CC Resolution 2000-083RESOLUTION NO. 2000-83
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
LA QUINTA, CALIFORNIA, APPROVING THE RESTATED
AND AMENDED AGREEMENT FOR THE COLLECTION,
TRANSPORTATION AND DISPOSAL OF MUNICIPAL SOLID
WASTE BY AND BETWEEN THE CITY OF LA QUINTA AND
WASTE MANAGEMENT OF CALIFORNIA, INC.
WHEREAS, Chapter 6.04 of the La Quinta Charter and Municipal Code
authorizes the collection, transportation and disposal of municipal solid waste; and
WHEREAS, City staff has negotiated a Restated and Amended
Agreement, pursuant to City Council direction, with Waste Management of California,
Inc., for the collection, transportation and disposal of municipal solid waste.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
La Quinta that the Restated and Amended Agreement for Collection,. Transportation
and Disposal of Municipal Solid Waste by and between the City of La Quinta and
Waste Management of California, Inc., (Attachment 1) is hereby approved.
PASSED, APPROVED and ADOPTED at an adjourned regular meeting of
the La Quinta City Council, held on this 5th day of July, 2000, by the following vote,
to wit:
AYES: Council Members Adolph, Henderson, Perkins, Sniff, Mayor Pena
NOES: None
ABSTAIN: None
ABSENT: None
At WWI-(
J 0 HWY PENA, or
City of La Quinta, California
Resolution No. 2000-83
Waste Management
Collection, Transportation & Disposal of Municipal Solid Waste
July 5, 2000
Page 2
ATTEST:
J . GREEK, CMC/AA City Clerk
City of La Quinta, California
(City Seal)
APPROVED AS TO FORM:
/// 2, /� ��
Kff KATHERI E JENSON ity Atto ney
City of La Quinta, California
AMENDED AND RESTATED
AGREEMENT
FOR THE COLLECTION AND RECYCLING
OF RECYCLABLE MATERIALS
BETWEEN
THE CITY OF LA QUINTA
AND
WASTE MANAGEMENT OF CALIFORNIA, INC.
FOR FISCAL YEAR
JUNE 30, 2000 - JULY 30,2008
C:\My Documents\WPDOCS\Cont Waste 2000 Recycl.wpd July 11, 2000
ARTICLETERM.......................................1
Section 1.1 Term ................................... 1
ARTICLE II SCOPE OF WORK ............................... 1
Section 2.1 Recyclable Materials ......................... 1
Section 2.2 Household Hazardous Wastes ................. 2
Section 2.3 Advisory Obligations of Contractor .............. 3
Section 2.4 Recycling Programs at Special Events ............. 3
Section 2.5 Funds Held in Trust for City ................... 4
ARTICLE III EQUIPMENT AND PERSONNEL ...................... 4
Section 3.1 Collection Vehicles .......................... 4
Section 3.2 Containers ............................... 5
Section 3.3 Employees ............................... 6
Section 3.4 Recycling Coordinator ....................... 6
ARTICLE IV SUPERVISION ................................. 6
Section 4.1 Authority of City ........................... 6
Section 4.2 Public/Customer Service and Accessibility .......... 7
Section 4.3 Complaints ............................... 8
Section 4.4 Customer Information and Public Education ......... 8
ARTICLE V INSURANCE..................................11
Section 5.1 General Liability Insurance .................... 11
Section 5.2 Worker's Compensation and Employer's Liability
Insurance ............................... 12
Section 5.3 Notice to City, Evidence of Insurance ............ 12
ARTICLE VI PERFORMANCE BOND .......................... 13
Section 6.1 Performance Bond ......................... 13
ARTICLE VII REPORTS....................................13
Section 7.1 Records and Reports; Recycling Operations ........ 13
Section 7.2 Inspection by City ......................... 15
Section 7.3 Maintenance of Financial Records .............. 15
ARTICLE VIII ASSIGNMENT AND SUBCONTRACTING .............. 16
Section 8.1 Assignment and Subcontracting ............... 16
ARTICLE IX BREACH, DEFAULT AND TERMINATION .............. 17
Section 9.1 Breach, Default and Termination ............... 17
CAMy Documents\WPDOCS\Cont Waste 2000 Recycl.wpd ii July 12, 2000
ARTICLE X INDEMNITY .................................. 18
Section 10.1 Indemnification ........................... 18
Section 10.2 Hazardous Substances and CERCLA Indemnification . 19
Section 10.3 AB 939 Indemnification ..................... 19
ARTICLE XI COMPLIANCE WITH ALL LAWS .................... 20
Section 1 1.1 Compliance with All Laws .................... 20
ARTICLE XII TAXES.....................................21
Section 12.1 Taxes .................................. 21
ARTICLE XIII AUTHORIZED RECYCLING AGENT .................. 21
Section 13.1 Authorization ............................ 21
Section 13.2 Exclusive Contract; Limitation on Responsibility of City 21
ARTICLE XIV SALE OR DISPOSITION OF RECYCLABLE MATERIALS .... 22
Section 14.1 Sale or Disposition of Recyclable Materials......... 22
ARTICLE XV COMPENSATION TO CONTRACTOR ................. 22
Section 15.1 Compensation ........................... 22
Section 15.2 Collection of Recyclable Materials for Commercial,
Industrial or Institutional Waste Generators Participating
in Contractor's Recycling Program .............. 23
ARTICLE XVI HOLIDAYS...................................24
Section 16.1 Holidays ................................ 24
ARTICLE XVII OBLIGATIONS OF CITY .......................... 24
Section 17.1 Obligations of City ......................... 24
ARTICLE XVIII
GENERAL PROVISIONS ..........................
24
Section
18.1
Definitions ..............................
24
Section
18.2
Right of the City to Make Changes ..............
27
Section
18.3
Contractor's Status ........................
28
Section
18.4
Force Majeure ............................
28
Section
18.5
Failure to Perform .........................
28
Section
18.6
Rights, Remedies and Benefits Cumulative ........
29
Section
18.7
Waivers ................................
29
Section
18.8
Approval by City ..........................
29
Section
18.9
Notices .................................
29
Section
18.10
Arbitration ..............................
30
Section
18.11
Legal Jurisdiction ..........................
30
Section
18.12
Paragraph Headings ........................
30
Section
18.13
Entire Agreement ..........................
30
Section
18.14
Subcontracting ...........................
31
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Section
18.15
Change of Ownership .......................
31
Section
18.16
Contractor's Employee Relations ...............
31
Section
18.17
Bankruptcy ..............................
31
Section
18.18
Invalid Provisions ..........................
31
Section
18.19
Waiver of Performance ......................
32
Section
18.20
Warranty ...............................
32
Section
18.21
Exhibits ................................
32
Section
18.22
Guaranty by Waste Management, Inc. ...........
32
ARTICLE XIX OTHER OPERATIONAL REQUIREMENTS .............. 32
Section 19.1 Rules and Regulations Governing Recyclable Materials 32
Section 19.2 Air Quality; Alternative Fuel Vehicles ............ 32
Section 19.3 Cooperation with Subsequent Providers .......... 33
Section 19.4 Indemnification Regarding Lawsuits Challenging This
Agreement .............................. 33
GUARANTY................................................1
A SCOPE OF SERVICES ................................... A-1
BFEES ............................................... B-1
C RESOLUTIONS OF THE CITY COUNCIL APPROVING THE AGREEMENT. C-1
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THE CITY OF LA QUINTA
AMENDED AND RESTATED
AGREEMENT FOR THE COLLECTION AND RECYCLING
OF RECYCLABLE MATERIALS
THIS AMENDED AND RESTATED AGREEMENT is made and entered into as of
the day of , 2000, by and between the CITY OF LA QUINTA, a
municipal corporation (hereinafter referred to as the "City") and WASTE
MANAGEMENT OF CALIFORNIA, INC., a California corporation doing business as
Waste Management of the Desert (hereinafter referred to as "Contractor").
ARTICLE I
TERM
Section 1.1 Term
The Term of this Amended and Restated Agreement shall commence
and shall end July 30, unless earlier terminated as provided
herein.
ARTICLE II
SCOPE OF WORK
Section 2.1 Recyclable Materials
Contractor shall collect and process Recyclable Materials from all participating
Residential, Commercial, Industrial and Institutional Premises located within and under
the jurisdiction of the City, in accordance with the requirements set forth in this
Agreement. The work to be done by Contractor includes the furnishing of all labor,
supervision, equipment, materials, supplies and all other items necessary to perform
the services required, including all finances and monies required for performance of the
obligations of this Agreement and for financing, working capital and all other operating
costs of every kind and description. The enumeration of, and specification of
requirements for, particular items of labor or equipment shall not relieve the Contractor
of the duty to furnish all others that may be required, whether enumerated or not.
The work to be done by Contractor shall be performed in conformance with
-- Exhibit A and in a thorough, workmanlike and efficient manner to the reasonable
satisfaction of the City, so that residents, businesses and institutions within the City
are provided reliable, courteous and high quality recycling services at all times.
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Section 2.2 Household Hazardous Wastes
A. General
Contractor shall be responsible to act as an agent for City to arrange for
household hazardous waste in the circumstances and to the extent provided in Section
2.4, Hazardous Waste Obligations of Contractor, of the Agreement for the collection
Transportation and Disposal of Municipal Solid Waste of even date herewith, which
Section 2.4 is incorporated herein by reference.
30. OTI9610115F.1416111-1
1. Used Motor Oil and Filter Recycling. Waste Management of the
Desert will collect and recycle all used motor oil and oil filters from residential
properties. This service will be provided on customers' regular trash day at no
additional charge. Customers simply place their used filter(s) and oil at the curb for
pick-up.
Used oil will be placed in clean plastic containers with a lid. The
route driver will collect the oil and filters on the same day as the trash collection. Oil
filters will be placed inside ziplock baggies. The filters will be drained and placed in
the bag at the curb.
Waste Management of the Desert will begin researching grant
funds immediately to provide customers special containers for disposal of oil and filters
curbside.
2. Publicity for Used Motor Oil Recycling. Contractor shall publicize
the curbside collection of used motor oil from Residential Premises and the collection
program available at the Recycle America buy-back center where used motor oil shall
be redeemed for value, through various techniques, including but not limited to:
with bill;
a. Notice on customer's bill or an insert stuffed in envelope
b. Press releases and public service announcements;
C. Paid advertising, except billboard displays;
d. Submitting article for inclusion in City's newsletter;
e. Posting of notices in public areas of Contractor's facilities,
such as Recycle America buy-back center;
f. Distribution of informational flyers to general public at
appropriate events and through the mail upon request; and
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g. Other methods as specified in Section 4.4 of this Agreement.
3. ABOP Center. Waste Management of the Desert will submit an
application for grant funding for an ABOP Center by August 30, 2001. The Center will
be housed at Waste Management of the Desert's yard in Palm Desert. The grant
application may be submitted on behalf of the other cities and municipalities served by
Waste Management of the Desert.
4. Special Events. Contractor shall cooperate in publicizing or
otherwise appropriately participating in regional used motor oil collection or
promotional events. Contractor's participation may include hosting a table and
distributing educational materials, paying for advertising, or otherwise participating in
the events.
Section 2.3 Advisory Obligations of Contractor
Contractor shall provide, at no cost, supportive services to City, Residential,
Commercial, Industrial and Institutional Premises occupied by Waste Generators and
potential Waste Generators or their agents by providing the following:
A. General consultative services on matters related to waste prevention,
recycling and composting.
B. Technical assistance services, such as the review of site plans, detailed
drawings of enclosures for recycling bins or dumpsters and estimated volume and
character of Recyclable Materials expected to be generated and/or recovered on a
case -by -case basis, as may be required by the Municipal Code or conditions of
approval for issuance of a development plan permit. Field trips to review subject
property may be required to fulfill Contractor's obligation.
C. Attendance of qualified knowledgeable employees at meetings of the City
Council, City Planning Commissions, City staff, the Coachella Valley Association of
Governments, the Local Task Force, etc. Such attendance shall be coordinated by
both parties to this Agreement.
Section 2.4 Recycling Programs at Special Events
From time to time, the City may require applicants for permits for special events
to implement a recycling program to divert MSW generated at the event from the
landfill. Special events occurring in the City on a regular basis include the tennis and
golf tournaments, conferences, conventions, art shows, concerts and cultural events.
At the request of City, Contractor shall assist the special event coordinator(s) in
designing and implementing a recycling program for their special event.
Reimbursement to Contractor shall be agreed upon by City and the permit applicant
prior to Contractor commencing work on design and implementation of said special
event recycling programs.
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Section 2.5 Funds Held in Trust for City
In the event that Contractor receives funds, on behalf of City, from ratepayers,
the Department of Conservation, the Integrated Waste Management Board, or any
other entity, Contractor shall hold said funds in trust for City, indicating on the trust
account that City is the owner of said funds and the purpose for which the funds were
received. Contractor shall notify City of receipt of such funds within thirty (30) days
of receipt. Contractor shall provide City with a quarterly financial status report of the
tenth (10th) day of April, July, October and January of each year. The status report
shall contain the following information: (1) last balance forward in the account(s), (2)
additional revenue received, by source(s), (3) expenditures made (if any) including
type, amount and recipient of funds, and (4) ending balance in the account(s).
Contractor shall not expend funds in this trust account without prior written approval
by the City.
ARTICLE III
EQUIPMENT AND PERSONNEL
Section 3.1 Collection Vehicles
Contractor shall furnish sufficient vehicles to maintain a regular schedule of
collection. All equipment shall comply with each and all of the applicable provisions
of the laws of the State of California and all ordinances, rules and regulations of the
City having reference to such matters, features or services. All equipment used within
the City shall be maintained in a satisfactory and proper mechanical condition and shall
be neat and clean in appearance.
Trucks shall be loaded and operated in such a manner that no Recyclable
Material shall be spilled in streets or alleys. Should any Recyclable Material be spilled
on any street, alley or elsewhere, it shall immediately be cleaned up. A broom, shovel
and oil absorbent material shall be carried on each truck at all times for this purpose.
If not so cleaned up by the Contractor, the City may clean up same and in such event
Contractor shall pay upon demand one hundred fifty percent (150%) of the costs
thereof.
All collection vehicles will be painted uniformly. The Contractor's name and
telephone number shall be shown on each side of each truck in letters at least three
(3) inches high.
All vehicles and equipment used in the collection of Recyclable Materials, if kept
within the boundaries of the City, shall at all times when not in use be kept on private
property of appropriate zone and not on streets or other public ways.
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Bodies of trucks shall be metal and shall be so constructed that no Recyclable
Materials shall be spilled from said trucks on the streets or alleys. Collection vehicles
shall be washed thoroughly on the inside daily and sanitized with a suitable
disinfectant at least weekly. In addition, the Contractor shall provide two-way radio
communication between the route supervisor and all vehicles.
Section 3.2 Containers
A. Recycling Containers. The parties acknowledge that Contractor has
distributed recycling containers to participating Waste Generators as follows:
1. Residential (Curbside): Three rigid plastic, stackable crates
to each participating residence one to be used for glass and plastic bottles, one for
metal cans, and one for newspaper.
2. Residential (Multi -Unit or Centralized Recy iW: At least
one recycling bin or dumpster, specifically designed to reduce theft and material
contamination, to each multi -family residential development or development with
centralized recycling.
3. Commercial. Industrial or Institutional: At least one bin or
dumpster for each type of Recyclable Material generated for each Premises whose
owner/occupant has elected to participate, the size of each bin coordinated with the
amount of Recyclable Materials generated, and the storage space available. The
containers and bins are and will remain the property of Contractor, who is responsible
for maintaining them in proper condition.
B. Recycling Containers Replacement. Contractor shall continue the
current three box system for recycling which shall include a box for newspapers, cans
and all other recyclable material including glass, plastic, metals, aerosol can, supermix,
telephone books, and cardboard to the residential curbside collection program.
Contractor shall promptly replace lost, stolen or damaged stacking crates,
box sets, and recycling bins and dumpsters upon notification by residents, businesses,
institutions or the City, at no additional charge to City, the resident, institutional or
business.
C. New Wheeled Carts. At the residents request, Contractor shall
provide, at its sole expense, up to 100 metal wheeled carts for use by City residents
in moving their three stacking recycling crates or their boxes to and from the curb on
recycling collection day. Contractor shall describe the availability of the wheeled carts
in public education materials prepared in accordance with Section 4.4 of this
Agreement.
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Residents may either pick up a wheeled cart at Contractor's offices during
normal business hours or telephone Contractor's office and request delivery of a
wheeled cart. Contractor shall deliver wheeled carts on a once per month basis to all
residents that requested a cart during the prior month.
Contractor shall make a monthly report to City on the number of wheeled
carts requested by, and delivered to, City residents, together with a list of the last
name and address of each resident receiving a cart.
D. Commingled Recyclables. On or before December 31, 2001,
Contractor shall implement a City-wide automated commingled recycling collection
program. The commingled recycling collection services shall be provided pursuant to
Exhibit "A" - Scope of Services.
Section 3.3 Employees
Contractor shall furnish such competent and qualified drivers, mechanical,
supervisory, clerical or other personnel as may be necessary to provide the services
required by this Agreement in a safe and efficient manner and to serve the public in
a courteous, helpful and impartial manner.
All of Contractor's employees, while collecting Recyclable Materials, shall be
required to wear a uniform type of clothing approved by the City. Said uniform shall
look freshly cleaned and pressed. Each employee shall at all times carry a valid
operator's license for the type of vehicle he or she is driving. Each employee shall, at
all times he/she is on duty, carry employment identification which shall be presented
to City staff, customers, security guards and law enforcement officers upon request.
Section 3.4 Recycling Coordinator
Contractor shall provide one full time employee dedicated to planning,
promoting, and implementing new and existing recycling and source reduction
programs in the Coachella Valley. The Coordinator's time shall be directed toward
activities agreed to by the cities with which Contractor holds recycling collection
contracts or franchises in the Coachella Valley. Examples of programs which may be
planned, publicized and implemented by the Coordinator include school recycling and
education programs, expanded curbside recycling programs, holiday greenery
programs, etc.
ARTICLE IV
SUPERVISION
Section 4.1 Authority of City
The City or the City's agent shall have the right, but not the duty, to inspect at
any reasonable time the contractor's operations, equipment and performance of the
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services required by this Agreement to determine whether the Contractor is performing
in compliance with the Agreement, the laws of the State of California, City ordinances,
and the laws and regulations of any other governmental agency. Contractor shall fully
cooperate with the City in such inspections. Except when in the City's sole
determination an emergency exists, any inspection pursuant to this section shall
require a minimum of twenty-four (24) hours notice prior to the inspection.
Section 4.2 Public/Customer Service and Accessibility
A. Office: Contractor shall maintain a business office within a ten
(10) mile distance from the intersection of Highway 1 1 1 and Washington for purposes
of carrying out its obligations under this Agreement.
B. Office Hours: Contractor's office shall be open to the public from
8 a.m. to 5 p.m. Monday through Friday, except for holidays.
C. Availability of Local Representative: Contractor shall designate one
person to serve as its representative to the City on all matters related to recycling. He
or she shall be a full-time employee who will serve as local recycling manager,
responsible for supervising and coordinating all recycling programs. A knowledgeable
representative of the Contractor shall be available during office hours to communicate
with -the City and members of the public in person and by telephone.
D. Telephone: Contractor shall maintain a telephone system in
operation at its office during business hours. Contractor shall arrange for its telephone
number to be listed in all telephone directories generally distributed in the City and on
all of Contractor's bills and invoices. The telephone shall be on a toll -free exchange
for all residents of the City.
E. Buy Back Recycling Center: Contractor currently operates a state -
certified buy back/drop off recycling center where Recyclable Materials may be
dropped off and/or sold by City residents, businesses and institutions. Contractor shall
continue to operate the center at a location that is within ten (10) miles from the
intersection of Highway 1 1 1 and Washington. Contractor shall operate and maintain
the center in a safe, aesthetically pleasing and efficient manner.
F. Green Waste Processing Facility: At all times that a fully permitted
Green Waste Processing facility is operating in the Coachella Valley and accepting
Green Waste From the La Quinta area, Contractor shall:
(1) Provide free drop off of Green Waste to La Quinta residents,
who show proper identification, at Contractor's Recycle America facility located in
Palm Desert. Green Waste dropped off by La Quinta residents shall be transported by
Contractor to the Green Waste processing facility, and Contractor shall pay all tipping
fees at the facility.
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(2) Establish a price that shall be posted at the Contractor's
Recycle America facility for which landscapers, commercial, industrial and institutional
customers may deliver Green Waste generated in the City to Contractor. Said price
shall be based on the cost of handling and transporting the Green Waste to the Green
Waste processing facility and paying all tipping fees at said facility. Contractor shall
accept all Green Waste delivered by landscapers, commercial, industrial and
institutional customers to Contractor's Recycle America facility for the posted price.
(3) Provide bins or roll off containers for Green Waste, and
Green Waste collection services to commercial, industrial and institutional customers.
The fee to be charged for this service shall be the sum of (a) the appropriate Collection
Rate then in effect as shown in Exhibit B plus the tipping fee at the Green Waste
processing facility. In no event shall the fee charged for providing Green Waste
containers and delivery of the collected Green Waste to the Green Waste processing
facility exceed the applicable Collection Rate plus the Disposal Charge then in effect.
Section 4.3 Com lap ints
Contractor shall be responsible for the prompt and courteous attention to, and
prompt and reasonable resolution of, all Waste Generator complaints relevant to
service and billing. Complaints shall be investigated within twenty-four (24) hours and
appropriate action taken. Contractor shall record in a separate log, the form of which
is approved by the City, all complaints, noting the name and address of the
complainant, the date and nature of the complaint and the date and nature of
resolution. The complaint log shall be available for inspection by the City during
normal business hours. In addition, Contractor shall submit, by the 15th day of each
month, a copy of the complaint log for the preceding month.
A. Coordination with City. Prior to January 30 of each year of the
Term, Contractor and City shall agree on a Customer Information Plan (the "Plan") and
budget for each year of operation. The Plan shall include all of the types of materials
and information and the time and manner of dissemination for all of the information
required pursuant to this Section 4.4.
B. Cost. With the exception of brochures and mailers related to
commingled recyclables (specified in Exhibit A, Section A5), all customer information
brochures and mailers shall be paid by Contractor up to a maximum amount of Twenty
Thousand Dollars ($20,000) after which time Contractor and City shall share the cost
equally for additional material, production and/or distribution.
C. Customer Information Packet. Pursuant to the Plan, Contractor
shall provide to City a professionally designed and prepared draft of an information
packet that shall describe the curbside recycling program, multi -family recycling
C:\My Documents\WPDOCS\Cont Waste 2000 Recycl.wpd 8 July 11, 2000
1
program, commercial, industrial and institutional recycling program and the used motor
oil recycling program. Said information packet shall list and describe new Recyclable
Materials being added to the program, including junk mail, magazines, catalogs,
telephone books, holiday greenery, aerosol cans and corrugated cardboard, as well as
those materials already collected (newspaper, glass, aluminum cans, steel cans, plastic
and used motor oil).
1. A letter from the Mayor and City Council urging residents
and businesses to participate;
2. A brochure or pamphlet detailing types of containers
available, preparation and storage of materials, collection days and times, and other
information; and
3. A prominently displayed telephone number to call for
assistance or register a complaint.
The language of the packet shall be prepared with sensitivity toward the
demographic characteristics of the community, including age and educational
background. Graphics selected for the packet shall be well -designed and tasteful.
City's "Resort to Recycling" logo shall be included as a graphic element on all packet
materials. Final printing shall be done using paper with a minimum of fifty percent
(50%) post -consumer content.
City shall provide Contractor with comments and edits. Once finalized
and printed for distribution, Contractor shall distribute, by a method approved in
advance by City, the packet to each Residential, Commercial, Industrial and
Institutional Premises in the City within forty-five (45) days of Contractor's receipt of
City's comments and edits. Contractor shall mail (first class) a packet to the holder
of each new account (residential, commercial and roll -off) commencing MSW collection
service during the Term. Contract shall inquire by first class mail regarding the desire
of any Person re -starting an account as to receipt of the packet.
Pursuant to the Plan, Contractor shall develop and have professionally
designed and prepared an information booklet with supplemental inserts, suitable for
use by the general public, businesses and institutions of the community, on topics
including Green Waste and composting; waste prevention; recycling for the home; the
"weekender" recycles; recycling at the office; recycling at school; recycling at a retain
business; recycling for the holidays (holiday greenery, greeting cards, wrapping paper);
recycling appliances; costs to recycle and benefits of recycling; etc. By April 1, 2002,
Contractor shall submit a draft to City. City's "Resort to Recycling" logo shall be
included as a graphic element on all materials, including inserts. Final printing shall be
done using paper with a minimum of fifty percent (50%) post -consumer content. City
C:\My Documents\WPDOCS\Cont Waste 2000 Recycl.wpd 9 July 12, 2000
shall provide Contractor with comments and edits. Once finalized, Contractor and City
shall agree on the Persons to receive booklets, method of distribution and quantity
needed. Within thirty (30) days thereafter, Contractor shall print and distribute the
booklets by Contractor.
EMPYRI - MIZ11417"IME-111711511111M. * I 11510-1615M
1. Meetings. Presentations. Seminars. Workshops, Etc. Contractor
shall ensure the attendance of appropriate employees of Contractor, on an as -needed
basis, at meetings, presentations, seminars, workshops, etc. Said employees shall be
knowledgeable representatives of Contractor. Such meetings or presentations include
those to homeowners' associations, business groups, public or private schools and the
like.
2. Special Events and Festivities. Contractor shall participate in
community -sponsored events and festivities as deemed appropriate by City and
Contractor. Such events include La Quinta Arts Festival, Community Picnic, concerts,
public building dedications and the like. Contractor may be a service provider and/or
an active participant in the event by hosting a table and providing informational and
educational materials.
3. Tours of Contractor's Facilities. Contractor shall, on an occasional
basis and by advance appointment, conduct tours of Recycle America and other
adjacent facilities, without charge to either City or visitors. Such tours shall be subject
to the regulation and convenience of Contractor.
4. City Hall "Resort to Recycling" Event. Contractor shall, at request
of City, assist City in planning for the organizing an annual event for City Hall
employees to provide reinforcement for the City's recycling efforts at public facilities.
Contractor's obligations may include, but are not limited to, attending organizational
and planning meetings, making telephone calls, ordering supplies, reproducing
handouts, arranging activities with local vendors, preparing press releases and
attending the annual event to interact with City Hall employees.
5. Community Resource. Contractor may, from time to time, be
contacted by members of the general public, residents, representatives or agents of
businesses, industries or institutions, private or public schools, homeowners'
associations, business organizations and the like, with requests for information or
assistance. Contractor shall treat such requests with courtesy, responding as fully and
completely as possible, including following up by mailing (first class) written materials.
CAMy Documents\WPDOCS\Cont Waste 2000 Recycl.wpd 10 July 12, 2000
City reserves the right to participate in a coordinated effort by those other
jurisdictions utilizing the services of Contractor, either by contract or franchise, in order
to produce a more effective public education and outreach campaign through a planned
and focused approach.
All informational and educational materials to be distributed to the general
public or customers of Contractor, developed pursuant to this Agreement or otherwise,
including Notices to Customers, shall be subject to review and approval by City prior
to distribution by Contractor.
ARTICLE V
INSURANCE
Section 5.1 General Liability Insurance
The Contractor shall, at Contractor's sole cost and expense, obtain and maintain
in full force and effect for the Term each of the following minimum insurance
requirements:
A. A comprehensive general liability policy with a minimum limit of not
less than five million dollars ($5,000,000) combined single limit for bodily injury and
property damage, providing at least all of the following minimum coverages, with any
self -insured retention not exceeding one hundred thousand dollars ($100,000) per
occurrence:
1. Premises operation;
2. Blanket contractual; and
3. Completed operations.
B. A comprehensive automobile liability policy with minimum limit of
not less than five million dollars ($5,000,000) combined single limit for bodily injury
and property damage, providing coverage for at least any and all leased, owned, hired
or non -owned vehicles used by the Contractor in fulfilling the terms of this Agreement,
with any self -insured retention not exceeding one hundred thousand dollars
($100,000). Any and all mobile equipment which is not covered under this
comprehensive automobile policy shall have said coverage provided for under the
comprehensive general liability policy.
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C. Each of the following endorsements shall be made a part of the
above required policies as stipulated below:
1. "The City of La Quinta, its employees, officers, agents and
contractors are hereby added as additionally insured."
2. "This policy shall be considered primary insurance as
respects any other valid and collectable insurance the City of La Quinta may have, and
any other insurance the City does possess shall be considered excess insurance only."
3. "The insurance shall act for each insured, and additional
insured, as though a separate policy had been written for each. This, however, will
not act to increase the limit of liability of the insuring company."
4. "Thirty (30) days prior written notice shall be given to the
City of La Quinta in the event of cancellation, reduction in coverage, or non -renewal
of this policy for whatever reason. Such notice shall be sent to: City Manager, City
of La Quinta, P. 0. Box 1504. 78-495 Calle Tampico, La Quinta, California 92253."
Section 5.2 Worker's Compensation and Employer's Liability Insurance
The Contractor shall, at Contractor's sole cost and expense, obtain and maintain
in full force and effect for the Term a Worker's Compensation and Employer's Liability
policy written in accordance with the laws of the State of California and providing
coverage for any and all employees of Contractor. This policy shall provide for:
A. Coverage for worker's compensation (Coverage A).
B. Coverage for one hundred thousand dollars ($100,000) employer's
liability.
C. An excess umbrella liability policy with a minimum of not less than five
million dollars ($5,000,000) per occurrence.
Section 5.3 Notice to City, Evidence of Insurance
Concurrently with executing this Agreement, the Contractor shall furnish the
City certificates of each policy of insurance required herein in form and substance
satisfactory to the City. Such certificates shall show the type and amount of
coverage, effective dates, and dates of expiration of policies, and shall have all
required endorsements attached.
Renewal certificates shall be furnished periodically to the City to demonstrate
maintenance of the required coverages throughout the Term.
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Any insurance company providing insurance or any surety providing a bond
hereunder shall be an admitted insurer/surety in the State of California with a Best
rating of at least "A", Class VIII or larger. No change in these requirements may be
made without the prior written approval of the City, which it is under no obligation to
provide.
If the Contractor fails to maintain any insurance required by this Agreement, the
City may procure and maintain, at the Contractor's expense, such insurance as it may
deem appropriate.
ARTICLE VI
PERFORMANCE BOND
Section 6.1 Performance Bond
The Contractor shall, at Contractor's sole cost and expense, concurrently with
the execution of this Agreement, provide the City with a performance bond issued by
a company and in a form satisfactory to the City, in the amount of one million dollars
($1,000,000). The performance bond shall indemnify the City against any losses or
expenses sustained in the event of the default or failure of the Contractor to perform
in accordance with the terms of this Agreement. Any surety providing a bond
hereunder shall be an admitted surety in the State of California with a Best rating of
at least "A", Class VIII or larger, unless a change in these requirements has been
approved by the City in advance and in writing pursuant to Section 5.3.
ARTICLE VII
REPORTS
Section 7.1 Records and Reports; Recycling Operations
Contractor shall file with the City written reports of Contractor's performance.
Contractor shall submit to the City the following reports, on forms approved by
the City, during the term of this Agreement.
1. Monthly Project Reports. Within fifteen (15) working days after the last
day of each month, Contractor shall submit a monthly project report to include at least
all of the following:
a. Summaries of tonnages of, and total value received for, all
Recyclable Materials collected and received at buy-back center, by
material.
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b. Summaries of tonnages of all Recyclable Materials sold, by
material.
C. Market prices for all Recyclable Materials collected from curbside
and sold by Contractor. The weight receipts and sales receipts
shall be available for inspection by the City or the City's agent
upon request.
d. Resident participation rates, by route, in terms of weekly set -out
counts (1, 2, or all 3 crates constitutes one set -out).
e. A summary of missed pickups and crate or box replacement, by
route, an explanation of noteworthy experiences, and a summary
of telephone calls received by category, including inquiries about
the program, missed pickups, and container replacement.
f. Presentations or contacts made during the prior month to
homeowner associations.
g. Cost breakdown ("Income Statements" and "Recycling Expenses")
in the form currently used or as they may be modified by City for
operation of the curbside recycling program for the prior month.
2. Yearly Project Status Rem. Within sixty (60) working days from the
end of each calendar year, Contractor shall submit a yearly project status report to
include at least all of the following:
a. Summary of all revenues and tonnages recovered by material, and
participation rates.
b. Overall assessment of operational performance during the year.
C. Detailed data to allow analysis of collection and processing
equipment handling capabilities.
d. Discussion of problems and noteworthy experiences in program
operation.
3. Reports. All reports for curbside, multifamily, commercial recycling, as
well as other programs mutually agreed on by both parties, shall be sent to:
City Manager
City of La Quinta
P. 0. Box 1594
78-495 Calle Tampico
La Quinta, CA 92253
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Section 7.2 Inspection by City
The City or City's agent shall have the right, but not the obligation, to observe
and inspect all of the Contractor's operations involved in providing services under this
Agreement. In connection therewith, the City shall have the right to enter any of
Contractor's facilities, speak to any of Contractor's employees and receive a response
to any inquiries directed to such employees, and review and make copies of (at City's
expense) all of Contractor's operational and business records related to this
Agreement. If City so requests, Contractor shall make specified personnel available
to accompany City employees on inspections. Except when in the City's sole
determination an emergency exists, any inspection pursuant to this section shall
require a minimum of twenty-four (24) hours notice prior to the inspection.
Within ninety (90) days after the close of each calendar year, Contractor shall
deliver to the City, as a supplemental report to its audited financial statement
submitted pursuant to and under the same terms as Section 7.3 of the Solid Waste
Collection and Disposal Agreement, a report showing the following information about
the recycling operations conducted pursuant to this Agreement:
(a) costs directly attributable to performance of residential curbside,
commercial, industrial and institutional recycling operation sunder this
Agreement;
(b) costs allocated between Contractor's operations under the Solid Waste
Collection and Disposal Agreement and this Agreement and the bases for
such allocations;
(c) the quantity, in Tons, of Recyclable Materials sold during the calendar
year by type and grade of material and the total revenue received from
such sales;
(d) the amount, in Tons, of Recyclable Materials given away without charge
to third parties for reuse or for which a disposition cost or landfill tipping
fee was paid, and the total amount, if any, paid out;
(e) list of businesses, industries and institutions that participate in recycling
programs and the types of materials each recycles.
The supplemental report shall be prepared by Contractor and shall be
accompanied by the opinion of the certified public accountant to the effect that the
information in the report has been subjected to the auditing procedures applied in the
audit of Contractor's basic financial statements and in its opinion is fairly stated in all
material respects.
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ARTICLE VIII
ASSIGNMENT AND SUBCONTRACTING
Except as may be provided for in Article IX (Breach, Default and Termination),
neither party shall assign its rights, nor delegate, subcontract or otherwise transfer its
obligation under this Agreement to any other Person without the prior written consent
of the other party. Any such assignment made without the consent of the other party
shall be void and the attempted assignment shall constitute a material breach of this
Agreement.
For purposes of this Section when used in reference to Contractor, "assignment"
shall include, but not be limited to (i) a sale, exchange or other transfer of substantially
all of Contractor's assets dedicated to service under this Agreement to a third party;
(ii) a sale, exchange or other transfer of outstanding common stock of Contractor to
a third party provided said sale, exchange or transfer may result in a change of control
of Contractor; (iii) any dissolution, reorganization, consolidation, merger, re-
capitalization, stock issuance or reissuance, voting trust, pooling agreement, escrow
arrangement, liquidation or other transaction to which results in a change of
Ownership or control of Contractor; (iv) any assignment by operation of law, including
insolvency or bankruptcy, making assignment for the benefit of creditors, writ of
attachment for an execution being levied against this Agreement, appointment of a
receiver taking possession of Contractor's property, or transfer occurring in the event
of a probate proceeding; and (v) any combination of the foregoing (whether or not in
related or contemporaneous transactions) which has the effect of any such transfer
or change of Ownership, or change of control of Contractor.
Contractor acknowledges that this Agreement involved rendering a vital service
to City's residents and businesses, and that City has selected Contractor to perform
the services specified herein based on (1) Contractor's experience, skill and reputation
for conducting its Solid Waste Management operations in a safe, effective and
responsible fashion, at all times in keeping with applicable Environmental Laws,
regulations and best Solid Waste management practices, and (2) Contractor's's
financial resources to maintain the required equipment and to support its indemnity
obligations to City under this Agreement. City has relied on each of these factors,
among others, in choosing Contractor to perform the services to be rendered by
Contractor under this Agreement.
If Contractor requests City's consideration of an consent to an assignment, City
may deny or approve such request in its complete discretion. No request by
Contractor for consent to an assignment need be considered by City unless and until
Contractor has met the following requirements:
CAMy Documents\WPDOCS\Cont Waste 2000 Recycl.wpd 16 July 12, 2000
A. Contractor shall undertake to pay City its reasonable expenses for
attorney fees and investigation costs necessary to investigate the suitability of any
proposed assignee, and to review and finalize any documentation required as a
condition for approving any such assignment;
B. Contractor shall furnish City with audited financial statements of the
proposed assignee's operations for the immediate preceding three (3) operating years;
C. Contractor shall furnish City with satisfactory proof: (i) that the proposed
assignee has at least ten (10) years of Solid Waste Management experience on a scale
equal to or exceeding the sale of operations conducted by Contractor under this
Agreement; (ii) that in the last five (5) years, the proposed assignee has not suffered
any significant citations or other censure from any federal, state or local agency having
jurisdiction over its Solid Waste management operations due to any significant failure
to comply with state, federal or local Environmental Laws and that the assignee has
provided City with a complete list of such citations and censures; (iii) that the
proposed assignee has at all times conducted its operations in an environmentally safe
and conscientious fashion; (iv) that the proposed assignee conducts its Solid Waste
management practices in accordance with sound Solid Waste Management practices
in full compliance with all federal, state and local laws regulating the collection and
Disposal of Solid Waste including Hazardous Substances; and, (v) of any other
information required by City to ensure the proposed assignee can fulfill the Terms of
this Agreement in a timely, safe and effective manner.
Under no circumstances shall City be obligated to consider any proposed
assignment by City if Contractor is in default at any time during the period of
consideration.
ARTICLE IX
BREACH, DEFAULT AND TERMINATION
Section 9.1 Breach. Default and Termination
Breach of any of the terms of this Agreement (or of the Agreement for
Collection and Disposal of Municipal Solid Waste entered into between the parties of
even date herewith) shall constitute a default under this Agreement. If the Contractor
does not cure the default within ten (10) days after notice thereof has been issued by
the City, the City may terminate the Agreement as provided in Section 18.5.
Upon termination of this Agreement, the City shall be at liberty to undertake
directly the performance of the work or engage other parties to do so. Termination of
this Agreement, as herein provided, shall not terminate, suspend or affect the liability
of the Contractor or impair any other remedy for breach of this Agreement the City
may have. Upon termination of this Agreement, the City shall have the right to acquire
the Contractor's trucks and equipment, paying reasonable value therefor.
CAMy Documents\WPDOCS\Cont Waste 2000 Recycl.wpd 17 July 11, 2000
ARTICLE X
INDEMNITY
Section 10.1 Indemnification
Contractor hereby agrees to and shall indemnify and hold harmless City, its
elected and appointed officials, commissions, officers, employees, and agents
(collectively, indemnities) from and against any and all loss, liability, penalty, forfeiture,
claim, demand, action, proceeding or suit in law or equity of any and every kind and
description (including, but not limited to injury to and death of any Person and damage
to property, or for contribution or indemnity claimed by third parties) arising or
resulting from and in any way connected with 11► the negligence or willful misconduct
of Contractor, its officers, employees, agents, contractors and/or subcontractors in
performing services under this Agreement; (2) the failure of Contractor, its officers,
employees, agents, contractors and/or subcontractors to comply in all respects with
the provisions of this Agreement, applicable laws (including, without limitation, the
Environmental Laws), ordinances and regulations, and/or applicable permits and
licenses; (3) the acts of Contractor, its officers, employees, agents, contractor and/or
subcontractors in performing services under this Agreement for which strict liability
is imposed by law (including, without limitation, the Environmental Laws); (4) claims
against City relating to the property tax levy for refuse collection, including but not
limited to claims for refunds; and (5) any claim that the City has violated state or
federal law in granting the franchise or in the City's performances under the
Agreement. The foregoing indemnity shall apply regardless of whether such loss,
liability, penalty, forfeiture, claim, demand, action, proceeding, suit, injury, death or
damage is also caused in part by any of the indemnities' negligence, but shall not
extend to matters resulting from the indemnities' sole or active negligence, willful
misconduct of breach of this Agreement.
Contractor's duty to indemnify and defend from the aforementioned events
arising during the Term of the Agreement and as it may be extended shall survive the
expiration or earlier termination of this Agreement.
Upon the occurrence of any Claim, Contractor, at Contractor's sole cost and
expense, shall defend, with counsel approved by City, the City, its officers, employees,
agents, assigns, and volunteers provided, however, that in the event the named parties
to any such Claim (including any impleaded parties) include both the Contractor and
the City, and if the City has one or more legal defenses available to it which are in
direct conflict with the best interests of the Contractor and which therefor preclude
the same counsel from representing the City and Contractor jointly, then the City shall
have the right to select separate counsel, with the consent of Contractor which will
not be withheld unreasonably, at the sole cost and expense of Contractor to pursue
such legal defenses and to otherwise participate in the defense of such action on
behalf of the City to the extent that joint representation of the City and Contractor is
CAMy Documents\WPDOCS\Cont Waste 2000 Recycl.wpd 18 July 11, 2000
not permissible because of conflicts of interest between the City and Contractor.
— Contractor's duty to indemnify and defend shall survive the expiration or earlier
termination of this Agreement.
Contractor shall indemnify, defend with counsel reasonably acceptable to City,
protect and hold harmless City, its elected and appointed officials, commissions,
officers, employees, and agents (collectively, indemnities) from and against all claims,
damages (including, but not limited to, special, consequential, natural resources and
punitive damages), injuries, costs (including without limit any and all response,
remediation and removal costs), losses, demands, debts, liens, liabilities, causes of
action, suits, legal or administrative proceedings, interest, fines, charges, penalties,
attorney's fees for the adverse party and expenses (including without limit attorneys'
and expert witness fees and costs incurred in connection with defending against any
of the foregoing or in enforcing this indemnity), (collectively, "Damages") of any kind
whatsoever paid, incurred or suffered by, or asserted against, indemnities arising from
or attributable to the acts or omissions of Contractor, its officers, directors,
employees, companies or agents, whether or not negligent or otherwise culpable, in
connection with or related to the performance of this Agreement, including without
limit Damages arising from or attributable to any repair, cleanup or detoxification, or
preparation and implementation of any removal, remedial, response, closure or other
plan (regardless of whether undertaken due to governmental action) concerning any
Hazardous Substance, Hazardous Waste, and/or House Hazardous Waste (Collectively,
"Waste") in City at any places where Contractor transports, processes, stores or
disposes of City Solid Waste, and/or construction and street debris, or other Solid
Waste. The foregoing indemnity is intended to operate as an agreement pursuant to
§ 1O7(e) of the Comprehensive Environmental Response, Compensation and Liability
Act, CERCLA, 42 USC. §96O7(e) and California Health and Safety Code §25364, to
defend, protect, hold harmless, and indemnify City from liability. This provision is in
addition to all other provisions in this Agreement and shall survive the end of the term
of this Agreement. The foregoing applies only to facilities owned or operated by
Contractor or its Affiliates or any facility that Contractor selects for Disposal of Solid
Waste Collected pursuant to this Agreement.
- . • TAI : �•-lll •
A. Contractor agrees to defend, with counsel approved by City, indemnify
and hold harmless the City against all fines and/or penalties imposed by the California
Integrated Waste Management Board ("Board"), if Contractor fails or refuses to provide
information relating to its operations which is required under this Agreement and such
failure or refusal prevents or delays City from submitting reports required by the Act
(AB 939) in a timely manner.
B. In addition, Contractor agrees, at its sole cost and expense, to:
CAMy Documents\WPDOCS\Cont Waste 2000 Recycl.wpd 19 July 11, 2000
1. assist City in responding to inquiries from the Board;
2. assist City in preparing for, and participating in, the Board's
biannual review of the City's source reduction and recycling element pursuant to Public
Resources Code Section 41825;
3. assist City in applying for an extension under Public Resources
Code Section 41820, if so directed by City;
4. assist City in any hearing conducted by the Board which may
culminate in issuance of a compliance Order held under Public Resources Code Section
41825;
5. defend, with counsel accepted by City, the City against the
imposition of administrative civil penalties by the Board pursuant to Public Resources
Code Section 41850;
6. indemnify and hold harmless the City against any such penalties
which are levied by the Board except if the failure to attain the diversion requirements
of the Act is due to (a) reduction or elimination of recycling programs provided for in
this Agreement ordered by City under Section 18.2 (b), actions or omissions of a
successor contractor so long as City is attaining the diversion requirement, or (c) City's
failure to comply with applicable laws or to implement programs or take other actions
reasonably necessary to attain the diversion requirements of the Act, which have been
recommended and substantiated by Contractor in writing.
ARTICLE XI
COMPLIANCE WITH ALL LAWS
Section 1 1.1 . Compliance with All Laws
Contractor agrees to conform to and abide by all of the rules, regulations and
ordinances of the City, and all laws of the State of California or the federal
government, governing the collection and hauling of Recyclable Materials. Contractor
shall cooperate with the City to facilitate its compliance with laws dealing with the
minimization of waste generation and disposal, including maintenance of records and
preparation of reports.
Contractor agrees to conform to and abide by all the valid rules, regulations and
ordinances of any governmental entity through which Recyclable Materials may be
hauled governing the collection and hauling of Recyclable Materials.
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ARTICLE XII
TAXES
Section 12.1 Taxes
The Contractor shall pay all federal, state and local taxes, including sales taxes,
social security taxes, etc., which may be chargeable against the labor, material,
equipment or other items necessary in the performance of this contract.
ARTICLE XIII
AUTHORIZED RECYCLING AGENT
Section 13.1 Authorization
It is the intent of the City through this Agreement to appoint Contractor as its
authorized recycling agent pursuant to Public Resources Code Section 40105. As
such, Contractor is entitled to prosecute actions for damages or civil penalties pursuant
to Public Resources Code Section 41953, for unauthorized removal of Recyclable
Materials placed for collection in the residential curbside program, in violation of Public
Resources Code Section 41950.
Section 13.2 Exclusive Contract: Limitation on Responsibility of Citx
A. Residential Premises
The City will not, during the Term, enter into a contract with, or grant a
permit or license to, any other person for the collection of Recyclable Materials from
Residential Premises within the City, the City having concluded that the public interest,
health and welfare are best served by centralized responsibility for such recycling with
the company granted the exclusive franchise to collect and dispose of Municipal Solid
Waste.
The City shall cooperate with Contractor in legal actions Contractor
pursues under Public Resources Code Section 41953 for the unauthorized removal of
Recyclable Materials which are its property under Public Resources Code Section
41950(c), provided that such cooperation need not extend to becoming a party in such
actions.
B. Commercial. Industrial and Institutional Premises
The parties recognize that the California Integrated Waste Management
Act has been authoritatively interpreted by the California Supreme Court as not
providing local government agencies with statutory authority to prohibit the collection
C:\My Documents\WPDOMCont Waste 2000 Recycl.wpd 21 July 11, 2000
of Recyclable Materials from Commercial, Industrial or Institutional Premises when the
Person collecting such Recyclable Materials either (a) pays the Generator for them, or
(b) removes them without any charge, direct or indirect, to the Generator.
The Contractor recognizes that City has made no representations and
gives no assurances that the City will take any action to discourage or prohibit other
Persons from collecting Recyclable Materials from Commercial, Industrial or
Institutional Premises, provided they do not receive compensation fro the Waste
Generator for doing so. This Agreement does not authorize Contractor to collect
Recyclable Materials placed for collection by other Recyclers at Commercial, Industrial
or Institutional Premises. Nor does this Agreement limit or modify Contractor's
exclusive right to collect Municipal Solid Waste, to the extent such right has been
granted by City in the Agreement for Solid Waste Collection, Transportation and
Disposal of Municipal Solid Waste.
ARTICLE XIV
SALE OR DISPOSITION OF RECYCLABLE MATERIALS
Section 14.1 Sale or Disposition of Recyclable Materials.
Contractor shall transport and deliver the collected Recyclable Materials to a
purchaser, a licensed, permitted or certified recycling facility, or a Person who will use
the materials in a process or product and who will not landfill the Recyclable Materials.
Contractor shall obtain a certificate of purchase or end use, establishing that the
materials delivered have in fact been recycled. No Recyclable Materials collected shall
be disposed of on land or through Transformation without the prior written consent of
the City.
All Recyclable Materials collected by Contractor which are saleable shall be sold
at fair market value, which shall mean the highest price commonly paid by purchasers
of such materials in the Coachella Valley area at the time of sale.
ARTICLE XV
COMPENSATION TO CONTRACTOR
Section 15.1 Compensation
As full and complete compensation for all services required by this Agreement,
Contractor shall be entitled to:
A. Retain all of the revenues received by it from the sale of Recyclable
Materials collected from the recycling programs described in Sections C, D and E of
Exhibit A.
CAW Documents\WPDOCS\Cont Waste 2000 Recycl.wpd 22 July 11, 2000
B. Retain all of the revenues received by it from the sale of Recyclable
Materials collected from the recycling programs described in Sections A and B of
Exhibit A, except that any net income attributable to such programs shall be divided
equally (i.e., 50% to Contractor and 50% to City). "Net income" for purposes of this
Section 15.1 B shall be determined annually, on a calendar year basis, and shall be
calculated by subtracting from gross revenues earned from the sale of Recyclable
Materials the sum of (1) direct operating costs incurred in collecting, handling,
processing and transporting residential Recyclable Materials and (2) indirect costs
properly attributable to the residential recycling programs under generally accepted
accounting principles.
The calculation of net income shall be based on Contractor's annual financial
statement and the supplemental report provided under Section 7.3 and the City's share
shall be tendered concurrently with such statements and reports (i.e., within 90 days
after the close of each calendar year).
Contractor will submit financial statements and reports for the final six (6)
months of the Term (i.e., January 1 through June 30, ) by March 30,
together with the City's share of net income for that period, if any.
C. Charge Waste Generators at Residential Premises for alternate service
(such as walk-in or backyard), with the prior written approval of the City.
D. Charge Waste Generators the rates approved by the City for collection of
Municipal Solid Waste ("MSW"), except as provided in Section 15.2 of this
Agreement, as to Commercial, Industrial or Institutional Premises which participate in
the collection of Recyclable Materials with Contractor.
No payment to Contractor is required or expected from the City, except for
payments due under Sections 2.4 and 3.2.C.
Section 15.2 Collection Recyclable Materials -Industrial
Institutionalor -,- n. in
Contractor's -Program
Contractor shall provide recycling of Recyclable Materials to any Commercial,
Industrial or Institutional Waste Generator that requests it.
Contractor may retain up to one hundred percent (100%) of the revenue
received from the sale of such Recyclable Materials, Contractor may charge the Waste
Generator for collection of Recyclable Materials up to but not more than one hundred
percent (100%) of the applicable rate (as set out in Exhibit B) for collection of MSW
but not including the Disposal Charge component.
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ARTICLE XVI
HOLIDAYS
Section 16.1 Holidays
Whenever a collection day falls on a holiday following a weekend (i.e., three-day
weekend), Contractor shall provide an alternative collection day, either the day before
or the day after the three-day weekend. If a holiday occurs mid -week, Contractor shall
provide an alternate collection day during that week.
ARTICLE XVII
OBLIGATIONS OF CITY
Section 17.1 Obligations of City
The City shall reasonably cooperate with the Contractor as may be required to
assist the Contractor in performing the services required under this Agreement.
ARTICLE XVIII
GENERAL PROVISIONS
Section 18.1 Definitions
1. Agreement: "Agreement" means this Agreement between the City and
Contractor for the Collection and Recycling of Recyclable Materials dated as of
including all exhibits and attachments, and any amendments
hereto.
2. Act: "Act" means the California Integrated Waste Management Act of
1989, as amended, Public Resources Code Sections 40000, et seq.
3. City: "City" means the City of La Quinta, a municipal corporation, and
all of the territory lying within the municipal boundaries of the City as presently
existing or as such boundaries may be modified during the Term.
4. Collection: "Collection" means collection of Recyclable Materials and its
transportation to a processing facility.
5. Contractor: "Contractor" means Waste Management of California, Inc.,
a California corporation.
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6. Commercial Premises: "Commercial Premises" means any premises
occupied by stores, offices, and other commercial facilities providing goods and
services.
7. Delivery: "Delivery" of Recyclable Materials by a Waste Generator shall
be deemed to occur when Recyclable Materials are deposited in a receptacle or at a
location that is designated for Collection pursuant to the City's Municipal Code, or is
otherwise discarded.
8. Environmental Laws: "Environmental Laws" means all federal and state
statutes and county and city ordinances concerning public health, safety and
environment including, by way of example and not limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. Section
6901 et seq.; the Federal Clean Water Act, 33 U.S.C. Section 1351 et seq.; the
Occupational Safety and Health Act, 29 U.S.C. Section 651 et seq.; the California
Hazardous Waste Control Act, California Health and Safety Code Section 25100 et
seq.; the Porter -Cologne Water Quality Control Act, California Water Code Section
13000 et seq.; the Safe Drinking Water and Toxic Enforcement Act, California Health
and Safety Code Section 25249.5 et seq.; as currently in force or as hereafter
amended and all rules and regulations promulgated thereunder.
_ 9. Garbage: "Garbage" means all kitchen and table food waste and animal
or vegetable waste that attends or results from the storage, preparation, cooking or
handling of food stuffs.
10. Green Waste: "Green Waste" means grass clippings, shrubbery, tree
trimmings, and other plant material.
11. Hazardous Waste: "Hazardous Waste" means a waste, or combination
of wastes, which because of this quantity, concentration or physical, chemical or
infectious characteristics, may do either of the following: (1) cause, or significantly
contribute to, an increase in mortality or an increase in serious irreversible, or
incapacitating reversible, illness; (2) pose a substantial present or potential hazard to
human health or environment when improperly treated, stored, transported or disposed
of or otherwise managed. Hazardous waste, extremely hazardous waste or acutely
hazardous waste in California Health and Safety Code Sections 251 10.02, 25115 and
251 17 or in future amendments to or recodifications of such statutes or identified and
listed as hazardous waste by the U.S. Environmental Protection Agency pursuant to
the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.).
12. Industrial Premises: "Industrial Premises" means premises occupied by
manufacturing operations and other industrial facilities.
13. Institutional Premises: "Institutional Premises" means premises occupied
by educational, health care, correctional, research and other similar facilities.
CAMy Documents\WPDOCS\Cont Waste 2000 Recycl.wpd 25 July 11, 2000
14. Municipal Solid Waste: "Municipal Solid Waste" or "MSW" means all
discarded putrescible and non-putrescible solid, semi -solid and liquid wastes including
Garbage, trash, Refuse, paper, Rubbish, ashes, industrial wastes, Construction and
Demolition Wastes, discarded home and industrial appliances, manure, vegetable or
animal solid or semi -solid wastes and other discarded substances or materials.
MSW does not include (1) Hazardous Waste, (2) low-level radioactive waste
regulated under California Health and Safety Code Section 25800 et seq., (3)
untreated medical waste which is regulated pursuant to the Medical Waste
Management Act, California Health and Safety Code Section 25015 et seq., or (4)
Recyclable Materials which have been Segregated from other Waste Material by the
Waste Generator.
15. Officer: "Officer" includes any elected or appointed member of the City
Council.
16. Owner: "Owner" means the Person holding legal title to the real property
constituting the Premises to which Recyclable Materials collection service is to be
provided under this Agreement.
17. Person: "Person" means an individual, limited liability company,
association, partnership, political subdivision, government agency, municipality,
industry, public or private corporation, or any other entity whatsoever.
18. Premises: "Premises" means any land or building in the City where
Recyclable Materials is generated or accumulated.
19. Recyclable Materials: "Recyclable Materials" means materials which are
both (a) capable of being Recycled and (b) Segregated From Other Waste Material for
collection and Recycling, rather than collection and disposal.
20. Recycle/Recycling: "Recycle" and "Recycling" mean the process of
collecting, sorting, cleaning, treating and reconstituting materials that would otherwise
become Municipal Solid Waste and returning these materials to the economic
mainstream in the form of raw materials for new, reused or reconstituted products
which meet the quality standards to be used in the marketplace.
21. Refuse: "Refuse" includes Garbage and Rubbish.
22. Residential Premises: "Residential Premises" means single family homes,
townhouses, multi -unit buildings such as apartments and condominiums, and mobile
home parks.
23. Rubbish: "Rubbish" means non-putrescible Solid Wastes such as ashes,
paper, cardboard, tin cans, yard clippings, wood, glass, bedding, crockery, plastics,
and rubber by-products.
CAMy Documents\WPDOCS\Cont Waste 2000 Recycl.wpd 26 July 11, 2000
24. Segregated From Other Waste Material: "Segregated From Other Waste
Material" means (1) the placement of Recyclable Materials in separate containers by
the Waste Generator, (2) the binding of Recyclable Materials separately from other
waste material by the Waste Generator, (3) the physical separation of Recyclable
Materials from other waste material by the Waste Generator.
25. Term: "Term" means the term of this Agreement.
26. Ton: "Ton" means a short ton of 2,000 pounds avoirdupois.
27. Waste Generator: "Waste Generator" means the Owner or occupant of
Premises which initially produce Recyclable Materials.
The City may, without amending this Agreement, direct Contractor to cease
performing one or more types of service described in Article II, may direct Contractor
to modify the scope of one or more such services, may direct Contractor to perform
additional Recyclable Materials collecting and processing services, or may otherwise
direct Contractor to modify its performance under any other section of this Agreement.
Contractor shall promptly and cooperatively comply with such direction.
If such changes cause an increase or decrease in the cost of performing the
services, an equitable adjustment in the compensation due Contractor shall be made.
Contractor will continue to perform the new or changed service while the appropriate
adjustment in compensation is being determined.
If the City has directed a change in the scope of work under this Section and
either party believes that such change will increase or decrease the costs of providing
service, the party which believes Contractor's compensation should be adjusted shall
within thirty (30) calendar days submit to the other party a proposed adjustment and
the parties shall thereafter meet and discuss the matter. Contractor shall promptly
provide all relevant schedules, supporting documentation and other financial
information requested by the City to evaluate the necessity for an adjustment and the
amount thereof. Within ninety (90) days of the submission of the proposed
adjustment, the City will determine the amount of the adjustment, if any, and shall
thereafter adjust Contractor's compensation accordingly. Any adjustments will be
made effective as of the first day of the following fiscal year and will reflect the
incremental cost or saving from the date the change became effective until the date
of the rate increase.
CAMy Documents\WPDOCS\Cont Waste 2000 Recycl.wpd 27 July 11, 2000
Section 18.3 Contractor's Status
Contractor is and at all times shall be an independent contractor and nothing
contained herein shall be construed as (1) making Contractor, or any person employed
or engaged by Contractor, an agent or employee of the City, (2) creating a joint
venture or partnership between the City and Contractor, or (3) authorizing Contractor
to create or assume any obligation or liability for or on behalf of the City.
Section 18.4 Force Majeure
Either party to the Agreement is excused from default of performance because
of conditions not the fault of and beyond its control, such as war, strikes, riots, civil
insurrections and acts of God. In the event of strikes, Contractor shall provide
alternative means of collecting and processing Recyclable Materials, subject to prior
approval of City.
Section 18.5 Failure to Perform
If the Contractor is in default as provided in Article IX, or fails to collect
materials herein specified for a period in excess of five (5) consecutive scheduled
working days, or in the sole judgment of the City fails to operate the system in a
satisfactory manner for a similar period, the City may:
A. Notify the Contractor of the default and set a hearing to consider
termination as provided in Article I, or notify the Contractor by certified mail that the
Contractor has failed to perform waste disposal services for a period of five (5)
consecutive, scheduled working days, and the City's intent to take over as hereinafter
set out and operate such services using Contractor's equipment. Said notification shall
state the date and time that the City intends to terminate the Agreement; or
B. Use and operate Contractor's equipment itself until such matter is
resolved and the Contractor is again able to carry out its operation under this
Agreement. Any and all operating expenses incurred by the City in so doing shall be
paid to the City by the Contractor within thirty (30) days of billing. If not so paid, it
shall accrue interest and be an additional breach of contract. During such period, the
liability of the City to Contractor for loss or damage to such equipment so used shall
be that of a bailee for hire, ordinary wear and tear being specifically exempt from such
liability and burden of proof regarding negligence being that of Contractor. The liability
of Contractor to third person shall cease and all claims or demands arising out of the
operation of the collection service shall be directed solely to the City.
Provided, however, if Contractor is unable for any cause to resume performance
at the end of thirty (30) calendar days, all liability of the City under this Agreement to
Contractor shall cease and the City shall be free to negotiate with other contractors
CAMy Documents\WPDOCS\Cont Waste 2000 Recycl.wpd 28 July 11, 2000
for the operation of said collection service. Such operation with another contractor
shall not release Contractor herein of its liability to the City for such breach of this
Agreement.
C. In case of termination and City operation, the City shall have access to
Contractor's records for the purpose of billing, and shall retain all payments and funds
received for the period for which the City provides service.
The purpose of the Agreement is to facilitate the orderly collection of Recyclable
Materials and preserving the general health, safety and welfare of City residents.
Accordingly, the City has the right to determine when Contractor has not performed
services satisfactorily, thereby constituting a failure to perform.
• 0 : . of -1 -• •
It is is agreed that each and every one of the rights, remedies and benefits
provided by this Agreement shall be cumulative, and shall not be exclusive of any other
said rights, remedies and benefits, nor of any other rights, remedies and benefits
allowed by law.
Section 18.7 Waivers
One or more waivers of any covenant, agreement or condition of default
regarding provisions of this Agreement by either the City or Contractor shall not be
construed as a waiver of a further breach of the same covenant, agreement, condition
or the right of such party thereafter to enforce each and every provision.
Section 18.8 Approval by City
Wherever approval by the City is required, it shall mean approval by the City
Manager or the City Manager's designee.
Section 18.9 Notices
Under this Agreement, whenever provision is made for notice of any kind, it
shall be deemed sufficient notice, and service thereof if the said notice is in writing and
is deposited in the mail in a properly stamped envelope to be delivered by certified
mail, addressed as follows:
If to the City: Attention: City Manager
City of La Quinta
Post Office Box 1504
78-495 Calle Tampico
La Quinta, CA 92253
CAMy Documents\WPDOCS\Cont Waste 2000 Recycl.wpd 29 July 11, 2000
If to the Contractor: Attention: Division President
Waste Management of the Desert
41575 Eclectic Street
Palm Desert, CA 92261
Changes in the respective addresses to which such notices shall be directed may
be made from time to time by either party. Notice of any such change in address shall
be directed to the other party in writing by certified mail.
Section 18.10 Arbitration
Any controversy or claims arising out of or relating to this Agreement, or breach
thereof, shall be settled by arbitration in accordance with the rules of the American
Arbitration Association, and judgment upon the award rendered by the arbitrators may
be entered in any court having competent jurisdiction thereof. Such controversy or
claim shall be submitted to one arbitrator mutually selected fro the local panel of the
American Arbitration Association.
Each party shall bear its own costs, including attorneys fees, except that
Contractor shall be responsible for paying the costs of the arbitrator.
Section 18.11 Legal Jurisdiction
This Agreement and the rights of the parties hereunder shall be interpreted under
the laws of the State of California.
Section 18.12 Paragraph Headings
The paragraph headings of this Agreement are not a part of this Agreement and
shall have no effect upon the construction or interpretation of any part of this
Agreement.
Section 18.13 Entire Agreement
This document contains the entire Agreement of the parties hereto with respect
to matters covered hereby, and no other agreement, statement or promise made by
any party hereto, or agent of such party, which is not contained herein, shall be
binding or valid. No purported modification, amendment or other change in this
Agreement shall be valid unless set forth in writing, and signed by both Contractor and
the City.
CAMv Documents\WPDOCS\Cont Waste 2000 Recycl.wpd 30 July 11, 2000
Section 18.14 Subcontracting
This Agreement, or any portion thereof, shall not be subcontracted except with
the prior written consent of the City. No such consent shall be construed as making
the City a party to such subcontract, or subjecting said City to liability of any kind to
any subcontractor.
Section 18.15 Change of Ownership
The City, in entering this Agreement, has placed a special value, faith and
confidence upon the experience, background and expertise of Contractor in the field
of Recyclable Materials collection, hauling, recycling and marketing. Such faith and
confidence being a substantial consideration in the granting of this Agreement, the
parties hereto agree therefore that no change of ownership or transfer of stock in the
Contractor's business in an amount equal to or grater than ten (10) percent of such
ownership or stock shall take place without the prior written consent of the City.
Amounts of pay, vacation leave, sick leave, holiday leave, fringe benefits, and
other employee -related matters applicable to Contractor's employees shall be wholly
within the discretion of Contractor, subject to applicable law.
Section 18.17 Bankruptcy
If Contractor shall at any time during the term of this Agreement become
insolvent, or if proceedings in bankruptcy shall be instituted by or against Contractor,
or if Contractor shall be adjudged bankrupt or insolvent by any court, or if a receiver
or trustee in bankruptcy or a receiver of any property of Contractor shall be appointed
in any suit or proceeding brought by or against Contractor, or if Contractor shall make
an assignment for the benefit of creditors, then and in each and every such case, this
Agreement and the rights and privileges granted thereby shall immediately cease,
determine, and be forfeited and canceled without notice and without suit or other
proceeding.
Section 18.18 Invalid Provisions
The parties agree that in the event any covenant, condition or provision herein
contained is held to be invalid by any court of competent jurisdiction, the invalidity
hereof shall in no way affect any other provision in this Agreement if- the provision
does not materially prejudice either Contractor or the City in their respective rights and
obligations hereunder and to that extent the provisions of this Agreement are
severable.
C:\My Documents\WPDOCS\Cont Waste 2000 Recycl.wpd 31 July 11, 2000
Section 18.19 Waiver of Performance
The failure of either party to insist in any instance upon a strict performance by
the other party of any of the provisions, terms, covenants, reservations, conditions or
stipulations contained in the Agreement, shall not be considered a waiver thereof, and
the same shall continue and remain in full force and effect. No waiver by the City of
any provision term, covenant, reservation, condition or stipulation contained in this
Agreement shall be deemed to have been made in any instance unless expressed in the
form of a resolution by the City Council.
Section 18.20 Warranty
The Contractor warrants that it has not employed any officer or employee of the
City nor offered any gift, gratuity, contingent fee nor any other thing of value to such
officer or employee of the City in order to secure his or her assistance in obtaining this
contract. The Contractor agrees that it will not, during the Term, give or offer any
thing of value to a City officer or employee, the offer or receipt of which would violate
California law.
Section 18.21 Exhibits
Exhibits A through C attached hereto are incorporated herein by this reference.
Section 18.22 Guaranty by Waste Management, Inc.
Concurrently with the execution of this Agreement, the Contractor shall furnish
a written guaranty of its performance hereunder, in form and substance satisfactory
to the City, executed by Waste Management, Inc.
ARTICLE XIX
OTHER OPERATIONAL REQUIREMENTS
Contractor shall comply with Chapter 6.5 of the City Municipal Code and any
amendments thereto.
Section 19.2 Air Quality: Alternative Fuel Vehicles
Currently, 50% of Contractor's residential and commercial route trucks are low
emission vehicles. Contractor agrees to convert 100% of residential and commercial
vehicles to low emission fuel by December 31, 2003. For each day past December
31, 2003 that the Contractor fails to have 100% of the residential and commercial
CAW Documents\WPDOCS\Cont Waste 2000 Recycl.wpd 32 July 11, 2000
route trucks powered by low emission fuel, the Contractor shall pay the City $ 500.
For the purpose of this section , low emission fuel vehicles include CNG, electric, LNG,
fuel cell or other City -approved low emission vehicles
At the expiration of the Term, or in the event of the Agreement's earlier
termination under Section 9.1, Contractor, at its own expense, shall cooperate fully
with the City to ensure an orderly transition to any and all new service providers.
Such cooperation shall include, but not be limited to, providing route maps, route lists
and other similar information.
Upon expiration, or earlier termination, the City shall have no continuing
obligations to Contractor other than those expressly provided for in this Agreement.
In connection therewith, Contractor acknowledges that Public Resources Code Section
49520 affords it no rights to notice or continuation of service greater than or different
from those provided under this Agreement and agrees to waive whatever rights it may
be afforded by Section 49520.
Section 19.4 Indemnification Reaardina Lawsuits Challenging This
Agreement
e
If any lawsuit by any third party is commenced challenging the legality of this
Agreement, or challenging the action of the City Council in approving this Agreement,
Contractor shall, at its sole cost, and with counsel approved by City, defend, indemnify
and hold harmless the City, its officers, employees and agents against such lawsuit(s).
If a final judgment of a court of competent jurisdiction determines that this Agreement
is illegal or was unlawfully entered into by City, City may elect to terminate this
Agreement and in such event Contractor shall have no claim against City for damages
of any kind (including but not limited to loss of profits) on any theory.
This Agreement, consisting of thirty-four (34) pages, not including Exhibits A,
B and C attached hereto, shall be executed in triplicate, of which each executed copy
shall have the full force and effect of an original.
Date:
ATTEST:
JUNE S. GREEK, City Clerk
By:
CITY OF LA O.UINTA
JOHN J. PENA, Mayor
CAMy Documents\WPDOCS\Copt Waste 2000 Recycl.wpd 33 July 12, 2000
APPROVED AS TO FORM:
M. KATHERINE JENSON, City Attorney
WASTE MANAGEMENT OF CALIFORNIA, INC.
Date: By:
President
Date: By:
Secretary
CAMy Documents\WPDOCS\Cont Waste 2000 Recycl.wpd 34
July 11, 2000
Guaranty
THIS GUARANTY (the "Guaranty") is given as of the 5th day of July, 2000, by
WASTE MANAGEMENT, INC., a corporation organized under the laws of the State of
Delaware (hereafter "Guarantor"), to the CITY OF LA QUINTA, a municipal corporation
(hereafter the "City").
THIS GUARANTY is made with reference to the following facts and
circumstances:
A. Waste Management of California, Inc. (hereafter "Contractor") is a
corporation organized under the laws of the State of California.
B. Contractor and the City have negotiated an Agreement for the Collection,
Transportation and Disposal of Solid Waste, and Recycling of Recyclable Materials,
dated as of July , 2000, (hereafter collectively referred to as the "Agreement"), under
which the Contractor is granted the right to and assumes the duty of collecting Solid
Waste and certain Recyclable Materials generated within the City and arrangement for
their transport, processing, disposal or reuse. A copy of the Agreement is attached
hereto and incorporated herein by this reference.
C. It is a requirement of the Agreement, and a condition to the City's
entering into the Agreement, that Guarantor guaranty Contractor's performance of the
Agreement.
D. Guarantor is providing this Guaranty to induce the City to enter into the
Agreements.
NOW, THEREFORE, in consideration of the foregoing, Guarantor agrees as
follows:
1. Guaranty of the Agreements. Guarantor hereby irrevocably and
unconditionally guarantees to the City to take necessary actions, including, but not
limited to the payment of funds, necessary to assure the complete and timely
performance, satisfaction and observation by Contractor of each and every term and
condition of the Agreement which Contractor is required to perform, satisfy or
observe. In the event that Contractor fails to perform, satisfy or observe any of the
terms and conditions of the Agreement, Guarantor will promptly and fully cause the
performance of the Contractor's obligations, either through an affiliate of Guarantor
or a third party satisfactory to the City in its reasonable judgement. Guarantor hereby
guarantees payment to the City of any damages, costs or expenses which might
become recoverable by the City from Contractor due to its breach of the Agreement.
CAMy Documents\WPDOCS\Cont Waste 2000 Recycl.wpd 1 July 12, 2000
2. Guarantor's Obligations are Absolute. The obligations of the Guarantor
hereunder are direct, immediate, absolute, continuing, unconditional and unlimited, and
with respect to any payment obligation of Contractor under the Agreement, shall
constitute a guarantee of payment and not of collection.
3. Waivers. The Guarantor shall have no right to terminate this Guaranty or
to be released, relieved, exonerated or discharged from its obligations under it for any
reason whatsoever, including, without limitation: (1) the insolvency, bankruptcy,
reorganization or cessation of existence of the Contractor; (2) any amendment,
modification or waiver of any provision of the Agreement; (3) the actual or purported
rejection by a trustee in bankruptcy of the Agreement, or any limitation on any claim
in bankruptcy resulting from the actual or purported termination of the Agreement; (4)
any waiver, extension, release or modification with respect to any of the obligations
of the Agreement guaranteed hereunder or the impairment or suspension of any of the
City's rights or remedies against Contractor; or (5) any merger or consolidation of the
Contractor with any other corporation, or any sale, lease or transfer of any or all the
assets of the Contractor. Without limiting the generality of the foregoing, Guarantor
hereby waives the rights and benefits under California Civil Code Section 2819.
The Guarantor hereby waives any and all benefits and defenses under California
Civil Code Sections 2845, 2849 and 2850, including, without limitation, the right to
require the City to (a). proceed against Contractor, (b) proceed against or exhaust any
security or collateral the City may hold now or hereafter hold, or (c) pursue any other
right or remedy for Guarantor's benefit, and agrees that the City may proceed against
Guarantor for the obligations guaranteed herein without taking any action against
Contractor or any other guarantor or pledgor and without proceeding against or
exhausting any security or collateral the City may hold now or hereafter hold.
Guarantor hereby waives any right which it may have to reimbursement from
Contractor for amounts disbursed by Guarantor and any right of subrogation to the
rights of the City against Contractor, including, without limitation, such rights as may
be provided under California Civil Code Sections 2847 and 2848. Guarantor agrees
that the City may unqualifiedly exercise in its sole discretion any or all rights and
remedies available to it against Contractor or any other guarantor or pledgor without
impairing the City's rights and remedies in enforcing this Guaranty.
The Guarantor hereby expressly waives diligence, presentment, demand for
payment or performance, protest and all notices whatsoever, including, but not limited
to, notices of non-payment or non-performance, notices of protest, notices of any
breach or default, and notices of acceptance of this Guaranty. If all or any portion of
the obligations guaranteed hereunder are paid or performed, Guarantor's obligations
hereunder shall continue and remain in full force and effect in the event that all or any
part of such payment or performance is avoided or recovered directly or indirectly from
the City as a preference, fraudulent transfer or otherwise, irrespective of (a) any notice
of revocation given by Guarantor or Contractor prior to such avoidance or recovery,
and (b) payment in full of any obligations then outstanding.
CAMy Documents\WPDOCS\Cont Waste 2000 Recycl.wpd 2 July 12, 2000
4. Term. This Guaranty is not limited to any period of time, but shall
_ continue in full force and effect until all of the terms and conditions of the Agreement
have been fully performed by Contractor, and Guarantor shall remain fully responsible
under this Guaranty without regard to the acceptance by the City of any performance
bond or other collateral to assure the performance of Contractor's obligations under
the Agreement. Guarantor shall not be released of its obligations hereunder so long
as there is any claim by the City against Contractor arising out of the Agreement based
on Contractor's failure to perform which has not been settled or discharged.
5. No Waivers. No delay on the part of the City in exercising any rights
under this Guaranty or failure to exercise such rights shall operate as a waiver of such
rights. No notice to or demand on Guarantor shall be a waiver of any obligation of
Guarantor or right to the City to take other or further action without notice or demand.
No modification or waiver of any of the provisions of this Guaranty shall be effective
unless it is in writing and signed by the City and by Guarantor, nor shall any waiver be
effective except in the specific instance or matter for which it is given.
6. Attorney's Fees. In addition to the amounts guaranteed under this
Guaranty, Guarantor agrees to pay actual attorneys' fees and all other costs and
expenses incurred by the City in enforcing this Guaranty, or in any action or
proceeding arising out of or relating to this Guaranty, including any action instituted
to determine the respective rights and obligations of the parties hereunder.
7. Governing Law: Jurisdiction. This Guaranty is and shall be deemed to be
a contract entered into in and pursuant to the laws of the State of California and shall
be governed and construed in accordance with the laws of California without regard
to its conflicts of laws rules for all purposes, including, but not limited to, matters of
construction, validity and performance. Guarantor agrees that any action brought by
the City to enforce this Guaranty may be brought in any court of the State of California
and Guarantor consents to personal jurisdiction over it by such courts. Guarantor
appoints the following person as its agent for service of process in California:
CT Corporation System
818 West Seventh Street, 2Id Floor
Los Angeles, CA 90017
8. Severability. If any portion of this guaranty is held to be invalid or
unenforceable, such invalidity shall have no effect upon the remaining portions of this
Guaranty, which shall be severable and continue in full force and effect.
9. Binding on Successors. This Guaranty shall inure to the benefit of the
City and its successors and shall be binding upon Guarantor and its successors,
including transferee(s) of substantially all of its assets and its shareholder(s) in the
event of its dissolution or insolvency.
CAMv Documents\WPDOCS\Cont Waste 2000 Recycl.wpd 3 July 12, 2000
10. Authority. Guarantor represents and warrants that it has the corporate
power and authority to give this Guaranty, that its execution of this Guaranty has been
authorized by all necessary action under its Articles of Incorporation and By-laws, and
that the person signing this Guaranty on its behalf has the authority to do so.
11. Subordination. Any claims Guarantor may have against Contractor are
hereby subordinated to any and all claims of the City against Contractor until such time
as the obligations of Contractor to the City are fully satisfied and discharged.
12. Notices. Notice shall be given in writing, deposited in the U.S. mail,
registered or certified, first class postage prepaid, addressed as follows:
To the City: City of La Quinta
78-495 Calle Tampico
La Quinta, CA 92253
Attention: City Manager
with a copy: City Attorney, at the same address.
To the Guarantor: Waste Management, Inc.
1001 Fannin, Suite 4000
Houston, TX 77002
Attention: General Counsel
IN WITNESS WHEREOF, Guarantor has executed this Guaranty on the day and
year first above written.
WASTE MANAGEMENT, INC.
By:
Vice President
By:
Secretary
CAMy Documents\WPDOCS\Cont Waste 2000 Recycl.wpd 4 July 12, 2000
EXHIBIT A
SCOPE OF SERVICES
A. Curbside Residential Recycling (Up to Four Units)
1. Collection. Contractor shall collect and remove all Recyclable
Materials, which are placed in or adjacent to recycling containers at the curbside, from
all single-family residences and all residential developments of four (4) or fewer units
located in the City where MSW collection service is individual can collection (as
opposed to bin or dumpster collection). For those single-family residences and
residential developments that are walled communities with private streets, Waste
Management of the Desert will provide homeowner associations the choice of
receiving automated, manual, or commercial recyclable collection services for the
entire association. Waste Management of the Desert will meet with each association
to determine what type of service best fits the needs of their particular community.
Homeowner associations may select a service schedule that meets their diverse needs.
Resolution of conflicts in recycling methodology shall be at the sole discretion of the
City.
2. Single Family Dwelling Unit Recycling. Waste Management of the
Desert will collect commingled recyclables at curbside for residential customers every
week in a 32 gallon automated recycling cart free of charge. This program will be
implemented by December 31, 2001. Recyclables will be collected on the same day
as refuse collection. Each cart will have a sticker on the inside of the lid listing the
recyclable materials.
The following materials will be collected as part of the program:
• Paper - All grades, including newspaper, catalogs, magazines, junk
mail, including envelopes, telephone books, paperback
books, cereal boxes, office paper (white, colored, computer,
and envelopes), cardboard (all grades, including egg cartons'
• Empty aerosol cans;
• Glass - All colors, California Redemption Value and non -redemption
value;
• Aluminum - Cans, foil, and trays;
• Bi-metal, tin cans, steel cans;
• Plastics/resins of all grades, Nos. 1 through 6; and
• Such other materials as mutually agreed upon in writing by Contractor
and City.
An additional recycling cart will be provided at no additional extra
charge. Residents can exchange their recycling carts once per year at no charge.
CAMy Documents\WPDOCS\Cont Waste 2000 Recycl.wpd A-1 July 11, 2000
3. Time of Collection. Contractor shall collect the Recyclable
Materials once per week, regardless of weather conditions. To the extent possible,
collection will be on the same day of the week as collection of Municipal Solid Waste.
4. Missed Pickups. In case of a missed pickup called in by a resident
or the City, Contractor shall collect the Recyclable Materials from such resident within
twenty-four (24) hours. All calls relating to missed pickups shall be logged in by
Contractor and such log shall be available for inspection by the City.
5. Public Education Program. Ninety (90) days prior to
commencement of the automated commingled recycle collection program, Contractor
shall submit to City, at City's request, a draft public education package on the program
including:
residents;
channel;
a. draft direct mail brochure and newsletter article;
b. draft brochure to accompany delivery of the wheeled carts to
C. draft public service announcement for the City's cable television
d. draft public service announcement for local radio stations; and
e. draft newspaper ad for placement in the Desert Sun.
City will provide Contractor with comments on the draft public education
package within twenty (20) working days. Contractor shall, at its sole expense:
a. Produce and mail the direct mail brochure to City residents three
(3) weeks prior to the delivery of the wheeled carts and provide newsletter copy to
City;
b. Produce the second brochure and deliver it to residents with the
wheeled carts;
C. Produce the public service announcements for the radio stations
and the cable television station. Contractor shall use best efforts to follow up with
verbal and written communication to the stations to make sure the public service
announcements are run a minimum of ten 0 0) times in the fourteen 0 4) days prior
to delivery of the wheeled carts and a minimum of ten (10) times after delivery of the
wheeled carts is completed; and
CAMy Documents\WPDOCS\Cont Waste 2000 Recycl.wpd A-2
July 11, 2000
-fi
d. Produce the newspaper ad and submit them to the Desert Sun.
Said ads shall run a minimum of two (2) times during the fourteen (14) day period prior
to the distribution of the wheeled carts and a minimum of two (2) times after the
distribution of the wheeled carts to residents. Said ads shall be a minimum of one
sixteenth (1 /16th) of a newspaper page in size.
- • - i �ii�i�F-13��Z•II - • i
1. Green Waste Program. Automated Green Waste collection services
shall be provided to all single family, duplex, and triplex residences in City with the
exception of the residences located within gated commercial and mobilehome
communities.
Contractor shall provide residents with a 96 gallon wheeled cart
for Green Waste storage. Contractor shall provide all labor and equipment required to
conduct the automated Green Waste collection and recycling program. Contractor
shall collect all Green Waste at curbside unless backyard or side yard service is
requested by a resident. In the event backyard or side yard service is requested,
Contractor shall charge the rate listed on Exhibit B.
C. Recycling Programs.
1 . Cost and Operational Statistics. Contractor shall record the cost,
productivity, tons collected, person hours, number of stops, number of participating
homes, number of routes and all other data on the automated Green Waste collection
programs requested by City. Contractor shall record said data in a format required by
City and shall submit said data to City by the tenth (10th) day of each quarter. City
reserves the right to request any and all additional information from Contractor needed
by City, its auditors and consultants, to evaluate the productivity and cost of the
automated Green Waste and Recycling collection program-s and to report data to state
and federal agencies as required by law. City may, in its sole discretion, conduct
efficiency and/or time and motion field studies of the automated Green Waste and
Recycling collection programs at any time and for any duration during the term of this
Agreement. City reserves the right to request data more frequently than quarterly
should City desire to do so.
2. Replacement of Lost. Damaged or Stolen Carts. Contractor shall,
at its sole expense, provide residents who report damaged wheeled carts with a
replacement cart within seventy-two (72) hours of the resident's request. Contractor
shall also provide wheeled carts to all new residents that move into City or change
residences within City.
Contractor shall, at its sole expense, provide residents who report
lost or stolen wheeled carts with a replacement cart within seventy-two (72) hours of
the resident's request for the first two reports. If a resident reports a third lost or
stolen cart, Contractor may charge the customer for a replacement cart. City or
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Contractor shall maintain complete and accurate records of all wheeled carts delivered
to new residents and to residents reporting lost, stolen or damaged carts and shall
submit a report to City by the tenth 0 01 day of each quarter, beginning in March
1997, listing the number of carts so provided.
3. Automated Collection Vehicles. Contractor shall utilize the front
loader refuse collection vehicles fitted with a collection bin and a mechanical arm on
the front of the truck or equivalent equipment as approved by the City Manager or
designee for the automated Green Waste and Recycling collection programs.
Contractor shall operate said trucks in a safe and efficient manner so as to minimize
the blowing or spilling of Green Waste or Recyclables during the collection process.
If Green Waste or Recyclables are spilled or blown by the wind, Contractor shall make
all reasonable efforts to clean up and collect all spilled and blown Green Waste or
Recyclable materials.
4. Recycling of Green Waste. All Green Waste collected by
Contractor shall be delivered to a facility for recycling, mulching or composting. Ninety
(90) days prior to the commencement of the Green Waste Collection program,
Contractor shall notify City in writing of the facility where Contractor plans to deliver
the Green Waste. Contractor shall not deliver Green Waste to a facility without
obtaining the prior consent of the City. In the event that Contractor desires to change
the Green Waste processing facility to which Green Waste is being delivered,
Contractor shall submit a written request to City at least thirty (30) days prior to the
date of the requested change. If it becomes known that the Green Waste processing
facility utilized by Contractor is not recycling, mulching or composting the Green
Waste collected in City, or is out of compliance with local, state or federal operating
permits, laws or regulations, or in processing and/or using Green Waste in such a way
that the Green Waste collected from within City will not count as MSW diverted for
purposes of AB 939 and any other applicable state or federal law, City reserves the
right to direct Contractor to deliver the Green Waste to another processing facility.
5. Recyclable Materials. All Recycling loads will be delivered to Waste
Management of the Desert's yard in Palm Desert.
C. Multi -Unit Residential Recycling (Five Units and Above)
1. Contractor shall collect and remove all Recyclable Materials which
are placed in or adjacent to multi -family complexes with five or more residential units
located in the City and all such complexes with two or more units where MSW
collection service is bin or dumpster collection.
2. Multi -Unit Residential Recyclable Materials. Commingled
Recyclable Materials to be collected include the same items listed in the "single family
dwelling unit recycling" section and such other materials as mutually agreed upon in
writing by Contractor and City. Commingled recycling collection of all items listed
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above will be provided to multi -family dwelling units at no additional charge. Both
-- carts and 3-yard bins will be used to provide recycling services. Customers will be
notified annually of the program requirements.
3. Time of Collection. Contractor shall collect the Recyclable
Materials on a regular basis, no less frequently than the time required to fill the bin or
dumpster and at least weekly for crates or boxes.
4. Requested Pickups. In the event Contractor missed a normal
pickup or the bin or dumpster fills prior to a normal pickup, Contractor shall collect the
Recyclable Materials from such complex within twenty-four (24) hours of notice by the
City or property manager/owner/tenant. All calls relating to missed or additional
pickups shall be logged in by Contractor and such log shall be available for inspection
by the City.
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1. Collection. Contractor shall collect and remove designated
Recyclable Materials, which are segregated or commingled and placed in separate bins,
from all businesses located in the City which elect to participate in Contractor's
recycling program.
2. Recyclable Materials. Recyclable Materials includes glass,
corrugated cardboard, computer paper, white paper, mixed office paper and such other
materials as mutually agreed upon in writing by Contractor and the City.
3. Time of Collection. Contractor shall collect the Recyclable
Materials placing a designated location for periodic collection regardless of weather
conditions. To the extent possible, collection will be on the same day of the week as
regular Municipal Solid Waste collection.
4. Missed Pickups. In case of a missed pickup or full bin or dumpster
called in by a business, industry or institution, Contractor shall collect the Recyclable
Materials from such business, industry or institution within twenty-four (24) hours.
All calls relating to missed or extra pickups shall be logged in by Contractor and such
log shall be available for inspection by the City.
5. curbside Recycling Service for Small Businesses. Contractor shall
provide the above -described curbside recycling program for selected small businesses
with fewer than 50 employees. Each year, Contractor shall contact thirty (30) small
businesses that generate MSW containing the materials collected by the curbside
recycling program and invite them to participate in the program. Contractor shall
provide a set of three (3) stacking crates or a two (2) box set, or commingled
automated crate together with an informational packet describing the program, at no
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charge, to each business desiring to participate in the curbside recycling program.
Contractor shall utilize the existing curbside recycling vehicles and crews to collect
Recyclable Materials from the participating businesses.
Contractor shall issue a report on October 1 and March 1 of each year
listing the small businesses contacted and the businesses actually participating in the
curbside recycling program. The list shall include the name of the business, contact
person, address, telephone number and type of crates or boxes being used for storage
of Recyclable Materials. Said list shall include the names of small businesses
contacted that chose not to participate in the program including the reason given for
non -participation, and a description of any noteworthy experiences or observations of
Contractor with regard to the operation of this program. Contractor shall not be
required to pay the participating small businesses for Recyclable Materials collected by
the curbside recycling program pursuant to this section.
6. Commercial Premises Wastestream Audit Program. Upon request,
Contractor shall perform at no charge a wastestream audit for commercial premises.
Said audit shall, at a minimum, identify broad categories of solid waste by type and
amount and shall recommend methods of reducing that amount by waste prevention,
recycling, reuse or composting. Audit results shall be prepared in writing and
forwarded to the requestor within fifteen (15) days of audit field work. Program shall
be oriented toward the needs of Commercial Premises, taking into account possible
savings and costs.
Contractor shall, within six (6) months after the commencement of the
Term, submit to City a draft of (1) a press release to announce availability of program
and (2) a presentation and brochures for Chamber of Commerce, other business
associations and distribution to individual businesses.
City shall provide Contractor with comments and edits on draft materials.
Once finalized, Contractor shall, within thirty (30) days, prepare and submit to City a
schedule of presentation (by name of organization, date, time, place of presentation).
Contractor shall be required to review with City, on or about each January 1 of the
Term, the status of this program, including the need to revise materials. Contractor
shall report on a quarterly basis the name and address of Commercial Premises for
which a wastestream audit was completed, time on part of Contractor to complete
audit, estimated waste reduction and actual waste disposed, as well as other
noteworthy items.
1. Collection. Contractor shall collect and remove all Recyclable
Materials which are segregated and placed in or adjacent to recycling storage
containers at all City facilities.
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July 11, 2000
2. City Recyclable Materials. City Recyclable Materials includes glass,
corrugated cardboard, metal cans, plastic bottles, newspaper, and mixed office paper
(including white paper, computer paper, magazines, junk mail, file folders, and "post
it" notes). The mixed office paper may contain staples.
3. Time of Collection. Contractor shall collect the Recyclable
Materials placed in a designated location for periodic collection, regardless of weather
conditions. Collections shall be made with sufficient frequency that Recyclable
Materials do not overflow the storage containers.
4. )Missed Pickupg. In case of a missed pickup or full container
reported by City, Contractor shall collect the Recyclable Materials from the City facility
within twenty-four (24) hours. All calls relating to missed or extra pickups shall be
logged in by Contractor and such log shall be available for inspection by City.
F. Collection of Holiday Greenery Contractor shall collect Christmas trees
and other holiday greenery on regular solid waste collection days during the period
December 26 through January 8. Contractor shall prepare a public education flyer,
brochure or postcard informing residents of this service. Residents will be instructed
to cut holiday greenery into 4-foot lengths and to remove tinsel, lights and ornaments.
Flocked trees shall be collected and handled by Contractor as municipal solid waste.
Greenery must be placed at curbside for collection by 7:00 a.m. on refuse collection
day. The greenery collected by Contractor shall be mulched or chipped and recycled
or reused.
Contractor shall provide City with a report on or before February 10 listing
and the pounds/tons of holiday greenery collected at curbside, and the pounds/tons
of holiday greenery received at the drop off locations. Said report shall also include
a copy of the weight ticket(s) from the recycling, mulching or wood chipping operation
where the greenery was recycled or reused.
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Contractor shall implement a backyard composting program, such as the
Master Composting program, within City. Contractor shall supply thirty (30) backyard
composting units, such as the "Soil Saver" unit or the equivalent, made of recycled
plastic or recycled wood, for free, to residents attending the backyard composting
workshops. Contractor shall also provide additional composting units at Contractors'
cost, to residents requesting such units. Contractor shall sell said units at the
composting workshops and shall also have said units available for sale at Contractor's
office.
Contractor shall present backyard composting workshops at City parks,
the Senior Center or other appropriate locations on a semi-annual basis. Contractor
shall provide educational brochures on how to utilize the backyard composting units
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and shall demonstrate the backyard composting techniques at the workshops.
Contractor shall advertise the workshops with brochures, posters located in the Senior
Center, City Hall and other City facilities as well as through flyers distributed through
the schools. Contractor shall also place a minimum of two (2) ads in the Desert Sun
newspaper prior to each composting workshop. Contractor shall provide City with a
written report on each semi-annual composting workshop listing the number of
attendees, the reaction of the public and suggestions for future workshops.
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