CC Resolution 2000-084RESOLUTION NO. 2000-84
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
LA QUINTA, CALIFORNIA, APPROVING THE RESTATED
AND AMENDED AGREEMENT FOR THE COLLECTION AND
RECYCLING OF RECYCLABLE MATERIALS BY AND
BETWEEN THE CITY OF LA QUINTA AND WASTE
MANAGEMENT OF CALIFORNIA, INC.
WHEREAS, Chapter 6.05 of the La Quinta Charter and Municipal Code
authorizes the removal and conveyance of recyclable materials; 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 and recycling of recyclable materials.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
La Quinta that the Restated and Amended Agreement for Collection and Recycling of
Recyclable Materials 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
— r)4� QL- -
JOHN W PEN ayor
City of La Quinta, California
Resolution No. 2000-84
Waste Management
Collection and Recycling of Recyclables
July 5, 2000
Page 2
ATTEST:
JUNE . RE , CMC/AAE, Ity Clrk
City of La Quinta, California
(City Seal)
APPROV7 AS TO FORM:
M. KATHER E JENSO , Ity Att ey
City of La Quinta, California
i, 4
AMENDED AND RESTATED
AGREEMENT
FOR THE COLLECTION, TRANSPORTATION AND
DISPOSAL OF MUNICIPAL SOLID WASTE
BETWEEN
THE CITY OF LA QUINTA
AND
WASTE MANAGEMENT OF CALIFORNIA, INC.
JUNE 30, 2000 - JULY 30, 2008
CAMy Documents\WPDOCS\ContWaste2000.wpd July 11, 2000
ARTICLE TERM.......................................1
Section 1.1 Term ................................... 1
ARTICLE II
Section 2.1
Section 2.2
Section 2.3
Section 2.4
Section 2.5
Section 2.6
ARTICLE III
Section 3.1
Section 3.2
Section 3.3
Section 3.4
ARTICLE IV
Section 4.1
Section 4.2
Section 4.3
Section 4.4
Section 4.5
SCOPE OF WORK...............................1
Scope of Work ............................ 1
Transportation and Disposal of Solid Waste ........ 2
City-wide Automated Solid Waste Collection ........ 3
Hazardous Waste Obligations of Contractor ........ 6
Advisory Obligations of Contractor .............. 7
Operational Requirements ..................... 7
EQUIPMENT AND PERSONNEL . .
Refuse Collection Vehicles
Low Emission Vehicles ...
Containers
....................8
....................8
....................9
...............................9
Employees .............................. 10
SUPERVISION................................10
Authority of City .......................... 10
Quantity of Municipal Solid Waste .............. 10
Public/Customer Service and Accessibility ......... 10
Complaints .............................. 11
Customer Information and Public Education ........ 11
ARTICLE V INSURANCE..................................14
Section 5.1 General Liability Insurance .................... 14
Section 5.2 Worker's Compensation and Employer's Liability
Insurance ............................... 15
Section 5.3 Notice to City, Evidence of Insurance ............ 15
ARTICLE VI PERFORMANCE BOND .......................... 16
Section 6.1 Performance Bond ......................... 16
ARTICLE VII REPORTS....................................16
Section 7.1 Records and Reports; Solid Waste Collection ....... 16
Section 7.2 Inspection by City ......................... 17
Section 7.3 Maintenance of Financial Records .............. 17
Section 7.4 Audit .................................. 18
ARTICLE VIII ASSIGNMENT AND SUBCONTRACTING .............. 18
Section 8.1 Assignment and Subcontracting ............... 18
C:\My Documents\WPDOCS\ContWaste2000.wpd
ii July 12, 2000
�S.
ARTICLE IX BREACH, DEFAULT AND TERMINATION .............. 20
Section 9.1 Breach, Default and Termination ............... 20
ARTICLE X INDEMNITY .................................. 20
Section 10.1 Indemnification ........................... 20
Section 10.2 Hazardous Substances Indemnification ........... 21
Section 10.3 AB 939 Indemnification ..................... 22
ARTICLE XI COMPLIANCE WITH ALL LAWS .................... 23
Section 1 1.1 Compliance with All Laws .................... 23
ARTICLE XII TAXES.....................................23
Section 12.1 Taxes .................................. 23
ARTICLE XIII EXCLUSIVE RIGHTS ............................ 23
Section 13.1 Grant of Franchise ......................... 23
Section 13.2 Scope of Franchise; Exclusiveness .............. 23
ARTICLE XIV RATES.....................................24
Section 14.1 Maximum Rates to be Charged ................ 24
— ARTICLE XV
REVIEW OF RATES .............................
25
Section
15.1
CPI Based Change .........................
25
Section
15.2
Extraordinary Cost Based Change ..............
25
Section
15.3
Supporting Information ......................
25
Section
15.4
Decision; Effective Date .....................
26
Section
15.5
Final Year Payments ........................
26
Section
15.6
City Right to Set Rates ......................
26
Section
15.7
Maximum Rates ...........................
26
ARTICLE XVI CONTRACTOR PAYMENTS TO CITY ................ 27
Section 16.1 Franchise Fee Payments ..................... 27
Section 16.2 Fees Collected by Contractor on Behalf of City ..... 27
ARTICLE XVII COLLECTION FROM CITY FACILITIES AND CITY CLEANUPS 28
Section
17.1
Regular Disposal Service .....................
28
Section
17.2
On -Call Bulky Item Collection .................
28-
Section
17.3
Disaster Debris Cleanup Implementation Plan ......
29
Section
17.4
Illegal Dumping Assistance ...................
29
Section
17.5
Special Event Toilet Facilities .................
30
ARTICLE XVIII HOLIDAYS ................................... 30
Section 18.1 Holidays ................................ 30
ARTICLE XIX OBLIGATIONS OF CITY .......................... 30
Section 19.1 Reasonable Cooperation ..................... 30
CAMy Documents\WPDOCS\ContWaste2000.wpd 111 July 12, 2000
ARTICLE XIX OBLIGATIONS OF CITY .......................... 30
Section 19.1 Reasonable Cooperation ..................... 30
Section 19.2 Exclusivity .............................. 30
ARTICLE XX GENERAL PROVISIONS ..........................
30
Section 20.1
Definitions ..............................
30
Section 20.2
Right of the City to Make Changes ..............
33
Section 20.3
Contractor's Status ........................
34
Section 20.4
Force Majeure ............................
34
Section 20.5
Failure to Perform .........................
34
Section 20.6
Sale of Recyclables ........................
35
Section 20.7
Rights, Remedies and Benefits Cumulative ........
36
Section 20.8
Waivers ................................
36
Section 20.9
Approval by City ..........................
36
Section 20.10
Notices .................................
36
Section 20.11
Arbitration ..............................
36
Section 20.12
Legal Jurisdiction ..........................
37
Section 20.13
Paragraph Headings ........................
37
Section 20.14
Entire Agreement ..........................
37
Section 20.15
Subcontracting ...........................
37
Section 20.16
Compensation to Contractor ..................
37
Section 20.17
Fees for Refuse Collection ...................
37
Section 20.18
Fees for Unusual Conditions ..................
38
Section 20.19
Change of Ownership .......................
38
Section 20.20
Contractor's Employee Relations ................38
Section 20.21
Bankruptcy ..............................
38
Section 20.22
Invalid Provisions ..........................
38
Section 20.23
Waiver of Performance ......................
39
Section 20.24
Warranty ...............................
39
Section 20.25
Exhibits ................................
39
Section 20.26
Guaranty by Waste Management, Inc. ...........
39
ARTICLE XXI OTHER OPERATIONAL REQUIREMENTS .............. 39
Section 21.1 Rules and Regulations Governing Recyclable Materials 39
Section 21.2 Cooperation with Subsequent Providers .......... 39
Section 21.3 Indemnification Regarding Lawsuits Challenging This
Agreement .............................. 40
A REFUSE COLLECTION RATE AND DISPOSAL CHARGE ............ A-1
B RESOLUTIONS OF THE CITY COUNCIL APPROVING THE AGREEMENT. B-1
CAMy Documents\WPDOCS\ContWaste2000.wpd 1V July 12, 2000
THE CITY OF LA QUINTA
AMENDED AND RESTATED
AGREEMENT FOR THE COLLECTION, TRANSPORTATION AND
DISPOSAL OF MUNICIPAL SOLID WASTE
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
2000 and shall end July 30, 2008, unless earlier terminated as provided herein.
ARTICLE II
SCOPE OF WORK
• . • - . i\�i�•TL9
The Contractor shall collect, transport and dispose of all Municipal Solid Waste
("MSW") generated at Residential, Commercial, Industrial and Institutional Premises
located within and under the jurisdiction of the City. 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 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 solid waste collection at all times.
C:\My Documents\WPDOCS\ContWaste2000.wpd July 11, 2000
Section 2.2 Transportation and Disposal of Solid Waste
Contractor shall transport and deliver all MSW collected pursuant to this
Agreement to the Disposal Site designated by the City.
MSW shall become the property of the operator of the Disposal Site (or other
designee of the City as the City may determine from time to time) once it is delivered
to the Disposal Site.
Contractor shall maintain accurate records of the quantities of MSW delivered
to the Disposal Site and shall cooperate with the City or its agents in any audits or
investigations of such deliveries.
Contractor shall cooperate with the operator of the Disposal Site with regard to
operations therein, including by way of example, complying with directions from the
operator to unload collection vehicles in designated areas, accommodating to
maintenance operations and construction of new facilities, cooperating with the
operator's Hazardous Waste Exclusion Program, and cooperating with the operator's
tonnage tracking system.
Unless and until the City designates in writing a different Disposal Site, or
approves a written request by Contractor to change the Disposal Site, Contractor shall
continue to deliver all MSW to the Coachella Landfill or, if that landfill is temporarily
unavailable, to the Edom Hill Landfill. City shall have sole and absolute discretion to
grant or deny Contractor's written request for a change of Disposal Site. If Contractor
experiences increase operational costs due to increased transportation or operating
costs resulting from City's designation of a Disposal Site other than the Edom Hill
Landfill, the following procedures shall be followed: Contractor shall submit to City
written, detailed documentation describing the reason for said transportation and/or
operational cost increases. City may appoint an auditor to review contractor's
documentation. The cost of the audit shall initially be paid by City, however, in the
event that there is a discrepancy of five (5) percent or greater between the
Contractor's operation costs and the City's audit review, then the Contractor shall
reimburse to the City any amounts paid for the City's audit. Contractor shall provide
any supplemental information requested by City or the auditor. If City determines that
the transportation and/or operational cost increases are justified, City shall approve an
increase in compensation to Contractor accordingly.
If, in the opinion of City, Contractor may experience decreased operational costs
such as decreased transportation, operating or variable costs resulting from City's
designation of a new Disposal Site, the following procedures shall be followed. City
shall provide and discuss with Contractor a written description of the operational
and/or capital costs that City believes will decrease as a result of a change in the
Disposal Site. Within thirty (30) days, Contractor shall provide City with written
C:\My Documents\WPDOCS\ContWaste2000.wpd 2
July 11, 2000
documentation describing the projected decreases in operating and capital costs that
will result from the change in the Disposal Site. City may appoint an auditor to review
Contractor's documentation. The cost of the audit shall initially be paid by City,
however, in the event that there is a discrepancy of five (5) percent or greater between
the Contractor's operation costs and the City's audit review, then the Contractor shall
reimburse to the City any amounts paid for the City's audit. Contractor shall provide
any and all supplemental information requested by City and/or the auditor.
Upon the completion of the auditor's review, City will determine, in City's sole
discretion, whether transportation, operating and/or capital cost decreases are justified.
City may then approve a decrease in compensation to Contractor according to the
findings of the City's and/or auditor's review.
City and Contractor acknowledge that Contractor may at some time in the
future construct and operate a refuse transfer station in the Coachella Valley. Should
the City direct the Contractor to deliver MSW to a transfer station located within the
Coachella Valley, Contractor will not request a rate increase for the service fee portion
of the rate.
Automated solid waste collection services shall be provided to all single
family duplex, and triplex residents in the City, in gated and non -gated areas.
Contractor shall provide residents with 96, 64, or 35 gallon wheeled carts
for MSW and green waste storage. The MSW and green waste carts shall be of
different coloration. Contractor shall provide all labor and equipment required to
conduct automated MSW and green waste collection programs. Contractor shall
collect all MSW and green waste at curbside unless back yard or side yard service is
requested by a resident. There is an additional rate charge for back or side yard
service. The MSW and green waste collection and disposal charge shall not vary due
to container size as shown in Exhibit "A".
Homeowner Associations in gated communities shall have a choice of
whether homes in the Association will received automated, manual, or bin services.
Contractor shall contact and offer in writing automated services at no additional charge
to all Homeowner Associations in the first and third year of this contract. Contractor
shall submit a written report to the City of the results of this inquiry within 60 days
of sending said correspondence. Contractor shall convert Homeowner Associations
to automated service if either the City or the Association request such service.
C:\My Documents\WPDOCS\ContWaste2000.wpd 3 July 11, 2000
B. HOA Automated Public Education Program. All production and
distribution costs relating to all public education materials required by this section shall
be paid by Contractor. Ninety (90) days prior to commencement of the automated
MSW collection program, Contractor shall submit to City, a draft public education
package which may, at City's request, include the following:
residents;
1. Draft brochures for HOA distribution;
2. Draft brochure to accompany delivery of the wheeled carts to HOA
3. Draft newsletter article to be transmitted to HOA, if requested; and
4. Hold one HOA meeting to inform HOA residents about the
automated program, if requested.
Contractor shall:
1. Produce and mail the direct mail brochures to HOA for distribution
by the HOA to the residents three (3) weeks prior to delivery of the wheeled carts;
2. Produce the second brochure and deliver to HOA residents with the
wheeled carts;
3. Hold one HOA meeting thirty (30) days prior to distribution of the
wheeled carts to residents, if requested; and
4. Finalize the newsletter article and provide a camera ready copy to
HOA, if requested by the newsletter deadline specified.
C. 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 MSW 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 0 Oth) day of each quarter
beginning in March 1997. Upon City's request, Contractor shall provide more frequent
reports if needed. 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 MSW collection program 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 MSW collection
program 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.
C:\My Documents\WPDOCS\ContWaste2000.wpd 4 July 11, 2000
D. 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 of the size requested by the resident
(either 64 or 96 gallons) within seventy-two (72) hours of the resident's request. If
a resident reports more than two (2) lost or stolen wheeled carts from the same
address during the term of this Agreement, Contractor shall provide the first two (2)
replacement carts at no charge to City or the resident. After the first two (2)
replacement carts are provided, Contractor may charge the resident to replace lost or
stolen carts a third or subsequent time.
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 (10) day of each month, beginning
in March, 1997, listing the number of crates so provided.
E. 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 MSW collection program. Contractor shall operate said trucks in a safe
and efficient manner so as to minimize the blowing or spilling of MSW during the
collection process. If MSW is spilled or blown by the wind, Contractor shall make all
reasonable efforts to clean up and collect all spilled and blown MSW.
Contractor shall bill residential customers via the tax rolls as described in
Section 14.1. Contractor shall bear the risk that, if for any reason the property tax
levy does not raise adequate funds, then in that event, Contractor's sole remedy shall
be against the Contractor's customer and not against the City. The City does not
guarantee the accuracy or adequacy of the levy or that the levy amount will be paid
by the property owner. The City shall reasonably cooperate with Contractor in
collecting payment from the residential customer.
According to the tax roll billing schedule established by the County and
City, Contractor shall provide to City and the County of Riverside updated residential
tax roll billing data in a timely manner such that the new billing information can be put
on the tax rolls for the upcoming year. It is anticipated that this information will be
needed by August of 1996 and thereafter by July 30 of each of the following years.
However, Contractor agrees to accommodate all requests from City with regard to the
schedule for submitting said tax roll billing information.
CAMy Documents\WPDOCS\ContWaste2000.wpd 5 July 11, 2000
In no event shall Contractor double bill any resident for MSW collection
service. If a double billing occurs, Contractor shall immediately upon notification by
City, the resident, homeowner's association, the County of Riverside or any other
person or entity, issue a refund directly to the customer who was double billed along
with a letter of apology. If a double billing has occurred for a period exceeding six (6)
months, Contractor shall include in said refund the amount that was double billed plus
interest on said amount at the prime interest rate published in the Wall Street Journal
during the month in which the rebate is made, plus one percent (1 %). Contractor shall
conduct route audits and internal audits of customer billing, records on at least an
annual basis in order to prevent and detect any double billing of customers.
In the event that an owner provides notice to the Franchisee that trash
removal will not be needed during a continuous period of greater than four months for
specified dates, and the Franchisee verifies that no trash removal was necessary during
the specified time period, the owner shall be entitled to a refund of fifty percent (50%)
of the assessed amount of the fee due to the waste hauler as collected on the tax roll.
Said funds shall be calculated on an annual basis each January 301h for the prior
calendar year, and shall be paid within thirty days of the calculation. A report of the
calculation shall be provided to the City. Franchisee may request a rate adjustment in
the subsequent year if said refunds exceed $4,000 in the prior given year (Resolution
97-69).
G. Disabled Assistance
Contractor will provide back yard or side yard MSW and green waste
service at no additional charge to disabled and elderly residents who are unable to
physically move their trash cans to the curb. Disabled residents must provide
Contractor a copy of their Department of Motor Vehicles NI -Permanent disabled
parking placard as proof of disability.
Elderly customers can also apply for assistance noted above based upon
their needs. Contractor will evaluate each elderly resident's need on a case -by -case
basis.
Section 2.4 Hazardous Waste Obligations of Contractor
A. General
In the event the City decides to undertake provision of household
hazardous waste collection events by itself or as part of a multi -city effort, Contractor
shall, at the City's request, act as an agent for City, and shall arrange for the collection
of household hazardous waste. In such an event, Contractor's compensation shall be
increased in accordance with Section 20.2 of this Agreement. Acting as City's agent,
Contractor may be asked to obtain cost estimates or quotes for providing household
CANly Documents\WPDOCS\ContWaste2000.wpd 6 July 11, 2000
hazardous waste collection or "round up" events at no additional cost to City. In the
— event that City directs Contractor to obtain such cost quotes or estimates, City
reserves the right fo unilaterally reject the quote or estimate, the right not to hold the
event, and the right to retain another service provider to perform the household
hazardous waste collection or round up services. City further reserves the right not
to invoke the provisions of this section and to obtain household hazardous waste
collection services in another manner and from another service provider.
Section 2.5 Advisory Obligations of Contractor
Contractor shall provide, at no cost, supportive services to City and to
Residential, Commercial, Industrial and Institutional Premises occupied by Waste
Generators and potential Waste Generators or their agents by providing the following:
A. General consulting services on integrated waste management issues and
concerns. Examples are, but not by way of limitation, preparing a position paper on
a MSW issue, providing a legal opinion or policy recommendation on a focused concern
or reviewing and commenting on proposed legislation or state regulations and their
impact on La Quinta.
B. Technical assistance services, such as the review of site plans, detailed
drawings of enclosures for MSW containers and estimated volume and characterization
of waste expected to be generated on a case -by -case basis, as may be required by the
Municipal Code or conditions of approval for issuance for a development plan or
building 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 Commission, City staff, the Association of Governments, the
Local Task Force, etc. Such attendance shall be coordinated by both parties to this
Agreement.
Section 2.6 Operational Requirements
1. Collection during winter months shall be between 5:30 a.m. and
6:00 p.m.
2. Collection during summer months shall be between 5:30 a.m. and
6:00 p.m.
B. Residential
1. Collection during winter months shall be between 5:30 a.m. and
6:00 p.m.
C:\My Documents\WPDOCS\ContWaste2000.wpd 7 July 11, 2000
2. Collection during summer months shall be between 5:30 a.m. and
6:00 p.m.
C. Refuse shall be collected from containers at the location of all residences
and dwellings, whether a single family or multiple dwelling unit, not less than once per
week.
D. Refuse shall be collected at all places of business as often as shall be
necessary to maintain a sanitary condition and provide reasonable convenience to such
business establishments.
E. Business establishments and apartment units of four (4) or more shall use
containers specified by the Contractor which shall be sized to contain all refuse
accumulation of the business for four (4) days or other period as determined applicable
by the Contractor. The service level, bins required or frequency of pick-up shall be
determined by Contractor and customer.
F. Containers moved by the Contractor for his convenience, shall be returned
to their original location by Contractor within a reasonable time.
ARTICLE III
EQUIPMENT AND PERSONNEL
Section 3.1 Refuse 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 MSW shall be
spilled in streets or alleys. Should any MSW be spilled on any street, alley or
elsewhere, it shall immediately be cleaned up. A broom and shovel 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.
C:\My Documents\WPDOCS\ContWaste2000.wpd 8 July 11, 2000
All vehicles and equipment used in the collection of MSW, 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.
Bodies of vehicles shall be metal and shall be so constructed that no MSW shall
be spilled from said vehicles on the streets or alleys. Collection vehicles shall be
washed thoroughly on the inside weekly 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. Vehicles which are replaced and any
new vehicles shall be designed to utilize alternative -fuel or energy sources to minimize
environmental pollution.
Section 3.2 Low Emission 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
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
Section 3.3 Containers
Contractor shall furnish, in accordance with the rates set forth on Exhibit A, all
containers needed for MSW generated at Commercial, Industrial, Institutional and
Multi -Family Residential Premises. Containers shall include two, three, four and six
cubic yard bins with lids and 20, 30, 40 and 50 cubic yard roll -off boxes. The type,
size and number of containers furnished to individual Waste Generators shall be those
determined to best meet the needs of the Waste Generator and shall be sufficient to
contain, with the lid closed, all MSW generated between collections.
Containers shall be metal and leak proof. Bins (1 through 6 cubic yards
capacity) furnished by Contractor shall be constructed with plastic lids that are in good
repair and capable of being closed, with all hinges attached and operable. Containers
shall be painted and repainted as required to maintain the attractive appearance of the
community. Containers that have been painted or marked with graffiti shall be
repainted or removed from the Premises by Contractor within twenty-four (24) hours
of notification by the Waste Generator or City. At the same time as such containers
are removed, they shall be replaced by like -sized containers without evidence of graffiti
at no charge to the Waste Generator. Contractor shall clean and maintain all
containers furnished by it in a safe and sanitary condition and whenever the City
determines that cleaning is required to abate a health concern or nuisance condition.
C:\My Documents\WPDOCS\ContWaste2000.wpd 9 July 11, 2000
Section 3.4 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 refuse, 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.
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
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.
In the event of a dispute between the Contractor and a business or other non-
residential Waste Generator as to the quantity of MSW that such Person has placed
for collection, the City shall investigate and make a determination and such
determination shall be binding.
Section 4.3 Public/Customer Service and Accessibility
A. Office: Contractor shall maintain a business office within a ten
(10) mile distance from the intersection of Washington & Highway 1 1 1 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: 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.
C:\My Documents\WPDOCS\ContWaste2000.wpd 10 July 11, 2000
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.
Section 4.4 Complaints
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.
• • • il. •i . . ' • • •
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 4.5.
B. Customer Information Packet. The Plan shall include a
professionally designed and prepared information handout. The pamphlet shall
describe collection services available, guidelines on acceptable materials for MSW
disposal and any special preparation, list holidays and how the collection schedule is
modified, and prominently display telephone numbers to call for information or register
a complaint. Special topics shall include holiday greenery collection, telephone book
recycling, used motor oil collection and hazardous waste collection. The language of
the pamphlet should focus on various age groups and businesses found in the
community and should include information relating to persons in the City for limited
periods such as weekends or winter season. Graphics selected for the pamphlet shall
be well -designed and tasteful. City's recycling logo shall be included as a graphic
element of the pamphlet. Final printing of pamphlet shall be done using paper with a
minimum of fifty percent (50%) post -consumer content.
The City shall provide Contractor with comments and edits on the draft
pamphlet. Once finalized and printed for distribution, Contractor shall distribute, by
a method approved in the Plan, the pamphlet to each Residential, Commercial,
Industrial and Institutional Premises in the City according to the schedule in the Plan.
The Contractor shall mail (first-class) a pamphlet to the holder of each new account,
including residential, commercial, industrial and institutional, commencing MSW
collection service during the Term.
C:\My Documents\WPDOCS\ContWaste2000.wpd 11 July 11, 2000
• • •M i • • -
The Plan shall include the development, preparation and distribution of a
professionally designed informational booklet, suitable for use by the general public,
on MSW management topics and issues, including, but not limited to, general
comments on the status of MSW in the Coachella Valley, alternatives such as waste
prevention, recycling, composting, land filling, hazardous waste disposal and new
technologies, as well as a general discussion on costs of MSW collection,
transportation and disposal (e.g., explanation of what the consumer pays for). City's
recycling logo shall be included as a graphic element of the booklet. Final printing of
the booklet shall be done using paper with a minimum of fifty percent (50%) post -
consumer content. City shall provide Contractor with comments and edits on draft
booklet.
D. Consumer 1 • m. • and Public Education- I
MiscellaneousProducts
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 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. Public Education Articles. City and Contractor shall agree in the
Plan on the timing, number and format for public education articles. On possibility
would be to require on the first day of each quarter Contractor shall submit a double-
spaced typed article to the City to be considered for inclusion in City's newsletter.
Length should not exceed two hundred (200) words; article shall be accompanied with
a suitable three inch by five inch (3" x 5") black and white photograph.
Forty-five (45) days prior to due date, Contractor shall contact City with a
suggested topic for article. Final subject matter, editing and/or inclusion of article shall
be subject to the sole and absolute discretion of the City. The intent of this section
is to provide a public education service to the community.
4. Informational Flyers. Pursuant to the Plan, Contractor shall provide
and mail informational flyers to be sent to each Resident concerning any topics
designated according to the Plan.
C:\My Documents\WPDOCS\ContWaste2000.wpd 12 July 11, 2000
m
5. Community Resource. Contractor may, from time -to -time, be
contacted by Waste Generators or members of the general public 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 postage, written materials.
6. Press Releases. Pursuant to the Plan, or in the event of an
emergency or nonscheduled event, Contractor and City shall coordinate any Press
Releases and public service announcements.
7. Riverside County or Other Public Agency "ABOP" Disposal Centers.
Pursuant to the Plan, Contractor shall publicize each public disposal center for
antifreeze, batteries, motor oil and latex/water-based paint in the Coachella Valley
through various techniques, which may include but not be limited to:
a. Insert stuffed in envelope with customer's bill;
b. Press releases and public service announcements;
C. Submitting article for inclusion in City's newsletter;
d. Posting of notices in public areas of Contractor's facilities,
such as Recycle America buy-back center; and
e. Distribution of informational flyers to general public at
appropriate events and through the mail upon request.
E. Fact Sheet
Pursuant to the Plan, Contractor shall provide City a professionally
designed and prepared draft fact sheet on household hazardous waste focusing on
identification of common hazardous wastes in the household, how such materials
should be stored and proper disposal methods for such wastes. Contractor shall rely
upon local experience and include commonly found household hazardous wastes and
the effect of desert climate. Final printing of fact sheet shall be done using paper with
a minimum of fifty percent (50%) post -consumer content. City shall provide
Contractor with comments and edits on fact sheet. Once finalized, Contractor and
City shall mutually agree as to the method of distribution to households and desirable
quantity; within thirty (30) days of said agreement, Contractor shall have printed and
distributed the fact sheet as agreed.
F. Special Events
Contractor shall cooperate in publicizing regional household hazardous
waste special events, and otherwise appropriately participating in them through means
such as distributing educational materials, sharing in advertising costs, and hosting a
table.
C:1My Documents\WPDOCS\ContWaste2000.wpd 13 July 11, 2000
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.
Contractor shall spend up to an amount of Forty Thousand Dollars
($40,000) on all production and distribution costs relating to this section over the term
of this Agreement. After evidence of that expenditure is provided to and approved by
City any additional educational requirements as determined by the City (including cost
of materials, production and distribution) shall be shared equally between City and
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.
C:\My Documents\WPDOCS\ContWaste2000.wpd 14 July 11, 2000
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, 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.
C:\My Documents\WPDOCS\ContWaste2000.wpd 15 July 11, 2000
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
Contractor shall compile, on a daily basis, records of its Solid Waste collection
operations covering those aspects of its operations, and in such detail, as the City may
prescribe. Such records shall include, but are not limited to:
1. quantities of MSW collected by customer category (e.g., residential,
commercial, industrial, institutional, multi -family);
2. number and categories of accounts served by each route, with each route
identified by route number on a map provided to the City;
3. labor allocation information (e.g., amount of time spent in the City by
service);
C:\My Documents\WPDOCS\ContWaste2000.wpd 16 July 11, 2000
i
4. production data (e.g., tons of MSW collected per route, per worker hour,
per worker day);
5. customer complaints;
6. general information, such as annual tons collected per residential
household or per type of business;
7. tons delivered to each designated Disposal Site, per day, per week, per
month, per year;
and similar information which the City may request in order to evaluate the
effectiveness and efficiency of the solid waste collection and disposal program.
Contractor shall submit a report, giving the information required by City, in the format
and at such time as specified by City, and shall prepare such other expanded or
detailed reports utilizing the information it is required to compile, which the City may
require from time to time.
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.
Section 7.3 Maintenance of Financial Records
A. Contractor's Accounting Records: Contractor shall maintain in its office
accurate and complete accounting records containing the underlying financial and
operational data relating to, and the basis for computation of all costs associated with
providing service under this Agreement. The accounting records shall be prepared on
an accrual basis, in accordance with Generally Accepted Accounting Principles
consistently applied.
The operating year for both accounting and all other record keeping purposes
shall be the calendar year commencing January 1 and ending December 31.
B. Inspection of Records: City and auditors and other agents selected by the
City, shall have the right, during regular business hours, to conduct onsite inspections
of the records and accounting system of the Contractor and to make copies, at the
expense of the City, of any documents relevant to this Agreement.
C:\My Documents\WPDOCS\ContWaste2000.wpd 17 July 11, 2000
C. Retention of Records: The Contractor shall retain all records and data
required to be maintained under this Agreement for a period of three (3) years
following the close of each Contractor's fiscal years, and for such further time as may
be designated by City to enable it to complete any review or audit commenced during
such three (3) year period.
Section 7.4 Audit
City shall have the right, but not the obligation to perform an audit of
Contractor's financial records, relating to the performance of this Agreement, on an
annual basis.
Contractor shall fully cooperate with City and City's consultants, auditors, staff,
and other designees by providing financial records, documents, audited financial
statements, operating records, weight tickets, sales receipts for recyclable materials
and all other documentation requested by City in the event City elects to conduct an
audit.
ARTICLE VIII
ASSIGNMENT AND SUBCONTRACTING
• �ttt-t .t. ROM . • "IT
I.
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.
C:\My Documents\WPDOCS\ContWaste2000.wpd 18 July 12, 2000
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:
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.
CAMy Documents\WPDOCS\ContWaste2000.wpd 19 July 11, 2000
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 Recycling of Recyclable Materials 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 20.5.
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.
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 (1) 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,
CAMy Documents\WPDOCS\ContWaste2000.wpd 20
July 11, 2000
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
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.
Section 10.2 Hazardous Substances Indemnification
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
C:\My Documents\WPDOCS\ContWaste2000.wpd 21 July 11, 2000
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
§ 107(e) of the Comprehensive Environmental Response, Compensation and Liability
Act, CERCLA, 42 USC. §9607(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.
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:
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 20.2, (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.
CAMy Documents\WPDOCS\ContWaste2000.wpd 22 July 11, 2000
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 MSW may be hauled governing
the collection and hauling of MSW.
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
EXCLUSIVE RIGHTS
Section 13.1 Grant of Franchise
The City grants to the Contractor the exclusive franchise, right and privilege to
engage in the business of collecting and transporting MSW generated within the City
and to use the City streets for such purposes for the Term, and within the scope, of
this Agreement.
Section 13.2 Scope of Franchise: Exclusiveness
The franchise granted to the Contractor shall be exclusive except as to the
following categories of materials, which may be delivered to and collected and
transported by others:
CAMy Documents\WPDOCS\ContWaste2000.wpd 23 July 11, 2000
1. lawn clippings, branches, leaves and similar material generated by
gardening or landscaping services which are transported by a Person
performing such service as an incidental part of such service and not as
a hauling business;
2. MSW which is personally transported by the Owner or occupant of the
individual Residential Premises at which it is generated to a licensed
public solid waste disposal facility;
3. MSW which is collected by City employees from City property and rights
of way;
4. Debris caused by an earthquake or other disaster when assistance of
other Persons is deemed necessary by the City;
5. Materials which are not MSW (e.g., untreated medical waste).
6. MSW generated by governmental entities which may, by law, make
independent arrangements for collection and disposal of solid waste.
7. Recyclable materials which are governed by separate agreement of even
date with this Agreement entitled Agreement for the Collection and
Recycling of Recyclable Materials.
ARTICLE XIV
RATES
Section 14.1 Maximum Rates to be Charged
The Contractor shall not charge or demand rates for such refuse collection
service in excess of those set forth in the current approved rate schedule (Exhibit A).
A copy of the then -current rate schedule shall be on file at City Hall and available for
inspection by the general public. Any modification of such rates may be initiated by
the Contractor or the City and shall be finally approved by the City before being
charged. The Contractor shall inform the City, at its request, of the rates charged a
particular individual or business. If a particular service is not provided a scheduled
rate, the Contractor and customer may negotiate a rate after written notice to, and
upon written approval of, the City.
C:\My Documents\WPDOCS\ContWaste2000.wpd 24
July 11, 2000
ARTICLE XV
REVIEW OF RATES
Section 15.1 CPI Based Change
Contractor may request in writing a rate increase once a year during the month
of March, to reflect ordinary changes in the cost of doing business, as measured by
fluctuations of the Consumer Price Index (CPI), published by the U.S. Department of
Labor, Bureau of Labor Statistics, for the Los Angeles -Anaheim -Riverside area, subject
to City Council approval. Such requests shall be accompanied by a statement from an
independent certified public accountant that, based on a review of the Contractor's
financial records, the Contractor's cost of providing service under this Agreement has
increased at a rate at least equal to the increase in the CPI from January of the
previous year to January of the current year. The fees or compensation may be
increased in a percentage amount equal to fifty percent (50%) of the net percentage
change in said CPI, computed as the difference between the index from January of the
previous year to January of the current year. For a requested increase, the Contractor
shall pay for one half of the processing costs not to exceed $3,000.
Section 15.2 Extraordinary Cost Based Change
In lieu of a rate increase request in writing under Section 15.1, the Contractor
may request a rate adjustment on the basis of unusual changes or extraordinary
increases in direct costs of operation. In such event, the Contractor shall provide a
form in direct accordance with Section 15.3, which may be completely tested and
audited by the City's accounting personnel, or if the City chooses, by an independent
Certified Public Accountant, licensed public accountant or other agent. Any such
testing and auditing shall be at the expense of the Contractor and under the sole
direction of City.
Section 15.3 Supporting Information
The Contractor shall provide the City, in the event the Contractor requests a rate
adjustment on the basis of unusual changes or extraordinary increases or costs of
doing business, with a copy of its certified annual financial statements prepared by a
Certified Public Accountant or a licensed public accountant, which shall have been
prepared in compliance with Rule 58 of the "Rules and Regulations of the State Board
of Accountancy," as established by the California Code of Regulations, Title 16,
Chapter I. Such Certified Public Accountant or licensed public accountant shall be
entirely independent of the Contractor and shall have no financial interest whatsoever
in the business of the Contractor. The City may specify the form and detail of the
financial statements.
C:\My Documents\WPDOCS\ContWaste2000.wpd 25 July 11, 2000
The City, or its representative, shall upon request be provided access to
Contractor's operating and financial records, including but not limited to (1) general
ledger computer printout for the immediately preceding fiscal year, including line -item
details on operating income; (2) documents and monthly schedules in support of the
audited financial statements of cash receipts and surcharge revenue; (3) management
reports showing profit and loss for the service provided to the City under this
Agreement and for the Contractor's company -wide operations; and (4) working papers
from prior or on -going audits, including those undertaken by Contractor or Contractor's
parent company.
Section 15.4 Decision; Effective Date
The City shall render a written decision on the Contractor's request, either
accepting, rejecting, modifying or deferring the same and reciting the basis of its
decision. The decision shall be within the sole and absolute discretion of the City
Council, subject to all applicable laws. Any rate increases granted by the City Council
under the provisions of this section shall take effect beginning July 1 of that year for
commercial industrial rates and January 1 of the following year for residential.
Section 15.5 Final Year Payments
Due to the fact that each year's tax rates which are computed for a calendar
year are applied in the tax rolls in a fiscal year, during the final six (6) months of this
Agreement Contractor will be entitled to only fifty percent (50%) of the tax role fees
collected.
Section 15.6 City Right to Set Rates
Nothing in this Article 15 shall preclude City from adjusting rates in the years
that Contractor does not file a CPI rate increase request for purposes of changing the
fees described herein or for any other purposes.
Section 15.7 Maximum Rates
At any time during the term of this Agreement, the City may conduct an
assessment, at its sole cost and expense, to determine the lowest rate for residential
refuse collection services provided to incorporated municipalities in the Coachella
Valley (the "Rate"). The Rate shall consider "like" services provided to other
incorporated municipalities; "like services" shall be defined as MSW collection, curbside
recycling, curbside bulky items and automated green waste collection. Any services
by special agreements with gated communities shall not impact the definition of like
services. The City desires, that consistent with the terms and conditions set forth
herein, the rate charged by Contractor should not exceed one hundred and three
percent (103%) of the Rate. As a result, and not withstanding any provision in
Section 15 to the contrary, no rate increase request made by Contractor pursuant to
C:\My Documents\WPDOCS\ContWaste2000.wpd 26 July 11, 2000
Section 15.1 and 15.3, shall result in the rate charged by Contractor to exceed one
hundred and three percent (103%) of the Rate. The City shall be entitled to a rate
reduction if the assessment determines that the City's rate exceeds (103%) of the
lowest rate. In no event shall the City's Rate exceed the lowest rate for residential
refuse collection provided to more than one other city in the Coachella Valley.
ARTICLE XVI
CONTRACTOR PAYMENTS TO CITY
Section 16.1 Franchise Fee Payments
In consideration for, among other things, an exclusive contract, the Contractor
shall pay to the City eight percent (8%) of all gross receipts, exclusive of Disposal
Charges and fees collected by Contractor pursuant to Section 16.2, received by it
under this Agreement. Payment shall be made to the City by the fifteenth (15th) of
every month for the preceding month's receipts. In the event of termination, the
balance due for the billing period during which the termination occurs, shall be paid
within thirty (30) days of the date of termination. For those amounts collected initially
by the City, City shall withhold the amounts attributable to AB 939, transfer costs to
Edom Hill prior to the actual switch to Edom Hill, the eight percent (8%) franchise
payment and any other amounts owed to the City pursuant to this Agreement or any
amendment thereto.
Section 16.2 Fees Collected by Contractor on Behalf of Citx
From time to time, City may impose certain fees as part of the rates established
for refuse collection service to fund recycling, source reduction, household hazardous
waste or other similar programs. City may also find it necessary to impose fees as
part of the rates established for refuse collection service due to new or existing federal
or state laws or regulations. If and when the rate schedule is modified to include such
fees, the Contractor shall collect said fees as part of the billing process and shall remit
said fees to the City on a quarterly basis by the twentieth (20th) day of January, April,
July, and October for the preceding quarter's fees. In the event of termination, the
balance due for the quarter during which termination occurs shall be paid within thirty
(30) days of the date of termination.
Contractor shall submit a report to the City on the fifteenth (15th) day of each
month describing the amount of such fees billed and collected during the preceding
month.
CAMy Documents\WPDOCS\ContWaste2000.wpd 27 July 11, 2000
ARTICLE XVII
COLLECTION FROM CITY FACILITIES AND CITY CLEANUPS
Section 17.1 Regular r Disposal Service
The Contractor agrees to provide collection services, at no charge to the City,
for refuse containers on all City -owned property and at those locations designated by
the City at which City -sponsored events are held. The collections shall be made at a
frequency acceptable to the City.
The locations at which such collections are to be made include, but are not
limited to, the following:
1. City Hall
2. City Corporation Yard
3. Fritz Burns Park
4. Adams Park
5. Sports Complex on Avenue 50
6. Senior Center
7. As additional City facilities are developed or expanded, collection services
shall be provided by the Contractor at no charge to the City.
Section 17.2 On -Call Bulky Item Collection
The Contractor shall provide bulky item pick up service. Bulky items include
things such as appliances, household furniture, carpets, mattresses, trunks, stumps,
or limbs of trees in bundles. The trunks, stumps, or limbs of trees should not exceed
eighteen (18) inches in diameter nor four (4) feet in length. Homeowner Association
and single family unit customers will each be entitled to an unlimited amount of pick-
ups per calendar year, with a maximum of four (4) items per pick up, for no additional
charge. Customers will provide Contractor with a 48-hour notice and the items will
be collected on the customer's regular collection day.
An additional charge of $10 may be applied to each item exceeding the allowed
four (4) item per pick up limit.
Contractor, at its sole expense, shall create a brochure describing the on -call,
bulky item collection program. The brochure must be approved by the City.
Contractor shall send the brochure, at its sole expense, to each customer once per
year during the month of February throughout the duration of the contract.
CAMv Documents\WPDOCS\ContWaste2000.Wod 28 July 11. 2000
Section 17.3 Disaster Debris Cleanup Implementation Plan
On or before January 1, 1997, the Contractor (with input from City's
representative) shall prepare a draft disaster debris cleanup implementation plan. Said
plan shall advise the City concerning the procedures to be followed and the
prioritization of debris cleanup in the event of an earthquake, flood, or other natural
disaster. The plan shall address the following issues:
1. Establish priorities for disaster cleanup at critical facilities.
2. Outline procedures for reimbursement of costs for disaster debris
cleanup.
3. Describe a plan for radio, cellular telephone, ham radio, and other
methods of communication for use immediately after the disaster to
coordinate the cleanup.
4. List key Contractor and City contact persons, telephone numbers, and
other information necessary for communications after a disaster.
5. Provide maps showing proposed sites for stockpiling disaster debris that
cannot immediately be transported to a landfill or to a recycling facility.
In preparing the draft plan, the Contractor shall refer to similar plans developed
for disaster debris cleanup in other cities, counties, and states. The Contractor shall
also obtain information concerning disaster debris cleanup efforts after the recent Los
Angeles earthquake and the 1989 San Francisco earthquake.
The Contractor shall coordinate development of the disaster debris cleanup plan
with Coachella Valley Business Emergency Service Teams so that the plan is
consistent with the emergency preparedness plans for the Coachella Valley and with
other Coachella Valley cities served by Contractor.
The Contractor shall provide the draft disaster debris cleanup plan to the City
for review. The Contractor shall discuss the plan with City representatives, and shall
incorporate their comments into a final disaster debris cleanup plan. The final plan will
be distributed to the appropriate employees of the Contractor and appropriate City
employees.
Section 17.4 Illegal Dumging Assistance
Contractor will provide waste bins to be filled by City personnel and will haul
debris which has been illegally dumped upon request from authorized City personnel.
This service will be provided up to twelve bins per year.
C:\My Documents\WPDOCS\ContWaste2000.wpd 29 July 11, 2000
Section 17.5 Special Event Toilet Facilities
Contractor will provide up to a maximum of forty (40) portable toilet facilities
for special events designated by City over the term of the Agreement subject to
Contractor remaining in portable facility business.
ARTICLE XVIII
HOLIDAYS
Section 18.1 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 XIX
OBLIGATIONS OF CITY
Section 19.1 Reasonable Cooperation
The City shall reasonably cooperate with the Contractor as may be required to
assist the Contractor in performing the services required under this Agreement.
Section 19.2 Exclusivity
So long as the Contractor is not in breach of this Agreement, the City will not
permit any other Person to collect MSW for which the exclusive right to collect has
been granted to the Contractor, from Premises within the City. Nothing contained
herein shall be construed to prohibit the City from removing MSW (including trash and
demolition debris) on City properties with its own employees or by means of separate
contracts with other Persons.
ARTICLE XX
GENERAL PROVISIONS
Section 20.1 Definitions
1. Agreement: "Agreement" means this Agreement between the City and
Contractor for the Collection and Disposal of Municipal Solid Waste dated as of
, including all exhibits and attachments, and any amendments hereto.
C:\My Documents\WPDOCS\ContWaste2000.wpd 30 July 11, 2000
2. Act: "Act" means the California Integrated Waste Management Act of
1989, as amended, Public Resources Code Sections 40000, et seq.
3. Bulky Items: "Bulky Items" means furniture, household or industrial
appliances, shipping crates and containers and other large bulky or heavy objects not
normally discarded on a regular basis at Residential, Commercial or Industrial Premises.
4. 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.
5. Collection: "Collection" means collection of MSW and its transportation
to a Disposal Site.
6. Contractor: "Contractor" means Waste Management of California, Inc.,
a California corporation.
7. Commercial Premises: "Commercial Premises" means any premises
occupied by stores, offices, and other commercial facilities providing goods and
services.
8. Construction and Demolition Waste: "Construction and Demolition
Waste" includes waste building materials, packaging and rubble resulting from
construction, remodeling, repair and demolition operations on pavement, houses,
commercial buildings and other structures.
9. 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.
10. Disposal Charge: The portion of the rates in Exhibit A included to cover
payment of landfill or transfer station tipping fees.
11. Disposal Site: "Disposal Site" means the solid waste facility or facilities
designated by the City for the ultimate disposal (by the Contractor) of MSW collected
by the Contractor. The Disposal Site may include, but is not limited to, a solid waste
landfill, a solid waste transfer or processing station, or a combination thereof.
12. 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
CAMy Documents\WPDOCS\ContWaste2000.wpd 31 July 11, 2000
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.
13. 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.
14. 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
25117 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.).
15. Industrial Premises: "Industrial Premises" means premises occupied by
manufacturing operations and other industrial facilities.
16. Institutional Premises: "Institutional Premises" means premises occupied
by educational, health care, correctional, research and other similar facilities.
17. Municipal Solid Waste: "Municipal Solid Waste" or "MSW" means all
discarded putrescible and non-putrescible solid, semi -solid and liquid wastes including
Garbage, Refuse, Rubbish, Construction and Demolition Wastes or Bulky Items.
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.
18. Officer: "Officer" includes any elected or appointed member of the City
Council and all other public officials of the City including but not limited to commission
members, City Attorney, City Engineer, City Clerk, and City Manager.
19. 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.
C:\My Documents\WPDOCS\ContWaste2000.wpd 32 July 11, 2000
20. 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.
21. Premises: "Premises" means any land or building in the City where
Recyclable Materials is generated or accumulated.
22. 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.
23. 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.
24. Refuse: "Refuse" includes Garbage and Rubbish.
25. Residential Premises: "Residential Premises" means single family homes,
townhouses, multi -unit buildings such as apartments and condominiums, and mobile
home parks.
26. 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.
27. 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.
28. Term: "Term" means the term of this Agreement.
29. Ton: "Ton" means a short ton of 2,000 pounds avoirdupois.
30. Waste Generator: "Waste Generator" means the Owner or occupant of
Premises which initially produce Recyclable Materials.
Section 20.2 Bight of the City to Make Changes
The City, without amending this Agreement, may direct Contractor to cease
performing one or more types of service described in Article Il, may direct Contractor
to modify the scope of one or more such services, may direct Contractor to perform
CAMy Documents\WPDOCS\ContWaste2000.wpd 33 July 11, 2000
additional MSW collecting and processing services, or may otherwise direct Contractor
to modify its performance under any other section of this Agreement in writing.
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.
If directed by City, 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.
Section 20.3 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 20.4 Force Maieure
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 MSW, subject to prior approval of City.
Section 20.5 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:
C:\My Documents\WPDOCS\ContWaste2000.wpd 34 July 11, 2000
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
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 MSW 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.
Section 20.6 Sale of Recyclables
Unless and until the City has directed the Contractor to deliver the MSW
collected to a Transfer Station, the Contractor may salvage materials from the MSW
it collects and shall be entitled to retain all revenues it receives from the sale of such
recovered materials. The revenue derived from such sales is not included in "gross
receipts" for purposes of calculating the Franchise Fee due to the City.
Upon receiving direction from the City to deliver MSW to a Transfer Station, the
Contractor shall cease any such salvage efforts.
CAMy Documents\WPDOCS\ContWaste2000.wpd 35 July 11, 2000
Section 20.7 Rights, Remedies and Benefits Cumulative
It 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 20.8 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 20.9 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 20.10 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
78-495 Calle Tampico
La Quinta, CA 92253
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 20.11 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
CAMy Documents\WPDOCS\ContWaste2000.wpd 36 July 11, 2000
be entered in any court having competent jurisdiction thereof. Such controversy or
claim shall be submitted to one arbitrator mutually selected from 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 20.12 Legal Jurisdiction
This Agreement and the rights of the parties hereunder shall be interpreted under
the laws of the State of California.
Section 20.13 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 20.14 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.
Section 20.15 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 20.16 Compensation to Contractor
A full compensation to the Contractor for all the services to be performed by it
under this Agreement, including but not limited to those required by Articles 11, 111, IV
and VII, the Contractor shall be entitled to collect the service fee then in effect for all
MSW collected by the Contractor under the terms of this Agreement. No payment is
due Contractor from the City.
Section 20.17 Fees for Refuse Collection
Fees for refuse collection shall be set by resolution of the City Council and shall
continue in full force and effect until amended by resolution of the City Council.
C:\My Documents\WPDOCS\ContWaste2000.wpd 37 July 11, 2000
Section 20.18 Fees for Unusual Conditions
For collections requiring special equipment or otherwise not set forth in the
Agreement, fees may be charged as shall be agreed upon by the Contractor and the
customer. The Contractor shall notify City of said consent in writing.
Section 20.19 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 MSW 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.
Section 20.20 Contractor's Employee Relations
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 20.21 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 20.22 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\ContWaste2000.wpd 38 July 11, 2000
Section 20.23 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 20.24 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
anything of value to a City officer or employee, the offer or receipt of which would
violate California law.
Section 20.25 Exhibits
Exhibits A and B attached hereto are incorporated herein by this reference.
Section 20.26 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 XXI
OTHER OPERATIONAL REQUIREMENTS
Section 21.1 Rules and Regulations Governing Recyclable Materials
Contractor shall comply with Chapter 6.04 of the City Municipal Code and any
amendments thereto.
Section 21.2 Cooperation with Subsequent Providers
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.
C:\My Documents\WPDOCS\ContWaste2000.wpd 39 July 11, 2000
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.
Agreement
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 forty (40) pages, not including Exhibits A and B
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. GREEN, City Clerk
APPROVED AS TO FORM:
CITY OF LA QUINTA
By:
JOHN J. PENA, Mayor
M. KATHERINE JENSON, City Attorney
WASTE MANAGEMENT OF CALIFORNIA, INC.
Date: By:
Date: By:
President
Secretary
C:\Mv Documents\WPDOCS\ContWaste2000.Wod 41 July 12. 2000
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.
C:\My Documents\WPDOCS\ContWaste2000.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\WPDOCS1ContWaste2000.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, 2"d 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.
C:\My Documents\WPDOCS\ContWaste2000.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
C:\My Documents\WPDOCS\ContWaste2000.wpd 4 July 12, 2000
REFUSE COLLECTION RATE
AND
DISPOSAL CHARGE
(Effective , 2000)
(To be provided by Waste Management)
C:\My Documents\WPDOCS\ContWaste2000.wpd A-1 July 12, 2000
EXHIBIT B
RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF LA QUINTA APPROVING THE AGREEMENT
[To Be Inserted]
C:\My Documents\WPDOCS\ContWaste2000.wpd B-1 July 12, 2000