company promptly upon Contractor's completion of all of
Contractor's obligations under this Agreement such certificates or other documents as either of
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them may reasonably request for the purpose of terminating and canceling such performance
bond by no later than thirty (30) days after the end of the Term.
8.6. Letter of Credit. As an alternative to such performance bond, at City's option,
Contractor may deposit with City a fully prepaid, irrevocable letter of credit for at least the
duration of the Contract Year for which the letter of credit is deposited in the same amount as
such performance bond. The form of the letter of credit and the issuer of the letter of credit
are subject to approval of the City Manager and the City Attorney. Nothing herein shall in any
way obligate City to accept a letter of credit in lieu of the performance bond.
8.7. Financial Guaranty Agreement. As of the date hereof and throughout the Term,
Contractor shall ensure that its parent corporation or its successors or assigns acceptable to the
City shall execute and maintain a legal, valid, and binding Financial Guaranty Agreement.
ARTICLE 9. CRIMINAL ACTIVITY OF CONTRACTOR.
Contractor has represented that none of its officials or directors have a criminal conviction from
a court of competent jurisdiction with respect to conviction for any crime, including
racketeering, which indicates a lack of business integrity or business honesty that seriously and
directly affects the present responsibility of the Contractor or its officers or directors; nor has
the Contractor or any of its respective officers or directors made an admission of guilt or pled
nolo contendere to the conduct described above. Should the Contractor or any of its officers or
directors have a criminal conviction from a court of competent jurisdiction with respect to
conviction for any crime, including racketeering, which indicates such a lack of business
integrity or business honesty that seriously and directly affects the present responsibility of the
Contractor or its officers or directors; or should the Contractor or any of its respective officers
or directors make an admission of guilt or pled nolo contendere to the conduct described in this
subjection above, which is a matter of record, then each employee, officer, or director, as the
case may be, of the Contractor responsible for such proscribed conduct shall be promptly
terminated and/or replaced. Contractor shall have fifteen (15) days' notice and opportunity
following such conviction to present evidence in mitigation thereof, and on and after such
fifteenth day, if such employee, officer, or director is not promptly terminated or replaced, the
City reserves the right to unilaterally terminate this Agreement or to impose such other
sanctions (which may include financial sanctions, temporary suspensions, or any other
condition deemed appropriate short of termination) as it shall deem proper.
Article 10. SERVICE FEES
10.1 Contractor Service Fee. The Contractor shall receive payment, for services rendered
under this Agreement as compensation for performing Services or a portion thereof. Service
Fees shall be determined in accordance with rates set by Contractor for the provision of the
level of service agreed to by the Customer and Contractor, provided that Contractor's rates
shall not exceed the maximum rates permitted as set forth in Exhibit K. Contractor shall
establish and publish its standard rates for all categories of services. Contractor shall not give
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preferential treatment and shall consistently charge rates for all Customers in each service
category.
10.2. Recyclables Revenue. The Contractor shall retain all of the revenue earned from the sale
of Recyclables.
10.3. Contractor Payment to City. Contractor shall make payment to the City of a Franchise
Fee, Administration Fee, the State Administration Fee, and Diversion Facility and Sustainability
Fee.
10.3.1. Franchise Fee. Franchise Fees shall be calculated as a percentage of revenues
derived from services rendered, at the percentage of three point sixty nine percent (3.69%) of
all revenue from residential services, nine point twenty-one percent (9.21%) of all revenue from
commercial services, and eight point ninety-seven percent (8.97%) of all revenue from
industrial services. Revenue derived from services rendered includes all hauler fees (service
and recycling) but does not include revenue from Compensable Overhead Costs or the sale of
Recyclables.
10.3.2. City Administration Fee. City Administrative Fees shall be calculated as a
percentage of revenues from services rendered, at the percentage of three point sixty nine
percent (3.69%) of all revenue from residential services, three point twenty-nine percent
(3.29%) of all revenue from commercial services, and three point twenty-two percent (3.22%)
of all revenue from industrial services. Revenue derived from services rendered includes all
hauler fees (service and recycling) but does not include revenue from Compensable Overhead
Costs or the sale of Recyclables.
10.3.3. State Administration Fee. Pursuant to California Public Resources Code Section
41902, City may directly assess fees or may arrange for the fees to be collected by the
Contractor under this Agreement to pay for its source reduction and recycling element
pursuant to the Act. Contractor agrees to pay or collect, as the case may be, a State
Administration Fee as set forth on the Schedule of Maximum Rates, attached as Exhibit K. State
Administration Fee payments shall be based upon the rate of two dollars and seventy-eight
cents ($2.78) per ton, or at such other rate as the City Council may adopt by resolution, on all
Solid Waste tonnage disposed at a Disposal Site exclusive of tonnage generated by City
Facilities. Contractor's liability for payment of State Administration Fee shall be limited to the
amount collected by Contractor.
10.3.4. Diversion Facility and Sustainability Fee. Diversion Facility and Sustainability Fee
payments shall be based upon the rate of eight dollars and fifty cents ($8.50) per ton, or at such
other rate as the City Council may adopt by resolution, on all Solid Waste tonnage disposed at a
Disposal Site exclusive of tonnage generated by City Facilities. Contractor's liability for payment
of Diversion Facility and Sustainability Fees shall be limited to the amount collected by
Contractor.
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10.4. Payment Certification. Each payment shall be accompanied by the following
certification which shall be executed by an officer of the Contractor: `I hereby certify that the
foregoing statement of the payment to the City is made by me, that I am authorized to make
such payment of the amount of the payment due, and that to the best of my knowledge and
belief, the amount of the payment is true, correct and complete"
10.5 Payment Due. Any payments to City pursuant to this Section 10.3 shall be payable by
Contractor to City thirty (30) days after the close of each quarter of Contractor's Fiscal Year and
shall be based on all Service Fees received from Customers during the preceding quarter.
10.6. Adjustment of Fixed Fees. The fixed fees provided above for the State Administration
Fees and the Diversion Facility and Sustainability Fees may be adjusted from time to time by the
City based upon a review of the City's actual cost to conduct such program. Any adjustment
approved hereunder must be approved pursuant to the Performance Review Hearing process
established in Section 5.04. Any adjustments shall be incorporated in the maximum rates set
forth in Exhibit M.
10.7. Acceptance and Audit. No acceptance by City of any payment shall be construed as an
accord that the amount is in face the correct amount, nor shall such acceptance of payment be
construed as a release of any claim City may have against Contractor for any additional sums
payable under the provisions of this Agreement. All amounts paid shall be subject to
independent audit and recomputation by City. If, after audit, such recomputation indicates an
underpayment of less than three percent (3%), Contractor shall pay to City the amount of the
underpayment within ten (10) days of receipt of written notice from City that such is the case.
If, after audit, such recomputation indicates an underpayment of equal to or more than three
percent (3%), Contractor shall reimburse City the amount of the underpayment and for all
reasonable costs and expenses incurred in connection with the audit and recomputation within
thirty (30) days of receipt of written notice from City that such is the case. If, after audit, such
recomputation indicates an overpayment, City shall notify the Contractor in writing of the
amount of overpayment, less costs and expenses incurred in connection with the audit and
recomputation. Should an overpayment be found, Contractor shall offset the payment of
payments (as appropriate) next due following receipt of notice of overpayment by the amount
specified in such notice.
10.8. Adjustments. The Maximum Service Fees set forth in Exhibit M, shall be adjusted as
follows.
10.8.1. Changes in Scope of Service. The City may allow adjustments of the Maximum
Service Fee for Changes in the Scope of Services as specified in Article 6 of this Agreement.
10.8.2. Formula Adjustment. The Maximum Service Fees provided for in Section 10.01
and specified in Exhibit M shall be adjusted based upon the percentage change in the Consumer
Price Index for All Urban Consumers (CPI-U), for the Los Angeles-Riverside-Orange County area
as published by the United States Department of Labor, Bureau of Labor Statistics for period
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February to February subject to the notices, effective dates, exceptions and procedures of this
Section 10.04, except the adjustment authorized herein shall not exceed six (6) percent in one
year.
10.8.3. Rate Adjustment Notice. Contractor shall provide notice to City Manager not
later than March 31 of each applicable year of the amount of the applicable adjustment and a
revised Exhibit M reflecting the new rates to become effective the succeeding July 1, together
with such supporting data and analyses as is necessary for City Manager to verify the accuracy
of Contractor's computations. Within sixty (60) days of receipt of Contractor's proposed rate
adjustment notice, City Manager shall advise Contractor if City Manager believes Contractor's
proposed rate adjustment is correct or incorrect. Contractor shall provide thirty (30) days'
notice to Customers of all rate increases.
10.8.4. Effective Date and Amount of First Adjustments. The effective dates and amount
of the first formula adjustments shall be subject to the following:
A. Residential and Commercial Service Fees. Maximum Service Fees for Residential
services shall remain fixed until July 1, 2015 except that Contractor shall be entitled to
an adjustment in rates to compensate for any increase in Tipping Fees as provided in
subsection f of this Section. Commercial services rates will be subject for adjustment on
July 1, 2014. Adjustments for subsequent years shall be made each July 1 based upon
the actual changes in the CPI-U as measured for the preceding twelve-month period
February to February. In the event that the actual adjustment as calculated pursuant to
this Section 10.8 is less than or equal to six percent (6%), Contractor shall follow the
procedure specified in Section 10.8.
B. Should the formula adjustment result in a change of more than six percent (6%),
Contractor may elect to accept a six percent (6%) adjustment which shall become
effective July 1, after notice to City Manager in accordance with the provisions of
Section 10.04.c above, or may submit a request not later than March 31 for a review of
the change in rates by the City Council. The City Council may approve the request or
undertake a review and determination of appropriate rates. The City Council's
determination may range from no increase to the full formula adjustment requested by
Contractor. The decision of the City Council shall be binding. In making its review and
determination the Council may consider all prior rate increases, the effect of all disposal
Fee increases, Recycling Surcharges and any other increased charges, and the
cumulative effect of all such increases in setting the rate adjustment. The City Council
shall consider whether the cost is unusual, whether the amount requested is warranted,
whether the Contractor is not otherwise adequately compensated by the other rates
and charges provided for in this Agreement, whether the Service Fees in Palm Springs is
commensurate with surrounding communities, whether Contractor's Financial
Performance Rating is consistent with Public Company Financial Performance Standard
pursuant to Section 5.5 of this Agreement, and whether the increase is otherwise
warranted. The Contractor must give notice of the proposed rate increase and its
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effective date to affected Customers at least thirty (30) days in advance and shall
publish the request for rate increase and the date for Council review of the rate
adjustment request in newspaper of general circulation.
C. Industrial Service Fees. Maximum Service Fees for Industrial services will be subject
to adjustment on July 1, 2014 based upon the change in the CPI-U formula for the
period February 2013 through February 2014. Contractor shall adjust Industrial Service
Fees by the full amount of the change in the CPI-U formula without the six percent (6%)
restrictions applicable to Residential and Commercial Service Fees in Section 10.04.d.1.
Contractor shall follow the rate adjustment notice procedure of Section 10.04.c.
10.8.4. Time of the Essence. The Contractor and City recognize that time is of the
essence whenever a review of rates is undertaken. Any request of the Contractor for an
adjustment of the Service Fees not acted upon by the City Council prior to July shall
automatically become effective on July 1 provided the request is consistent with the formula
adjustment specified in this Section 10.04 and provided that said request is submitted to City
Manager prior to March 31. Reviews and approvals required under this Section 10.04 shall not
delay the effective date unless expressly agreed to by both parties.
10.8.5 Tipping Fees and Diversion Facility and Sustainability Fees. Tipping Fees and
Diversion Facility and Sustainability Fees are specifically excepted from the CPI-U formula
adjustment provided for in this Section 10.04. Adjustments to Tipping Fees shall be made based
on upon the change in the Tipping Fee levied by the operator of the Disposal Facility and/or
Transfer Station and shall become effective concurrent with the effective date of the change in
the Tipping Fees; provided, however, that no change in Tipping Fee shall become effective until
Contractor has given thirty (30) days' notice to all Customers.
10.8.6. At its sole election, City may use all or a portion of the Diversion Facility and
Sustainability Fee to offset the cost a Tipping Fee increase resulting from Contractor's use of a
designated Transfer Station.
10.9. Extraordinary Rate Adjustments. Contractor may request an adjustment to Maximum
Service Fees at reasonable times other than that allowed in Section 10.4 in the event of
extraordinary changes in the cost of providing service under this Agreement.
10.9.1. Changes Included. Changes in the cost of providing service considered
extraordinary include but are not limited to:
A. Changes in Law. Changes in law or regulations enacted after the effective date of
this Agreement by Federal, State or local regulatory agencies including amendment of
Section 6.04 of the City's Municipal Code.
B. Extraordinary Costs. Changes in operating costs brought about by unforeseen
circumstances beyond the control of the Contractor.
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C. Disposal Facility, Transfer Station, or Processing Facility. Contractor's proposal
assumed the use of facilities both within and outside the immediate area. Within the
immediate area, the Contractor's proposal assumed the use of the Transfer Station at
the Edom Hill Landfill site or in Palm Springs along the Interstate 10 Highway corridor
for Disposal of Refuse in the County of Riverside waste management system and for
processing Green Waste, SA Recycling, Thousand Palms for processing of Green Waste,
concrete and metal, and Desert Recycling, Inc., Thousand Palms, for processing
concrete, asphalt, wood, and miscellaneous demolition materials.
Outside the immediate area, Contractor's proposal assumed the use of Agua Manisa
Material Recovery facility, Riverside, for processing of Recyclables, and Coachella Valley
Composting Facility, Coachella for processing of Food Waste and Green Waste.
Except as provided in Sections 4.2.1.A and 4.3.1 of this Agreement, should a temporary
or permanent change in the location of the Disposal Facility, Transfer Station, or
Processing Facility/Diversion Facility within the City occur, Contractor and City shall
meet to negotiate adjustments to compensation to offset the increases or decreases to
operating expenses, if any, that Contractor did or will incur as a result of the change in
location. To the extent possible, providing thirty (30) days' notice has been provided to
Customers, changes in Service Fees shall be concurrent with the effective date of the
change in Disposal Facility or Transfer Station location.
D. Clean Fuel Requirements. Compliance with SCAQMD Rules and/or California Air
Resource Board emission standards for collection Vehicles that become effective on or
after the Effective Date of this Agreement.
E. Value of Recyclables. Change in the value of Recyclables from the values assumed by
Contractor's proposal.
10.9.2. Changes Excluded.
A. Clean Fuel Requirements that became effective prior to the Effective date of this
Agreement. Such costs are assumed to have been incorporated in Contractor's
proposal.
B. Inaccurate Estimates. Inaccurate estimates assumed by Contractor of its proposed
cost of operations.
C. Unionization. Changes in the cost of providing service due to unionization of the
work force or a change in wage rates or employee benefits.
10.9.3 Request and Review. For each request for an extraordinary rate adjustment to
the Maximum Service Fees that Contractor may charge Customers brought pursuant to this
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Section 10.04.g, Contractor shall prepare a schedule documenting the extraordinary costs. Such
request shall be prepared in a form acceptable to City with support for assumptions made by
Contractor in preparing the estimate. City shall review the Contractor's request and, in City's
sole judgment and absolute, unfettered discretion make the final determination as to whether
an adjustment to the maximum rates will be made, and, if an adjustment is permitted, the
appropriate amount of the adjustment. Any adjustment approved hereunder must be approved
pursuant to the Performance Review Hearing process established in Section 5.04.
10.10 Contractor Billing.
10.10.1 Contractor Preparation and Administration. Customers may be billed for Solid
Waste Collection Services in accordance with the billing frequencies specified in Exhibit K.
Contractor shall calculate each Customer's bill for Solid Waste Collection Service based on the
Customer's Service requirements, which shall not exceed the rates agreed to between the
Customer and the Contractor and as specified in the Service Contract. Contractor shall itemize
or identify all service charges on the Customer's bill.
10.10.2. Contractor Mailing. Contractor shall incorporate with the billing such additional
information as required by the City, including Contractor's telephone number for Customers to
call with questions and/or disputes on solid waste Collection Service billing and shall enclose
flyers or other notices provided by the City to Customers as required hereunder either by mail
or electronically, depending on Customer's billing arrangements. Contractor shall mail bills
substantially in accordance with the billing policy and rules of the Contractor and approved by
the City. Contractor shall train Contractor employees in maintaining records of payments,
delinquencies, late charges (if any), as well as promptly responding to billing inquiries and
resolving billing disputes. Service bills shall be mailed by the Contractor no later than ten (10)
days following the last day of Contractor's billing cycles.
10.10.3. Data Base. Contractor shall maintain solid waste Collection Service billing
accounts and records in accordance with Article 7.
10.10.4. Billing Disputes. Contractor acknowledges that it shall be solely responsible for
mailing out bills, and the City shall not be responsible for taking initial Customer's calls with
respect to solid waste Collection Service billing inquiries or disputes. In the event Contractor
cannot resolve a dispute to Contractor's or Customer's satisfaction, Contractor shall refer
dispute to City Designated Ombudsman to assist in resolving the issue(s).
10.10.5. Delinquent Accounts. Contractor shall not discontinue service to Customers
that do not pay for services rendered. City agrees to handle the collection of delinquent
accounts as a lien on the property collected on the tax bill.
A. Each year, prior to the delinquent account public hearing, Contractor shall submit a
preliminary list to the City of each premises delinquent in the payment of fees for
services provided by Contractor under this Agreement. Premises eligible to be included
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on the preliminary list include Residential premises three (3) or more billing cycles (nine
months) delinquent in the payment of Service Fees and premises receiving Commercial
or Industrial services that are two or more billing cycles past due in the payment of
Service Fees. Said list shall include the property address, county assessor's parcel
number, name of property owner(s) and amount delinquent. The amount delinquent
shall be the amount owed the Contractor including late fees, plus twenty percent (20%)
of the unpaid amount for administration and handling of which one-half (1/2) will be
retained by the City.
B. City shall conduct a public hearing as provided for by statute and shall cause the
delinquent fees to be placed upon the property tax bill for collection as a lien. Following
the Public Hearing, Contractor shall prepare a final delinquent list and submit this list to
the City prior to each July 15 in a format acceptable to the County for processing.
C. Within thirty (30) days of receipt of each tax bill installment payment from the
County, City shall pay Contractor, less applicable Franchise Fees and a ten percent (10%)
administrative charge, the funds collected from delinquent properties. Promptly upon
receipt from the County, City shall provide Contractor with a listing of each property for
which payment is being made, together with the amounts collected, Franchise Fees and
administrative charge withheld and the amount remitted for each account.
D. Contractor shall be entitled to collect late charges at a rate of one and one-half
percent (1.5%) of the unpaid balance including unpaid late charges.
10.11. Disputes.
10.11.1. Customer Notice of Dispute. If Customer disputes any amount calculated in
good faith by Contractor, Customer shall pay the undisputed amount and give Contractor
Notice of such dispute within fifteen (15) days of receipt thereof, together with any request for
additional information, identified with reasonable specificity, with respect thereto.
10.11.2 Contractor's Response. Within seven (7) days of receiving the Customer's
Notice, the Contractor shall respond to Customer's dispute and supply any requested
information. If the Contractor does not respond within such time, Contractor will be deemed to
concur with Customer. If Contractor concurs or is deemed concur, it shall promptly amend the
disputed invoice.
10.11.3. Dispute Resolution. If Customer disagrees with Contractor's response and
Customer and Contractor cannot reach agreement during an ensuring fifteen (15) day period
following the Contractor's response, the Parties may submit the matter for determination to
the City Designated Ombudsman. If the issue remains unresolved the Parties may submit the
matter for determination to the City Manager.
ARTICLE 11. BREACHES, DEFAULTS AND REMEDIES.
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11.1. Failure to Perform—Events of Default
Each of the following shall constitute an event of default ("Event of Default") hereunder:
11.1.1. Service Defaults:
A. Missed Collections: Contractor fails to make at least ninety-nine percent (99%) of the
gross number of scheduled solid waste collections in any Contract Year, including
collection within twenty-four (24) hours (Sundays and holidays excepted) of telephone
or other Notice thereof to Contractor, subject to exceptions in Article 4.
B. Breach of Agreement: Contractor fails or refuses to perform any of its obligations
hereunder after the City Notifies Contractor that a specific failure or refusal has
occurred which will, unless corrected, give the City a right to terminate this Agreement
in accordance with this Article; and the Contractor does not correct such breach within
twenty (20) days of receiving the City's Notice thereof; provided that if such breach is
not capable of cure within said twenty (20) days, Contractor shall promptly provide City
Notice explaining why Contractor believes it needs additional time to effectuate a cure
together with a schedule therefore, and shall diligently proceed to cure the breach
within such schedule, whereupon City, in its sole discretion, may accept Contractor's
schedule of cure, make a written demand that Contractor cure the default within an
alternative time period set by City, or terminate this Agreement at the end of the
twenty (20) day period.
C. Failure to Comply with the Law: Contractor fails to comply with Applicable Law within
five days' Notice of violation thereof.
D. Failure to Deliver Materials to Designated Facility: Contractor fails to deliver Solid
Waste to a Disposal Facility or Recyclables to a Processing Facility, selected in
accordance with Article 4 on more than two (2) instances).
E. Criminal the Activity: The occurrence of any conduct prescribed in Article 9.
F. Failure to Comply with Service Standards: Contractor fails to comply with the service
standards set forth in Section 4.01.a.
11.11.2. Performance Assurance Defaults:
A. Failure to Provide Performance Bond, etc.: Contractor fails to provide insurance, a
performance bond or guaranty in accordance with Article 8.
B. Failure to Provide Assurances of Performance: Contractor fails to timely provide
assurance of performances in accordance with Section 11.09.
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11.1.3. Monetary Payment Default:
A. Failure to Pay Damages: Contractor fails to pay City any amount necessary to
compensate City for any damages suffered by the City within thirty (30) days following
City's written statement explaining the nature of the damages and requesting payment
therefor.
B. Contractor fails to pay any other monetary amount due hereunder, other than
monetary damages stated above, within ten (10) days of the due date hereunder.
C. Sale, Transfer, Assignment: Contractor sells, transfers or assigns its stock, assets
and/or this Agreement without City approval required by Article 15.
D. Seizure Attachment: Any Bin or Vehicle is seized, attached, or levied upon (other
than a pre-judgment attachment) so as to substantially impair Contractor's ability to
timely and fully perform Services, and said seizure or attachment cannot be released,
bonded, or otherwise lifted within forty-eight (48) hours, excepting weekends and
holidays.
E. Insolvency, Bankruptcy, Liquidation: Contractor files a voluntary claim for debt relief
under any applicable bankruptcy, insolvency, debtor relief, or other similar law now or
hereafter in effect, or consents to the appointment of or taking of possession by a
receiver, liquidation, assignee (other than as part of a transfer of Service Assets no
longer used to provide Services or backup Services), trustee (other than as security of an
obligation under a deed of trust), custodian, sequestrator, or administrator (or similar
official) of Contractor for any part of Contractor's operating assets, or orders the
conclusion or liquidation of the affairs of the Contractor.
F. False Representations; Breach of Representations or Warranties: Contractor makes a
representation or warranty herein, including in Exhibit B, which is materially untrue as
of the date thereof. Contractor makes a representation or fails to make a disclosure,
whether within this Agreement or otherwise, to the City in connection with or as a
material inducement to entering into this Agreement or any future amendment hereto,
which representation or failed disclosure was false or misleading in any material respect
when made.
11.2. Breaches and Defaults Excused
11.2.1 Performance Excused. Neither Party shall be deemed in breach or default of its
duties, obligations (other than a payment obligation at the time due and owing), responsibilities
or commitments hereunder to the extent that such breach or default is due to an
Uncontrollable Circumstance, provided such Party exerted Reasonable Business Efforts to
prevent the occurrence and mitigate the effects of such Uncontrollable Circumstance.
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11.2.2. Notice. The Party experiencing an Uncontrollable Circumstance and relying
thereon shall give immediate Notice thereof to the other Party, including describing
performance hereunder for which it seeks to be excused; the expected duration of the
Uncontrollable Circumstance; the extent Services may be curtailed; any requests or suggestions
to mitigate the adverse effects of such Uncontrollable Circumstance; or any consequent
adjustment that may be required in the Service Fee. An Uncontrollable Circumstance will not be
deemed to have commenced or be excused, until the date upon which the City receives written
notice pursuant to this Section.
11.2.3. City's Rights. Notwithstanding that Contractor's failure to timely and fully
provide Services due to Uncontrollable Circumstances does not constitute an Event of Default,
City shall nevertheless retain the right to perform such Services itself in accordance with
Section 4.07, and following the continuance of such failure for thirty (30) days, shall have the
option, in its sole discretion,to terminate the Agreement as provided in this Article.
11.3. Interest.
Any sum to be paid pursuant to the terms of this Agreement not paid when due shall bear
interest from and after the due date until paid at a rate equal to the prime interest rate
published by the Wall Street Journal plus three percent.
11.4. Remedies Upon Default.
Upon Occurrence of an Event of Default, City shall have the following rights:
11.4.1. Termination: To terminate this Agreement or any portion of the Contractor's
Service obligations and obtain damages for Contractor's breach.
11.4.2. Suspension: to suspend the Agreement for a period not to exceed thirty (30)
days.
11.4.3. City Right to Perform Services: To utilize Contractor's equipment, Vehicles and
other property necessary or useful in the collection of Solid Waste and to use such property at
the expense of Contractor to collect that Solid Waste which Contractor would otherwise be
obligated to collect pursuant to this Agreement pursuant to Section 4.07, without payment for
such use by City to Contractor.
11.4.4. All other Available Remedies. Contractor acknowledges that City's remedy of
damages for a breach hereof by Contractor may be inadequate for reasons including:
A. The urgency of timely, continuous and high quality solid waste management Service
hereunder, including collection, transportation, and/or transfer for disposal of
putrescible wastes which constitute a threat to public health;
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B. The lengthy time period and significant investment of money and personnel (both
City staff and private consultants, including engineers, procurement counsel, City peers
and elected City officials) required to request and evaluate qualifications and proposals
for alternative service comparable to Service provided hereunder for the price provided
hereunder, and to negotiate new agreements therefore;
C. The City's reliance on Contractor's technical solid waste management expertise;
D. The City's reliance on Contractor's established relationships with owners and/or
operators of Processing Facilities, Disposal Facilities, and Recyclables brokers and
purchasers; and
E. The City's obligation to repay municipal obligations, regardless whether it secures
Contractors performance hereunder.
Consequently, City shall be entitled to all available equitable remedies, including specific
performance and other injunctive relief.
11.4.5. Remedies Not Exclusive. Each Party's rights and remedies in the event of the
other Party's breach and default hereunder are not exclusive. A Party's exercise of one such
remedy is not an election of remedies but shall be cumulative with any other remedies
hereunder.
11.5. Waivers.
11.5.1 City Waiver of Breach. City's waiver of any breach or Event of Default shall not be
deemed to be a waiver of any other breach or Event of Default, including ones with respect to
the same obligations hereunder. Any City decision not to demand liquidated damages under
Section 11.01 shall not be deemed a waiver of any Contractor breach here under. City's
subsequent acceptance of any damages or other money paid by Contractor, including
liquidated damages, shall not be deemed to be a waiver by City of any pre-existing or
concurrent breach or Event of Default.
11.5.2. Contractor Waiver of Defenses. Contractor acknowledges that it is solely
responsible for providing Services and hereby irrevocably and unconditionally waives defenses
to the payment and performance of its obligations hereunder based upon failure of
consideration; contract of adhesion; impossibility or impracticability of performance;
commercial frustration of purpose; or the existence, non-existence, occurrence, or non-
occurrence of any foreseen or unforeseen fact, event or contingency that may be a basic
assumption of Contractor with regard to any provision hereof, subject to the occurrence of an
Uncontrollable Circumstance.
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11.5.3.Jurisdiction; Venue. The Parties shall bring any lawsuits arising out of this
Agreement in State of California courts, which shall have exclusive jurisdiction over such
lawsuits. The Parties agree that venue is made in and will be performed in courts in Riverside
County. Parties further agree that the site of any other hearing or action of whatever nature or
kind regarding this Agreement, shall be conducted in Riverside County,
11.5.4. Costs. Contractor agrees to pay to the City all fees and expenses reasonably
incurred by or on behalf of the City while enforcing payment or performance of Contractor's
obligations hereunder if such non-payment or non-performance results in an Event of Default
by Contractor.
11.5.5.Assurance of Performance. If Contractor is the subject of any labor unrest and
appears, in the reasonable judgment of City, to be unable to regularly pay its bills as they
become due; or is the subject of a civil or criminal judgment or order entered by a federal,
state, regional, or local agency for violation of an environmental or tax law, and the City
Manager believes in good faith that Contractor's ability to timely and fully perform Services has
thereby been placed in substantial jeopardy, the City may, at its option and in addition to all
other remedies it may have, demand from the Contractor reasonable assurances of timely and
full performance hereunder. If Contractor fails or refuses to provide such reasonable
assurances by the date required by the City, such failure or refusal shall constitute an Event of
Default.
ARTICLE 12. SUSPENSION OR TERMINATION
12.1 City right to Suspend or Terminate.
12.1.1. Termination Events. City shall have the right to terminate this Agreement in
whole or by directing Contractor to cease performing any portion or item of its Services listed in
Exhibit D, in part, in the following events:
A. Contractor Default: The occurrence of an Event of Default.
B. Uncontrollable Circumstances: The occurrence and continuance of an Uncontrollable
Circumstance which results in the Contractor's inability to perform for more than
fourteen (14) days.
C. Non-Severable Provisions: Any clause, sentence, provision, subsection, Section or
Article hereof or Exhibit hereto shall be ruled invalid by any court of competent
jurisdiction but is not severable herefrom. The Contract Officer shall make the
determination of whether a provision is non-severable. A "non-severable" provision is
one without which the parties would not have entered into the Agreement.
12.1.2. Suspension Events. City shall have the right to suspend this Agreement, in whole
or in part, upon the occurrence of an Event of Default; provided such suspension is for no
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longer than thirty (30) days, during which period the Contractor shall have the opportunity to
demonstrate to the satisfaction of the City that the Contractor can once again fully perform
Services, in which event City's right to suspend or terminate the Agreement shall cease and
Contractor may resume its Performance Obligations.
12.1.3. Notice. City shall give Contractor Notice of Termination, which shall be effective
forty-five (45) days thereafter; provided that such termination shall be effective immediately in
an Event of Default which endangers public health, welfare, or safety. City shall give Contractor
Notice of the suspension, which shall be effective immediately.
12.1.4. Suspension, Termination of a Portion of Performance Obligations: In the event
the City suspends a portion of this Agreement or terminates a portion of Contractor's
obligations under this Agreement, Contractor shall continue to fully perform its obligations
under the remaining portions hereof which are not suspended or terminated. Contractor
agrees to adjust the Service Fee in the event that costs are reduced by the suspension or
termination of a portion of the Contractor's performance obligations contained herein.
12.2. Contractor's Obligations Upon Termination
12.2.1. Pay Outstanding Damages. Contractor shall pay City any damages accrued and
payable during the then-current Contract Year or portion thereof which would have otherwise
become payable. CONTRACTOR'S LIABILITY FOR SUCH PAYMENTS SHALL SURVIVE THE
TERMINATION OF THIS AGREEMENT. SUCH OBLIGATIONS OF CONTRACTOR SHALL SURVIVE THE
TERMINATION OF THIS AGREEMENT.
12.2.2. Cooperation During Transition. In the event Contractor is not awarded an
agreement to continue to provide Services following the expiration or earlier termination of
this Agreement, Contractor shall cooperate fully with City and any subsequent contractor(s) to
assure a smooth transition of Services described in this Agreement, including transfer of any
Records needed to perform the Services (including computer data, files and tapes), such as
complete route maps, vehicle fleet information, days of Services information, Customer service
levels and Customer billing lists; provision of other reports and data required by this
Agreement; and coordination with City and any subsequent contractor(s). SUCH OBLIGATIONS
OF CONTRACTOR SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
12.2.3. Temporary Extension of Services. If City determines to conduct a competitive bid
process to provide for Solid Waste Collection Services after the expiration of this Agreement,
Contractor agrees to continue to provide services hereunder on a month to month basis until
the contract for such services is awarded, provided that Contractor has been permitted to fully
participate in such competitive bid process and even though such contract is not awarded to
contractor. SUCH OBLIGATIONS OF CONTRACTOR SHALL SURVIVE THE TERMINATION OF THIS
AGREEMENT.
ARTICLE 13. THE PARTIES.
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13.1. Contractor is an Independent contractor engaged by City and not as an officer, agent,
servant, employee or partner of City, nor as a joint venture with City. No employee or agent of
Contractor shall be deemed to be an employee or agent of City. Contractor shall have the
exclusive control over the manner and means of performing Services and over all persons
performing Services. Contractor shall be solely responsible for the acts and omissions of its
officers, employees, contractors, subcontractors, and agents, none of whom shall be deemed
officer, agent, servant, or employee of the City. Neither Contractor nor its officers, employees,
contractors, subcontractors, and agents shall obtain any rights to retirement benefits, workers
compensation benefits, or any other benefits which accrue to City employees, and Contractor
expressly waives any claim it may have or acquire to such benefits.
13.2. Parties in interest. Nothing in this Agreement, whether express or implied, is intended
to confer any rights on any Persons other than the Parties and their representatives, successors,
and permitted assigns.
13.3. Binding on Successors. The provisions of this Agreement shall inure to the benefit of and
be binding on the successors and permitted assigns of the Parties.
13.4. Further Assurances. Each Party agrees to execute and deliver any instruments and to
perform any acts as may be necessary or reasonably requested by the other in order to give full
effect to this Agreement.
13.5. The Actions of the City in its Governmental Capacity. Nothing herein shall be interpreted
as limiting the rights and obligations of the City in its governmental or regulatory capacity.
13.6. Contractor's Obligations Performed at Its Sole Expense. Contractor shall perform
Services solely for the compensation expressly provided for herein.
13.7. Parties Representatives. Except as otherwise expressly provided in this Agreement, the
Contract Officer shall be authorized to act on behalf of City in the administration of this
Agreement.
13.8. Gifts Prohibited. Contractor shall not offer any City officer or designated employee any
gift.
13.9. Due Diligence. Contractor acknowledges that the City may be subject to statutory fines
for failure to achieve mandated diversion levels and that waste management is a public health
and safety concern. It agrees that it shall exercise due diligence in performing Services
hereunder.
ARTICLE 14. TRANSFER AND AMENDMENTS
14.1. Transfer and Assignment.
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Solid Waste Franchise Agreemen[007.02.2013
14.1.1. City Approval of Transfer Required. The City, in entering into this Agreement, has
placed a special value, faith and confidence in the experience, background and expertise of the
Contractor in the field of waste disposal. Such faith and confidence being a substantial
consideration in the granting of this Agreement, the parties therefore agree that no transfer of
Contractor's interest hereunder may occur without the express written approval of City granted
as provided hereunder, and any such transfer shall be void unless specifically authorized
hereunder. As used in this Article, transfer shall be broadly construed to include any change in
ownership or control, any transfer of stock in the Contractor's business, the delegation or
assignment of duties, and the entering into subcontracts, with and to persons, firms or entities
who are not existing shareholders or members of the immediate families of existing
shareholders.
14.1.2. Existing Shareholders. Contractor's ownership interests are divided among the
following individuals or their trusts: Jim Cunningham, Lissa Cunningham, Michael Jaycox, Rick
Wade, Randy Wade, Ryan Wade, Linda (Wade) Dolph and Sheree (Wade) Holkesvig.
14.1.3. Transfers Among Existing Shareholders. Any transfer of ownership interests
among existing shareholders may occur without the approval of City. Contractor shall be
obligated to inform City Manager of a transfer of ownership interests among existing
shareholders within ten (10) days of the effective date of such transfer.
14.1.4.Transfers to Immediate Family Members. Except for the demise of an existing
shareholder as described below, any transfer of ownership interests to an immediate family
member of an existing shareholder may occur with the prior written approval of the City
Manager provided that the City Manager finds all of the following: (i) that the transfer of such
ownership interests has no adverse impact on Contractor's operations in City; (ii) that the
transfer of such ownership interests will not result in any interest in Contractor being vested in
any person who is not an immediate family member of the initial owners of Contractor, and,
(iii) that the transfer will not impair the continuing validity of the Company's operating permits.
In the event the City Manager is unable to make these findings, or has any concerns regarding
his ability to do so, he may refer the matter in whole or part to the City Council for its
consideration, approval, or other action, and the City Council shall have the discretion to
consider the proposed transfer of such ownership interests to be an assignment of this
Agreement.
14.1.5. Exception for Demise of an Existing Shareholder. In the event of the demise of
an existing shareholder, ownership interests may pass to the immediate family member(s) of
the deceased shareholder without the requirement of an approval by the City. Contractor shall
notify City within thirty (30) days of the demise of an existing shareholder and the transfer of
ownership interests to immediate family members related thereto.
14.1.6. Core Management Employees or Advisors. In addition, during the term of this
Agreement, Contractor shall not replace the members of its core group of management
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Solid Waste Franchise Agreement 007.02.2013
employees or advisors, who are identified as Jim Cunningham, Michael Jaycox, Rick Wade, Chris
Cunningham, Mike Reed, CPA and Robert Kuznik, without the prior written consent of the City,
which shall not be unreasonably withheld. To assist the City in determining whether to grant its
consent, as required by this Section, Contractor shall provide City with reasonable information
concerning the knowledge, experience and background of any proposed addition to
Contractors core group of management employees or advisors.
14.2. Consent of City. Any change in ownership or control involving a party who is not an
existing shareholder or immediate family member of an existing shareholder shall require the
prior approval of the City which shall not be unreasonably withheld. The City's consent for a
transfer to a party that is not an existing shareholder or immediate family member of an
existing shareholder shall be based upon the prospective owner's financial capability,
background, reputation, experience and expertise in the field of waste disposal, as described
below.
14.2.1. Required Information. Contractor shall submit its request for City consent to the
City together with the following documentation and any other documentation the City may
request:
A. Assignee's audited financial statement for the immediately preceding three (3)
operating years indicating that the proposed assignee's financial status is acceptable to
City and adequate to provide the Services hereunder.
B. Satisfactory proof that the proposed assignee has at least ten (10) years of municipal
solid waste management experience on a scale equal to or exceeding the scale of
operations conducted by Contractor.
C. Satisfactory proof that in the last five (5) years, the proposed assignee has not
suffered any citations or other censure from any federal, state, or local agency having
jurisdiction over its waste management operations due to any significant failure to
comply with federal, state, or local waste management law and that the assignee has
provided City with a complete list of such citations and censures.
D. Satisfactory proof that the proposed assignee has at all times conducted its
operations in an environmentally safe and conscientious fashion.
E. Satisfactory proof that the proposed assignee has at all times conducts its municipal
solid waste management practices in accordance with sound waste management
practices in full compliance with all federal, state and local laws regulating the collection
and disposal of waste, including hazardous waste.
F. Or any other information required by City to ensure the proposed assignee can fulfill
the terms hereof, including the payment of indemnities and damages and provision of
bonds and/or performance guaranties, in a timely, safe, and effective manner.
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14.3. Approval of Transfer; Transfer Fees. Any application for a change of ownership or a
franchise transfer shall be made in a manner prescribed by the Contract Officer. Contractor
shall make (1) a deposit of fifty thousand dollars ($50,000) to cover City's reasonable expenses
related to the transfer, payable prior to City consideration of the transfer request, and (2) a
payment of fifty thousand dollars ($50,000) as a transfer fee, payable prior to any authorized
change of ownership or franchise transfer becoming effective. The deposit shall be used to pay
the suitability of any proposed assignee, and to review and finalize any documentation required
as a condition for approving any such assignment. City shall document the expenditure of all
funds from the deposit and shall reimburse all surplus funds to Contractor. Contractor shall
supplement the deposit within ten (10) days of the City's request therefore, in the event
additional funds are required. The transfer shall be approved by resolution of the City Council
approved in accordance with Section 14.2 of this Agreement. The amount of the deposit and
the transfer fee shall be adjusted annually by the same percentage of any CPU-1 adjustment in
rates Contractor receives pursuant to this Agreement.
14.4. Subcontractors. The use of a subcontractor to perform services under this Agreement
shall not constitute delegation of Contractor's duties provided that Contractor has received
prior written City approval to subcontract such services and the City by its Contract Officer has
approved in writing the subcontractor. Contractor shall be responsible for directing the work of
Contractor's subcontractors and any compensation due or payable to Contractor's
subcontractors shall be the sole responsibility of Contractor. City shall have the right to require
the removal of any approved subcontractor.
14.5. Amendments.
14.5.1. By Agreement. The Parties may change, modify, supplement or amend this
Agreement only upon mutual written agreement duly authorized and executed by both Parties.
14.4.2. City Manager May Act as Authorized Representative. Authority to act on behalf
of the City is hereby delegated to the City Manager or his or her designee ("Contract Officer'),
except that the Contract Officer may not approve any amendments to this Agreement involving
payments in excess of$25,000.
ARTICLE 15. NOTICES, CONSENTS, APPROVALS, ETC.
15.1. Notices. etc. All reports, demands, requests, directions, selections, option exercises,
orders, requests, proposals, reviews, comments, acknowledgements, approvals, consents,
waivers, certifications and other communications made hereunder shall be in writing, other
than computerized reports in accordance with Article 7, and shall either be sent electronically
or be personally delivered to a representative of the Parties at the address below or deposited
in the United States mail, first class postage prepaid (certified mail, return receipt requested) or
by commercial delivery service providing delivery verification, addressed as follows:
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Solid Waste Franchise Agreement 007.02.2013
If to City:
City Manager
City of Palm Springs
PO Box 2743
Palm Springs, CA 92263-2743
If to Contractor:
Palm Springs Disposal Services
4690 E Mesquite Avenue
PO Box 2711
Palm Springs, CA 92263-2711
Attn: Rick Wade
With a copy to:
Robert Kuznick
4434 W. 14th Street Drive
Greeley, CO 80634-3139
Notices may be delivered via electronically provided that any such delivery shall be promptly
followed by such personal or mailed delivery.
Notice by City to Contractor of a missed pick-up or a Customer problem or complaint may be
given to Contractor orally by telephone at Contractor's Local Office with written confirmation
sent to Contractor within twenty-four (24) hours of the oral notification.
Parties may change their address upon Notice to the other Party as provided above.
Exercise of Options. Except as otherwise provided, the Parties' exercise of any approval,
disapproval, option, discretion, satisfaction, determination, election, or choice hereunder shall
be reasonable; unless this Agreement specifically provides otherwise.
ARTICLE 16. EXECUTION OF AGREEMENT
16.1. Execution in Counterparts. This Agreement may be executed in any number of original
counterparts. All such counterparts shall constitute but one and the same Agreement.
16.2. Authority to Execute. The persons executing this Agreement on behalf of the parties
hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to
execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement,
such party is formally bound to the provisions of this Agreement, and (iv) the entering into this
Agreement does not violate any provision of any other Agreement to which said party is bound.
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Solid Waste Franchise Agreement D07.02.2013
IN WITNESS WHEREOF, the PARTIES hereto have executed this Agreement as of the latter of the
date written below.
CITY:
CITY OF PALM SPRINGS
City Manager
Date:
ATTESTED BY
City Clerk
Date:
APPROVED AS TO FORM
City Attorney
Date:
CONTRACTOR:
PALM SPRINGS DISPOSAL SERVICES
By:
Its:
Date
By:
Its:
Date
APPROVED AS TO FORM
Counsel for Contractor
Solid 55 P g 2
d Waste Franchise Agreement 007.D2.2013
EXHIBITS
Agreement Between the City of Palm Springs and Palm Springs Disposal Services
For Solid Waste Management Services
EXHIBIT A
DEFINITIONS
"AB 939"or "the Act" means the California Integrated Waste Management Act of 1989,
at Public Resources Code Section 40000 et. Seq., and the provisions of Title 22 of the
California Code of Regulations, as such may be amended from time to time, and as
implemented by the regulations of the California Department of Resources Recycling and
Recovery (CalRecycle).
"State Administration Fee" means the fee or assessment set by the City which is
intended to compensate City for the costs associated with compliance with the Act, as
used in Section 10.3.3 of the Agreement. The State Administration Fee is a Compensable
Overhead Cost.
"Agreement" means this Agreement, including all exhibits (Exhibits A - O) and
attachments, which are incorporated herein by reference, and any amendments thereto.
"Alternative Fuel" means a vehicle fuel other than diesel fuel including but not limited
to compressed natural gas (CNG), liquefied natural gas (LNG), and biodiesel and
multiple fuels including but not limited to diesel/electric hybrid and diesel/hydraulic
hybrid.
"Applicable Law" means all law, statutes, rules, regulations, guidelines, Permits,
actions, determinations, orders, or requirements of the United States, State of
California, County of Riverside, City, regional or local government authorities,
agencies, boards, commissions, courts, or other bodies having applicable jurisdiction,
that from time to time apply to or govern Contractor's Services or the performance of
the parties' respective obligations hereunder, including any of the foregoing which
concern health, safety, fire, environmental protection, labor relations, mitigation
monitoring plans, building codes, zoning, non-discrimination, the payment of minimum
wages and the Riverside County Integrated Waste Management Plan. All references
herein to Applicable Law include subsequent amendment or modifications thereof,
unless otherwise specifically limited.
"Automated Collection Vehicles" means vehicles used to automatically collect
Refuse, Recyclables and Green Waste from the 65 and 96 gallon carts provided to
Customers by the Contractor.
"Backyard Collection" and "Walk-In Service" means the collection of Solid Waste
from a residential Customer's backyard/sideyard where necessary for safety, convenience,
access, or where requested by the Customer.
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EXHIBITS
Agreement Between the City of Palm Springs and Palm Springs Disposal Services
For Solid Waste Management Services
"Bin" means front-loading bins and roll-off bins used at commercial premises and multi-
unit residential premises. "Roll-off bins" means bins picked up by means of rear-loading
winches onto rails. Roll-off bins are generally much larger in size than front-loading bins.
"Bulky Waste" or "Bulky Items" means discarded: furniture (including chairs, sofas,
mattresses, and rugs); appliances (including refrigerators, ranges, washers, dryers, water
heaters, dishwashers, plumbing, small household appliances); Residential wastes
(including wood waste, tree branches, scrap wood, debris from building construction, in
the aggregate not exceeding one cubic yard per collection); clothing; and tires.
"Business Sector" means Contractor's primary service groupings of Residential,
Commercial, and Industrial.
"Carts" means containers provided by Contractor designed specifically for storage and
collection of refuse, which are available in 65 gallon and 96 gallon sizes which do not
exceed 200 lbs and 250 lbs in weight respectively when filled level full with the lids
closed.
"Change in Law" means the occurrence of any event or change in Applicable Law as
follows:
(1) the enactment of legislation by Congress or the State Legislature; or
(2) the adoption, promulgation, modification, or change in judicial or administrative
interpretation occurring after the date hereof which adoption, promulgation, codification,
or change in judicial or administrative interpretation relates to any Applicable Law, other
than laws with respect to taxes based on or measured by net income, or any
unincorporated business, payroll, or employment taxes; or
(3) any order or judgment of any federal, state or local court, administrative agency or
governmental body issued after the date hereof if:
(i) such order or judgment is not also the result of the willful misconduct or
negligent action or inaction of the Party relying thereon or of any third Party for whom
the Party relying thereon is directly responsible; and
(ii) the Party relying thereon, unless excused in writing from so doing by the
other Party, shall make or have made, or shall cause or have caused to be made,
Reasonable Business Efforts in good faith to contest such order or judgment (it being
understood that the contesting in good faith of such an order or judgment shall not
constitute or be construed as a willful misconduct or negligent action of such Party); or
(4)the imposition by a governmental authority or agency of:
(i) any new or different material conditions in connection with the issuance,
renewal, or modification of any Permit after the date hereof, or
(ii) any Franchise Fee, tax, or assessment with respect to the transfer;
processing, or disposal of Refuse, Recyclables, or Green Waste; or
(5) the failure of a governmental authority or agency to issue or renew, or delay in the
issuance or renewal of, or the suspension, interruption or termination of, any Permit after
the date hereof, provided such failure to issue or the suspension or termination of any
permit is not the result of the willful misconduct or negligent action or inaction of the
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EXHIBITS
Agreement Between the City of Palm Springs and Palm Springs Disposal Services
For Solid Waste Management Services
Party relying thereon or any third party for whom the Party relying thereon is directly
responsible.
"City" means the City of Palm Springs or any governmental entity, which may
hereinafter assume waste management obligations of the City, including any joint
exercise of powers authority or other similar public entity with which the City
participates or contracts with, established to provide solid waste management services or
meet solid waste diversion requirements under Applicable Law.
"City Facility" means any building, park or other site owned, leased or used regularly
and significantly by the City for public purposes.
"City Manager" means the City Manager of the City of Palm Springs or the City
Manager's designee.
"Commercial and Industrial Property" means Property upon which business activity
is conducted, including but not limited to retail sales, services, hotels, wholesale
operations, manufacturing and industrial operations, but excluding businesses conducted
upon Residential Property which are permitted under applicable zoning regulations and
are not the primary use of the Property.
"Compensable Overhead Costs" means those expenses and fees recognized by the City
as expenses or costs incurred by Contractor that are intended to be fully recovered
through the rates Contractor charges for services performed and which shall include but
not be limited to Material Handling Fees, State Administration Fee, City's Diversion
Facility Fees, City's Administration Fees, and City's Franchise Fees. Compensable
Overhead Costs shall not be separately identified or charged to any customer.
"Composting Facility" means the facility for processing Green Waste selected by
Contractor and reviewed by the City, or designated by the City, in accordance with
Article 4. This facility can process the Green Waste as alternative daily cover provided it
receives diversion credit under the Act.
"Construction and Demolition Material" (C&D Material) means building materials
and solid waste resulting from construction, remodeling, repair, cleanup, or demolition
operations that are not hazardous as defined in California Code of Regulations, Title 22
Section 66261.3 et seq. This term includes, but is not limited to, asphalt, concrete,
Portland cement concrete, brick, lumber, gypsum wallboard, cardboard, and other
associated packaging, roofing material, ceramic tile, carpeting; plastic pipe and steel.
The material may be commingled with rock, soil, tree stumps; and other vegetative
matter resulting from land clearing and landscaping for construction or land
development projects.
"Contractor's Fiscal Year" means the twelve (12) month period starting on October 1
and ending on September 30.
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EXHIBITS
Agreement Between the City of Palm Springs and Palm Springs Disposal Services
For Solid Waste Management Services
"Container" means Bin, Solid Waste Bin, Cart, Debris Box, Roll-off Box, Compactor,
or any other container designed or intended to be used for receiving and containing
refuse, garbage, or waste of any kind, and has been approved for use by the Contractor or
the City for the purpose of depositing waste for disposal, except construction and
demolition debris and bulky items, or recyclable materials for diversion.
"Contract Officer" means the City Manager.
"Contract Year" (or"Agreement Year")means each consecutive twelve-month period
of the Agreement commencing April 1 and ending March 31.
"Contractor" means Palm Springs Disposal Services.
"Contractor Representative" means an authorized employee or designated
representative of Contractor.
"Contractor Service Fee" means that Rate Component of Exhibit K, Rate Schedule,
intended to generate revenue to compensate Contractor for expenses, overhead and profit,
exclusive of Compensable Overhead Cost.
"Contractor's Financial Performance Rating" means the sum of Contractor's "general
and administrative expenses" PLUS "pretax net income"expressed as a percentage of
"total revenue" wherein:
"general and administrative expenses" include the expenses of officer and office
payroll costs; bank, office, payroll and computer costs; office telephone, internet,
utilities, repair and maintenance costs; legal, accounting and professional service
costs; travel, employee development and community relations costs; and the like;
and, exclude Contractor's "operating expenses" of city fees; material handling
and disposal costs; collection labor, maintenance labor and customer service
payroll costs; yard costs; truck operating costs; truck and container financing and
depreciation costs; licenses, bonds and permits associated with contracts;
amortization of contracts; and the like;
"pretax net income" represents Contractor's "total revenue" LESS "operating
expenses"and"general and administrative expenses"before "extraordinary
items"; and,
"gross revenue"represents Contractor's gross revenue billed for franchise
operations, including Compensable Overhead Costs,
EXAMPLE:
Total revenue $1,000,000
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EXHIBITS
Agreement Between the City of Palm Springs and Palm Springs Disposal Services
For Solid Waste Management Services
Operating expense $ 750,000
General & administrative expense 170,00
920,000
Pretax net income 80,000
Contractor's Financial Performance Rating is 25%.
[($170,000 + $80,000)/$1,000,000= 25/0]
"Contractor's Fiscal Year"means the period of time between October 1 and September
30.
"Curbside Collection" means the collection of Solid Waste from Customers who place
containers within four(4) feet from a road or in an alleyway.
"Customers" means the generators (including owners, tenants, occupants and/or persons
having the care or control of any premises within the City) of Solids Waste to which
Contractor is required to provide Services.
"Debris Box" means a receptacle for Refuse, Recyclable Material, or Green Waste
having a capacity of 10 cubic yards or greater that is picked up in its entirety by a
dedicated truck for emptying at a separate location.
"Disposal Facility" (or "Disposal Site") means the Facility or Facilities for disposing of
Solid Waste and/or residue from a Processing Facility or Composting Facility, as
designated by Contractor and approved by the City, or as designated by the City. A
Disposal Facility is not a Processing Facility or a Diversion Facility.
"Diversion and Sustainability Facility Fee" means the fee or assessment set by the City
which is intended to be used for the design, construction and operation of a transfer
facility and the implementation and undertaking of programs and projects consistent with
the City's resource conservation goals, including without limitation recycling, energy and
natural resource conservation, and related community education. The Diversion and
Sustainability Facility Fee is a Compensable Overhead Cost.
"Diverted Material" means any Solid Waste salvaged or otherwise directed from a
Disposal Facility for salvage or for processing. Diverted Material may include but is not
limited to Recyclables and Construction and Demolition Material delivered to a
Processing Facility and Organic Waste delivered to Compost Facility or Processing
Facility.
"E-Waste" or electronic waste means consumer electronic equipment that is no longer
wanted. E-Waste can include but is not limited to computers, printers, televisions,
VCR's, cell phones, fax machines, stereos, and electronic games.
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EXHIBITS
Agreement Between the City of Palm Springs and Palm Springs Disposal Services
For Solid Waste Management Services
"Effective Date" means the date upon which the franchise and this Agreement are
deemed to commence and when all of the conditions precedent have been satisfied
pursuant to Section 3.03.
"Event of Default" means a service default, performance assurance default, false
representation, or breach of representations or warranties as defined in Article 11.
"Food Waste" means all animal and vegetable solid wastes generated by food facilities
as defined in California Health and Safety Code section 27521, or from residences, that
result from the storage,preparation, cooking, or handling of food.
"Good Faith Effort" means all reasonable and feasible efforts undertaken bythe City
and the Contractor to implement those programs or activities identified in City's Source
Reduction and Recycling Element or Household Hazardous Waste Element, or
alternative programs or activities that achieve the same or similar results, to ensure
compliance with the Act.
"Green Waste" means organic waste generated from any landscape, including grass
clippings, leaves, and pruning's, tree trimmings, weeds, branches and brush, collected
pursuant hereto.
"Gross Revenue" means for any fiscal period, Contractor's income from all business
sectors (Residential, Commercial, and Industrial) for the rates charged for services
including Service Fees and Compensable Overhead Costs."
"Hazardous Waste" is a material which by reason of its quality, concentration,
composition or physical, chemical or infectious characteristics may cause or significantly
contribute to an increase in mortality or an increase in serious illness or pose a substantial
threat or potential hazard to human health or the environment when improperly treated,
stored, transported, or disposed of or otherwise mismanaged; or any waste which is
defined or regulated as a hazardous waste, toxic waste, hazardous chemical substance or
mixture, or asbestos under Applicable Law, excluding Household Hazardous Wastes, but
including:
(1) "Hazardous Waste" pursuant to Section 40141 of the California Public Resources
Code• materials regulated under Chapter 7.6 (commencing with Section 25800) of
Division 20 of the California Health and Safety Code; all substances defined as
hazardous waste, acutely hazardous waste, or extremely hazardous waste by Sections
25110.02, 25115, and 25117 of the California Health and Safety Code ("California
Hazardous Waste Control Act"), California Health and Safety Code Section 25100, et
seq., including 23 California Code of Regulations Sections 2521 and 2522;
(2) Materials regulated under the Resource Conservation and Recovery Act 42 U.S.C.
Section 6901, et seq., (including, but not limited to, amendments thereto made by the
Solid Waste Disposal Act Amendments of 1980), and related federal, State and local laws
and regulations;
(3) Materials regulated under the Toxic Substance Control Act 15 U.S.C. Section
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EXHIBITS
Agreement Between the City of Palm Springs and Palm Springs Disposal Services
For Solid Waste Management Services
2601, et seq., and related federal, State of California, and local laws and regulations,
including the California Toxic Substances Account Act, California Health and Safety
Code Section 25300, et sea,
(4) Materials regulated under the Comprehensive Environmental Resnonse
Compensation and Liabilityt, 42 U.S.C. Section 9601, et seq., as amended, and
regulations promulgated thereunder; and
(5) Materials regulated under any future additional or substitute federal, State or local
laws and regulations pertaining to the identification, transportation, treatment, storage or
disposal of toxic substances or hazardous waste.
If two or more governmental agencies having concurrent or overlapping jurisdiction over
Hazardous Waste adopt conflicting definitions of "Hazardous Waste," for purposes of
collection, transportation, processing and/or disposal, the more restrictive definition shall
be employed for purposes of this Agreement
Household Hazardous Waste" means Hazardous Waste generated in small quantities
at Residential premises.
"Holiday" means the following City-designated Holidays: Christmas Day, New Year's
Day, Memorial Day, Labor Day, Thanksgiving Day and Independence Day.
"Infectious Waste" means waste capable of producing an infection or pertaining to or
characterized by the presence of pathogens. It includes but is not limited to certain wastes
generated by medical practitioners, hospitals, nursing homes, medical testing labs,
mortuaries, taxidermists, veterinarians, veterinary hospitals, medical testing labs, and any
waste which includes animal wastes or parts from slaughterhouses or rendering plants.
"Manual Service Area" means homes in, but not limited to, the following
neighborhoods: South Ridge Drive, South Araby Drive, (Rim Road, Bisnaga Avenue,
Smokewood, Stage Coach, Cholla Place), Southwest Palm Springs area (Cahuilla Hills
Drive, Camino Monte, El Portal, Crestview, Ridge, Alta, Vista, Camino Alturas, Mesa
Drive, Camino Descanso), Indian Canyon Gardens, Smoke Tree Ranch, The Villagio,
and Palisades Drive.
"Material Handling Fee" means that Rate Component of Contractor's rates for service
intended to equal Contractor's expenses for: (i) Disposal Tip Fees levied by the operator
of a Disposal Facility for accepting, transporting and disposing of Refuse and residue
from a Processing Facility, (ii) handling and processing fees levied by the operator of a
Processing Facility for accepting, transporting and processing materials diverted from
disposal including but not limited to Recyclables, C&D Material, Organic Waste (which
includes Green Waste, Wood Waste, and Food Waste), (iii) Contractor's cost of
transporting Diverted Materials to a Diversion Facility outside of City's city limits, (iv)
net of revenue from the sale of any Refuse, Green Waste, and Recyclables.
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"Materials Recovery Facility" means a Permitted Solid Waste Facility where Solid
Wastes or Recyclables are sorted or separated for the purposes of Recycling or composting.
A Material Recovery Facility is a Processing Facility and not a Disposal Facility.
"Medical Waste" means biohazardous waste, sharps waste, waste which is generated or
produced, as a result of the diagnosis, treatment or immunization of human beings or
animals, in research pertaining thereto or in the production or testing of biologicals
pursuant to California Health and Safety Code, Section 25023.2.
"Monetary Default" means the failure to pay any monetary amount payable to the City
hereunder which is not paid by Contractor when due under the Agreement. Monetary
Defaults are subject to the accrual of interest thereon.
"Multi-Family Dwelling Unit" means any premises, four units or more, that is serviced
in a manner similar to Commercial and Industrial Property but used for residential
purposes, excluding motels and hotels, irrespective of whether the residents therein are
transient, temporary or permanent.
"Non-Collection Notice" means a notice left by Contractor for Customers at the times
and in the manner described herein, including Waste Not Properly Placed in Containers,
Container Not Placed in Proper or Safe Collection Location, and Hazardous Waste or
Unsafe Materials, Excess Materials or Containers Beyond Subscription Level, as
described in Article 4, which shall contain, at a minimum, the date and time the notice is
given, the complete address of the Premises, the reason for non-collection, and the
manner in which materials should be prepared for collection, and which shall be printed
at Contractor's expense.
"Notice" or "Notify" or other variation thereof means notice given in accordance with
Article 16.
"Office Hours" are defined in Article 4.
"Once-Weekly Program" means Refuse, Recycling and Green Waste Collection service
provided to Residential Premises subscribing to individual Collection wherein Refuse and
Recycling is collected one time each week from Contractor-provided Carts, 65-gallon or
96-gallon approximate sizes, using Automated Collection Vehicles, or collected manually
from Customer-provided Containers for Premises that cannot be serviced by Automated
Collection Vehicles; Collections may be Curbside or Walk-In based upon Customer's
subscription preference. Green Waste shall be collected manually one time each week
from Customer-provided Containers; Collections may be Curbside or Walk-In based
upon Customer's subscription preference.
"Organic Waste" means biodegradable waste that can be broken down in a reasonable
amount of time into its base compounds by microorganisms and other living things.
Organic Waste includes Green Waste and Food Waste.
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"Party" and "Parties" refers to the City and the Contractor, individually and together.
"Performance Review Hearing" is a Public hearing held by the City Council on
Contractor's Performance pursuant to Section 5.04.
"Permits" means all federal, State, City, other local and any other governmental unit
permits, orders, 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 Services, as renewed or amended from time to
time.
"Person" includes any individual, firm, association, organization, partnership,
corporation, trust, joint venture, the United States, the State, a county, a municipality or
special purpose district or any other entity whatsoever.
"Phone Hours" are the Contractor's open Office Hours as defined in Article 4.
"Premises" means any land or building within the City where Solid Waste is generated
or accumulated.
"Processing Facility" or "Diversion Facility" means the facility or facilities for sorting
and/or processing commingled or source separated Recyclables, construction and
demolition, and/or mixed Refuse, Green Waste and/or Food Waste selected by Contractor
and approved by the City. A Processing Facility or Diversion Facility is not a Disposal
Facility.
"Public Company Financial Performance Standard" means the three (3) year mean
average Combined General and Administrative Expenses and Pretax Net Income, before
extraordinary items, of the three (3) largest (determined by Total Revenue) US based
Public Companies with an SIC Code of 4953 as reported in their year-end financial
statements published in their three (3) most recent annual reports, where "mean average"
means the arithmetic mean being the sum of "n" numbers divided by "n". For each
public company, the Public Company Perfromance Standard is computed by adding the
pretax net income and general and administrative expenses and dividing that sum by total
revenue.
"Rate Schedule"means Exhibit K of this Agreement.
"Rate Year" means the twelve (12)month period July 1 through June 30.
"Reasonable Business Efforts" means those efforts a reasonably prudent business
Person would expend under the same or similar circumstances in the exercise, of such
Person's business judgment, intending in good faith to take steps calculated to satisfy the
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obligation which such Person has undertaken to satisfy; provided that such Person and/or
any enterprise by which such Person is employed would not incur a significant financial
loss (other than time expended or unless otherwise compensated for such efforts) by
reason of having expended or expending such efforts.
"Records" are ledgers, books of account, invoices, vouchers, canceled checks, and other
documents evidencing or relating to charges for Services within the City, the Service Fee,
or performance hereunder, including routing, level of each Customer's services,
inventory, maintenance logs, etc.
"Recyclables" and "Recyclable Materials" mean materials which have been discarded,
thrown away, or abandoned by the generator or owner thereof, and are commonly
collected in recycling programs in southern California for the purpose of reprocessing or
remanufacturing. The list of recyclable materials includes, but is not limited to, the
following: newspaper (including inserts, coupons, and store advertisements); corrugated
cardboard; mixed waste paper including office paper, computer paper, magazines, junk
mail, catalogs, kraft bags, paper, paperboard, egg cartons, phone books, brown paper,
grocery bags, colored paper, construction paper, envelopes, legal pad backings, shoe
boxes, cereal and other similar food boxes, tissue boxes, paper tubes, and wrapping
paper; glass containers including brown, clear, and green glass bottles and jars; aluminum
including beverage containers, foil, and food containers; milk and juice cartons and jugs;
steel or tin cans; small scrap metal including metal coat hangers; plastic jugs, bottles, and
containers including resins 91 through #7; used motor oil and oil filters; and any other
materials mutually agreed to by the Contractor and the City.
"Recycling" means the process of collecting, sorting, cleansing, treating, and/or
reconstituting materials which would otherwise become Refuse, and returning such
materials to the economic stream in the form of raw material for new, reused, or
reconstituted products which meet the quality standards necessary to be used in the
marketplace. "Recycling" does not include transformation as defined in Public Resources
Code Section 40201.
"Refuse" means putrescible and non-putrescible Solid Waste or debris, whether
combustible or non-combustible, excluding sewage, source-separated Green Waste and
Recyclable Materials.
"Residential" refers to any building or structure, or portion thereof that is used for
residential housing purposes.
Residential Collection" means the collection of residential Refuse, Recyclables, Green
Waste and other residential waste at curbside backyard/sideyard or alleyways from
Premises Used for Residential purposes.
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"Residential Container" means a Solid Waste disposal container provided by a
Residential Customer having a maximum allowable capacity of 32 gallons for use only in
Manual Service areas.
"Roll-Off Box," also called a drop box, means an open top, movable container with a
capacity of ten (10) or more cubic yards in which primarily nonputrescible Refuse such
as construction and demolition debris or nonputrescible recyclables are stored until
removed from the premises.
"Service Fees" are the fees received from Customers for providing the services
performed in this Agreement, as set forth in Section 10.01, but not excluding the
maximum rates permitted as set forth in Exhibit K.
"Services" mean all obligations of Contractor hereunder to City and Customers.
"Self-Haul" means the act of hauling refuse, construction and demolition debris and/or
recyclables to an approved disposal facility by the person or persons that produced such
refuse, construction and demolition debris and/or recyclables.
"Single Family Dwelling Unit" means each Premises used for or designated as a Single
Family Residential dwelling unit, including each unit of a duplex, triple, or townhome in
all cases in which there is separate or individual Solid Waste Collection Service
"Solid Waste" means all types of putrescible, offensive and nonputrescible solid and
semisolid, and liquid waste including garbage, trash, refuse, paper, rubbish, ashes, industrial
wastes, animal carcasses, bulky goods, and construction and demolition wastes, abandoned
vehicles and parts thereof, discarded home and industrial appliances, (dewatered, treated or
chemically fixed sewage sludge which is not to be deemed to contain hazardous material or
substances) manure, vegetable or animal solid or semisolid waste, green waste and
recyclable solid waste, or any other material as defined by Section 40191 of the Public
Resources Code, the California Department of Resources Recycling and Recovery, or any
other entity having jurisdiction, as may be amended from time to time.
"Solid Waste Bin" means a covered or fully enclosed movable container, in which
putrescible and non-putrescible Refuse or recyclables are stored until removed from the
premises„ including but not limited to privately owned or proprietary bins, enclosed roll-
off type bins or compactor roll-off type bins.
"Special Waste" means any hazardous waste listed in Section 66740 of Title 22 of the
California Code of Regulations, or any waste which has been classified as a special waste
pursuant to Section 66744 of Title 22 of the California Code of Regulations, or which has
been granted a variance for the purpose of storage, transportation, treatment, or disposal
by the Department of health Services pursuant to Section 66310 of Title 22 of the
California Code of Regulations. Special Waste also includes any Solid Waste which,
because of its source of generation, physical, chemical, or biological characteristics or
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unique disposal practices, is specifically conditioned in a solid waste vacilities permit for
handling and/or disposal.
"State" means the State of California.
"Term" of this Agreement is defined in Article 3.
"Tipping Fee" means the cost imposed at a Disposal, processing and/or Transfer Facility
for the handling or dumping of solid waste collected by Contractor.
"Ton (or Tonnage)" means a short ton of 2,000 pounds.
"Total Annual Rate Revenue" means the cumulative estimated annual revenue
produced for all services MULTIPLIED BY the average number of service units, the
product of which is then MULTIPLIED BY twelve months. The computation may be
made based upon the total rate or upon all Rate Components individually so that the
results for each Rate Component when added together will produce the total rate revenue.
"Transfer Facility" means that facility selected and used by Contractor to receive Solid
Waste, temporarily store and to transfer the Solid Waste directly from smaller to larger
Vehicles for transport to a Disposal Facility.
"Transformation" means incineration, pyrolysis, distillation, or biological conversion
other than composting. "Transformation" does not include composting, gasification, or
biomass conversion.
"Uncontrollable Circumstance(s)" means any act, event or condition, whether
affecting Services of either Party beyond the reasonable control of such Party and not
the result of willful or negligent action or inaction of such Party (other than the
contesting in good faith or the failure in good faith to contest such action or inaction),
which materially and adversely affects the ability of either Party to perform any
obligation hereunder, including:
(1) An act of God, landslide, lightning, earthquake, fire, flood (other than reasonably
anticipated weather conditions for the geographic area of the City), explosion, sabotage,
terrorism, acts of a public enemy, war, blockade or insurrection, riot or civil disturbance;
(2) The failure of any appropriate federal, State, City, or local public agency or private
utility having operational jurisdiction in the area in which Service Assets comprised of
realty, including maintenance and administrative facilities, are located, to provide and
maintain utilities, services, water, sewer or power transmission lines thereto; and
(3) A Change in Law.
Notwithstanding the foregoing, an Uncontrollable Circumstance does not include the
following:
(i) Either Party's own breach of its obligations hereunder;
(ii) Strikes, work stoppages or other labor disputes or disturbances of any Person
performing Services that exceeds seven (7) calendar days;
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(iii) The failure of the Contractor to secure patents, licenses, trademarks, and the like
necessary for Services; or
(iv) Service conditions already provided for as a part of this Agreement and as a part of
the rate structure or rate adjustment as specified in Section 10.04.
"Used Oil" means any oil that has been refined from crude oil or that has been
synthetically produced, and:
(1) Is no longer useful to the Customer because of extended storage, spillage or
contamination with non-hazardous impurities such as dirt or water; or
(2) Has been synthetically produced, and has been used and as a result of such use has
been contaminated with physical or chemical impurities.
"Used Oil Filter" means any oil filter that is no longer useful .to the Customer because
of extended storage, spillage, or contamination with non-hazardous impurities such as
dirt or water; or that has been used and as a result of such use has been contaminated with
physical or chemical impurities. Used Oil Filters must be generated by and at the
Customer location wherein the Used Oil Filter is collected.
"Vehicles" mean all trucks, rolling stock and other Vehicles used to provide Services
(including Collection as well as repair and maintenance), whether owned or leased by
Contractor.
"White Goods" shall mean kitchen and other large appliances.
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EXHIBIT B
CONTRACTOR'S REPRESENTATIONS AND WARRANTIES
a. Status. Contractor is a corporation duly organized, validly existing and in good
standing under the laws of the State of California and is qualified to do business in the
State of California.
b. Authority and Authorization. The Contractor has full legal right, power and
authority to execute and deliver this Agreement and perform its obligations hereunder.
This Agreement has been duly executed and delivered by the Contractor and constitutes a
legal, valid and binding obligation of the Contractor enforceable against the Contractor in
accordance with its terms.
C. Accuracy of Representations. Contractor's representations and warranties made
throughout this Agreement are accurate, true and correct on and as of the Effective Date
of this Agreement.
d. No Conflicts. Neither the execution or delivery by the Contractor of this
Agreement, the performance by the Contractor of its Performance Obligations, nor the
fulfillment by the Contractor of the terms and conditions hereof: (1) conflicts with,
violates or results in a breach of any Applicable Law; (2) conflicts with, violates or
results in a breach of any term or condition of any judgment, order or decree of any court,
administrative agency or other governmental authority, or any agreement or instrument to
which the Contractor is a party or by which the Contractor or any of its properties or
assets are bound, or constitutes a default thereunder; or (3) will result in the creation or
imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the
properties or assets of the Contractor.
e. No Approvals Required. No approval, authorization, license, permit, order or
consent of, or declaration, registration or filing with any governmental or administrative
authority, commission, board, agency or instrumentality is required for the valid
execution and delivery of this Agreement by the Contractor, except such as have been
duly obtained from its Board.
f. No Litigation. There is no action, suit, proceeding or investigation, at law or in
equity, before or by any court or governmental authority, commission, board, agency or
instrumentality pending or, to the best of the Contractor's knowledge, threatened, against
the Contractor wherein an unfavorable decision, ruling or finding, in any single case or in
the aggregate, would materially adversely affect the performance by the Contractor of its
obligations hereunder or in connection with the transactions contemplated hereby, or
which, in any way, would adversely affect the validity or enforceability of this
Agreement or any other agreement or instrument entered into by the Contractor in
connection with the transactions contemplated hereby.
g. Due Diligence. Contractor has made an independent investigation satisfactory to it
of the conditions and circumstances surrounding the Agreement and Services it is
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required to perform.
h. Duty. Contractor shall be at all times during the Term of this Agreement, ready,
willing and able to Collect and transport and dispose of all Solid Waste generated within
the City in accordance with the provision of the Agreement and all applicable laws, rules
and regulations.
i. Insurance and Bonds. Contractor will furnish evidence of the insurance and bonds
required under this Agreement prior to the Effective Date of this Agreement.
j. Criminal Activity. Contractor has represented that none of its officials or directors
have a criminal conviction from a court of competent jurisdiction with respect to
conviction for any crime, including racketeering, which indicates a lack of business
integrity or business honesty that seriously and directly affects the present responsibility
of the Contractor or its officers or directors; nor has the Contractor or any of its
respective officers or directors made an admission of guilt or pled nolo contendere to the
conduct described above.
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EXHIBIT C
CITY'S REPRESENTATIONS AND WARRANTIES
a. Status. The City is a charter city and municipal corporation of the State of
California, duly organized and validly existing under the Constitution and laws of the
State of California.
b. Authority and Authorization. The City has full legal right, power and authority to
execute, deliver, and perform its obligations hereunder. This Agreement has been duly
executed and delivered by the City and constitutes a legal, valid and binding obligation
of the City enforceable against the City in accordance with its terms.
c. No Conflicts. Neither the execution nor delivery by the City of this Agreement, the
performance by the City of its obligations hereunder, nor the fulfillment by the City of
the terms and conditions hereof. (1) conflicts with, violates or results in a breach of
Applicable Law; or (2) conflicts with, violates or results in a breach of any term or
condition of any judgment, order or decree of any court, administrative agency or other
governmental authority, or any agreement or instrument to which the City is a party or
by which the City or any of its properties or assets are bound, or constitutes a default
thereunder.
d. No Approvals. No approval, authorization, license, permit, order or consent of, or
declaration, registration or filing with any governmental or administrative authority,
commission, board, agency or instrumentality is required for the valid execution and
delivery of this Agreement by the City, except such as has been duly obtained from the
City Council.
e. No Litigation. There is no action, suit, proceeding or investigation, at law or in
equity, before or by any court or governmental authority, commission, board, agency or
instrumentality pending or, to the best of the City's knowledge, threatened, against the
City wherein an unfavorable decision, ruling or finding, in any single case or in the
aggregate, would materially adversely affect the performance by the City of its
obligations hereunder or in connection with the transactions contemplated hereby, or
which, in any way, would adversely affect the validity or enforceability of this
Agreement or any other agreement or instrument entered into by the City in connection
with the transactions contemplated hereby.
L No Warranty Regarding Waste Characterization. City makes no warranties with
respect to the characterization of Solid Waste within the City. The City expressly
disclaims any warranties, either express or implied, as to the merchantability or fitness
for any particular purpose of Solid Waste or Recyclables collected by Contractor.
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EXHIBIT D
SCOPE OF REGULAR COLLECTION SERVICES
A. Commercial and Industrial Service
Contractor shall provide for Collection and transportation of all Refuse and Recyclables
in the City from Commercial Customers and Industrial Customers with which Contractor
has entered into a Service Contract. Contractor may provide Collection services six (6)
days per week, Monday through Saturday. Charges for Collection services shall be that
Service Fee mutually agreed upon between the Customer and the
Contractor in accordance with the Service Contract.
1. Commercial and Industrial Refuse --Collection. The Contractor will provide
Collection of Commercial Refuse and Industrial Refuse on a regularly scheduled
basis at a frequency specified by the Customer in accordance
with the provisions of the Service Contract and this Agreement, unless excepted as
provided in Article 4, and transport Commercial Refuse and Industrial Refuse to the
Processing Facility or Facilities in accordance with Article 4. The Contractor will
offer the following types of collection containers as options to its Commercial
Customers: industry-standard wheeled Bins (two, three and four cubic yard capacity)
and industry-standard Bins (twenty, thirty, forty cubic yard capacity) and Compactors
(ten, twenty, thirty, forty cubic yards capacity).
2. Commercial Recyclables Collection. Contractor shall Collect Commercial
Recyclables a minimum of once per week comprised at a minimum of those listed in
the definition "Recyclables" in accordance with the provisions of this Agreement
unless excepted as provided in Article 4, and shall transport Commercial Recyclables
to the Processing Facility or Facilities in accordance with Article 4. Contractor shall
collect Commercial Recyclables in containers provided by the Contractor. Contractor
shall commence such. Services no later than the date or dates provided herein.
3. Special Services. Contractor shall supply the special Collection Services as
provided in Article 4, including collection at Community Events, collection for clean-
up programs, Commercial Waste Audits, and if available, mulch to City upon City
request. Contractor may charge for such services at a rate mutually agreed upon by
the City and the Contractor.
B. Residential Collection Service
Contractor shall provide for collection and transportation of all Refuse, Recyclables,
and Green Waste for all Premises within the City during the Term of this Agreement.
Contractor shall provide collection services using not more than three vehicle passes.
Contractor may provide collection services five (5) days per week, Monday through
Friday. Charges for collection services shall be in accordance with Exhibit K.
1. Residential Refuse Collection. Contractor shall provide Collection of Residential
Refuse in accordance with the provisions of this Agreement and as set forth on
Exhibit K, and shall transport Residential Refuse to the Disposal Facility or Facilities
in accordance with Articles 4. Contractor shall collect residential Refuse in containers
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provided by the Contractor or Customer (as specified in Manual Service, Service
Area). The City requires provisions of manual collection service of Customer-
provided Bins for Solid Waste (as specified in Manual Service, Service Area). The
Standard service will include collection at the curb, and should be provided using
manual or automated collection vehicles. The Contractor will provide Backyard
Collection service as defined in Exhibit A for the corresponding rate set forth in
Exhibit K. Contractor shall commence such Services no later than the date set forth
herein.
2. Residential Recyclables Collection. Contractor shall provide unlimited
collection of commingled Residential Recyclables at curbside Lonce per week) in
accordance with the provisions of this Agreement unless excepted as provided in
Article 4, and such transport Residential Recyclables to the Processing Facility or
Facilities in accordance with Article 4. Contractor shall provide each Customer with
recycling containers. The Residential Recyclables shall be collected on the same day
as Solid Waste collected under Section 1 above using manual Collection Vehicles.
Contractor shall commence such Services no later than the date set forth herein.
3. Residential Green Waste Collection. Contractor shall provide collection of
Residential Green Waste in a cart specified at curbside once per week on a
subscription basis in accordance with the provisions of this Agreement unless
excepted as provided in Article 4, and shall transport Residential Green Waste to the
Composting Facility in accordance with Article 4. There shall be no additional
charge for the subscription. City will authorize Green Waste exemptions such as
grasscycling, home composting , and xeriscaping. Contractor shall provide free
compost to all City residents two (2) times per year, on dates agreed upon by the
parties. On an annual basis during the Term of this Agreement and all extensions
thereto, Contractor shall provide ten(10) Composting Bins on a first come first serve
basis to Customers within the City to encourage Residents to commence composting.
In its sole discretion, Contractor may either distribute the Composting Bins, or may
reimburse the first ten (10) Customers up to fifty dollars ($50.00) each for the
Customer's direct purchase of a Composting Bin.
4. Contractor shall provide on-call vehicle tire collection at no charge to
Residential Customers.
5. Electronic Waste. Contractor shall provide on-call Electronic Waste
Collection, at a small fee, to all Residential Customers, as set forth on the Rate
Schedule, Exhibit K.
6. Bulky Items. Contractor shall collect Bulky Items from all Single Family and
Multi-Family Dwellings. Each Customer will be limited to a maximum of two (2)
Bulky Items per year at no charge. Contractor may instruct Customer to provide a
48- hour notice for the item which shall be collected on the Customer's regular
collection day. Contractor may bill customer for Bulky Items in excess of those set
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forth above at rates not exceeding those rates set forth in Exhibit K. Bulky Items
collected by Contractor may not be landfilled or Disposed of until the following
hierarchy has been followed by Contractor:
a. Reuse as is (if energy efficient)
b. Disassemble for reuse or Recycling
C. Recycle
d. Disposal
This hierarchy precludes the use of front or rear packer loader vehicles for Bulky
Items unless the compaction mechanism is not used to compact the Bulky Items.
7. Special Services. Contractor shall supply the special Collection Services as
provided in Article 4, including Christmas Tree Collection, telephone book
recycling, semi-annual City-wide clean-up events, and, if available, compost to
residents at clean-up events.
C. Billing. Contractor shall supply billing services in accordance with Article 10.
D. Customer Service and Public Relations. Contractor shall supply phone and on-
line access and handle complaints and inquiries in accordance with Article 4.
E. Public Education and Outreach. Contractor shall supply these services in
accordance with Article 4 and its plan attached as Exhibit G.
F. Emergency Services. Contractor shall provide emergency services in accordance
with Article 4.
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EXHIBIT E
FORM OF ROUTING MAPS
Upon receipt of a written request from City, Contractor shall have ten (10) days to
provide City with copies of routing maps.
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EXHIBIT F
MAINTENANCE PROTOCOL
Upon receipt of written request from City, Contractor shall have ten (10) days to provide
City copies of Contractor's Vehicle and maintenance plan.
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EXHIBIT G
COMMUNITY RELATIONS ACTIVITIES
A. Public Education Plan Objectives
The objectives of the public education program are the following: -
(1) To maximize diversion and recycling tonnage by making the recycling-
program easily understood by residents.
(2) To educate the community via community meetings and other civic
organizations on the details of the program and services offered as well as source
reduction and buying recycled content products.
(3) To convey strong anti-scavenging messages to protect the value of the
resources to be collected at the curb.
To encourage maximum citizen participation and assure that City residents are notified
as to their day(s) of Collection and the type of Service offered.
B. Public Education Materials
Contractor must distribute the following to all Residential Customers:
(1) Quarterly newsletter prepared and provided by the Contractor
summarizing the past and upcoming year's program, events, and successes.
(2) Brochure prepared by the Contractor and reviewed by the City
describing the new program, including service frequency and program changes.
(3) Fliers prepared and provided by the City will be used on an "as needed
basis" if Contractor's Diversion Estimates are not met, or to further educate residents,
reinforce recycling program, or to communicate minor changes or modifications in the
program.
C. Participation in City, School, or Community Events
If requested by the City, the Contractor shall participate in City, School, or Community
Events as follows:
(1) Provide display materials for use at City-sponsored events and school
presentations.
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EXHIBITS
Agreement Between the City of Palm Springs and Palm Springs Disposal Services
For Solid Waste Management Services
(2) Provide promotional items for distribution at community
events.
(3) Annual participation in an educational capacity at school
assemblies and other civic organizations.
(4) Participations in an educational capacity at minimum of
four (4) community outreach events annually.
D. Implementation and On-going Education Requirements
In order to promote public education, in addition to any other
materials it develops, Contractor shall reproduce and include in any
Billing, at no additional cost, one 8.5" x 11" sheet, provided by the City.
City may request Contractor to perform mailing services and if so able,
provide not less than thirty (30) days notice to Contractor prior to the
mailing date of any proposed mailing to permit Contractor to make
appropriate arrangements for inclusion of City's materials in its
Billings. City will provide Contractor the mailers at least fifteen (15)
days prior to the mailing date. City shall only bear the expense of
distribution of such matters to the extent it is clearly in excess of
Contractor's normal mailing costs for is Billings.
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EXHIBITS
Agreement Between the City of Palm Springs and Palm Springs Disposal Services
For Solid Waste Management Services
EXHIBIT H
HAZARDOUS WASTE SCREENING PROTOCOL
Hazardous materials inadvertently collected along with municipal Solid Waste is a
persistent problem facing our industry. Drivers are trained to avoid accidental collection
of hazardous materials; and, whenever possible, front or side loading Vehicles are used
to allow drivers to easily spot hazardous materials. If Hazardous Waste is found in the
container; or if Recyclables are contaminated with Refuse, the customer is notified in
writing with a tag attached to the container. The Contractor's drivers and Route
Supervisors shall conduct routine waste audits and carefully inspect containers before
they are serviced. If contamination is found, written notification is attached to the
container. Contractor's written notification system has been in place for many years and
it is viewed as an education process for the customer and a safety measure for the both
driver and the City of Palm Springs.
Contractor has successfully implemented the following system to address this problem:
1. Continual education and identification to the customers regarding
the dangers of improperly disposed of hazardous materials and locations where
this material can be taken for proper management.
2. Tags to be filled out and attached to a customer's container
indicating what hazardous materials have been identified in the container and
proper disposal methods.
3. Driver training on the identification of hazardous materials that
have been combined with municipal Solid Waste.
In the event hazardous materials do appear in the waste stream, Contractor has
established the following procedures:
1. Collectors receive safety training regarding Hazardous Waste
identification, inadvertent contact and notification procedures.
2. Once a suspected Hazardous Waste situation is identified by the
Collector,
the local supervisor is contacted to isolate the area or load.
3. The local Department of Environmental Health is contacted and steps
are
taken to properly clean—up and dispose of the material.
4. Investigative efforts are made to establish the source of the material and
the individual(s) involved.
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EXHIBITS
Agreement Between the City of Palm Springs and Palm Springs Disposal Services
For Solid Waste Management Services
EXHIBIT I
INSURANCE
Contractor shall provide insurance in the coverage areas in the dollar amounts as
specified in Article 8 prior to commencement of service. Thereafter, copies of the
Contractor's Certificate(s) of Insurance shall be provided to the City within thirty (30)
days of each Agreement Year.
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EXHIBITS
Agreement Between the City of Palm Springs and Palm Springs Disposal Services
For Solid Waste Management Services
EXHIBIT J
FORM OF PERFORMANCE BOND
A performance bond will be provided by the Contractor prior to commencement of
service. Proof of renewal shall be provided every twelve (12) months.
The form of the performance bond shall be provided by the City.
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EXHIBITS
Agreement Between the City of Palm Springs and Palm Springs Disposal Services
For Solid Waste Management Services
EXHIBIT K
CONTRACTOR SERVICE FEE
Palm Springs Disposal Services to provide.
Residential Rates need to be reduced by 14%.
For Example:
Twice Weekly Service TO BE REDUCED Once Weekly Automated
2013 Est. Rate By 14%
Individual Billing Individual Billing
Economy Service Economy Service
$ 18.44
Please provide a new Exhibit K with your comments, which reflects a residential
reduction of 14%.
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EXHIBITS
Agreement Between the City of Palm Springs and Palm Springs Disposal Services
For Solid Waste Management Services
EXHIBIT L
CITY-SPONSORED EVENTS
Contractor shall provide all necessary refuse and recyclable collection and disposal
/processing services at the following events. Service needs may change over time due to
participation, duration of events, and implementation of new events or deletion of
current events. City may supplement this list by giving written notice to the Contractor
of an additional City-sponsored event at least two (2) weeks before the event. All
event service, including increasing service, shall be provided by Contractor at no
additional charge.
1. VillageFest
2. Festival of Lights
3. Veteran's Day Parade
4. July 4th Celebration
5. City Clean-ups
6. Black History Parade and Festival
7. Pride Parade
8. Tour de Palm Springs
9. Women Running Wild
10. Palm Springs Car Classic
11. Homecoming Parade
12. Desert Aids Walk
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EXHIBITS
Agreement Between the City of Palm Springs and Palm Springs Disposal Services
For Solid Waste Management Services
EXHIBIT M
NEW VEHICLE TIME SCHEDULE AND SPECIFICATONS
All vehicles purchased by Contractor shall comply with the requirements set forth
in South Coast AQMD Rule 1193, as amended, "Clean On-Road Residential and
Commercial Refuse Collection Vehicles," which requires public and private Solid Waste
Collection fleet operators to acquire alternative-fuel refuse collection heavy-duty
Vehicles when procuring or leasing replacement or fleet expansion Vehicles.
Solid Waste Franchise Agreement Clean 07.02.2013
EXHIBITS
Agreement Between the City of Palm Springs and Palm Springs Disposal Services
For Solid Waste Management Services
EXHIBIT N
SERVICE TO CITY FACILITIES
A. City Facility,
"City Facility" means any building, park or other site operated for the public
benefit that is owned or leased and used regularly and significantly by the. City or
operated under management agreement with the City.
B. Free Services.
Contractor shall provide free Solid Waste Collection and Recycling Service to all
current and future City Facilities. An inventory of existing City Facilities is provided as
Exhibit O. Said Exhibit may be amended from time to time by the City to add facilities
or modify service or frequency of Collection. Contractor shall only be required to
Collect Solid Waste and Recyclables from Contractor-provided containers located within
Refuse enclosures or another central location at each City Facility. City shall comply
with Contractor's requirements for access to, and not overloading, containers.
C. Charges for Disposal of Contaminated Green Waste Loads and Hard to Handle
Materials.
Free service at any City Facility is contingent upon City, or City's contractor's
adherence to the Waste Reduction and Diversion Plan and source separating Street
Sweepings and Green Waste into separate Contractor-provided containers. Contractor
may deduct any Disposal Fees or other charges for Green Waste not accepted by a
processor due to contamination, incurred in connection with loads classified by the
Disposal Site Operator as "Hard-to-Handle," or for overloaded containers from
Contractor's payment of Franchise Fees due City. "Hard-to-Handle" means Green
Waste that has been contaminated with other materials rendering it unacceptable or
difficult to process by normal means. Before any fee or charge may be deducted from
Contractor's payment, Contractor shall have first notified City of the condition and
allowed City twenty-four (24) hours to remedy the problem. When deducting any fee or
charge from Contractor's payment, Contractor shall attach evidence of written
notification, evidence of charges paid and any other relevant documentation.
D. City Facility Waste Reduction and Diversion Plan
City and Contractor shall jointly prepare, implement and carry out a City
Facility Waste Reduction and Diversion Plan ("Plan") for each City Facility.
Said Plan is intended to maximize waste reduction and diversion at each City
Solid Waste Franchise Agreement Clean 07.02.2013
EXHIBITS
Agreement Between the City of Palm Springs and Palm Springs Disposal Services
For Solid Waste Management Services
Facility. Each Plan shall be prepared by an Audit Team Consisting of the City's
Recycling Coordinator, the Contractor's Recycling Coordinator and the facility
manager of the City Facility under review. Each Plan shall be written including
the following:
a. A description of the size, and use of the City Facility and its operational
practices and users;
b. A waste generation analysis which includes an examination of the type and
amount of waste and recyclables generated at the City Facility;
c. Identification of source reduction, reuse and diversion opportunities;
d. Identification of quantified waste reduction and diversion goals by material
type;
e. A listing of the equipment, services and educational materials and programs
necessary to achieve the waste reduction and diversion goals;
f. An assignment of responsibilities and dates for initiating and carrying out
the program; and
g. A schedule for monitoring and reporting results.
E. Performance Dates, May Not Be Needed
I. On-Site Inspections. On-site inspections by the Audit Teams shall be
performed according to the following schedule (all references to calendar days are
following the effective date of this Agreement):
a. Airport, Convention Center and City Hall within ninety(90)calendar days;
b. City Yard, Golf Courses and Police and Fire facilities — within one
hundred eighty(180),calendar days; and
c. Waste Water Treatment Plant and all other City Facilities within two
hundred forty(240)calendar days.
2. Written Plan. The City's Recycling Coordinator shall complete the
written Waste Reduction and Diversion Plan for each City Facility within thirty (30)
calendar days following each on-site.inspection. The City's Recycling Coordinator shall
retain a-copy of the written Plan and provide a copy to the Contractor and to the on-site
operator or manager of each City Facility.
3. Monitoring and Reporting The City's Recycling Coordinator shall be
responsible for monitoring progress and results, revising and updating the plans annually
or as needed and annually reporting performance to the City Council. Contractor shall
immediately notify City's Recycling Coordinator of any service difficulties or failures of
the operators of any City Facility to adhere to the Plan. Disputes regarding compliance
with the Plan shall be resolved by the City Manager or his/her designee.
4. Contractor-Provided Containers
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EXHIBITS
Agreement Between the City of Palm Springs and Palm Springs Disposal Services
For Solid waste Management Services
Contractor shall provide all necessary containers for the centralized Collection of
Refuse and Recyclables from City Facilities and portable containers for any special
events sponsored by the City.
F. City Notification of Operators
City shall require all operators of City Facilities to cooperate with the provisions
of this Section and shall include language requiring cooperation and participation in any
existing or future lease, management agreement or use permit.
G. Contractor's Performance
Contractor's performance in fulfilling the requirements of this Section may be included
as part of any periodic review of Contractor's services and performance.
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EXHIBITS
Agreement Between the City of Palm Springs and Palm Springs Disposal Services
For Solid Waste Management Services
EXHIBIT O
CITY FACILITIES
Contractor shall, at no expense to the City, Collect and dispose of all Solid Waste put in
containers (including Bins and Roll-Off boxes) for Collection at the following current
premises owned and/or operated by the City:
Airport
Animal Shelter
City Hall
City Corporate Yard
Library Center
Parks and Recreation Facilities
Leisure Center-Pavilion-Swim Center-Sunrise Park
Highland Park
Demuth Park
Gateway Park
Ruth Hardy Park
Tennis Center
Angel Stadium
Tahquitz Creek Golf Courses
Jaycee Building
Public Safety Facilities
Police Department
Headquarters Fire Station
Racquet Club Road Fire Station
Indian Canyon Fire Station
La Verne Fire Station
Bolero/Golf Club Fire Station
Tourism Facilities
Convention Center
Plaza Theater
Village Green
Visitor Information Center
Notwithstanding the listing of the current facilities, it is expressly
understood that the City may from time to time add or subtract from the
foregoing facilities, provided that the new facilities are owned or leased by
the City or its affiliated or subordinate agencies.
Solid Waste Franchise Agreement Clean 07.02.2013
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F0 City Council Staff Report
Date: July 3, 2013 PUBLIC HEARING
Subject: APPROVAL OF A 15 YEAR EXCLUSIVE SOLID WASTE FRANCHISE
AGREEMENT WITH PALM SPRINGS DISPOSAL
From: David H. Ready, City Manager
Initiated by: Public Works and Engineering Department
SUMMARY
This item is a Public Hearing obtaining testimony regarding approval of a 15 year
exclusive solid waste collection franchise agreement with Palm Springs Disposal
Services (PSDS), expiring March 31, 2029. The proposed agreement changes
collection from twice to once per week and will result in a reduction of residential rates
and a 'carbon footprint' reduction in the City through less frequent solid waste collection
truck runs.
RECOMMENDATION:
1. Open the public hearing and receive public testimony,
2. Waive reading of the full text and adopt Urgency Ordinance No. _, "AN
URGENCY ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA,
GRANTING AN EXCLUSIVE SOLID WASTE MANAGEMENT SERVICES
FRANCHISE TO PALM SPRINGS DISPOSAL SERVICES, A CALIFORNIA
CORPORATION."
3. Waive the reading of the full text and introduce Ordinance No. , "AN
ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA, GRANTING
AN EXCLUSIVE SOLID WASTE MANAGEMENT SERVICES FRANCHISE TO
PALM SPRINGS DISPOSAL SERVICES, A CALIFORNIA CORPORATION."
4. Waive the reading of the full text and introduce Ordinance No. , "AN
ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA, ADDING
SECTIONS 6.04.075, 6.04.076, AND 6.04.100 TO, AND AMENDING SECTIONS
6.04.010, 6.04.020, 6.040.40, AND 6.04.234 OF, THE PALM SPRINGS
MUNICIPAL CODE RELATING TO SOLID WASTE DISPOSAL SERVICES."
ITEM NO._._1,
City Council Staff Report
July 3, 2013- Page 2
Solid Waste Franchise Agreement
5. Authorize the City g necessary Manager to execute all documents.
rY
6. Appoint the Director of Public Works and/or designee as the City Ombudsman
pursuant to the Agreement.
STAFF ANALYSIS:
The City as a charter city has broad authority to establish a system for the collection
and disposal of solid waste. Collection services can be provided by the City with its own
employees, another local entity, or by a solid waste enterprise. The City also has the
authority to award a franchise for solid waste services, with or without competitive bids,
by means of a non-exclusive, partially exclusive, or exclusive franchise, if in the opinion
of the City Council the public health, safety, and well-being of the City so requires.
The City entered into an exclusive franchise agreement with PSDS on July 3, 2003, for
twice weekly pick up of solid waste. The term of the agreement is 13 years and expires
on June 30, 2016. The agreement provides for a 2 year extension to June 30, 2018,
based on the results of a performance review and at the City's discretion. Per
agreement with PSDS the new exclusive franchise agreement is proposed to take effect
April 1, 2014.
By entering into a new 15 year exclusive franchise agreement at this time, the City has
a unique opportunity to facilitate capital expenditures required to achieve enhanced
customer service, and step-up achieving sustainability goals and waste diversion
mandates.
On June 1, 2011, the City Council authorized staff to enter into negotiations with PSDS
to explore a new agreement which changes collection to once weekly and modifies
some terms of the existing agreement such as reducing the collection fee to reflect
collection changes.
On January 16, 2013, the City Council directed staff to proceed with a final Franchise
Agreement with Palm Springs Disposal that changes collection to once per week,
reduces residential rates approximately 14%, modifies certain definitions, amends fees
and by separate accompanying agreement provides for a $325,000 cash credit to the
City for previous years' AB 939 and Diversion Facility Fees.
The agreement has been thoroughly reviewed by staff and the City Attorney and
discussed and agreed to by Palm Springs Disposal. The terms of the agreement are to
keep commercial and industrial rates the same as existing while lowering residential
rates an average of 14%. Typical Rates were shown in the January 16, 2013 staff report
(attached). Fee payments to the City are to result in the same estimated total dollar
value as existing.
0 ?
City Council Staff Report
July 3, 2013-Page 3
Solid Waste Franchise Agreement
As contained in the current agreement rates will be adjusted annually, by the Consumer
Price Index (CPI) as defined in Section 10.04 of the agreement. Additionally, rates may
be adjusted in the event of changes to the Riverside County tipping fees. Residential
rates will be frozen for the first 15 months with no CPI or Tipping Fee adjustment until
July 1, 2015. The agreement also mandates two performance reviews during the life of
the agreement with additional performance reviews if deemed necessary by the City.
PSDS will offer commercial enclosure cleaning at 3 different service levels per rates
shown in Agreement. PSDS will purchase new automated clean fuel refuse vehicles. All
collection will be automated with the exception of a few narrow hill side streets where
automated trucks cannot navigate. These streets are listed in the agreement.
Residential pick up for refuse and recyclables will be on the same day. Green waste
pick up will be on a subscription basis. There will be a minimal one time charge for a
green waste container but the subscription for pick up will be free.
The agreement provides for the City to appoint an Ombudsman to handle questions or
disputes from the public and to work with PSDS on resolving issues with property
owners.
The approval of the proposed franchise agreement will also necessitate a few minor
amendments to the City's solid waste ordinance to ensure consistency between the
franchise agreement and the Code, including a definition for"Container' that will include
the new carts and requirements for the use of such carts and other solid waste
containers. An appropriate ordinance is included for the Council's consideration.
FISCAL IMPACT:
If the proposed 15 year exclusive franchise agreement is approved with PSDS, the
franchise fees paid to the City by PSDS (including recycling and sustainability) will
remain at the same estimated dollar amount. Actual revenues related to such fees are
based on collection "tonnage" and may fluctuate accordingly.
Additionally, residential customers will realize a 14% rate reduction subject to future
annual Consumer Price Index adjustments and disposal "tipping fee" changes as in the
current agreement.
TL
DAVID J. BARAKIAN DOUGLAS C. HOLLAND
Director of Public Works/City Engineer City Attorney
DAVID H. REA
City Manager
03
City Council Staff Report
July 3, 2013- Page 4
Solid Waste Franchise Agreement
Attachments:
1. City Council Staff Report January 16, 2013
2. Agreement to Once-Weekly Residential Refuse
3. Urgency Ordinance Approving Agreement
4. Ordinance Approving Agreement
5. Ordinance Code Amendment
04
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF PALM SPRINGS,
CALIFORNIA, ADDING SECTIONS 6.04.075, 6.04.076,
AND 6.04.100 TO, AND AMENDING SECTIONS 6.04.010,
6.04.020, 6.040.40, AND 6.04.234 OF, THE PALM
SPRINGS MUNICIPAL CODE RELATING TO SOLID
WASTE DISPOSAL SERVICES.
CityAttorney's Summary
This Ordinance amends certain provisions of the City's
waste disposal ordinance to conform to the new and
additional services and related equipment that will be
provided in conjunction with a new franchise agreement for
solid waste services in the City.
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS ORDAINS:
SECTION 1. Section 6.04.010 of the Palm Springs Municipal Code is amended by
adding the term "Container" and amending the term "Municipal solid waste" to read:
"Container" means a cart, can, commercial bin, debris box, or stationary
compactor intended for the purpose of depositing waste for disposal, except
construction and demolition debris and bulky items, or recyclable materials for diversion.
Containers may be provided by City or its authorized agent, or for manual collection as
may be required to be provided by the property owner or occupant generating waste or
recyclables.
"Municipal solid waste" means all solid wastes generated by residential,
commercial and industrial sources, and all solid waste generated at construction and
demolition sites, and at treatment works for water and wastewater, which are collected
and transported under authorization of the city or are self-hauled. Municipal solid waste
does not include agricultural crop residues, mining waste and fuel extraction waste,
forestry wastes, ash from industrial oilers, furnaces and incinerators, infectious waste,
or hazardous waste.
SECTION 2. Section 6.040.020 of the Palm Springs Municipal Code is amended to
read:
6.04.020 Containers—Provision required—Adequacy.
It is the duty of every person in possession, charge, or control of any premises within
the City, in or from which waste is produced, generated or accumulated, to provide, and
at all times to keep in a suitable place readily accessible to the waste or recyclable
material collector, containers capable of holding without spilling all materials which
05
Ordinance No.
Page 2
would ordinarily accumulate on such premises between the times of two successive
collections. No containers shall be located within locked gates or doors or in a fenced or
enclosed area used to restrain animals at the time of collection. The containers shall be
filled no more than level full and shall be kept covered. When amounts of waste exceed
the capacity of the container, it shall be the duty of the property owner or the person
responsible for disposal of waste generated at the premises to arrange for removal of
such excess waste by the City or its authorized representative.
SECTION 3. Section 6.040.40 of the Palm Springs Municipal Code is amended to read:
6.04.040 Containers—Domestic—Specifications.
All domestic waste containers shall be constructed of metal or plastic, equipped
with suitable handles and tight-fitting covers, watertight, have a capacity of not less than
ten gallons and not more than thirty-two gallons, and have a total loaded weight of not
more than fifty pounds at the time of collection. In the event the City or its authorized
agent provides carts for waste and recyclable materials for use in its collection system,
domestic premises and commercial premises that receive individual collection from
carts shall utilize the carts so provided by separating waste and recyclable materials.
SECTION 4. Section 6.04.075 is added to the Palm Springs Municipal Code to read:
6.04.075 Debris Boxes.
Debris boxes shall be of welded steel construction suitable for storage of construction
and demolition debris, yard waste, and bulky items, and shall be equipped to be hauled
by a roll-off type of refuse truck designed for that purpose. Debris boxes shall be filled
more than level full and shall not exceed eleven tons at the time of collection.
SECTION 5. Section 6.04.076 is added to the Palm Springs Municipal Code to read:
6.04.076 Stationary Compactor.
Stationary compactors shall be of welded steel construction, fully enclosed with
detachable compaction units suitable for storage of waste, except construction and
demolition debris and bulky items, and shall be equipped to be hauled by a roll-off type
refuse truck designed for that purpose. Stationary compactors shall not exceed eleven
tons at the time of collection.
SECTION 6. Section 6.04.100 is added to the Palm Springs Municipal Code to read:
6.04.100 Construction and Demolition Debris.
Waste resulting from demolition, remodeling, refurbishing, landscaping, or construction
at any premises shall not be deposited in containers designed or otherwise intended for
domestic or commercial waste.
06
Ordinance No.
Page 3
SECTION 7. Section 6.04.234 of the Palm Springs Municipal Code is amended to read:
6.04.234 Unauthorized collectors.
At such times as there is in force a contract entered into by the city with any
contractor for the collection and disposal of waste and recyclable materials of the city
and its inhabitants, it is unlawful for any person other than the contractor, or its agents
and employees, to collect any waste or recyclable materials for hire within the city. This
section shall not, however, be deemed to prohibit any person performing gardening or
landscape services, and who possesses an appropriate business license for such
activity, from carrying away leaves and the like, generated by the gardening or
landscape services performed.
SECTION 2. The Mayor shall sign and the City Clerk shall certify to the passage and
adoption of this Ordinance and shall cause the same, or the summary thereof, to be
published and posted pursuant to the provisions of law and this Ordinance shall take
effect thirty (30) days after passage.
PASSED AND ADOPTED THIS DAY OF 2013.
AYES:
NOES:
ABSTAIN:
ABSENT:
STEPHEN P. POUGNET, MAYOR
ATTEST:
JAMES THOMPSON, CITY CLERK
07
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA,
GRANTING AN EXCLUSIVE SOLID WASTE MANAGEMENT SERVICES
FRANCHISE TO PALM SPRINGS DISPOSAL SERVICES, A CALIFORNIA
CORPORATION
City Attorney Summary
The City Charter and the City's Municipal Code provides the City Council with
the authority to decide the level of solid waste services to be provided to the City
and whether such services are to be provided by means of nonexclusive,
partially exclusive, or wholly exclusive franchise, contract, or license granted
pursuant to such terms and conditions as prescribed by the City Council. This
Ordinance grants an exclusive franchise to Palm Springs Disposal Services to
provide collection, transfer, and disposal of solid waste and related services,
including without limitation, source reduction, recycling, and composting
activities. The franchise is for a term of 15 years, commencing on April 1, 2014.
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, FINDS:
A. The City is responsible for providing solid waste management services to its
citizens, including source reduction, recycling, composting activities and the collection,transfer
and disposal of solid waste within the City boundaries, in a manner consistent with state laws.
B. The City Council has determined that the provision of solid waste management
services by providing an exclusive franchise and agreement to a solid waste enterprise will
best provide and maintain reasonable rates for collection, transportation, recycling,
composting, and disposal of solid waste, recyclables, and compostable material generated
within the City.
C. Palm Springs Disposal Services("PSDS"), a California Corporation, has provided
superior and reasonably priced solid waste collection and disposal services for the City of
Palm Springs and its residents for several years and is qualified and competent to perform the
solid waste management services desired by the City.
D. It is the desire of the City and PSDS to modify the residential service to one-day
a week service with an appropriate reduction in service fees and to enhance recycling and
waste diversion efforts in the City to ensure the City can reasonably attain its goals and
requirements under state law.
E. On July 3, 2013, the City Council held a public hearing to consider the grant of
an exclusive solid waste management services franchise to PSDS and to hear all persons
desiring to be heard on the grant of such franchise.
F. Having considered all oral and documentary evidence presented on the matter of
granting such franchise, the City Council has determined that the grant of an exclusive solid
waste management services franchise to PSDS is in the public interest.
08
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, ORDAINS:
Section 1. The City Council grants an Exclusive Solid Waste Management Services
Franchise to Palm Springs Disposal Services, a California Corporation. PSDS is authorized to
engage in the business of collecting, transporting, and disposing of solid waste and recyclable
materials kept, accumulated, or produced in the City of Palm Springs and to use the public
streets and rights of way for such purpose.
Section 2. The grant of this Exclusive Solid Waste Management Services Franchise
is expressly subject to the terms and conditions of the City Charter, Chapter 6.05 of the Palm
Springs Municipal Code, this Ordinance, and the Agreement between the City and PSDS for
Solid Waste Management Services ("Franchise Agreement')as such now exists oral may be
.amended from time to time.
Section 3. The Franchise Agreement shall be for a term of fifteen (15) years,
commencing on April 1, 2014 and ending on March 30, 2029.
Section 4. The Mayor shall sign and the City Clerk shall certify to the passage and
adoption of this Ordinance and shall cause the same, orthe summarythereof,to be published
and posted pursuant to the provisions of law and this Ordinance shall take effect thirty (30)
days after passage.
PASSED AND ADOPTED at a regular meeting of the City Council on the day of
2013, by the following vote:
AYES:
NAYS:
ABSENT:
ABSTAIN:
Stephen P. Pougnet
Mayor
ATTEST:
James Thompson
City Clerk
09
ORDINANCE NO.
AN URGENCY ORDINANCE OF THE CITY OF PALM SPRINGS,
CALIFORNIA, GRANTING AN EXCLUSIVE SOLID WASTE MANAGEMENT
SERVICES FRANCHISE TO PALM SPRINGS DISPOSAL SERVICES, A
CALIFORNIA CORPORATION. (4/5T"s Vote Required)
City Attorney Summary
The City Charter and the City's Municipal Code provides the City Council with
the authority to decide the level of solid waste services to be provided to the City
and whether such services are to be provided by means of nonexclusive,
partially exclusive, or wholly exclusive franchise, contract, or license granted
pursuant to such terms and conditions as prescribed by the City Council. This
Ordinance grants an exclusive franchise to Palm Springs Disposal Services to
provide collection, transfer, and disposal of solid waste and related services,
including without limitation, source reduction, recycling, and composting
activities. The franchise is for a term of 15 years, commencing on April 1, 2014.
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, FINDS:
A. The City is responsible for providing solid waste management services to its
citizens, including source reduction, recycling, composting activities and the collection, transfer
and disposal of solid waste within the City boundaries, in a manner consistent with state laws.
B. The City Council has determined that the provision of solid waste management
services by providing an exclusive franchise and agreement to a solid waste enterprise will
best provide and maintain reasonable rates for collection, transportation, recycling,
composting, and disposal of solid waste, recyclables, and compostable material generated
within the City.
C. Palm Springs Disposal Services("PSDS"), a California Corporation, has provided
superior and reasonably priced solid waste collection and disposal services for the City of
Palm Springs and its residents for several years and is qualified and competent to perform the
solid waste management services desired by the City.
D. It is the desire of the City and PSDS to modify the residential service to one-day
a week service with an appropriate reduction in service fees and to enhance recycling and
waste diversion efforts in the City to ensure the City can reasonably attain its goals and
requirements under state law.
E. On July 3, 2013, the City Council held a public hearing to consider the grant of
an exclusive solid waste management services franchise to PSDS and to hear all persons
desiring to be heard on the grant of such franchise.
F. Having considered all oral and documentary evidence presented on the matter of
granting such franchise, the City Council has determined that the grant of an exclusive solid
waste management services franchise to PSDS is in the public interest.
10
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, ORDAINS:
Section 1. The City Council grants an Exclusive Solid Waste Management Services
Franchise to Palm Springs Disposal Services, a California Corporation. PSDS is authorized to
engage in the business of collecting,transporting, and disposing of solid waste and recyclable
materials kept, accumulated, or produced in the City of Palm Springs and to use the public
streets and rights of way for such purpose.
Section 2. The grant of this Exclusive Solid Waste Management Services Franchise
is expressly subject to the terms and conditions of the City Charter, Chapter 6.05 of the Palm
Springs Municipal Code, this Ordinance, and the Agreement between the City and PSDS for
Solid Waste Management Services ("Franchise Agreement')as such now exists or as may be
amended from time to time.
Section 3. The Franchise Agreement shall be for a term of fifteen (15) years,
commencing on April 1, 2014 and ending on March 30, 2029.
Section 4. The Mayor shall sign and the City Clerk shall certify to the passage and
adoption of this Ordinance and shall cause the same, or the summary thereof,to be published
and posted pursuant to the provisions of law.
Section 5. Findings. The adoption of this Urgency Ordinance is necessary for the
immediate protection of the public peace, health, and safety by ensuring the timely and orderly
award of a solid waste franchise and the implementation of revised residential services the
concomitant reduction in service rates, and the acquisition of new environmentally responsible
equipment and vehicles. In accordance with Section 312 of the Palm Springs City Charter,the
City Council of the City of Palm Springs finds and determines that the adoption of this Urgency
Ordinance is necessary to ensure the timely approval of a Solid Waste Franchise Agreement
for the timely implementation of a new solid waste program for the immediate protection of the
public peace, health, and safety.
Section 6. Effective Date. The City Council hereby declares, on the basis of the
findings set forth above, that an emergency exists and that this Ordinance is necessary to
preserve the public peace, health and safety. Accordingly, this Ordinance is adopted as an
emergency ordinance and shall take effect and be in force immediately upon its adoption.
PASSED, APPROVED AND ADOPTED BY THE PALM SPRINGS CITY COUNCIL
THIS 3d DAY OF JULY, 2013.
STEPHEN P. POUGNET, MAYOR
ATTEST:
JAMES THOMPSON, CITY CLERK
11
CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss.
CITY OF PALM SPRINGS )
I, JAMES THOMPSON, City Clerk of the City of Palm Springs, California, do hereby
certify that Urgency Ordinance No. is a full, true, and correct copy, and adopted at a
regular meeting of the City Council held on the 3 d day of July, 2013, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
JAMES THOMPSON, CITY CLERK
City of Palm Springs, California
12
ppALMsp4
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c411rolt P City Council Staff Report
Date: January 16, 2013 UNFINISHED BUSINESS
Subject: DISCUSS EXCLUSIVE SOLID WASTE AGREEMENT WITH PALM
SPRINGS DISPOSAL SERVICES (PSDS) AND ALTERNATIVES.
From: David H. Ready, City Manager
Initiated by: Public Works and Engineering Department
SUMMARY
The City Council will discuss and direct staff related to modifying solid waste collection
in the City of Palm Springs from the current twice per week to once per week. This
proposed change in service will result in a reduction of residential rates and a "carbon
footprint° reduction in the City through less frequent solid waste collection truck runs.
Additionally, Palm Springs Disposal Service (PSDS) has indicated they will require a
new 15 year exclusive contract to effectuate the modification of collection services. If so
directed, staff will finalize negotiations for a new contract accordingly and return to the
City Council for approval.
RECOMMENDATION:
Direct Staff as appropriate.
STAFF ANALYSIS:
The City entered into a contract with PSDS on July 3, 2003, for twice weekly pick up of
solid waste. The term of the agreement is 13 years and expires on June 30, 2016. The
agreement provides for a 2 year extension to June 30, 2018, based on the results of a
performance review and at the City's discretion.
On June 1, 2011, the City Council authorized staff to enter into negotiations with PSDS
to explore a new agreement which changed collection to once weekly and modify some
terms of the existing agreement such as reducing the collection fee to reflect collection
changes. (See attached staff report dated June 1, 2011.)
tTEM NM
13
City Council Staff Report
January 16, 2013-Page 2
Solid Waste Agreement
Working with the City's solid waste consultant, MSW Consultants, a detailed analysis
was prepared on the proposed change. Attached you will find their report, "Review of
Proposal to Change to Once-Weekly Residential Refuse Collection." One of the
specific areas the report reviewed was comparison of PSDS converting to automated
trucks vs. use of current manual trucks, and found their projected cost savings
"appeared reasonable" (see report"Finding 4.2," p. 8), which is a basis for the reduction
in proposed residential rates. Also, the report noted that the 11 year contract term
originally proposed is "reasonable" (see "Finding 4.4," p. 10). However, since the time
of this report, PSDS has modified their request to include a 15 year contract term.
Further meetings and discussions with MSW Consultants, PSDS and the City Council
ad hoc subcommittee (Mayor Pro Tern Mills and Councilmember Hutcheson) resulted in
the current PSDS proposal on once weekly collection rates presented to Council here.
Below is a comparison Table of current rates and proposed "lx week service' for the
most used category of residential service (a full residential rate category comparison is
attached):
"Residential" Solid Waste Monthly Rates*
Current Rate 7/1/13 7/1/14 7/1/14
Estimated Estimated I week
COLA Rate COLA Rate PSDS Proposed Rate
$18.02 $18.31 $18.83 $16.20
14% Reduction
(*Includes green waste collection-via a"no charge"subscription service)
As a comparison of these proposed rates with other Coachella Valley Cities, attached is
a Table showing current lx weekly service rates in Cathedral City, Coachella, Desert
Hot Springs, Indian Wells, Indio, La Quinta and Palm Desert. It should be noted, the
proposed reduction is for residential only, and business rates will remain the same with
no service change frequency for that category of customer.
If the City Council directs staff to proceed with the change in residential service, staff will
finalize contract negotiations with PSDS based on the information above and return at a
future meeting for final approval of a new 15 year exclusive solid waste contract.
ALTERNATIVES:
In the alternative, the City Council may direct staff to leave the current PSDS contract in
place maintaining twice per week residential service at the current rate structure, until
the contract expiration date of June 3Q 2016. At that time, the City Council may direct
staff to proceed with a "request for proposals" for once weekly solid waste collection
service.
City Council Staff Report
January 16, 2013-Page 3
Solid Waste Agreement
FISCAL IMPACT:
If a new agreement for once weekly service is approved, the franchise fees for the City
(including recycling and sustainability) will remain at the same percentages. Actual
revenues related to those fees are based on collection "tonnage" and may fluctuate
accordingly. Additionally, residential customers will realize a 14% rate reduction subject
to future annual cost of living increases (COLA's) and disposal "tipping fee" pass-thru's
as in the current agreement.
David J. Barakian David H. Ready,
City Engineer& City Manager
Director of Public Works
Attachments:
1. City Council Staff Report June 1, 2011
2. Residential Solid Waste Rate Comparison Table
3. MSW Consultants, Review of Proposal to Change to Once-Weekly Residential Refuse
Collection"
4. Once-Weekly Service Comparative Analysis of Monthly Rates
°Fpn�Map�
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City Council Staff Report
Date: June 1, 2011 NEW BUSINESS
Subject: AUTHORIZATION TO NEGOTIATE NEW AGREEMENT WITH PALM
SPRINGS DISPOSAL SERVICES (PSDS) PROVIDING FOR ONCE
WEEKLY SERVICE.
From: David H. Ready, City Manager
Initiated by: Public Works and Engineering Department
SUMMARY
The City entered into an agreement with PSDS on July 1, 2003 to provide solid waste
collection services. That agreement provides twice weekly pick up and expires June 30,
2016. Approval of this item will authorize staff to enter negotiations with PSDS on a new
agreement which will modify the existing terms to, among other things, change
collection to once weekly.
RECOMMENDATION:
1) Authorize staff to enter into negotiations with PSDS on a new Agreement which
will modify some existing terms of the current Agreement to, among other things,
change collection to once weekly.
STAFF NALYSIS:
The current term of Agreement No. 4727 with PSDS expires June 30, 2016 after a term
of 13 years. The City Charter limits the term of any franchise agreement to 15 years
which means the Agreement could be extended to no later than June 30, 2018, PSDS
has prepared and submitted a proposal for once weekly service. City Staff, utilizing our
solid waste consultant MSW Consultants, reviewed the proposal and presented findings
to City Staff as well as PSDS. PSDS has concurred in the general conclusions included
in the findings. The main conclusions were a) a new 11 year contract term b) change to
once weekly residential service resulting in an average 11.4% decrease in customer
rates c) fully automated collection using new CNG vehicles d) Green Waste services on
a subscription basis.
City Council Staff Report
June 1, 2011 -Page 2
Authorization to negotiate new agreement with PSDS providing once weekly service
As part of the performance review of PSDS services by the City's Consultant, staff
conducted a customer satisfaction survey. One thousand residential customers and
50% of the commercial customers were surveyed, yielding a margin of error of 3-6%.
The overwhelming majority of customers rated PSDS's overall performance as either
Good or Excellent. The survey results did stow a few minor areas where improvement
Is needed and those areas are proposed to be addressed in the new agreement.
Staff proposes to negotiate all terms of a new agreement and bring it back to Council for
their consideration this coming Fall. Authorization as recommended above would need
to also include approval of the MSW amendment also on this agenda.
FISCAL IMPACT:
Authorizing staff to negotiate a new agreement, in itself, has no fiscal impact.
SUBMITTED:
Recommended by: Approved by:
�// — rjarr--)
David J. Barakian Thomas J. Wilso
City Engineer& Assistant City Hager
Director of Public Works
Approved by:
David H. Ready
City Manager
Attachment: PSDS proposed program rate comparison
17
CURRENTPROGRAMPROPOSED PR
Collection Once-Weekly
Subscription Sarvioes(1 x2) Estimated FY'12 Subscription Services(4x5) Estimated FY'12
Monthly Rate Monthly Rate(3)
Curbside Economy Curbolde Economy
(Trash:1.32-g.can).Recycle:1,691. $ 17.92 (Trash: 1.66-g.cart).Rac 1.68-g. $ 1&25
cart) cart
Family Value Curbside PLUS
(Trash:4,32-9.cares),Recycle:1.6& $ 21.21 (Trash:1.96-0 cans).Recycle:1. $ 19.54
.cart gal Cart)
Standard Walk4n(7)
Walk-In (Trash:1 68-gal car6 1X) Recyde:l $ 20.93
$ 23.40 "1
(Trash:2,32y.arcs),Recycle:1,68• Manual Welk4n(7)(8)
9.Cart @ curb) (Trash:4.32-a1.cans.Recycle:2, $ 20.93
gal.cane)
Estate Estate
$ 59.66 $ 53.70
(Urdkntled bash a racyde,walkan) (Urlimilad fresh&recyde,walk-in)
Curbside Economy Curbalde Economy
(Trash:1,32-gal Can,2X),Recycle: 1. $ 17.74 (Trash:1.68-pi cart)_Recycle:1.W $ 16.09
68-0 cart) gal can
Family Value Curbside PLUS
(Trash:4.32-gal cans.2)),Ragda:1. $ 21.03 (Trash:1.NVI carrot Recycle:1,B& S 19.39
68-gal cart gal Cart)
Walk-in (6) Standard Walk4n(7)
(Trash:$32-gal care.2X),Recycle:1. S 23.21 (crash: 1,64al cart).Recycle. 1,W $ 20.77
cart 4 Gal can
PSDS Once-Weekly Revenue Analysis Update 1/20/2011(bk)
18
Additional Charges
Each additional rehrce can S 5.29 Each addilfonal refuse cart S 5.85
tst additional recyclrg cart S 4.97 t st a"Oonal recydirg cart Free
2nd additional recydog cart L 4.97 2M addtiorral reWdi g Gat $ 2.19
Green waste collection Incl. Green waste collection $ 3.16
each additional refuse can $ 11.71 Each additional refuse cart f 8.44
Walk-in recy&V cotiecWn $ 4.99 Walk-in recyclrg collection Free
tst adrtional recydkV cart $ 4.97 let aWlftw recyrng cart Free
2M additional recydng cart $ 4.97 2M additional recycling cart $ 4.78
Gmn waste collection Incl. Groan waste collection S 5.19
Notes:
(1)Trash services are twice-uveekly,recycling services are once-weekly-,walk-in recycling is an
added cost.
(2)All trash cans provided by customer,all recycle carts provided by PSDS.
(3)
(4)All services are once-weekly.
(5)All trash&recycle carts provided by PSDS.
(6)$28.18 with optional walk-in recycling added.
(7)All Walk-In customers will receive walk-in recycling collection at no added cost.
(8)Customer to provide 32-gal. max cans for trash&recycle collection.
PSDS Onoe-Weekly Revenue Analysis Update 12012011(bk)
19
Residential Solid Waste Rate Comparison 1/3/2013
B4 Gallon Any Size Rate Weekly Date of Ymrof
Cart Direct 111111no Ad uetm mt Service Aureenneirt Acreament
Cathedral Cl $ 16.591 Yes 1M11;AUU
3of 17
Coachella $ 18.08 Yea 1 7 of 10
Desert HMS rin 22.12 Yes 1 3 of 15
IndianalNo 1 80f10
4dlo $ 17.73 Yes 1 3M8
4ulnd 13.71 Yes 1 Bof 10
Palm Desert $ 846 Yes 1 3 M 10
Palm S ri $ 16.02Yes 2 10 of 15
j
I
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2
REVIEW OF PROPOSAL TO CHANGE TO
ONCE-WEEKLY RESIDENTIAL REFUSE COLLECTION
PREPARED BY
S ouo wesre CDNSULTAARB
io Locnr.Coww►mer
FEBRUARY 8,7011
21
REVIEW OF PROPOSAL TO CHANGE TO
ONCE-wEEKLYRESIDENTLAL REFUSE COLLECTION
TABLE OF CONTENTS
1. BACKGROUND.........................................................................................................................1
2. S medARYOFTHECowANY'SPROPOSAL.........................................................................2
3. WORK PERFORMED.................................................................................................................5
4. FINDINGS.................................................................................................................................6
11 A LARGE PORTION OF THE COMPANY'S COSTS DO NOTCHANGE WITH THE FREQUENCY OF
COLIECITON.................................................................................._...........-....................._.............................6
4.2 THE CAMPANYSPROXCTED2012NETCOSTSAVIIVGSAPPEAREDREASONABLE......................8
4.3 NETCOSCREDucnoNSLESSFORMANUALSERV[CC...................................................................9
4.4 TTm PROPOSED 11-YEMCONTRACC TERM LSREASONABLE........................................................10
45 NOTALLPROFOSEDCON7RACCPROVI$ONSARERELATEDTOONCE-WEEKLYSERVICE.......11
C6 AUMMATEDCARTCOLLECFION SERVICE SAH[GHERQUALITYSERVICE.................._...........11
22
1. BACKGROUND
The City of Palm Springs (City)provides solid waste collection service to its residents
through an exclusive franchise agreement(Agreement) with Palms Springs Disposal
Services, Co. (the Company). Under the terms of the Agreement, the Company is
required to collect refuse from residential customers twice per week, and collect co-
mingled recyclables and gxeenwaste once per week. Table 1 below shows the days of
the week and from what areas in the City the Company collects each of these material
h'Pea
Table 1—Current Frequency and Days of Collection
Material Type Frequency of Service Area Days of Collection
Collection
Refuse Twine per North of Ramon Rd. Monday and Thursday
Week South of Ramon Rd. Tuesday aad Friday
Co-mingled Once per North of Ramon Rd. Monday or Thursday
Recyclables Week South of Ramon Rd. Tuesday at Friday
West of Falco Cyn.Dr. Wednesday
Greenwaste Once per Citywide Wednesday
Week
In the vast majority of other cities throughout Southern California,residential refuse is
collected once per week. Moreover, of the other cities in the Coachella Valley, only
one other city(Rancho Mirage)has twice per week refuse collection.
At the City's request, the Company submitted a proposal to transition to once per
week residential refuse collection service. The Company's proposal included a cost
analysis that quantified the net cost savings of converting to once-weekly collection,
and a term sheet that proposed several other changes to the Agreement.
The Agreement provides that either the City or the Company may initiate a change in
the scope of services. Any such change, and any corresponding adjustment to
customer rates, is subject to the mutual agreement of the City and the Company. The
City retained MSW Consultants to assist the City in evaluating the reasonableness of
the Company's proposal for once-weekly collection. This report summarizes the
Company's proposal, outlines the work we performed,and describes our findings.
1 Februwy8,2011
23
2 SUMMARY OF THE COMPANY S PROPOSAL
The Company's proposal for once-weekly collection centered around a changeover to
automated cart service. The Company's proposal also included several changes in the
Company's residential collection service, and resulted in an 11.4% decrease in
customer rates. The Company also proposed that the City enter into a new franchise
agreement with certain modifications to the current contract provisions.
Table 2 below summarizes each of the Company's proposed changes in residential
collection service. The Company's proposed changes to the contract provisions and
proposed lower service fees are shown in the table on the next page. The Company
also offered several qualitative reasons why it believed that a transition to once-
weekly service was best accomplished in conjunction with a changeover to automated
cart service. These reasons are summarized at the end of this section.
Table 2—Proposed Changes in Residential Service
Service Change Under the new agreement,the Company would
Weekly Service Collect refuse once per week,residents would receive service
for all three material types on the same day of the week
New Refuse Carts Furnish all customers with new high capacity wheeled refuse
carts with attached lids. Economy and Walk-in customers
would receive 65-gallon carts Family Value and Estate
customers would receive 95 gallon carts.
New Clearr-fuel Vehicles Use clean-fuel, CNGpowered vehicles to provide automated
(i.e.,mechanized)residential collection service.
Rerydables Collection for No longer charge an additional fee for collection of recyclables
Walk-in Customers from Walk-in customers.
'Scout'Vehfdes for Walk-in Employ smaller 'scout' vehicles to retrieve and pre-position
Service carts for residential customers with Walk-in service.
Subscription-basis Begun offering greenwaste collection service on a subscription
Greenwaste Service basis. The Company would charge a fee only to those
customers who elect to use the service,rather than the current
system in which the Company provides greenwaste collection
on a universal basis at no additional charge.
2 February8,2011
24
In addition to its proposed changes in service frequency and service fees, the
Company proposed that the City and the Company enter into a new 11-year franchise
agreement and that the new agreement include several changes to the provisions of
the current Agreement. These proposed changes are listed below in Table 3.
Table 3—Proposed �Changes in Contract Provisions
Contract Current Proposed
Provision
Length of Agreement expires on June 30,2016. New agreement would have a term of 11
Term years.
Minimum Dwelling units that are regularly Dwelling units regularly occupied on a
Service occupied on a part time basis are part-time basis would be required to
Requirements required to subscribe to service,but subscribe to Walk-in service to ensure that
for Part-time the type of service is determined by automated carts are not left on the street
Residents the property owner or manager. when seasonal residents leave the City.
Vacation The City Code requires vacation The Company proposes to add a provision
Rentals rentals to subscribe to the highest to the Agreement regarding vacation
level of service,which is Estate rentals to make the Agreement consistent
Service. However,the Agreement with the City Code.
does not address this issue.
Event Houses The City Code requires event Event Houses would be required to receive
houses to use reasonable business commercial bin service on an event-by-
practices in arranging for refuse event basis.
collection
Collection of Construction and demolition debris The Company would have the right to
Construction removed by a contractor or other collect all construction and demolition
and person using their own equipment debris generated in the City,even that
Demolition as an incidental part of a total which is now removed by contractors as an
Debris service offered by that contractor is incidental part of a total service offered by
exempt from the agreement that contractor.
Community None in current contract Company would pay$78,000 per year for
Funding sustainable community programs.
successor None in current contract. Company would set aside$100,000
Agreement annually and transfer$1,000,000 to City
Incentive upon entering into a successor 10-year
contract
3 February%Wl l
25
The Company projected that by the time the new service was rolled out in 2012, the
net saving it would realize would enable it to decrease residential customer rates by
approximately 11.4%. In addition to lower rates, the Company offered primarily
three reasons why it felt that a transition to once-weekly service was best
accomplished in conjunction with a changeover to automated cart service.
First, with the wide acceptance of automated cart service in other communities
throughout Southern California and in the Coachella Valley, automated cart service
would be viewed favorably as an enhancement to the current manual service.
Second, transitioning to once-weekly service would increase the amount of waste
collected in a single pickup. If the Company continued using manual collection to
provide once-per-week service, many residents would need to purchase additional
cans to contain the increased amount of waste collected in a single pickup. Residents
would not need to incur this additional expense if they were provided high capacity
refuse carts with automated collection service.
Finally, if residents were to purchase additional cans to accommodate once-weekly
manual collection service, the additional cans would require additional storage space
in either the resident's yard or garage. Because the high capacity carts used in an
automated collection system are taller, they are able to contain a greater amount of
waste with a smaller'footprint' As a result, the use of high rapacity automated carts
would make it less likely that residents garage, side-yard or patio space would be
infringed upon by additional refuse cans.
4 Febn=y8,aril
�S
3. WORK PERPORNM
To evaluate the Company's proposal for once-weekly service, we performed the
following tasks:
• Met with Company representatives to review and discuss the proposal for
once-weekly refuse collection.
• Obtained and reviewed the Company's financial statements, detail general
ledger and other financial and operational information
• Analyzed the Company's expenses, and allocated its costs among its
residential,commercial,industrial and non-franchised lines of business.
• Evaluated the Company's productivity assumptions by comparing them to the
Company's actual productivity for providing automated once per week service
in Desert Hot Springs, and by comparing them to other residential solid waste
collection operations with which we are familiar.
• Compared the Company's projected cost savings with its current actual
expenses.
• Evaluated the reasonableness of the Company's projected capital costs by
comparing them to actual costs incurred by the Company and by other
Jurisdictions for similar equipment
• Reviewed the Company's revenue and expense projections for calendar year
2012, the year in which automated, once-weekly collection service is proposed
to be implemented.
• Confirmed the mathematical accuracy of the supporting schedules and the
resulting reduction in customer rates.
5 Pebmuys,2au
27
4. RKDINGs
Based on our review and analysis of the Company's proposal for once-weekly
collection,we found that:
4.1 A Large Portion of the Company's Costs Do Not Change with the
Frequency of Collection
We found that a large portion of the Company's cost to provide residential service did
not vary with the frequency of collection. Solid waste collection operations are similar
to public utilities in that they typically include a high portion of fixed costs. These
fixed costs typically include items such as office buildings and maintenance facilities.
In addition to fixed costs,the Company's cost of providing residential service includes
other costs that are not considered fixed costs, but nevertheless do not vary with the
frequency of service. For example, disposal tipping fee costs are typically considered
'variable'costs because the cost of disposal varies with the volume of tons. However,
disposal tipping fee costs do not vary with the frequency of collection. The volume of
waste that residential customers generate does not change with the number of weekly
pickups.
Additionally, the labor and equipment cost of the Company's drivers travelling from
the collection area to the disposal facility does not change with the frequency of
collection. Because there is no change m the amount of tons of waste collected, the
Company's drivers must continue to make the same number of trips to the Edom Hill
transfer station. Drivers typically make two trips per day to the disposal site. As a
result, this disposal site travel time typically consumes about one quarter of a drivel's
work day.
Other items in the Company's cost structure that do not change with a reduction in
the number of weekly pickups include the cost of recyclables collection (which will
continue to be collected once per week)and the cost of fees paid to the City.'
'The City Administrative Fee and Franchise Fee are based on a percent of the Company's grass receipts. As a
result,if the Company's revenue is decreased,percentage rate of these fees must be increased slightly to maintain
city fee revenues at the same level.
6 February 8,2011
28
Table 4 below shows that for the 12 months ended September 30, 2009, the
Company's total cost of providing residential solid waste collection service was
approximately $4,362,000. Of that amount, approximately $2,755,000, or
approximately 631/6 were costs that do not change with the frequency of refuse
collection service. Conversely,Table 4 shows that approximately 37%, or a little more
than one-third, of the Company's total residential collection costs change with the
number of weekly refuse pickups.
Table 4—Costs that Change with the Number of Weeldy Refuse Pickups
Cast Category Annual Cost Percent of TotalCost
Costs that Change with the Number of Weekly pickups
Labor and labor-related Cost $794,000 18%
Vehicle Operating Cost $661,000 15%
Vehicle Depreciation $157,000 3%
Subtotal:Costs that Vary with the Number of Weekly Pickups $11607,000 37%
Costs that Do Not Change with the Number of Weekly pickups
Reyclables Collection Casts 357,000 8%
Disposal Tipping Fees 550,000 13%
City Fees 295,000 7%
Other Fixed Operating Cost 785,000 18%
General&Administrative 768,000 18%
Subtotal:Costs that Do Not Vary $2,755,000 63%
Total Cost to Provide Residential Service $4,362,000 100%
7 Februarys,2011
29
4.2 The Company's Projected 2012 Net Cost Savings Appeared Reasonable
We found that the Company's projected net reduction in cost to provide automated
service appeared reasonable. The transition to once-weekly service would enable the
Company to significantly reduce its labor costs. However, to provide automated
service, the Company is proposing to spend approximately $3 million to purchase
new trucks and carts. Therefore,the labor cost savings would be partially offset by the
additional cost of this new equipment.
In its proposal, the Company projected that it would be able to realize an annual net
costs savings of approximately$487,000. Based on our review and analysis,we found
this to be a reasonable estimate. Table 5 below shows the Company's projection of the
changes in its residential collection costs that would result from transitioning to once-
weekly automated collection service.
Table 5—Projected 2012 Cost Savings Due to
Once-weekly Refuse Collection—Automated Service
Projected 2012 Projected 2012
Cost Category Cost of Twice Cost of Once Cost Increase or
per Week per Week (Savings)
Service Service
Collection Labor and Labor-related Costs $8581000 $375,0D0 ($483,000)
Truck Operating Cost 560,000 352,000 (208,000)
Truck Depredation 231,0M 185,000 (46,000)
Truck interest 0 80,000 80,000
Subtotal:Trucks $791,000 $617,000 ($174,000)
Cart Depreciation 0 91,000 91,000
Cart Interest 0 36,000 36,000
Cart Maintenance 0 43,000 4$,000
Subtotal:Carts $0 $170,000 $170,000
Total $1,649,000 $1,162,000 ($487,000)
8 February8,2011
30
4.3 Net Cost Reduction is Less for Manual Service
We fotmd that if the Company were to convert to once-weekly service and continue to
provide manual service, the net cost savings would be less than that of providing
automated service.
In evaluating the Company's proposal, we considered the issue of whether the
Company should convert to once per week service and continue to collect refuse
using its existing fleet of rear-loading vehicles and two-man crews. To perform this
analysis, we used the Company's existing costs and operational factors to model the
savings it might realize if it simply began collecting refuse once per week instead of
twice per week Based on our analysis,we found that the Company would be able to
reduce its annual costs by approximately$458,000.
Our estimate of the reduction in cost resulting from reducing the number of pickups
and continuing to provide manual service is shown below in Table 6.
Table 6—Projected Cost Savings Due to
Once-weekly Refuse Collection—Manual Service
Projected 2012
Projected 2012
Cost of Twice Once-wCost Increase or
Cost Category Cost
Week Service�Y (savings)
Service
Collection Labor and Labomelated Costs $6581000 $620,000 ($238,000)
Truck Operating cost 5WI000 $404,000 (156,000)
r uk Depredation 231,000 $167,000 (64,000)
Truck interest 0 0
Subtotal;Trucks $791,000 $571,000 ($220,000)
Cart Depredation 0 0
Cart Interest 0 0
Subtotal:Carts $o $0 $0
total $1,649,000 $1,191,000 ($4%,000)
9 February 8,2011
31
4.4 The Proposed 11-year Contract Term is Reasonable
The new 11-year contract term proposed by the Company is reasonable. Municipal
refuse collection agreements typically have a term of from 7 to 10 years to allow the
contractor time to amortize its capital investment. Moreover, the existence of a multi-
year contract is often a key factor for private refuse companies to obtain financing for
their capital expenditures. In its cost estimates, the Company calculated its
depreciation expense over a 10 year useful life for the new trucks and carts. We found
this to be reasonable.
According to the Company, the purpose for including an additional year over the
useful life of the assets is to allow the Company time to arrange for financing and
order the equipment prior to placing it in service. We also found this to be reasonable.
Therefore, we believe that an 11-year contract tern is reasonable.
10 Febmary S,7D11
32
4.5 Not All Proposed Contract Provisions are Related to Once-weekly
Service.
In addition to the contract term, we found that the Company's proposed contract
provisions for the minimum service requirement for part time residents and vacation
houses were related to the implementation of once-weekly automated service. The
Company has represented that these provisions are an integral part of rolling out
automated cart service.
The purpose for requiring seasonal residents and vacation house to subscribe to Walk-
in service is to ensure that the new automated carts will be taken off the curb after
part-time and holiday residents leave town. We believe it is reasonable to link these
proposed contract provisions to the implementation of once-weekly service.
However, the remaining proposed contract terms described in Table 3 above are not
related to once-weekly service. The Company could feasibly implement once-weekly
refuse collection without addressing the issue of requiring event houses to have
'commercial-type waste services on an as needed basis.' Additionally, the expansion
of the Company's franchise right to collect all C&D debris is not linked to the
implementation of once-weekly service. Any changes in the scope of service in the
current Agreement are subject to the mutual agreement of the City and the Company.
Therefore, while the Company may require these changes as a condition of
implementing once-weekly service, it should be understood that these other contract
issues are not operationally linked to collecting refuse once per week vs. twice per
week
4.6 Automated Cart Collection Service is a Higher Quality Service
Automated cart service represents a higher quality of solid waste collection service.
We found the Company's justifications for linking a transition to once-weekly service
to a changeover to automated cart service to be reasonable. In addition to the
Company's reasons for changing over to automated service, there are other reasons
for the City to change to automated cart collection.
I l February 8,Z011
33
For example, the use of automated carts in the collection of residential solid waste
significantly reduces the frequency and severity of drivers' back-related injuries. The
hinged lids help to better contain odor and prevent spillage. Automated carts are
equipped with wheels and are of a balanced design, which enables them to be easily
maneuvered. They are manufactured from durable materials and have a long useful
life. The use of standard automated carts also results in neighborhoods having a
neater, more uniform appearance on collection day. Accordingly, automated solid
waste collection service is of a higher quality than manual collection.
12 Febnmy 8,2M1
34
Once-Weekly Service
Comparative Analysis of Mo thly Rates
Current Program Proposed Program
Twice-Weekly Collection Once-Weekly Collection
Current
Rate Subscription Estimated FY Subscription Estimated FY
Services(1)(2) 14/15 Monthly Services (4)(5) 14/15 Monthly
Rate Rate(3)
Individually-Billed Dwellings
$18.02 Curbside $18.83 Curbside $16.20
Economy Economy
$21.31 Family Value $22.54 Curbside PLUS $19.38
$23.53 Standard Walk- $20.93
In (6)
Walk-In $24.36 Manual Walk-In $24.36
(6)(7)
$60.00 Estate $62.35 Estate $53.62
Centrally-Billed Dwellings
$17.84 Curbside $18.63 Curbside $16.02
Economy Economy
$21.13 Family $22.34 Curbside $19.21
Value PLUS
$23.36 Walk-in $24.17 Standard $24.17
Walk-In
Green Waste free on subscription basis.
No rate changes to Commercial,Industrial or manual collection.
Notes:
(1) Trash services are twice-weekly,recycling services are once-wee kly; walk-in recycling is an
added cost.
(2) All trash cans provided by customer; all recycling carts provided by PSDS.
(3)
(4)All services are once-weekly.
(5) All Trash&recycling carts provided by PSDS.
(6)All Walk-in customers will receive walk-on recycling collection at not added cost.
(7) Customers to provide 32-gal max cans for trash&recycling collection.
35
SOLID WASTE FRANCHISE AGREEMENT
MATERIALS TO FOLLOW
36
� PALMSA city of Palm Springs
v m Office of the City Clerk
3200 E.Tahquira Canyon Way • Palm Springs,CA 92262
n*W s Tel: (760)323-8204 • Fax: (760)322-8332 • TDD: (760)864-9527 • Web: www.palmspringsca.gov
Cqt/FORN�P
NOTICE OF CONTINUANCE
NOTICE IS HEREBY GIVEN that the Regular Meeting held on May 15, 2013, the
City Council continued Public Hearing Item No. 1.C. to July 3, 2013:
GRANT A 15-YEAR EXCLUSIVE FRANCHISE AGREEMENT WITH
PALM SPRINGS DISPOSAL SERVICES FOR RESIDENTIAL AND
COMMERCIAL COLLECTION AND DISPOSAL OF SOLID WASTE AND
FOR THE COLLECTION OF RECYCLABLE MATERIAL:
I, James Thompson, City Clerk of the City of Palm Springs, California, certify this Notice
of Continuance was posted at or before 6:00 p.m. on May 16, 2013, as required by
established policies and procedures.
YES THOMPSON
Clerk
37
Post Office Box 2743 • Palm Springs, California 92263-2743
The Desert Sun Certificate of Publication
750 N Gene Autry Trail
Palm Springs, CA 92262
760-778-4578/Fax 750-7784731
State Of California ss:
County of Riverside (2 jV'+
Advertiser:
CITY OF PALM SPRINGS/LEGALS
PO BOX 2743
PALM SPRINGS CA 922632
2000366608
I am over the age of 18 years old, a citizen of the United
Stales and not a party to, or have interest in this matter. I
hereby certify that the attached advertisement appeared
in said newspaper (set in type not smaller than non panel)
in each and entire issue of said newspaper and not in any
supplement thereof on the following dates,to wit: No 0717
NOTICE OF PUBLIC HEARING
CITY COUNCIL
Newspaper: .The Desert Sun CITY OF PALM SPRINGS
PALM SPRINGS DISPOSAL SERVICES
SOLID WASTE FRANCHISE AGREEMENT.
4/13/2013 NOTICE IS HEREBY GIVEN that the City Council
W the City of Palm Springs,California,will hold a
ppCublic hearing at its begins
of Me i,p2013. The
CO dh Chamber met!
at Ciy iHall,320000 E.Tahq�
Canyon Way,Palm Springs.
The pourpose of this hearing is to consider granting
a 15-yyear exclusive franchise agqreement wag
Palm Springs Disposal Services(PSDS)tOr rasl-
demial and commercial collection and disposal of
I acknowledge that I am a principal clerk of the printer of solid waste and for the collection of recyclable me-
9 P P P serial.
The Desert Sun, printed and published Weekly in the City REVIEW OF INFORMATION: The staff report
of Palm Springs, County of Riverside, State of California. and other supporting documents regardin the
The Desert Sun was adjudicated a newspaper of general propcaad.franchise agreement is available for
ppublic review at City HaII between the hours of
circulation on March 24, 1988 by the Superior Court of the 8:00 a.m. to 11:00 a.m. and 2:00 p.m. to 6:00
p m. Monday through Thursday. Please contact
County of Riverside, State of California Case No. Ins bmoe of the Ciiv Clark at(76o)323-8204 s
191238 you would like io sc edule an appofmment to ra-
vlew these documents.
COMMENTS: Response to this notice may be
I declare under penalty Of perjury that the foregoing is true made velbalty at the public hearing and/or in writ.
P Y P 1 rY 9 9 ing before the hearing.written comments may be
made to the City Council byy letter
and correct. Executed on this 13th day of April, 2013 in (Mr mail or hand delivery)t0:
Palm Springs,CelifOrni Jame Clank
3200 E.Tahqu�Llangogn Way
Palm Springs,CA 92262
Anyy challenge of the proposed in court ma be
Ii led to raising only those issues raised at the
public hearing described in this notice,or in written
corresppondence delivered to the City Clerk at,or
pprier, to the public hearing. (Government Code
Seddon 65009(b)(2)6
ts Declaran ignetu for all
nteresteted persons Lll abe head.Said
regard-
Ing his case may be directed to Dave Baralaan
(780)323-8160.
Si necesita ayuda con esta carte,porfavor(lame a
Is Ciudad de Palm Springgs yy ppuede habWr con
Nadine Fiegertelefono(76D1,323-8245.
James Thompson,City Cleric
Pubil had:4IM3113
38
The Desert Sun Certificate of Publication
750 N Gene Autry Trail
Palm Springs, CA 92262 - - -
760-778-4578/Fax 760-778-4731
2013
State Of California ss:
County of Riverside
Advertiser:
CITY OF PALM SPRINGS/LEGALS
PO BOX 2743
PALM SPRINGS CA 922632
2000374675
1 am over the age of 18 years old, a citizen of the United
States and not a party to, or have interest in this matter. I No 1347 ORDINANCE NO.1924
hereby certify that the attached advertisement appeared AN URGENCY ORDINANCE OF THE CITY OF
in said newspaper (set in type not smaller than non panel) PALM SPRINGS CALIFORNIA,GRANTING AN
In each and entire issue of said newspaper and not in any \ • EXCLUSIVE §50D WASTE MANAGEMENT
SERVICES FRANCHISE TO PALM SPRINGS
supplement thereof On the following dates,to wit: \�' DISPOSAL SERVICES,A CALIFORNIA CORPO-
RATION. y
Newspaper: .The Desert Sun The City Chaff and Ufa may Cis lLkipal Code
provides the City Council with the authority to do-
dde the level of solid waste services to be provid.
ed to the City 7/17/2013 provided byac �such c re of nawzdus , Partiall ID be ex-
dusive or wholly exclusive franchise,contract,or
license granted pursuant to such lends and comli-
tkns as prescilted by the CIy Council. This Ordi-
nance grants an axclui franchise to Palm
Springgss Disposal Services to p�'Ide WINcllon
transfer,and disposal of solid waste and releteri
services, Including waltout Ilmhation,,soume re-
duction,recydng,and composing activities. The
franchise is for a term of 15 years,commencing
on A xI 1,2014.
1 acknowledge that I am a principal clerk of the printer of ORDINANCE No.1828
The Desert Sun, printed and published weekly in the City AN URGENCY ORDINANCE OF THE CITY OF
of Palm Springs, County of Riverside, State of California. PALM SPRINGS CALIFORNIA ADDING SEC-
TION 6.08.150 Tb THE PALM SPRINGS MUNIC-
The Desert Sun was adjudicated a newspaper of general IPAL CODE PROHIBITING THE OPERATION
Circulation on March 24, 1988 by the Superior Court of the }N TOIFE MOBILE MARIJUANA DISPENSARIES IN
County of Riverside, State of California Case No. City anornevy Summary
191236. n� - This Ordinance pmhidls, maple reanaama
tlisperatanes from operating in the City. This is an
urgenpy Ordinance that w It go into stied upon
�� on antl requlfre a O/Sdre vote far I>a%age-
I declare under penalty of perjury that the foregoing is true CERTIFICATION
and correct. Executed on this 17th day of July, 2013 in STATE OF CALIFORNIA
E as
Palm Springs,Calif Is, CITY OF PALM SPRIOF NGS
1 JAMES THOMPSON,C1 Clerk of
the Gil of Palm Springs, California. o hereby
ce"Ify that Urgency Ordinance Nos. 1824 and
1828 are lull,true and correct cop re copies,and we
ado had at a re uiar meefingg of the City Council
held on the 3rd day ol July,Z013,by the following
votes
AYES: CounciMtembers Foat, Hutcheson,
Declaran Signature Lewin,MayorPro Tam Mills,and Mayor Pougnst,
NOES: None.
ABSENT: None.
ABSTAIN: None.
JAMES THOMPSON,CITY CLERK
CRY ol Palm 3pnnge,CeYfomla
PuMtahed:7117113
ORDINANCE NO. 1824
AN URGENCY ORDINANCE OF THE CITY OF PALM SPRINGS,
CALIFORNIA, GRANTING AN EXCLUSIVE SOLID WASTE
MANAGEMENT SERVICES FRANCHISE TO PALM SPRINGS
DISPOSAL SERVICES, A CALIFORNIA CORPORATION.
City Attorney Summary
The City Charter and the City's Municipal Code provides the City Council with the authority to
decide the level of solid waste services to be provided to the City and whether such services
are to be provided by means of nonexclusive, partially exclusive, or wholly exclusive franchise,
contract, or license granted pursuant to such terms and conditions as prescribed by the City
Council. This Ordinance grants an exclusive franchise to Palm Springs Disposal Services to
provide collection, transfer, and disposal of solid waste and related services, including without
limitation, source reduction, recycling, and composting activities. The franchise is for a term of
15 years, commencing on April 1, 2014.
ORDINANCE NO. 1828
AN URGENCY ORDINANCE OF THE CITY OF PALM SPRINGS,
CALIFORNIA, ADDING SECTION 6.08.150 TO THE PALM
SPRINGS MUNICIPAL CODE, PROHIBITING THE OPERATION
OF MOBILE MARIJUANA DISPENSARIES IN THE CITY.
City Attorney Summary
This Ordinance prohibits mobile marijuana dispensaries from operating in the City. This is an
urgency Ordinance that will go into effect upon adoption and requires a 4/5ths vote for
passage.
CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss.
CITY OF PALM SPRINGS )
I, JAMES THOMPSON, City Clerk of the City of Palm Springs, California, do hereby
certify that Urgency Ordinance Nos. 1824 and 1828 are full, true, and correct copies, and were
adopted at a regular meeting of the City Council held on the 3`d day of July, 2013, by the
following vote:
AYES: Councilmembers Foat, Hutcheson, Lewin, Mayor Pro Tern Mills, and
Mayor Pougnet.
NOES: None.
ABSENT: None.
ABSTAIN: None.
MES THOMPSON, CITY CLERK
City of Palm Springs, California
ORDINANCE NO. 1824
AN URGENCY ORDINANCE OF THE CITY OF PALM
SPRINGS, CALIFORNIA, GRANTING AN EXCLUSIVE SOLID
WASTE MANAGEMENT SERVICES FRANCHISE TO PALM
SPRINGS DISPOSAL SERVICES, A CALIFORNIA
CORPORATION.
City Attorney Summary
The City Charter and the City's Municipal Code provides the City Council
with the authority to decide the level of solid waste services to be provided to
the City and whether such services are to be provided by means of
nonexclusive, partially exclusive, or wholly exclusive franchise, contract, or
license granted pursuant to such terms and conditions as prescribed by the
City Council. This Ordinance grants an exclusive franchise to Palm Springs
Disposal Services to provide collection, transfer, and disposal of solid waste
and related services, including without limitation, source reduction, recycling,
and composting activities. The franchise is for a term of 15 years,
commencing on April 1, 2014.
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, FINDS:
A. The City is responsible for providing solid waste management services to its
citizens, including source reduction, recycling, composting activities and the collection,
transfer and disposal of solid waste within the City boundaries, in a manner consistent with
state laws.
B. The City Council has determined that the provision of solid waste
management services by providing an exclusive franchise and agreement to a solid waste
enterprise will best provide and maintain reasonable rates for collection, transportation,
recycling, composting, and disposal of solid waste, recyclables, and compostable material
generated within the City.
C. Palm Springs Disposal Services ("PSDS"), a California Corporation, has
provided superior and reasonably priced solid waste collection and disposal services for
the City of Palm Springs and its residents for several years and is qualified and competent
to perform the solid waste management services desired by the City.
D. It is the desire of the City and PSDS to modify the residential service to one-
day a week service with an appropriate reduction in service fees and to enhance recycling
and waste diversion efforts in the City to ensure the City can reasonably attain its goals
and requirements under state law.
E. On July 3, 2013, the City Council held a public hearing to consider the grant
of an exclusive solid waste management services franchise to PSDS and to hear all
persons desiring to be heard on the grant of such franchise.
Ordinance No. 1824
Page 2
F. Having considered all oral and documentary evidence presented on the
matter of granting such franchise, the City Council has determined that the of an exclusive
solid waste management services franchise to PSDS is in the public interest.
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, DOES
HEREBY ORDAIN:
SECTION 1. The City Council grants an Exclusive Solid Waste Management
Services Franchise to Palm Springs Disposal Services, a California Corporation. PSDS is
authorized to engage in the business of collecting, transporting, and disposing of solid
waste and recyclable materials kept, accumulated, or produced in the City of Palm Springs
and to use the public streets and rights of way for such purpose.
SECTION 2. The grant of this Exclusive Solid Waste Management Services
Franchise is expressly subject to the terms and conditions of the City Charter, Chapter 6.05
of the Palm Springs Municipal Code, this Ordinance, and the Agreement between the City
and PSDS for Solid Waste Management Services ("Franchise Agreement') as such now
exists or as may be amended from time to time.
SECTION 3. The Franchise Agreement shall be for a term of fifteen (15) years,
commencing on April 1, 2014 and ending on March 30, 2029.
SECTION 4. The Mayor shall sign and the City Clerk shall certify to the passage
and adoption of this Ordinance and shall cause the same, or the summary thereof, to be
published and posted pursuant to the provisions of law.
SECTION 5. Findings. The adoption of this Urgency Ordinance is necessaryforthe
immediate protection of the public peace, health, and safety by ensuring the timely and
orderly award of a solid waste franchise and the implementation of revised residential
services the concomitant reduction in service rates, and the acquisition of new
environmentally responsible equipment and vehicles. In accordance with Section 312 of
the Palm Springs City Charter, the City Council of the City of Palm Springs finds and
determines that the adoption of this Urgency Ordinance is necessary to ensure the timely
approval of a Solid Waste Franchise Agreement for the timely implementation of a new
solid waste program for the immediate protection of the public peace, health, and safety.
SECTION 6. Effective Date. The City Council hereby declares, on the basis of the
findings set forth above, that an emergency exists and that this Ordinance is necessary to
preserve the public peace, health and safety. Accordingly,this Ordinance is adopted as an
emergency ordinance and shall take effect and be in force immediately upon its adoption.
Ordinance No. 1824
Page 3
PASSED, APPROVED AND ADOPTED BY THE PALM SPRINGS CITY COUNCIL
THIS 3RD DAY OF JULY, 2013.
STEPHEN P. POUGNET, MAYOR
ATTEST:
JAMES THOMPSON, CITY CLERK
CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss.
CITY OF PALM SPRINGS )
I, JAMES THOMPSON, City Clerk of the City of Palm Springs, California, do hereby
certify that Urgency Ordinance No. 1824 is a full, true, and correct copy, and adopted at a
regular meeting of the City Council held on the 3'd day of July, 2013, by the following vote:
AYES: Councilmember Foat, Councilmember Hutcheson, Councilmember Lewin,
Mayor Pro Tern Mills, and Mayor Pougnet.
NOES: None.
ABSENT: None.
ABSTAIN: None.
JAMES THOMPSON, CITY CLERK
City of Palm Springs, California
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS,
CALIFORNIA, GRANTING AN EXCLUSIVE SOLID WASTE MANAGEMENT
SERVICES FRANCHISE TO PALM SPRINGS DISPOSAL SERVICES, A
CALIFORNIA CORPORATION
City Attorney Summary
The City Charter and the City's Municipal Code provides the City Council with
the authority to decide the level of solid waste services to be provided to the City
and whether such services are to be provided by means of nonexclusive,
partially exclusive, or wholly exclusive franchise, contract, or license granted
pursuant to such terms and conditions as prescribed by the City Council. This
Ordinance grants an exclusive franchise to Palm Springs Disposal Services to
provide collection, transfer, and disposal of solid waste and related services,
including without limitation, source reduction, recycling, and composting
activities. The franchise is fora term of 15 years, commencing on April 1, 2014.
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, FINDS:
A. The City is responsible for providing solid waste management services to its
citizens, including source reduction, recycling, composting activities and the collection,transfer
and disposal of solid waste within the City boundaries, in a manner consistent with state laws.
B. The City Council has determined that the provision of solid waste management
services by providing an exclusive franchise and agreement to a solid waste enterprise will
best provide and maintain reasonable rates for collection, transportation, recycling,
composting, and disposal of solid waste, recyclables, and compostable material generated
within the City.
C. Palm Springs Disposal Services ("PSDS"), a California Corporation, has provided
superior and reasonably priced solid waste collection and disposal services for the City of
Palm Springs and its residents for several years and is qualified and competentto perform the
solid waste management services desired by the City.
D. It is the desire of the City and PSDS to modify the residential service to one-day
a week service with an appropriate reduction in service fees and to enhance recycling and
waste diversion efforts in the City to ensure the City can reasonably attain its goals and
requirements under state law.
E. On July 3, 2013, the City Council held a public hearing to consider the grant of
an exclusive solid waste management services franchise to PSDS and to hear all persons
desiring to be heard on the grant of such franchise.
F. Having considered all oral and documentary evidence presented on the matter of
granting such franchise, the City Council has determined that the of an exclusive solid waste
management services franchise to PSDS is in the public interest.
39
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, ORDAINS:
Section 1. The City Council grants an Exclusive Solid Waste Management Services
Franchise to Palm Springs Disposal Services, a California Corporation. PSDS is authorized to
engage in the business of collecting, transporting, and disposing of solid waste and recyclable
materials kept, accumulated, or produced in the City of Palm Springs and to use the public
streets and rights of way for such purpose.
Section 2. The grant of this Exclusive Solid Waste Management Services Franchise
is expressly subject to the terms and conditions of the City Charter, Chapter 6.05 of the Palm
Springs Municipal Code, this Ordinance, and the Agreement between the City and PSDS for
Solid Waste Management Services ("Franchise Agreement') as such now exists or as may be
amended from time to time.
Section 3. The Franchise Agreement shall be for a term of fifteen (15) years,
commencing on April 1, 2014 and ending on March 30, 2029.
Section 4. The Mayor shall sign and the City Clerk shall certify to the passage and
adoption of this Ordinance and shall cause the same, or the summary thereof, to be published
and posted pursuant to the provisions of law and this Ordinance shall take effect thirty (30)
days after passage.
PASSED AND ADOPTED at a regular meeting of the City Council on the day of
2013, by the following vote:
AYES:
NAYS:
ABSENT:
ABSTAIN:
Stephen P. Pougnet
Mayor
ATTEST:
James Thompson
City Clerk
40