HomeMy WebLinkAboutResolution No. 5863IEEREAB, the City has adopted an Ordinance stipulating that
all commercial collectors enter into an Agreement with the City
concerning the collection of commercial solid waste in Downey, and
WBEREAB, the State has passed a recycling law known as AB 939
which requires cities to reduce the amount of solid waste going to
landfills, and
11EEREAS, the City wishes to continue the multi- collector
system that exists in Downey.
NOW, THEREFORE, be it resolved that the City Council of the
City of Downey does hereby approve the form of the Agreement for
Integrated Waste Management Services for Commercial Solid Waste
attached hereto.
ATTEST:
RESOLUTION OF TEE CITY COUNCIL OF TEE CITY OF DOWNEY
APPROVING TEE FOWL OF THE CITY'S COMMERCIAL SOLID WASTE
AGREEMENT BETWEEN COLLECTORS AND TEE CITY OF DOWNEY
APPROVED AND ADOPTED this 14th day of February
RESOLUTION 1I0. 5863
Za. a i6t4
Mayor /
, 1995.
i HEREBY CERTIFY that the foregoing Resolution was duly
adopted by the City Council of Downey at a regular meeting hereof,
held on the 14th day of February , 1995 by the
following vote, to wit:
AYES: 4 COUNCIL MEMBERS: Lawrence, McCaughan, Boggs, Riley
NOES: 0 COUNCIL MEMBERS: None
ABSTAINED: 0 COUNCIL MEMBERS: None
ABSENT: 1 COUNCIL MEMBERS: Brazelton
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Att.
C : oor soli . d2
d C) lllv)��r 9.
� ityClerk
LAX:81492.9
AGREEMENT BETWEEN THE CITY OF DOWNEY
AND
[NAME OF CONTRACTOR]
FOR INTEGRATED WASTE MANAGEMENT SERVICES
FOR COMMERCIAL SOLID WASTE
TABLE OF CONTENTS
PAGE
SECTION 1. GRANT AND ACCEPTANCE OF RIGHT AND
PRIVILEGE TO ARRANGE FOR THE
COLLECTION OF COMMERCIAL SOLID WASTE
AND WAIVER OF RIGHTS 2
A. Grant of Permit 3
B. Acceptance and Waiver 3
C. Self - Haulers and Gardeners 3
SECTION 2. DEFINITIONS 4
A. "AB 939" or "Act" 4
B. "AB 939 Administrative Fee" 4
C. "Bins" or "Commercial Bins" 5
D. "City Limits" 5
E. "Commercial Premises" 5
F. "Commercial Solid Wastes" 5
G. "Commercial Service Recipient" 5
H. "Construction and Demolition Waste" 5
I. "Green Waste" or "Compostables" or "Yard Waste" . . 5
J. "Gross Revenues" 6
K. "Hazardous Waste" 6
L. "Industrial Waste" 6
M. "Multi- Family Residential Bins" 6
N. "Multi- Family Units" 6
O. "Permit" 6
P. "Permittee" 7
Q. "Recyclable Material" 7
R. "Recyclable Solid Waste" 7
S. "Residential Solid Waste" 8
T. "Scavenging" 8
U. "Single Family Residence" or "Single- Family
Dwelling" or "Single- Family Unit" 8
SECTION 3. PERMIT AREA 8
SECTION 4. SERVICES PROVIDED BY [NAME OF
CONTRACTOR] 8
A. General 8
B. Food Waste Services 8
C. Recycling 8
D. Yard Waste Collection 9
E. Hours of Collection 9
F. Clean Up of Waste Enclosures or Overflowing Bins . 9
SECTION 5. FEES 9
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SECTION 6. TERM AND RENEWAL 10
SECTION 7. PERMIT TRANSFER; CITY CONSENT
REQUIRED; FEES 10
SECTION 8. ADMINISTRATIVE DISPUTE RESOLUTION 12
A. Notice; Response; Resolution; Appeal 12
1. Notice of Deficiencies; Response 12
2. Review by Director; Notice of Appeal 12
3. Review by City Manager; Appeal 13
B. City Council Hearing 13
C. City Council Determination 14
D. Notice of Appeal to Referee 14
E. Liquidated Damages 15
F. Reservation of Rights by City 15
G. Cumulative Rights 16
SECTION 9. REFERRAL TO REFEREE; HEARING
PROCEDURES 16
A. Applicability 17
B. Reference of Dispute .7
1. Procedure for Appointment 17
2. Ex Parte Communications Prohibited 17
3. Cooperation 17
4. Administrative Record; Discovery 17
5. Standards for Decision 18
6. Evidence and Findings 18
7. Remedial Authority 18
8. Stay Pending Entry of Final Judgment 18
9. Allocation of Referee's Costs 18
10. Recovery of Attorney's Fees 19
C. Decision 19
SECTION 10. CITY'S ADDITIONAL REMEDIES 19
SECTION 11. PRIVACY 19
A. Protection Of Privacy 19
B. Mailing Lists Prohibited 19
C. Privacy Rights Cumulative 19
SECTION 12. AAYsAas AND ADVERSE INFORMATION 20
A. Annual Report 20
1. General Information 20
2. Prior Year's Activities 20
3. Recommendations 20
LAX:81492.9 Date of Printing: January 31, 1995 —ii—
B. Reporting Adverse Information 20
C. Failure to Report
D. City's Review of [Name of Contractor]'
Performance
E. Costs
F. Monthly and Quarterly Reports and Other
Information
1. Monthly Reports
2. Quarterly Reports
LAX:41492.9 Dote of Printing: Maury 31, 1995 -iii-
20
21
21
21
21
21
a. Recyclable Solid Wastes 21
b. Hazardous Waste Diversion Reports . . . 22
c. Certification 22
3. Submission of Reports 22
4. Monitoring 22
5. City's Right to Request Information 22
6. CERCLA Defense Records 22
G. Inspection and Audit Rights 23
H. Costs 23
SECTION 13. COMPENSATION, RATES AND BILLING 23
SECTION 14. COLLECTION EQUIPMENT 23
A. Collection Vehicles 23
B. Bins 24
C. Name 24
D. Sanitation 24
E. Telephone Number 24
SECTION 15. OWNERSHIP OF COMMERCIAL SOLID WASTE 24
SECTION 16. INDEMNIFICATION AND INSURANCE 24
A. Indemnification of City 24
B. Hazardous Substances Indemnification 25
C. AB 939 Indemnification 26
D. Workers' Compensation Insurance 26
E. Public Liability Insurance 27
F. Evidence of Insurance Coverage; Insurance
Repository 28
G. Modification 28
H. Self- Insured Retention 28
I. Reduction of CERCLA and Other Liability. . . .. . . 28
SECTION 17. CASH BOND 29
SECTION 18. [NAME OF CONTRACTOR]'5 BOORS AND
RECORDS; AUDITS 30
A. Records 30
B. Accountant's Report 30
C. Audit 30
SECTION 19. SERVICE EXCEPTIONS; HAZARDOUS WASTE
NOTIFICATIONS 30
A. Failure to Collect 30
B. Hazardous Waste Inspection and Reporting 30
C. Hazardous Waste Diversion Records 31
SECTION 20. REIMBURSEMENT OF CITY EXPENSES 31
SECTION 21. GENERAL PROVISIONS 31
A. Force Majeure 31
B. Independent Status 32
C. Pavement Damage 32
D. Property Damage 32
E. Law to Govern; Venue 32
F. Fees and Gratuities 32
G. AB 939 32
H. Amendments 33
I. Notices 33
J. Compliance With Laws 34
K. Savings Clause and Entirety 34
L. Exhibits Incorporated 34
M. Joint Drafting 34
N. Non - Discrimination 34
EXHIBIT "A" 37
LAX:81492.9 Date of Printing: January 31, 1995 — iV—
i
RECITALS:
AGREEMENT BETWEEN THE CITY OF DOWNEY
AND [NAME OF CONTRACTOR]
FOR INTEGRATED WASTE MANAGEMENT SERVICES
FOR COMMERCIAL SOLID WASTE
This AGREEMENT BETWEEN THE CITY OF DOWNEY AND [NAME OF
CONTRACTOR] FOR INTEGRATED WASTE MANAGEMENT SERVICES FOR COMMERCIAL
SOLID WASTE ( "Agreement" or "Permit and Agreement ") is entered into
this day of , 1995, by and between the CITY
OF DOWNEY ( "City ") and [NAME OF CONTRACTOR] ( "Licensed Hauler ") a
California Corporation, for the collection, transportation,
recycling, composting and disposal of Commercial Solid Waste,
including green waste and Recyclable Solid Wastes.
WHEREAS, the Legislature of the State of California, by enactment
of the California Integrated Waste Management Act of 1989 ( "AB
939 "), has declared that it is within the public interest to
authorize and require local agencies to make adequate provisions
for solid waste handling within their jurisdictions; and
WHEREAS, pursuant to California Public Resources Code
§ 40059(a)(1), the City Council of the City of Downey has deter-
mined and found that the public health, safety and well -being
require that permits and agreements be awarded to qualified solid
waste enterprises for solid waste collection, transportation,
recycling, composting and disposal services in commercial,
industrial and multi- family residential areas in the City of
Downey; and
WHEREAS, the City Council has adopted Ordinance No. 94 -0Q governing
Commercial Solid Waste collection; and
WHEREAS, City is obligated to protect the public health and safety
of the residents of the City of Downey by taking steps to enable
solid waste haulers and recyclers to make arrangements for the
collection of Commercial Solid Wastes in a manner consistent with
the protection of public health and safety, and to do so in a
manner that does not burden interstate commerce or favor in -state
or local firms nor discriminate in any way against firms with out -
of -state affiliations or corporate offices; and
WHEREAS, City and [NAME OF CONTRACTOR] are mindful of the
provisions of the laws governing the safe collection, transport,
recycling and disposal of Commercial Solid Waste, including AB 939,
the Resource Conservation and Recovery Act ( "RCRA ") 42 U.S.C.
§§ 6901 st seg., and the Comprehensive Environmental Response,
Compensation and Liability Act ( "CERCLA "), 42 U.S.C. §§ 9601 gt
sea.; and
LAX:81492.9 Date of Printing: January 31, 1995 —1—
WHEREAS, City and [NAME OF CONTRACTOR] desire to leave no doubts as
to their respective roles, and that by entering into this
Agreement, City is not thereby becoming a "generator" or an
"arranger" as those terms are used in CERCLA § 107(a)(3), and that
it is [NAME OF CONTRACTOR], not City, which is "arranging for" the
collection, the transport for disposal, composting of Green Waste
and the recycling of Recyclable Solid Wastes and Commercial Solid
Wastes which may contain consumer products with the characteristics
of hazardous substances; and
WHEREAS, there are no places within the City limits of the City of
Downey where landfills are located, or which are suitable for the
siting of a landfill, and therefore Commercial Solid Waste must be
exported from the City; and
WHEREAS, [NAME OF CONTRACTOR] and not City, will select the land-
fill or transformation facility destination of the nonrecyclable
waste which [NAME OF CONTRACTOR] will arrange to collect, that City
has not, and, by this Permit and Agreement does not, instruct [NAME
OF CONTRACTOR] on its collection methods, nor supervise the
collection of waste, and nothing in this agreement, or other action
of the City shall be construed to bar others from removing waste
from containers, nor to place title to such waste in [NAME OF
CONTRACTOR] (the parties recognizing that whatever, if any, title
[NAME OF CONTRACTOR] may gain to such waste is by operation of
state law, and is not the result of this Permit and Agreement); and
WHEREAS, the City Council declares its intention to maintain a
competitive, multi- hauler system for the collection of Commercial
Solid Waste from commercial, industrial and multi - family
residential premises within the City; and
WHEREAS, [NAME OF CONTRACTOR] has represented and warranted to City
that it has the experience, responsibility, and qualifications to
conduct recycling programs and to arrange with residents of multi-
-- family dwellings and commercial and other entities in the City of
Downey for the collection, safe transport, recycling and disposal
of Commercial Solid Waste which may inadvertently contain consumer
products with the characteristics of hazardous substances, the City
Council of the City of Downey determines and finds that the public
interest, health, safety and well -being would be served if [NAME OF
CONTRACTOR] were to make arrangements with residents and other
entities to perform these services for Commercial Solid Waste
service recipients.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
SECTION 1. GRANT AND ACCEPTANCE OF RIGHT AND PRIVILEGE TO ARRANGE
FOR THE COLLECTION OF COMMERCIAL SOLID WASTE AND WAIVER
OF RIGHTS.
LAX:81492.9 Date of Printing: January 31, 1995
-2-
A. Grant of Permit. The City grants to [NAME OF CONTRACTOR]
for the term of this Permit and Agreement (including all extensions
or renewals), the right and privilege to arrange for the
collection, transportation, recycling, composting and disposal of
Commercial Solid Waste (including construction and demolition waste
in temporary roll -off and other Commercial Bins throughout the
City) generated at or accumulated on Commercial Premises within the
City of Downey as its boundaries are now constituted or may hereaf-
ter be amended, pursuant to the City of Downey Municipal Code and
California Public Resources Code § 40059(a)(1). (Collection of
single - family residential solid waste and Recyclable Solid Wastes
generated or accumulated at single - family residential premises is
the subject of a separate agreement.) City reserves the right to
enter into agreements with other parties for the conduct of other
solid waste and recycling services.
B. Acceptance and Waiver. [NAME OF CONTRACTOR] accepts and
agrees to be bound by and comply with all the requirements of this
Permit and Agreement. Whatever, if any, continuation rights [NAME
OF CONTRACTOR] may have pursuant to Public Resources Code Sections
49520 -21 are subject to [NAME OF CONTRACTOR]'s satisfactory
performance of services pursuant to this Permit and Agreement.
[NAME OF CONTRACTOR]'s rights to serve any part of the City as its
boundaries exist as of the date of execution of this Agreement
under any prior grant of franchise, contract, license or permit
issued or granted by City are replaced by the rights granted by
this Permit and Agreement, with respect to the waste stream covered
by this Permit and Agreement. This Permit and Agreement is subject
to all of the rights, if any, which may be held by any other solid
waste enterprise, if any, holding rights pursuant to Public
Resources Code § 49520 or other laws.
C. Belf- Haulers and Gardeners. This Permit and Agreement shall
not prohibit persons who produce or generate Commercial Solid
Waste, or persons who own or who are in charge of day -to -day
activities on premises upon which Commercial Solid Waste has been
produced, generated or accumulated, from : (1) selling their
Recyclable Materials or (2) donating their Recyclable Materials to
a nonprofit charity registered with the Attorney General of the
State of California; provided, however, that in both instances:
1) The person must segregate on those premises, by waste
type, the Recyclable Materials to be sold or donated,
and
2) The person may not pay the buyer or the donee any
consideration for collecting, processing or trans-
porting such Recyclable Materials. A person who simply
receives a discount or reduction in the collection,
disposal and /or recycling service rates for its
unsegregated or segregated Commercial Solid Waste shall
LAX:81492.9 Date of Printing: January 31, 1995 -3-
not be deemed to be selling or donating Recyclable
Materials for purposes of this exception.
D. City reserves the right to enter into agreements with other
parties for the conduct of services not covered by this Permit and
Agreement.
E. City reserves whatever, if any, right may be granted by
Congress to exercise flow control (i.e., the right to select
landfill sites, transformation facilities and Materials Recovery
Facilities to which the Commercial Solid Waste and Recyclable Solid
Wastes are taken) over the Commercial Solid Waste to be collected
pursuant to this Permit and Agreement. In the event City exercises
flow control, and directs [NAME OF CONTRACTOR] to transport
Commercial Solid Waste to a landfill or other disposal facility,
City and [NAME OF CONTRACTOR] agree to use their best efforts to
obtain indemnification from CERCLA and related claims from the
operator of the landfill or other destination to which Commercial
Solid Waste collected pursuant to this Permit and Agreement is
taken for disposal. In the event City requires [NAME OF
CONTRACTOR] to utilize a landfill or other disposal facility not
owned or operated by [NAME OF CONTRACTOR] or an affiliate of [NAME
OF CONTRACTOR], [NAME OF CONTRACTOR] shall be relieved of its
liability with respect to the matters addressed in SECTION 16.B of
this Agreement with respect to the Commercial Solid Waste delivered
to a disposal facility designated by City. In addition [NAME OF
CONTRACTOR] shall be relieved of its duties under SECTION 16.B "AB
939 Indemnification" to the extent that [NAME OF CONTRACTOR]'
ability to meet the diversion goals is adversely affected by City's
selection of a disposal facility.
SECTION 2. DEFINITIONS. Whenever any term used in this Permit
and Agreement has been defined by the Downey Municipal Code or
Division 30, Part 1, Chapter 2 of the California Public Resources
Code, the definitions in the Municipal Code or Public Resources
Code shall apply unless the term is otherwise defined in this
Agreement.
LAX:81492.9 Date of Printing: January 31, 1995 -4-
A. "AB 939" or "Act" means the California Integrated Waste
Management Act of 1989, codified in part at Public Resources Code
§§ 40,000 gt. sea., as it may be amended from time to time, and as
implemented by the regulations of the California Integrated Waste
Management Board.
B. "AB 939 Administrative Fee" means the fee or assessment set by
the City which is intended to offset the City's expense in
administering this Agreement, the expenses of administering the AB
939 program for the Commercial Solid Waste stream, AB 939 reporting
requirements, review and preparation of Solid Waste Generation
Studies, review of and preparation of changes to the City's Source
Reduction and Recycling Element and other expenses. Any fee or
assessment imposed under this Agreement shall be approved by the
City Council by Resolution.
C. "Bins" or "Commercial Bins" means Bins provided by a solid
waste enterprise permitted, licensed, franchised or otherwise
approved by the City of Downey to collect solid waste in the City.
Commercial Bins are usually three (3) cubic yards or greater
capacity, provided for the temporary accumulation and collection of
Commercial Solid Waste, Recyclable Solid Wastes, or Green Waste,
placed by a Collector at Commercial Premises for the collection of
Commercial Solid Waste and charged at commercial rates.
D. "City Limits" means the boundaries of the City together with
all amendments and changes thereto, which boundaries are shown by
maps incorporated herein by reference and which are on file in the
office of the City Clerk.
E. "Commercial Premises" means all premises in the City, other
than single - family residential premises, where Commercial Solid
Wastes are generated or accumulated. The term "Commercial
Premises" includes, but is not limited to, stores; offices;
federal, state, county and local governmental institutions,
including, but not limited to schools, school districts, special
districts and water districts (to the extent permitted by law);
restaurants; Multi - Family Units; rooming houses; mobile home parks;
hotels; motels; offices; manufacturing, processing, or assembling
shops, plants or other industrial facilities; and hospitals,
clinics and nursing homes (non - medical waste only).
P. "Commercial Solid Wastes" means all types of solid waste,
including Green Waste and Recyclable Solid Waste, generated or
accumulated at Commercial Premises. "Commercial Solid Waste" does
not include Single- Family Residential Solid Waste.
G. "Commercial service Recipient" means the owner or other person
in charge of the day -to -day activities of a Commercial Premises
within the City.
E. "Construction and Demolition Waste" means discarded building
materials, recyclable construction and demolition materials,
packaging, plaster, rock or brick, drywall, wood, cement and rubble
resulting from construction, remodeling, repair and demolition
operations, but does not include asbestos - containing materials.
The collection and disposal of Construction and Demolition Waste
from residential premises through the use of Commercial Bins is
within the scope of this Permit and Agreement.
I. "Green Wasts" or "Compostables" or "Yard Waste" means a form
of _Commercial Solid Waste composed of leaves, grass clippings,
brush, clean pieces of wood no longer than twenty -four inches long,
branches and other forms of organic materials generated from
landscapes or gardens, separated from other Commercial Solid Waste.
LAX:81492.9 Date of Printing: January 31, 1995 -5-
"Green Waste" does not include stumps or branches in bundles
exceeding eighteen (18) inches in diameter or four (4) feet in
length.
J. ' Revenues' means any and all revenue or compensation in
any form derived directly or indirectly by the Permittee for
Commercial Bin Service pursuant to the Agreement, according to
Generally Accepted Accounting Principles. "Gross Revenues"
includes revenues or compensation in any form derived directly or
indirectly by affiliates, subsidiaries, parent companies or other
affiliates of the Permittee pursuant to this Agreement.
N. "Hazardous Waste" means any substances, materials, wastes or
mixture of wastes defined as "hazardous substances" or "hazardous
wastes" pursuant to the Resource Conservation and Recovery Act
( "RCRA "), 42 U.S.C. §§ 6901 gt sea., the Comprehensive
Environmental Response, Compensation and Liability Act ( "CERCLA "),
42 U.S.C. §§ 9601 et seg., and all future amendments to either of
them, or as defined by the California Integrated Waste Management
Board or other state agency with jurisdiction. Where there is a
conflict in the definitions employed by two or more agencies having
jurisdiction over hazardous or solid waste, the term "Hazardous
Waste" shall be construed to have the broader, more encompassing
definition.
L. "Industrial Waste means all solid waste and semi -solid waste
which results from industrial processes and manufacturing
operations. "Industrial Waste" is part of the Commercial Solid
Waste stream and is included within the scope of this Agreement.
M. "Multi- Family Residential Bins" means Commercial Bins utilized
for the temporary accumulation and collection of Commercial Solid
Waste from multi- family units. "Multi- Family Residential Bins" are
usually two (2) or three (3) cubic yards, or larger, in size.
N. "Multi - Family Units" means residential units such as apart-
ments, condominiums or townhomes of six or more residential units
each of which has separate cooking and bathing facilities, which
utilize Commercial Bins, as defined in this Agreement, for the
collection of Commercial Solid Waste. The term "Multi- Family
Units" does not include hotels, motels, nursing homes or
convalescent centers, barracks, dormitories or other similar places
using Commercial Bins.
LAX:81492.9 Date of Printing: January 31, 1995 -6-
O. "Ferait" means the written authority by City evidenced by this
Agreement granting a qualified refuse collector the right and
privilege to: (1) arrange for the collection of, and to collect
refuse, rubbish and other forms of solid waste, (2) to transport to
landfill or other licensed disposal facilities as determined by
[NAME OF CONTRACTOR] unless otherwise specified by City, and (3) to
recycle from collected refuse, compostables and recyclables, all
1
Commercial Solid Waste, including Green Waste and Recyclable Solid
Waste, generated and /or accumulated within the City.
P. "Parmittsa" means [NAME OF CONTRACTOR], the entity authorized
by the City Council by this Permit and Agreement to provide
Commercial Solid Waste services in the City.
Q. "Recyclable Material" means a commodity which has value and
which may be sold for compensation, or given away, but which is not
discarded into the commercial waste stream. A Recyclable Material
which is discarded into the commercial waste stream loses its
character as a Recyclable Material and becomes Commercial Solid
Waste, subject to this Agreement.
R. "Recyclable Solid Wastes means recyclable items which have
been source - separated before having been discarded into the
Commercial Solid Waste stream. "Recyclable Solid Waste" is a part
of the Commercial Solid Waste stream which can be reused or
processed into a form suitable for reuse through reprocessing or
remanufacture, consistent with the requirements of AB 939. As of
the date of execution of this Agreement, Recyclable Solid Waste
includes:
1. Aluminum cans;
2. Glass jars and bottles;
3. Steel, bi -metal and tin cans;
4. Plastic soda pop bottles and other Type #1 containers
(PET - polyethylene terephthaleate);
5. Plastic milk and water jugs and other Type #2 contain-
ers (HDPE -high density polyethylene);
6. Type #3 plastic containers (V- polyvinyl chloride);
7. Type #4 plastic containers (LDPE -low density
polyethylene);
8. Type #5 plastic containers (PP- polypropylene);
9. Type #6 plastic containers (PS- polystyrene);
10. Type #7 plastic containers (other and commingled);
11. Plastic bags, shrink wrap, plastic tools and toys and
other plastic materials (if readily identifiable as
being recyclable);
12. Juice boxes and milk cartons (Aseptic Packaging, Tetra
Pack, and Waxed Cardboard);
13. Scrap metal, coat hangers and metal foil;
14. Newspapers;
15. Mixed paper (e.g., ledger, computer, junk mail, maga-
zines, paperback books, cereal boxes, envelopes, paper
shopping bags and non - metallic wrapping paper);
16. Corrugated cardboard;
17. Wood;
18. Liquid cell (automotive type) batteries;
19. Latex paint (if delivered to a drop -off center); and
20. Fluorescent tubes.
LAX:81492.9 pate of Printing: January 31, 1995 —
Recyclable Solid Wastes shall include such other materials as
agreed by City and [NAME OF CONTRACTOR].
8. "Residential Solid Waste" means all types of solid waste, in
the residential solid waste stream. Multi - Family Residential Solid
Waste is covered by this Agreement. Single- Family Residential
Solid Waste is not covered by this Agreement, but is covered by a
separate Residential Agreement.
T. "Scavenging" means the unauthorized removal of Recyclable
Solid Wastes. Scavenging is prohibited by Public Resources Code
§ 41950.
U. "Single Family Residence" or "single - Family Dwelling" or
"Single- Family Unit" generally means a detached building, or each
unit of multi - family dwelling of five or fewer units, which
utilizes one or more single family Residential Solid Waste
Containers, (i.e., carts or cans) and not Commercial Bins. Single
Family Dwellings, which do not utilize Commercial Bins, as defined
in this Agreement, for the collection of solid waste, are not
covered by this Agreement.
SECTION 3. PERMIT AREA. The service area covered by this Permit
and Agreement shall be all Commercial and Multi - Family Premises
within the City limits.
SECTION 4. SERVICES PROVIDED BY [NAME OF CONTRACTOR].
A. General. In order to protect the public health and safety,
arrangements made by [NAME OF CONTRACTOR] with its service
recipients in the City of Downey for the collection of Commercial
Solid Wastes not defined in this Agreement as Recyclable Solid
Wastes, shall provide for the collection of all of such waste
generated or accumulated within the City by its Commercial Solid
Waste Service Recipients at least once per week, or more frequently
as [NAME OF CONTRACTOR] and its Service Recipients may agree.
[NAME OF CONTRACTOR] agrees to consider City's routing suggestions,
as City's air quality Traffic Demand Management Plan may be
affected by routes and scheduling.
LAX:81492.9 Date of Printing: January 31, 1995 -8-
B. Food Waste Services. [NAME OF CONTRACTOR] shall collect and
remove Commercial Solid Waste placed in Commercial Solid Waste
Containers at commercial food service and food preparation
establishments a minimum of two times per week.
C. Recycling. [NAME OF CONTRACTOR] shall deliver a Recycling
Container to each of its Commercial Solid Waste service recipients
who requests one, to be used exclusively for the temporary
accumulation, separation and collection of Recyclable Solid Wastes.
[NAME OF CONTRACTOR] shall provide additional recycling containers,
as needed, to all of its service recipients who request them.
[NAME OF CONTRACTOR] shall collect and remove all Recyclable Solid
Wastes placed in [NAME OF CONTRACTOR]'s Recyclable Solid Wastes
Containers. [NAME OF CONTRACTOR] agrees to use its best efforts to
process Recyclable 'Solid Wastes through a Materials Recovery
Facility in order to maximize the diversion of Commercial Solid
Waste from landfilling. [NAME OF CONTRACTOR] shall collect tele-
phone books from service recipients pursuant to this Agreement and
transport them to a recycler. [NAME OF CONTRACTOR] agrees to
market all Recyclable Solid Waste materials collected pursuant to
this Permit and Agreement at fair market value, if a fair market
value has been established in the marketplace at the time of
marketing.
D. Yard Waste Collection. [NAME OF CONTRACTOR] shall collect and
remove all Green Waste placed in Green Waste containers provided by
[NAME OF CONTRACTOR] or in bags put out for collection at a
location acceptable to the service recipient and [NAME OF
CONTRACTOR]. [NAME OF CONTRACTOR] shall provide its service
recipients with tags, ties or other means of identifying Green
Waste Containers and bags. The frequency of collection of Green
Waste placed in Green Waste containers provided by [NAME OF
CONTRACTOR] shall be determined by agreement between [NAME OF
CONTRACTOR] and the service recipient.
E. Hours of Collection. [NAME OF CONTRACTOR], in order to
protect the peace and quiet of residents, will provide collections
in commercial areas where noise from collection vehicles may be
audible in residential areas not before 6:00 a.m. or after 6:00
p.m., Monday through Friday, excluding holidays, or before 8:00
a.m. or after 6:00 p.m. on Saturdays.
7. Clean Up of Waste Enclosures or Overflowing Bins. [NAME OF
CONTRACTOR] shall exercise all reasonable care and diligence in
collecting solid waste, and shall, at [NAME OF CONTRACTOR]s' sole
expense, clean all solid waste spilled during the collection
process. [NAME OF CONTRACTOR] shall clean up all overflowing bins
or waste enclosures within twenty -four (24) hours of notification
by City. [NAME OF CONTRACTOR] may charge the Service Recipient for
the actual costs of clean up, unless the overflowing condition
resulted from [NAME OF CONTRACTOR]'s failure to empty the bin
during the course of the regular collection schedule.
SECTION S. 7118. To compensate City for damage to its streets,
sidewalks, curbs and gutters and other infrastructure resulting
from [NAME OF CONTRACTOR] 'S activities, [NAME OF CONTRACTOR] shall
remit to City, on or before each February 1st, May 1st, August 1st
and November 1st that this Permit and Agreement remains in effect,
a Fee equal to five per cent (5 %) of permittee's Gross Revenue
collected for the previous calendar quarter, or SEVEN HUNDRED AND
FIFTY DOLLARS ($750.00), whichever is greater.
LAX:81492.9 Date of Printing: January 31, 1995 —
SECTION 6. TERM AND RENEWAL.
A. Permits pursuant to the provisions of this Agreement shall
expire on December 31st of the year in which the Permit was
granted. Permits may, at the City's option, be renewed if [NAME OF
CONTRACTOR] submits an application for renewal on a form prescribed
by the Director of Public Works at least thirty days (30) prior to
expiration of the Permit then in effect. Any application for
renewal shall be accompanied by the fee specified by this Agreement
or such a fee as determined by Resolution of the City Council from
time to time hereafter and copies of insurance policies or
endorsements evidencing the required insurance requirements.
B. The Director of Public Works shall renew the Permit if, during
the term of the then current Permit, [NAME OF CONTRACTOR] has
faithfully complied with the terms and conditions of this
Agreement, the regulations adopted by the Director of Public Works,
and any conditions imposed upon the Permit pursuant to Ordinance
No. @@ . The term during which collection services are to be
provided pursuant to this Permit shall be effective January 1, _
_ , and continue for twelve months (12) unless earlier terminated
for default, by agreement of the Parties to discontinue operations
within the City, or by [NAME OF CONTRACTOR]'s surrender of his
Permit to City. Upon execution of this Agreement, any previously
existing Permits between the parties shall have no further force
and effect.
C. Certain provisions of this Agreement require [NAME OF
CONTRACTOR] to provide services (e.g., insurance policy repository,
access to landfill destination information, insurance and
indemnification) beyond the period during which collection services
are to be provided pursuant to this Agreement.
SECTION 7. PERMIT TRANSFER; CITY CONSENT REQUIRED; FEES.
A. The rights granted by this Permit and Agreement shall not be
assigned, sold, hypothecated, sublet or otherwise transferred, nor
shall any of the rights or privileges herein be hypothecated,
sublet, assigned, sold or otherwise transferred, either in whole or
in part, nor shall title thereto, either legal or equitable, or any
right, interest or property therein, pass to or vest in any person,
either by act of [NAME OF CONTRACTOR] or by operation of law,
without the prior written consent of the City expressed by
resolution. Any attempt by [NAME OF CONTRACTOR] to transfer this
Agreement without the consent of City shall be void. For purposes
of this Agreement, any dissolution, merger, consolidation or other
reorganization of [NAME OF CONTRACTOR] shall be deemed a transfer
of this Agreement. For purposes of this SECTION, a change of
corporate name shall not be deemed to be a transfer.
B. The City shall not unreasonably withhold its consent to a
transfer of this Agreement. The City may impose reasonable
LAX:81492.9 Date of Printing: January 31, 1995 —10—
conditions of approval on a transfer. The applicant for the
transfer shall demonstrate to the City's satisfaction that it has
the operational and financial ability to carry out the obligations
of the Agreement.
C. Any application for a transfer shall be made in a manner
prescribed by the City's Director of Public Works. The application
shall include a Transfer Application Fee in an amount to be set by
City, by Resolution of the Council. The Transfer Application Fee
is intended to offset the City's anticipated costs of all
reasonable and customary direct and indirect administrative
expenses, including consultants and attorneys, necessary to analyze
the application. [NAME OF CONTRACTOR] shall reimburse the City for
all reasonable consultants', attorneys' and staff costs directly
related to the City's consideration of the application for transfer
not offset by the Transfer Application Fee, whether or not the City
approves the application for transfer. City's request for
reimbursement under this SECTION shall be supported with evidence
of the expense or cost incurred. [NAME OF CONTRACTOR] shall
reimburse City within thirty (30) days of receipt of City's request
for reimbursement.
D. Notwithstanding the above, the [NAME OF CONTRACTOR] shall be
entitled to pledge, encumber, or grant any security interest in
this Agreement provided that [NAME OF CONTRACTOR] shall first
notify and obtain City consent to such transaction, subject to the
following conditions:
1. Any consent so granted by City shall not be deemed a
consent to the exercise by such pledgee, encumbrancer or secured
party of any rights of the holder under this Agreement unless so
noted by the City.
2. Any consent so granted by City shall not be deemed a
consent to any subsequent pledge, encumbrance or grant of a
severity interest. Any such subsequent pledge, encumbrance or
grant of a severity interest shall be deemed an assignment of the
Agreement within the meaning of this SECTION, and shall be void
without the prior written consent of the City expressed by
resolution.
3. The pledges, encumbrancer, or secured party shall have
executed and delivered to City an instrument in writing agreeing to
be bound by the provisions of this Agreement.
E. Any change in control of [NAME OF CONTRACTOR] occurring
without prior City approval shall constitute a material breach of
this Agreement.
LAX:81492.9 Data of Printing: January 31, 1995 —11—
SECTION 8. ADMINISTRATIVE DISPUTE RESOLUTION.
A. Notice; Response; Resolution; Appeal.
1. Notice of Deficiencies; Response. If City's Director
of Public Works, or the Director's designee (collectively, the
"Director ") determines that [NAME OF CONTRACTOR]' performance
pursuant to this Agreement may not be in conformity with the
provisions of this Agreement, the California Integrated Waste
Management Act (including, but not limited to, requirements for
^ diversion, source reduction and recycling as to the commercial
solid waste service recipients serviced by [NAME OF CONTRACTOR]
pursuant to this Agreement) or any other applicable federal, state
or local law or regulation, including but not limited to, the laws
governing transfer, storage �r disposal of solid and Hazardous
Waste, the Director may advise [NAME OF CONTRACTOR] in writing of
such suspected deficiencies, specifying the deficiency in
reasonable detail. The Director, in any written Notification of
Deficiencies, shall set a reasonable time within which [NAME OF
CONTRACTOR] is to respond. Unless the circumstances necessitate
correction and response within a shorter period of time, [NAME OF
CONTRACTOR] shall respond to the written Notification of
Deficiencies within thirty (30) days from the receipt by [NAME OF
CONTRACTOR] of such written notice. [NAME OF CONTRACTOR] may
request additional time to correct deficiencies. City shall
approve reasonable requests for additional time.
2. Review by Director: Notice of Appeal.
a. The Director shall review any written response
from [NAME OF CONTRACTOR] and decide the matter. If the Director's
decision is adverse to [NAME OF CONTRACTOR], the Director may order
remedial actions to cure any deficiencies, or invoke any other
remedy in accordance with this Agreement and, in the event the
Director determines that there has been a material breach and that
termination is the appropriate remedy, terminate the Agreement.
The Director shall promptly inform [NAME OF CONTRACTOR], of the
Director's decision. In the event the decision is adverse to [NAME
OF CONTRACTOR], the Director shall inform [NAME OF CONTRACTOR], in
writing, of the specific facts found and evidence relied on, and
the legal basis in provisions of the Agreement or other laws for
the Director's decision and any remedial action taken or ordered.
An adverse decision by the Director shall be final and binding on
[NAME OF CONTRACTOR] unless [NAME OF CONTRACTOR] files a "Notice of
Appeal" with the City Clerk (with copies to the City Manager and
City Attorney) within 30 days of receipt of the notification of the
adverse decision by the Director.
b. In any "Notice of Appeal" [NAME OF CONTRACTOR]
shall state its factual contentions and include any relevant
affidavits, documents, photographs and videotapes which [NAME OF
CONTRACTOR] may choose to submit. In addition, [NAME OF
LAX:81492.9 Date of Printing: January 31, 1995
-12-
CONTRACTOR] shall include its legal contentions, citing provisions
of the Agreement or other laws to support its contentions.
3. Review by City Manager: Appeal.
a. Within thirty (30) days of receipt by the City
Clerk of a Notice of Appeal, the City Manager shall decide the
matter: If the City Manager's decision is adverse to [NAME OF
CONTRACTOR], the City Manager may order remedial actions to cure
any deficiencies, or invoke any other remedy in accordance with
this Agreement and, in the event the City Manager determines that
there has been a material breach and that termination is the
appropriate remedy, terminate the Agreement. In addition to the
foregoing actions, the City Manager may refer the matter to the
City Council for proceedings in accordance with SECTIONS 8.B and
8.C, below, or refer the matter directly to a referee as provided
in SECTION 9, below. The City Manager shall promptly inform [NAME
OF CONTRACTOR] of the City Manager's decision. In the event the
decision is adverse to [NAME OF CONTRACTOR] , the City Manager shall
inform [NAME OF CONTRACTOR], in writing, of the specific facts
found and evidence relied on, and the legal basis in provisions of
the Agreement or other laws for the City Manager's decision and any
remedial action taken or ordered.
b. An adverse decision by the City Manager shall be
final and binding unless [NAME OF CONTRACTOR] files a "Notice of
Appeal to the City Council" with the City Clerk (and serves a copy,
by mail, on the City Manager and the City Attorney) within 30 days
of receipt of the decision of the City Manager. A "Notice of
Appeal to the City Council" shall state the factual basis and all
legal contentions and shall include all relevant evidence,
including affidavits, documents, photographs and videotapes, which
[NAME OF CONTRACTOR] may choose to submit.
B. City Council Hearing. If a matter is referred by the City
Manager to the City Council, or an adverse decision of the City
Manager is appealed to the City Council by [NAME OF CONTRACTOR],
the City Council will set the matter for an administrative hearing
and act on the matter, or refer the matter to a referee as provided
in SECTION 9, below. If the City Council elects to hear the
matter, the City Clerk shall give [NAME OF CONTRACTOR] fourteen
(14) days written notice of the time and place of the
administrative hearing. At the hearing, the City Council shall
consider the administrative record, consisting of the following:
1. A Staff Report by the City Manager, summarizing the
proceedings to date and outlining the City Council's
options.
2. The Director's written Notification of Deficiencies;
3. [NAME OF CONTRACTOR]' response to the Notification of
Deficiencies;
LAX:81492.9 Data of Printing: January 31, 1995 —
4. The Director's written notification to [NAME OF
CONTRACTOR] of adverse decision;
5. [NAME OF CONTRACTOR]' Notice of Appeal
6. The City Manager's written notification to [NAME OF
CONTRACTOR] of adverse decision; and
7. The Notice of Appeal to the City Council.
No new legal issues may be raised, or new evidence submitted by
[NAME OF CONTRACTOR] or City, at this or at any further point in
the proceedings, absent a showing of good cause. [NAME OF
CONTRACTOR]' representatives and other interested persons shall
have a reasonable opportunity to be heard.
C. City Council Determination. Based on the administrative
record, the Council shall determine by resolution whether the
decision or order of the City Manager should be upheld. A tie vote
of the City Council shall be regarded as upholding the decision of
the City Manager. If, based upon the administrative record, the
City Council determines that the performance of [NAME OF
CONTRACTOR] is in breach of any term of this Agreement or any
provision of any applicable federal, state or local statute or
regulation, the City Council, in the exercise of its discretion,
may order [NAME OF CONTRACTOR] to take remedial actions to cure the
breach or impose any other remedy in accordance with this
Agreement. The City Council may not terminate the Agreement unless
it determines that [NAME OF CONTRACTOR] is in material breach of a
material term of this Agreement or any material provision of any
applicable federal, state or local statute or regulation. [NAME OF
CONTRACTOR]' performance under the Agreement is not excused during
the period of time prior to a final determination as to whether or
not [NAME OF CONTRACTOR] performance is in material breach of this
Agreement, or the time set by City for [NAME OF CONTRACTOR] to
discontinue a portion or all of its services pursuant to this
Agreement. The decision or order of the City Council shall be
final and binding unless [NAME OF CONTRACTOR] files a "Notice of
Appeal to Referee" with the City Clerk (and serves copies, by mail,
on the City Manager and the City Attorney) within 10 business days
of receipt of the decision or order of the City Council. The
execution of City's remedies shall be stayed until [NAME OF
CONTRACTOR] has exhausted its appeals under SECTIONS 8 and 9 of
this Agreement.
D. Notice of Appeal to Referee. Except as otherwise provided in
this Agreement, [NAME OF CONTRACTOR] may appeal any decision, order
or action by the City Council or City Manager under this SECTION 8
as provided in SECTION 9, below, by filing a Notice of Appeal to
Referee with the City Clerk within ten (10) days of receipt of the
decision by the City Manager or City Council and following the
procedures set forth in SECTION 9, below. A decision of the City
Manager to refer a matter to the City Council or, in the
alternative, directly to a referee may not be appealed.
LAX:81492.9 Date of Printing: January 31, 1995 -14-
N. Liquidated Damages.
1. The City finds and [NAME OF CONTRACTOR] agrees that as
of the time of the execution of this Agreement, except as provided
in this Agreement, it is impractical, if not impossible, to
reasonably ascertain the extent of damages which will be incurred
by the City as a result of a material breach by [NAME OF CONTRAC-
TOR] of its obligations under this Agreement. The factors relating
to the impracticability of ascertaining damages include, but are
not limited to, the fact that: (i) substantial damage results to
members of the public who are denied services or denied quality or
reliable service; (ii) such breaches cause inconvenience, anxiety,
frustration and deprivation of the benefits of this Agreement to
individual members of the general public for whose benefit this
Agreement exists, in subjective ways and in varying degrees of
intensity which are incapable of measurement in precise monetary
terms; (iii) that services might be available at substantially
lower costs than alternative services, and the monetary loss
resulting from denial of services or denial of quality or reliable
services is impossible to calculate in precise monetary terms; and
(iv) the termination of this Agreement for such breaches, and other
remedies are, at best, a means of future correction and not
remedies which make the public whole for past breaches.
2. Accordingly, the City Council may, in its discretion,
assess liquidated damages not to exceed the sum of ONE HUNDRED
DOLLARS ($100.00) per day, for each calendar day that [NAME OF
CONTRACTOR] is in material breach of this Agreement. The amount of
the liquidated damages shall be increased by the past year's annual
percentage January -to- January change in the Consumer Price Index
for all Urban Consumers (National CPI -U) on the anniversary of this
Agreement.
3. The City finds, and [NAME OF CONTRACTOR] acknowledges
and agrees, that the above- described liquidated damages provisions
represent a reasonable sum in light of all of the circumstances.
Said liquidated damages sums shall be applicable to each calendar
day during which [NAME OF CONTRACTOR] has been found by the City
Council to be in material breach of material provisions of this
Agreement. [NAME OF CONTRACTOR] shall pay any liquidated damages
assessed by the City Council within ten (10) working days after
they are assessed. If they are not paid within the ten working day
period, the City may, in addition to any other remedies, order the
termination of the Permit granted by this Agreement.
V. Reservation of Rights by City. City further reserves the
right to terminate this Agreement or impose liquidated damages in
the event of any material breach of this Agreement, including, but
not limited to, any of the following:
1. If [NAME OF CONTRACTOR] practices, or attempts to prac-
tice, any fraud or deceit upon the City, or practiced any fraud or
LAX:81492.9 Data of Printing: January 31, 1995 —
deceit or made any intentional misrepresentations in the negotia-
tions which preceded the execution of this Agreement;
2. If [NAME OF CONTRACTOR] becomes insolvent or unable or
unwilling to pay its debts, or upon listing of an order for relief
in favor of [NAME OF CONTRACTOR] in a bankruptcy proceeding;
3. If [NAME OF CONTRACTOR] fails to provide, or maintain
in full force and effect, the workers compensation, liability and
indemnification coverage as required by this Agreement;
4. If [NAME OF CONTRACTOR] violates any orders or rulings
of any regulatory body having jurisdiction over [NAME OF CONTRAC-
TOR] relative to this Agreement, in any material manner, provided
that [NAME OF CONTRACTOR] may contest any such orders or rulings by
appropriate proceedings conducted in good faith, in which case no
breach of this Agreement shall be deemed to have occurred until a
final decision adverse to [NAME OF CONTRACTOR] is entered;
5. If [NAME OF CONTRACTOR] ceases to provide collection
service as required under this Agreement over all or a substantial
portion of its Permit Area for a period of seven (7) calendar days
or more, for any reason within the control of [NAME OF CONTRACTOR];
6. If [NAME OF CONTRACTOR] fails to make any payments re-
quired under this Agreement or refuses to provide City with
required information, reports or test results in a timely manner as
provided in this Agreement;
7. Any other act or omission by [NAME OF CONTRACTOR] which
materially violates the terms, conditions or requirements of this
Agreement and which is not corrected or remedied within the time
set forth in the written Notification of Deficiencies or if [NAME
OF CONTRACTOR] cannot reasonably correct or remedy the breach
within the time set forth in such notice, if [NAME OF CONTRACTOR]
should fail to commence to correct or remedy such alleged
deficiencies within the time set forth in such notice and
diligently effect such correction or remedy thereafter.
G. Cumulative Rights. City's rights of termination and to impose
liquidated damages are in addition to any other rights of City upon
a failure of [NAME OF CONTRACTOR] to perform its obligations under
this Agreement.
SECTION 9. REFERRAL TO REFEREE; REARING PROCEDURES.
Either party to this Agreement at any time after exhaustion of
administrative remedies, and following the appeal procedure set
forth in SECTION 8, if applicable, may refer a disputed matter for
resolution under this SECTION 9 in the following manner.
LAX:81492.9 Date of Printing: January 31, 1995 - 1 6-
1
A. Applicability. If either the City Manager or the City Council
refers a matter to a referee, or [NAME OF CONTRACTOR] appeals or
refers a matter to 'a referee, the provisions of this SECTION 9
shall apply in order to obtain prompt and expeditious resolution of
any and all disputes arising out of this Agreement.
B. Reference of Dispute. Any dispute seeking damages and any
dispute seeking equitable relief, such as but not limited to
specific enforcement of any provision hereof, shall be heard and
determined by a referee pursuant to California Code of Civil
Procedure §§ 638 - 645.1. The venue of any proceeding hereunder
shall be in Los Angeles County, California.
1. Procedure for Appointment. The party seeking to
resolve the dispute shall file in court and serve on the other
party a complaint describing the matters in dispute. Service of
the complaint shall be as prescribed by law. Within not more than
fifteen (15) business days after the date of service, the parties
shall apply to the Judicial Arbitration and Mediation Service
( "JAMS") of Los Angeles County to nominate a minimum of five
prospective referees. If the parties are unable to agree on a
referee from the JAMS panel within ten (10) business days after
written request to do so by either party, then the parties,
starting with [NAME OF CONTRACTOR], shall strike one prospective
referee at a time until only one referee remains.
2. Ex Parte Communications Prohibited. Neither party may
communicate separately with the referee after the referee has been
selected. All subsequent communications between a party and a
referee shall be simultaneously delivered to the other party. This
provision shall not apply to communications made to schedule a
hearing or request a continuance.
3. Cooperation. The parties shall diligently cooperate
with one another and the referee and shall perform such acts as may
be necessary to obtain a prompt and expeditious resolution of the
dispute. If either party refuses to diligently cooperate, and the
other party, after first giving notice of its intent to rely on the
provisions of this SECTION, incurs additional expenses or
attorneys' fees and costs solely as a result of such failure to
diligently cooperate, or incurs expenses or attorneys fees and
costs as a result of the other party's violation of Code of Civil
Procedure § 128.5, the referee may award such additional expenses
and attorneys' fee, and costs to the party giving such notice, even
if such party is not the prevailing party in the dispute.
4. Administrative Record; Discovery. The record before
the referee shall be limited to the administrative record presented
to the City Council (or City Manager, if the matter was referred by
the Manager to the referee). Only if a party shows good cause may
additional discovery be conducted, in which case, the referee shall
set a discovery schedule. Disputes concerning the scope of
LAX:81492.9 Date of Printing: January 31, 1995 -17-
document production and enforcement of document requests shall be
subject to agreement by the parties, or if agreement is not reached
within twenty (20) days of a document request, then by disposition
by order of the referee. Any document request shall be subject to
the proprietary rights and rights of privilege of the parties, and
the referee shall adopt procedures to protect such rights. Except
as may be agreed by the parties, or ordered by the referee, no
other form of pretrial discovery shall be available to the parties.
The referee shall schedule the matter for hearing within 60 days of
filing, unless City and [NAME OF CONTRACTOR] agree otherwise, or
unless the referee shall determine otherwise.
5. Standards for Decision. The provisions of California
Code of Civil Procedure, §§ 640, 641, 642, 643, 644 and 645 shall
be applicable to dispute resolution by a referee hereunder. In an
effort to clarify and amplify the provisions of California Code of
Civil Procedure, §§ 644 and 645, the parties agree that the referee
shall decide issues of fact and law submitted by the parties for
decision in the same manner as required for a trial by court as set
forth in California Code of Civil Procedure, §§ 631.8 and 632, and
California Rules of Court, Rule 232. The referee shall try and
decide the dispute according to all of the substantive and
procedural law of the state of California, unless the parties
stipulate to the contrary.
6. Evidence and Findings. The referee shall consider the
administrative record and only such other relevant evidence as to
which the referee has determined the party proffering the evidence
has shown good cause for having failed to produce it before the
hearing before the City Council. Before issuing findings, the
Referee shall submit a proposed ruling, setting forth proposed
findings of fact and conclusions of law, to counsel for the
Parties, for comment. When the referee has decided the dispute,
the referee shall also cause the preparation of a judgment based on
said decision.
7. Remedial Authority. A referee to whom a matter is
referred shall have the authority to (i) order either party to
undertake remedial action to cure the breach and to prevent
occurrence of similar breaches in the future; (ii) assess damages
and /or levy a penalty consistent with the terms of this Agreement
or (iii) find there has been no breach.
8. Stay Pending Entry of Final Judgment. Until final
judgment is entered from the referee proceeding under the foregoing
provisions and the time for appeal or other post - judgment petition
has expired, the imposition or enforcement of any penalties or
sanctions provided in this Agreement and related to the subject
matter of the hearing shall be stayed. The referee may modify or
cancel any proposed penalties or sanctions upon a finding that the
party subject thereto acted with substantial justification, or if
the interests of justice so require.
LAX:81492.9 Date of Printing: January 31, 1995 -18-
9. Allocation of Referee's Costs. The referee's costs for
the proceeding shall be apportioned by the referee. The costs of
the proceeding shall be borne equally by the parties to the dispute
initially, but the prevailing party in such proceeding shall be
entitled to recover reasonable costs of the referee as apportioned
by the referee, from the losing party. If either party refuses to
pay its share of the costs of the proceeding, at the time(s)
required, the other party may do so, in which event that party will
be entitled to recover (or offset) the amount advanced, with
interest at the maximum rate permitted by law, even if that party
is not the prevailing party. The referee shall include such costs
in the judgment or award.
10. Recovery of Attorneys' Fees. The prevailing party in
a referee proceeding shall be entitled to recover reasonable
attorneys' fees from the losing party in addition to any other
relief to which it may be entitled. The referee shall includesuch
costs and expenses in the judgment or award.
C. Decision. The decision of the referee may be excepted to in
accordance with Code of Civil Procedure § 645.
SECTION 10. CITY'S ADDITIONAL REMEDIES. In addition to the
remedies set forth above, City shall have the rights to obtain
injunctive relief. Both parties recognize and agree that in the
event of a breach under the terms of this Agreement by [NAME OF
CONTRACTOR] City may suffer irreparable injury and incalculable
damages sufficient to support injunctive relief, to enforce the
provisions of this Agreement and to enjoin the breach thereof.
SECTION 11. PRIVACY.
A. Protection Of Privacy. [NAME OF CONTRACTOR], in providing the
services called for by this Agreement, shall strictly observe and
protect the trade secrets and rights of privacy of service
recipients. Information identifying individual service recipients
or the composition or contents of a service recipient's Commercial
Solid Wastes shall not be revealed to any person, governmental
unit, private agency or company, unless upon the authority of a
court of law, by statute, or upon valid authorization of the
service recipient. This provision shall not be construed to
preclude [NAME OF CONTRACTOR] from preparing, participating in, or
assisting in the preparation of waste characterization studies or
waste stream analyses which may be required by AB 939.
B. Mailing Lists Prohibited. [NAME OF CONTRACTOR] shall not
market or distribute mailing lists with the names and addresses of
service recipients.
C. Privacy Rights Cumulative. The rights accorded service
recipients pursuant to this SECTION shall be in addition to all
other privacy rights accorded service recipients pursuant to
federal or state law.
LAX:81492.9 Data of Printing: January 31, 1995 —19—
SECTION 12. REPORTS AND ADVERSE INFORMATION.
A. Annual Report. By January 1, 1996, and each year thereafter
that collection services are provided pursuant to this Agreement,
[NAME OF CONTRACTOR] shall submit to City a written year -end Annual
Report, in a form approved by the City. The Annual Report shall
include the following information for the year ending October 31st:
1. General Information. General information about [NAME
OF CONTRACTOR], including a list of [NAME OF CONTRACTOR]' officers
and members of its board of directors. A copy of [NAME OF
CONTRACTOR]' most recent annual and other periodic public financial
reports and those of each of its subsidiaries and affiliated
corporations and other entities, if any, performing services under
this Agreement, as the City, following consultation with [NAME OF
CONTRACTOR], may request.
2. Prior Year's Activities. A report of the previous
year's (or, in the case of the initial report year, the initial
year's) activities in the City, including a cumulative summary of
the Quarterly Reports, and information and statistics with respect
to City's compliance with AB 939.
3. Recommendations. Changes in integrated waste
management, including projections and proposed implementation dates
and costs, recommended by [NAME OF CONTRACTOR] to enable [NAME OF
CONTRACTOR] to meet the City's goals under AB 939 and recommended
amendments to the City's Source Reduction and Recycling Element or
this Agreement, based on developments in the law or technology.
[NAME OF CONTRACTOR]' recommendations with respect to compliance
with AB 939 shall state the specific requirement of AB 939 that the
implementation of the recommendation is intended to satisfy.
B. Reporting Adverse Information. [NAME OF CONTRACTOR] shall
provide City two copies (one to the City Manager, one to the City
Attorney) of all reports, pleadings, applications, notifications,
Notices of Violation, communications or other material relating
specifically to [NAME OF CONTRACTOR]' performance of services
pursuant to this Agreement, submitted by [NAME OF CONTRACTOR] to,
or received by [NAME OF CONTRACTOR] from, the United States or
California Environmental Protection Agency, the California
Integrated Waste Management Board, the Securities and Exchange
Commission or any other federal, state or local agency, including
any federal or state court. Copies shall be submitted to City
simultaneously with [NAME OF CONTRACTOR]' receipt or submission of
such matters with said agencies. [NAME OF CONTRACTOR]' routine
correspondence to said agencies need not be routinely submitted to
City, but shall be made available to City promptly upon City's
written request.
C. Failure to Report. The refusal or failure of [NAME OF
CONTRACTOR] to file any required reports, or to provide required
information to City, or the inclusion of any materially false or
LAX:81492.9 Date of Printing: January 31, 1995
-20-
1
misleading statement or representation by [NAME OF CONTRACTOR] in
such report shall be deemed a material breach of the Agreement and
shall subject [NAME OF CONTRACTOR] to all remedies which are
available to the City under the Agreement or otherwise, provided,
that the City must follow the procedures for dispute resolution
found in SECTIONs 8 and 9 of this Agreement before declaring any
such material breach.
D. City's Review of [NAME Or CONTRACTOR]' Performance. Annually,
within ninety days of City's receipt of the Annual Report required
by this Agreement, City shall review the Annual Report and other
available information and may hold a public hearing to determine
whether [NAME OF CONTRACTOR]' performance for the year reported on
was satisfactory and whether to implement any changes recommended
by [NAME OF CONTRACTOR]. The reports required by this Agreement
shall be utilized as the primary basis for review. In addition,
any customer comments or complaints and any other relevant
information may be considered. A [NAME OF CONTRACTOR]
representative shall be entitled to be present and may participate
at any public hearing held by City to review [NAME OF CONTRACTOR]'
performance. If any noncompliance with the Agreement is reported
to have occurred, City shall offer [NAME OF CONTRACTOR] the
opportunity to comment and offer information in rebuttal and to
correct any deficiencies.
E. Costs. All reports and records required under this Agreement
shall be furnished at the sole expense of [NAME OF CONTRACTOR].
P. Monthly and Quarterly Reports and Other Information. [NAME OF
CONTRACTOR], at no additional expense to City, shall submit to the
City such other information or reports in such forms and at such
times as the City may reasonably request or require. The reports
are intended to enable the City to meet AB 939 reporting
requirements and to comply with the regulations implemented by the
California Integrated Waste Management Board, or its successor,
with respect to AB 939. The reports will follow a standard format
and will include, but will not be limited to, the following:
1. Monthly Reports. The monthly report shall show the
number of tons collected and the tonnage delivered to disposal
facilities, itemized by disposal facility. Monthly Reports will be
submitted to City, transmitted in a format acceptable to City, by
modem or disc, at [NAME OF CONTRACTOR]' option, if requested by
City.
2. Quarterly Reports. In addition to providing a
quarterly summary of the monthly reports, Quarterly Reports shall
include the following:
a. Recyclable Solid Wastes:
A statement showing, by type of material,
tons received during the month and tons
marketed during the month.
A report providing recycling information and
the estimated number of Commercial service
recipients participating.
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LAX:81492.9 Date of Printing: January 31, 1995 —
A narrative description of problems
encountered and actions taken, including
efforts to deter and prevent Scavenging.
This includes a description of tons rejected
for sale after processing (type of material,
tonnage), reason for rejection and [NAME OF
CONTRACTOR]' disposal method for the
rejected materials.
A report of recycling program promotional
activities, including materials distributed
by [NAME OF CONTRACTOR] to service
recipients. .
b. Hazardous Waste Diversion Reports:
A copy or summary of the records required by
SECTION 18.C, below.
c. Certification:
[NAME OF CONTRACTOR] will provide a
certification statement, under penalty of
perjury, by the responsible corporate
official, that the report is true and
correct.
3. Submission of Reports. Reports shall be submitted to:
City Manager [or designated representative]
City of Downey
11111 Brookshire Avenue
Downey, California 90241 -7016
Telecopier Number (310) 923 -6388
4. Monitoring. If [NAME OF CONTRACTOR] utilizes a
computerized data base which includes a file of service recipients,
addresses of Commercial Premises, names and billing addresses of
owners and other persons in charge of Commercial Premises and
account classifications, [NAME OF CONTRACTOR] agrees to make that
computerized data base accessible to the City by disc or modem, as
[NAME OF CONTRACTOR] and City shall agree.
5. Citv's Riaht to Reauest Information. The City believes
that cooperation between [NAME OF CONTRACTOR] and the City is
critical to the success of this program. City reserves the right
to request from [NAME OF CONTRACTOR] additional information
reasonably and directly pertaining to this Agreement on an "as-
needed" basis.
6. CERCLA Defense Records. City views the ability to
defend against CERCLA and related litigation as a matter of great
1
importance. For this reason, the City regards the ability to prove
where Commercial Solid Waste collected in the City of Downey was
taken for disposal, as well as where it was not taken, to be
matters of concern. [NAME OF CONTRACTOR] shall maintain data
retention and preservation systems which can establish where
Commercial Solid Waste collected in the City was landfilled (and
therefore establish where it was not landfilled) and a copy or
summary of the reports required by SECTIONS 18.B, "Hazardous Waste
Inspection and Reporting," 18.C, "Hazardous Waste Diversion
Reports" and 12.F.2 "Quarterly Reports," above, for fifty (50)
years after the term during which collection services are to be
provided pursuant to this Agreement. [NAME OF CONTRACTOR] agrees
to notify City's Risk Manager and City Attorney before destroying
such records. This provision shall survive the expiration of the
period during which collection services are to be provided under
this Agreement.
G. Inspection and Audit Rights. In addition to the foregoing,
the City shall have the right, for a period of three years fol-
lowing the delivery of an Auditor's report and financial state-
ments, at [NAME OF CONTRACTOR]'s cost and expense (but excluding
compensation paid to City employees or City consultants), during
normal business hours and upon reasonable notice, to inspect for
the purpose of audit all financial and other records of [NAME OF
CONTRACTOR] concerning its contract operation. See also SECTION
17.C.
H. Costs. All reports and records required to be submitted by
[NAME OF CONTRACTOR] to City under this or any other section shall
be furnished at the sole expense of [NAME OF CONTRACTOR].
SECTION 13. COMPENSATION, RATES AND BILLING. [NAME OF
CONTRACTOR] shall bill all customers for all services rendered,
whether regular or special services. [NAME OF CONTRACTOR] shall
provide itemized bills, distinctly showing charges for all
classifications of services, including but not limited to the
charges for late payment, redelivery fees, charges for additional
containers, and other special services covered under this
Agreement. [NAME OF CONTRACTOR] shall designate that portion of a
customer's bill attributable to any fees imposed by the City
pursuant to this Agreement as a separate item on customers' bills.
SECTION 14. COLLECTION EQUIPMENT.
[NAME OF CONTRACTOR] shall provide a number of vehicles and
equipment adequate for the collection, disposal and transportation
services for which it is responsible under this Agreement.
A. Collection Vehicles. All vehicles used by [NAME OF
CONTRACTOR] under this Agreement shall be registered with the
Department of Motor Vehicles of the State of California, shall be
of size, weight, nature and type to be minimally intrusive on the
LAX:81492.9 Date of Printing: January 31, 1995 —
B. Bins. [NAME OF CONTRACTOR] shall maintain all commercial bins
placed or maintained by it in the City of Downey free of graffiti
or tagging.
C. Name. [NAME OF CONTRACTOR] will use the name ([NAME OF
CONTRACTOR1 ". This is the name to be used for all correspondence,
billing statements, directory listings, references, signs, vehicle
identification, etc.
community with respect to noise, emissions, maneuverability,
safety, fuel efficiency, and other factors necessary to minimize
the impact of [NAME OF CONTRACTOR]'s services. All vehicles must
be kept clean and in good repair, shall be uniformly painted, and
shall be no older than ten (10) years.
D. Sanitation. To protect public health and safety and prevent
the spread of vectors and odors, Solid waste collection vehicles
shall be washed at least once every seven (7) calendar days, using
reclaimed water if available.
E. Telephone Number. "([NAME OF CONTRACTOR] "), a local or toll
free telephone number, and vehicle number shall be visibly
displayed on all vehicles in letters and figures no less than five
inches (5 ") high.
F. All vehicles, high visibility bins and rolloffs shall display
the following decal: Reduce - Reuse - Recycle: It's Everyone's
Responsibility.
SECTION 1S. OWNERSHIP OF COMMERCIAL SOLID WASTE. Ownership
and the right to possession of Commercial Solid Waste, Green Waste
and Recyclable Solid Wastes placed in [NAME OF CONTRACTOR]'s
containers or Commercial Bins or bundles for collection shall
transfer directly from the service recipient to [NAME OF CON-
TRACTOR] by operation of state law, when the service recipient
surrenders ownership by placing Commercial Solid Wastes or
Recyclable Solid Wastes in [NAME OF CONTRACTOR]'s container or bin
for collection. At no time does the City obtain any right of
ownership or possession of Commercial Solid Waste or hazardous
waste placed for collection and nothing in this Agreement shall be
construed as giving rise to any inference that City has any such
rights. Nothing in this Agreement shall be construed as limiting
the right of any person or entity to donate, give away or sell his
or her source - separated single material Recyclable Solid Wastes to
any other person or entity.
SECTION 16. INDEMNIFICATION AND INSURANCE.
A. Indemnification of City. [NAME OF CONTRACTOR] agrees that it
shall protect, defend, indemnify and hold harmless City, its
officers, employees, volunteers and agents from and against any and
all losses, liabilities, fines, penalties, claims, damages,
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liabilities or judgments, including attorneys fees, arising out of
or resulting in any way from City's grant of this Agreement to
[NAME OF CONTRACTOR] or [NAME OF CONTRACTOR]'S exercise of the
permit, including provision of services under this Agreement,
unless such claim is due to the sole negligence or willful acts of
the City, its officers, employees, agents or contractors. Subject
to the scope of this indemnification and upon demand of the City,
made by and through the City Attorney, [NAME OF CONTRACTOR] shall
protect City from and appear in and defend the City and its
officers, employees, volunteers and agents, with counsel selected
by City, in any claims or actions, whether judicial, administrative
or otherwise, including, but not limited to disputes and litigation
over the definition of "Commercial Solid Waste" and "Recyclable
Solid Wastes" and the limits of City's authority with respect to
the granting of permits, exclusive or otherwise, involving the
collection of Commercial Solid Waste and Recyclable Solid Wastes,
arising out of the exercise of this Agreement by [NAME OF
CONTRACTOR] or claims by other entities disputing the rights and
privileges granted by City in this Agreement. This provision shall
survive the expiration of the period during which collection
services are to be provided under this Agreement.
B. Hazardous Substances Indemnification. [NAME OF CONTRACTOR]
shall indemnify, defend, protect and hold harmless City, its
elected officials, officers, employees, volunteers, agents, assigns
and any successor or successors to City's interest from and against
all claims, actual damages (including but not limited to special
and consequential damages), natural resources damages, punitive
damages, injuries, costs, response, remediation and removal costs,
losses, demands, debts, liens, liabilities, causes of action,
suits, legal or administrative proceedings, interest, fines,
charges, penalties and expenses (including but not limited to
attorneys' and expert witness fees and costs incurred in connection
with defending against any of the foregoing or in enforcing this
indemnity) of any kind whatsoever paid, incurred or suffered by, or
asserted against, City or its elected officials, officers,
employees, volunteers or agents 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 in any Commercial Solid Waste
collected by [NAME OF CONTRACTOR] pursuant to this Agreement, is or
has been transported, transferred, processed, stored, disposed of
or has otherwise come to be located by [NAME OF CONTRACTOR], at
places other than facilities owned and operated by [NAME OF
CONTRACTOR], or its activities pursuant to this Agreement result in
a release of hazardous substances into the environment. 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 U.S.C. § 9607(e), and
California Health and Safety Code § 25364, to defend, protect, hold
harmless and indemnify City from all forms of liability under
LAX:81492.9 Data of Printing: January 31, 1995 —25—
CERCLA, other statutes or common law for any and all matters
addressed in this SECTION 17.B, and shall be limited to the extent
of the City's lability. This provision shall survive the
expiration of the period during which collection services are to be
provided under this Agreement.
With respect to Commercial Solid Waste collected by [NAME OF
CONTRACTOR] pursuant to this Agreement, which has been transported,
transferred, processed, stored, disposed of or has otherwise come
to be located by [NAME OF CONTRACTOR] at places owned or operated
by [NAME OF CONTRACTOR], or any other disposal facility, [NAME OF
CONTRACTOR] shall deliver a Hazardous Substances Indemnification in
the form, or the form in substance, as set forth in EXHIBIT "A" to
this Agreement.
C. AB 939 Indemnification. [NAME OF CONTRACTOR] agrees to meet
the diversion requirements of City's Source Reduction and Recycling
Element as it may be amended from time to time. City's Source
Reduction and Recycling Element, by this reference, shall be deemed
to be incorporated into this Agreement. [NAME OF CONTRACTOR]
agrees to protect, defend and indemnify City against all fines or
penalties imposed by the California Integrated Waste Management
Board in the event [NAME OF CONTRACTOR] fails to implement
diversion, source reduction and recycling goals and programs and
its failure results, causes, or is a contributing factor in the
imposition of administrative penalties against the City for failure
to meet the diversion, source reduction and recycling goals of AB
939 with respect to the waste stream covered by this Agreement, or
[NAME OF CONTRACTOR]'S delays in providing information prevent City
from submitting reports required by AB 939 in a timely manner.
[NAME OF CONTRACTOR]'s obligation to protect, defend and indemnify
City shall be in proportion that to its failure to achieve the AB
939 goals.
D. Workers Compensation Insurance. [NAME OF CONTRACTOR] shall
obtain and maintain in full force and effect throughout the entire
term of this Agreement full workers' compensation insurance and
Employer's Liability Insurance (with a minimum limit of ONE MILLION
DOLLARS ($1,000,000.00) in accord with the provisions and require-
ments of the Labor Code of the State of California. Endorsements
that implement the required coverage shall be filed and maintained
with the City Clerk throughout the term of this Agreement. The
policy providing coverage shall be amended to provide that the
insurance shall not be suspended, voided, canceled, reduced in
coverage or in limits except after thirty (30) days' prior written
notice by certified mail, return receipt requested, has been given
to City. The policy shall also be amended to waive all rights of
subrogation against the City, its elected or appointed officials,
employees, volunteers or agents for losses which arise from work
performed by the named insured for the City.
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E. Public Liability Insurance. [NAME OF CONTRACTOR] shall obtain
and maintain in full force and effect throughout the entire term of
this Agreement a Broad Form Comprehensive General Liability
(occurrence) policy with a minimum limit of TWO MILLION DOLLARS
($2,000,000.00) aggregate and ONE MILLION DOLLARS ($1,000,000.00)
per occurrence, for bodily injury and property damage, with any
self- insured retention not exceeding TWO HUNDRED THOUSAND DOLLARS
($200,00.00) per occurrence and a commercial auto liability
insurance policy with a minimum limit of TWO MILLION DOLLARS
($2,000,000.00). Said insurance shall protect [NAME OF CONTRACTOR]
and City from any claim for damages for bodily injury, including
accidental death, as well as from any claim for property damage
which may arise from operations performed pursuant to this
Agreement, whether such operations be by [NAME OF CONTRACTOR]
itself, or by its agents, employees and /or subcontractors. Copies
of the policies or endorsements evidencing the above required
insurance coverage shall be filed with the City Clerk. The
following language is required to be made a part of all of the
insurance policies required by this SECTION:
1) "The City of Downey, its employees, agents, volunteers
and officers, are hereby added as insureds as respects
liability arising out of activities performed by or on
behalf of [NAME OF CONTRACTOR]."
2) "This policy shall be considered primary insurance as
respects any other valid and collectible insurance the
City of Downey may possess including any self- insured
retention the City may have, and any other insurance
the City does possess shall be considered excess
insurance and shall not contribute with it."
3) "This policy shall act for each insured, as though a
separate policy had been written for each. This,
however, will not act to increase the limit of
liability of the insuring company."
4) "Thirty (30) days prior written notice by certified
mail, return receipt requested, shall be given to the
City of Downey in the event of suspension,
cancellation, reduction in coverage or in limits or
non- renewal of this policy for whatever reason. Such
notice shall be sent to the City Manager, City Attorney
and City Clerk."
The insurance required by this Agreement shall be with insurers
which are Best A- rated and which are California - admitted. The
limits of such insurance coverage, and companies, shall be subject
to review and approval by the City Manager every year and may be
increased at that time and shall match the coverage provided by the
City's own liability insurance policy. The City shall be included
as a named insured on each of the policies, or policy endorsements.
LAX:81492.9 Date of Printing: January 31, 1995 -27-
The insurance required by this Agreement is in addition to, and not
in lieu or limitation of the indemnification provisions in SECTIONS
16.A, 16.B and 16.D, above.
F. Evidence of insurance Coverage; insurance Repository.
Contemporaneously with the execution of this Agreement, [NAME OF
CONTRACTOR] shall deposit copies of insurance policies or executed
endorsements evidencing the existence of policies of insurance
required pursuant to this Agreement. In addition, City shall have
the right to inspect [NAME OF CONTRACTOR]'s insurance policies.
[NAME OF CONTRACTOR] agrees to establish an insurance policy
repository and to maintain copies of insurance policies required
pursuant to this Agreement for one hundred years (100 years) after
the term of this Agreement, and to notify City's Risk Manager and
City Attorney before destroying copies of such policies. This
provision shall survive the expiration of the period during which
services are to be provided under this Agreement.
G. Modification. The insurance requirements provided herein may
be modified or waived in writing by the City Council upon the
request of [NAME OF CONTRACTOR], provided the City Council
determines such modification or waiver is in the best interest of
City considering all relevant factors, including the fact that the
parent of [NAME OF CONTRACTOR] may be self- insured up to a certain
acceptable amount.
LAX:81492.9 Date of Printing: January 31, 1995
H. Self- Insured Retention. No self- insured retention, pursuant
to SECTION 16.E, above, shall be effective unless approved in
writing by the City Manager. [NAME OF CONTRACTOR] shall submit a
certificate of net worth to the City Manager in a form that is
acceptable to the City. The City Manager shall not approve the
self - insured retention, unless the net worth of [NAME OF
CONTRACTOR] is at least 'F■ue. ( 5 ) times the amount of the
requested self- insured retention and [NAME OF CONTRACTOR] covenants
in writing that it shall maintain said net worth for the duration
of the insurance policy to which the self- insured retention is
applicable. Concurrently with his annual review of the limits of
the insurance coverage and the companies pursuant to SECTION 16.E,
the City Manager may require the submission of a current
certificate of net worth and, if the net worth of [NAME OF
CONTRACTOR] is less than that required by this SECTION 16.H, may
withdraw approval of the self- insured retention, in addition to any
remedy that the City may have for the breach of the covenant
required by this SECTION 16.H.
I. Reduction of CERCLA and Other Liability. City and [NAME OF
CONTRACTOR] agree to meet annually in the fourth calendar quarter
of each calendar year to discuss ways to reduce their respective
potential CERCLA and other liabilities to third parties.
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SECTION 17. CASE PERFORMANCE BOND.
A. Prior to the start of collection services under this
Agreement, [NAME OF CONTRACTOR] shall deposit funds, on terms
satisfactory to City, in an interest - bearing account at an
institution satisfactory to both City and [NAME OF CONTRACTOR], or
provide a letter of credit, from an institution satisfactory to
City, at the option of [NAME OF CONTRACTOR], in the amount of TEN
THOUSAND DOLLARS ($10,000.00). (The funds on deposit and the
letter of credit are referred to collectively in this Agreement as
the "Cash Bond ".) The Cash Bond (including any letter(s) of
credit) shall be on terms acceptable to the City Attorney. The
Bond shall serve as security for the faithful performance by [NAME
OF CONTRACTOR] of all the provisions and obligations of this Agree-
ment. All interest on a cash deposit, if made, shall accrue to
[NAME OF CONTRACTOR].
B. Upon [NAME OF CONTRACTOR]'s failure to pay the City an
amount owing under this Agreement, the Cash Bond may be assessed by
the City, for purposes including, but not limited to:
1. Reimbursement of costs borne by the City to
correct violations of the Agreement not corrected by [NAME OF
CONTRACTOR], after City provides notice in accordance with SECTION
8.A.1.
2. To provide monetary remedies or to satisfy damages
assessed against [NAME OF CONTRACTOR] due to a material breach of
a condition of this License; or
3. To satisfy an order of the referee.
C. [NAME OF CONTRACTOR] shall deposit a sum of money or a
replacement instrument sufficient to restore the Cash Bond to the
original amount within thirty (30) days after notice from the City
that any amount has been withdrawn from the Cash Bond. [NAME OF
CONTRACTOR] shall be relieved of the foregoing requirement to
replenish the Cash Bond during the pendency of an appeal from the
City's decision to draw on the Cash Bond. The amount of the Cash
Bond shall be adjusted annually on the anniversary of this
Agreement.
D. In the event City draws on the Cash Bond, all of City's
costs of collection and enforcement of the provisions relating to
the Cash Bond called for by this SECTION, including reasonable
attorneys' fees and costs, shall be paid by [NAME OF CONTRACTOR].
E. Any decision or order of City under this SECTION 17 may
be appealed by [NAME OF CONTRACTOR] through the dispute resolution
procedures provided by SECTION 8 and 9 of this Agreement.
LAX:81492.9 Date of Printing: February 16, 1995 —29—
SECTION 18. [NAME OF CONTRACTOR]'8 BOOKS AND RECORDS; AUDITS.
A. Records. In addition to the requirements of SECTION 16.F.,
above, [NAME OF CONTRACTOR] shall maintain all records relating to
the services provided hereunder, including, but not limited to,
customer lists, billing records, maps, AB 939 records, and customer
complaints, for the full term of this Agreement, and an additional
period of not less than three (3) years, or any longer period
required by law. The City shall have the right, upon five (5)
business days' advance notice, to inspect and audit all records
relating to this Agreement, including, but not limited to, customer
lists, billing records, maps, AB 939 records, and service recipient
complaints. Such records shall be made available to City at [NAME
OF CONTRACTOR]'s regular place of business, but in no event outside
the County of Los Angeles.
B. Accountant's Report. Within 120 days following the end of
[NAME OF CONTRACTOR]'s fiscal year that occurred during the term of
this Agreement, or any extension thereof, [NAME OF CONTRACTOR]
shall provide to City a financial statement that reports annual
gross revenue collected for its operations in the City. The report
shall reconcile quarterly reports and fees with annual gross
revenue. The report shall be signed by a certified Public
Accountant and [NAME OF CONTRACTOR] will provide a certification
statement, under penalty of perjury, by a corporate officer or
owner, that the report is true and correct.
C. Audit. Should any examination or audit by City of [NAME OF
CONTRACTOR]'s records reveal an underpayment of any fee required to
be paid to City under this Agreement, the amount of such under-
payment, plus compounded interest, shall become due and payable to
City not later than thirty (30) days after written notice of such
underpayment is sent to [NAME OF CONTRACTOR] by City. Should an
underpayment of more than one percent (1 %) but less than two
percent (2 %) be discovered, [NAME OF CONTRACTOR] shall bear fifty
percent of that portion of the cost to the City of the examination
or audit related to the audit of fees. Should an underpayment of
two percent (2 %) or more be discovered, [NAME OF CONTRACTOR] shall
bear the entire cost of that portion of the examination or audit
related to the audit of fees.
LAX:81492.9 Date of Printing: January 31, 1995 - 30 -
SECTION 19. SERVICE EXCEPTIONS; HAZARDOUS WASTE NOTIFICATIONS.
A. Failure to Collect. When Commercial Solid Waste is not
collected from any Commercial Solid Waste service recipient, [NAME
OF CONTRACTOR] shall notify its service recipient in writing, at
the time collection is not made, through the use of a "tag" or
otherwise, of the reasons why the collection was not made.
B. Hazardous Waste Inspection and Reporting. [NAME OF
CONTRACTOR] reserves the right and has the duty under law to
inspect Commercial Solid Waste put out for collection and to reject
Commercial Solid Waste observed to be contaminated with hazardous
substances and the right not to collect Hazardous Waste put out
with Commercial Solid Waste. [NAME OF CONTRACTOR] shall notify all
agencies with jurisdiction, including the California Department of
Toxic Substances Control and Local Emergency Response Providers
and, if appropriate, the National Response Center, of reportable
quantities of Hazardous Waste, found or observed in Commercial
Solid Waste anywhere within the City. In addition to other
required notifications, if [NAME OF CONTRACTOR] observes any
substances which it or its employees reasonably believe or suspect
to contain Hazardous Wastes unlawfully disposed of or released on
any City property, including storm drains, streets or other public
rights of way, [NAME OF CONTRACTOR] will immediately notify the
City Manager or the City Manager's designee.
C. Hazardous Waste Diversion Records. [NAME OF CONTRACTOR]
shall maintain records showing the types and quantities, if any, of
Hazardous Waste found in Commercial Solid Waste and which was
inadvertently collected from service recipients within the City,
but diverted from landfilling.
SECTION 20. REINBURSEIIENT OP CITY EZPENSES.
Upon acceptance of this Agreement by [NAME OF CONTRACTOR],
[NAME OF CONTRACTOR] shall reimburse City for a portion of City's
expenses, including staff time and attorneys' fees and other
expenses which led to this Agreement, preparing this Agreement and
granting this Permit and Agreement to [NAME OF CONTRACTOR]. [NAME
OF CONTRACTOR] agrees to reimburse City in the amount of ONE
THOUSAND DOLLARS ($1,000.00).
SECTION 21. GENERAL PROVISIONS.
A. Soros Majeure. [NAME OF CONTRACTOR] shall not be in default
under this Agreement in the event that the collection, transpor-
tation and /or disposal services of [NAME OF CONTRACTOR] are tempo-
rarily interrupted for any of the following reasons: riots; war or
national emergency declared by the President or Congress and
affecting the City of Downey; sabotage; civil disturbance;
insurrection; explosion; natural disasters such as floods,
earthquakes, landslides and fires; strikes, lockouts and other
labor disturbances; or other catastrophic events which are beyond
the reasonable control of [NAME OF CONTRACTOR]. "Other catastroph-
ic events" does not include the financial inability of [NAME OF
CONTRACTOR] to perform or failure of [NAME OF CONTRACTOR] to obtain
any necessary permits or licenses from other governmental agencies
or the right to use the facilities of any public entity where such
failures occur despite the exercise of reasonable diligence by
[NAME OF CONTRACTOR]. In the event a labor disturbance interrupts
collection and transportation of Recyclable Solid Wastes and
Commercial Solid Waste, and /or disposal of Commercial Solid Waste
by [NAME OF CONTRACTOR] as required under this Agreement, City may
elect to exercise its rights under this Agreement.
LAX:81492.9 Date of Printing: January 31, 1995
-31-
B. Independent Status. [NAME OF CONTRACTOR] is an independent
entity and not an officer, agent, servant or employee of City.
[NAME OF CONTRACTOR] is solely responsible for the acts and
omissions of its officers, agents, employees, contractors and
subcontractors, if any. Nothing in this Agreement shall be
construed as creating a partnership or joint venture between City
and [NAME OF CONTRACTOR]. Neither [NAME OF CONTRACTOR] nor its
officers, employees, agents or subcontractors shall obtain any
rights to retirement or other benefits which accrue to City
employees.
C. Pavement Damage. Normal wear and tear on City streets
resulting from general vehicular traffic excepted, [NAME OF
CONTRACTOR] shall be responsible for damage to City's driving
surfaces, whether or not paved, resulting from the operation of
[NAME OF CONTRACTOR]'s vehicles providing refuse and Recyclable
Solid Wastes collection services within the City. [NAME OF
CONTRACTOR] understands that the exercise of this franchise may
involve operation of its collection vehicles over private roads and
streets. Disputes as to damage to private pavement are civil
matters and complaints of damage will be referred to [NAME OF
CONTRACTOR] as a matter within its sole responsibility and as a
matter within the scope of SECTION 16.A, above.
D. Property Damage. Any physical damage caused by the negligent
or willful acts or omissions of employees of [NAME OF CONTRACTOR]
to public property shall be repaired or replaced by [NAME OF
CONTRACTOR] at [NAME OF CONTRACTOR]'S sole expense. Except as
provided in SECTIONS 16.A, 16.B, and 16.C., above, this Agreement
does not purport to affect, in any way, [NAME OF CONTRACTOR]'S
civil liability to any third parties.
S. Law to Govern; Venue. The law of the State of California
shall govern this Agreement. In the event of litigation between
the parties, venue in state trial courts shall lie exclusively in
the County of Los Angeles. In the event of litigation in a U.S.
District Court exclusiv venue shall lie in the Central District of
California.
P. Fees and Gratuities. [NAME OF CONTRACTOR] shall not, nor
shall it permit any officer, agent or employee, to request,
solicit, demand or accept, either directly or indirectly, any
compensation or gratuity for the collection of refuse otherwise
required to be collected under this Agreement.
G. AB 939. This Agreement is part of City's efforts to comply
with the provisions of the California Integrated Waste Management
Act of 1989, ( "AB 939") as it from time to time may be amended and
as implemented by the regulations of the California Integrated
Waste Management Board ( "Regulations "), as they from time to time
may be amended, and the City's Source Reduction and Recycling
Element, as it may be amended from time to time. In the event that
AB 939 or other state or federal laws or regulations enacted after
LAX:81492.9 Date of Printing: January 31, 1995 —32—
this Agreement has been executed, prevent or preclude compliance
with one or more provisions of this Agreement, such provisions of
this Agreement shall be modified or suspended as may be necessary
to comply with such state or federal laws or regulations. Except
as otherwise provided in this Agreement, no other amendment of this
Agreement shall be valid unless in writing duly executed by the
parties.
H. Asendments. Except as otherwise provided in this Agreement,
no other amendment of this Agreement shall be valid unless in
writing duly executed by the parties. [NAME OF CONTRACTOR] waives
any right or claim to provide services in the City as its
boundaries exist as of the date of execution of this Agreement, or
as they may be expanded by annexation during the term covered by
this Agreement, under any prior grant of franchise, contract,
license or permit issued or granted by any governmental entity
including any right under § 49520 of the Public Resources Code or
other law.
I. Notices. All notices required or permitted to be given under
this Agreement shall be in writing and shall be personally
delivered or sent by telecopier or United States certified mail,
postage prepaid, return receipt requested, addressed as follows:
To City:
Copy to:
And to:
City Manager
City of Downey
11111 Brookshire Avenue
P.O. Box 7016
Downey, California 90241 -7016
Telecopier Number (310) 923 -6388
Director of Public Works /Integrated
Waste Management Coordinator
City of Downey
11111 Brookshire Avenue
P.O. Box 7016
Downey, California 90241 -7016
Telecopier Number (310) 923 -6388
City Attorney
City of Downey
c/o Burke, Williams & Sorensen
611 West Sixth Street, Suite 2500
Los Angeles, California 90017
Telecopier Number (213) 236 -2700
To [NAME OF CONTRACTOR]:
Telecopier
LAX:81492.9 Data of Printing: January 31, 1995 —
Copy to:
or to such other address as either party may from time to time
designate by notice to the other given in accordance with this
SECTION. Notice shall be deemed effective on the date personally
served or sent by telecopier or, if mailed, three (3) business days
from the date such notice is deposited in the United States mail.
J. Compliance With Laws. [NAME OF CONTRACTOR] warrants that it
will comply with all applicable laws, including implementing
regulations, as they, from time to time, may be amended, specifi-
cally including, but not limited to the Comprehensive Environmental
Response, Compensation and Liability Act ( "CERCLA "), 42 U.S.C.
§§ 9601 et. sec., the Resource Conservation and Recovery Act, 42
U.S.C. §§ 6901, et sec., the California Integrated Waste Management
Act of 1989, and all other applicable laws of the State of Califor-
nia, the County of Los Angeles, ordinances of the City, the
requirements of Local Enforcement Agencies and other agencies with
jurisdiction.
E. Savings Clause and Entirety. If any non - material provision of
this Agreement shall for any reason be held to be invalid or
unenforceable, the invalidity or unenforceability of such provision
shall not affect the validity and enforceability of any of the
remaining provisions of this Agreement.
L. Ezhibits Incorporated. EXHIBITS A is attached to and
incorporated in this Agreement by this reference.
X. Joint Drafting. This Agreement was drafted jointly by the
parties to this Agreement.
N. Non- Discrimination.
1) [NAME OF CONTRACTOR] shall not discriminate against any
employee or applicant for employment because of age,
race, religion, creed, color, sex, marital status,
sexual orientation, political ideology, ancestry,
national origin, or the presence of any mental or
physical handicap, unless based upon a bona fide
occupational qualification. [NAME OF CONTRACTOR] shall
take affirmative action to ensure that applicants are
employed, and that employees are treated during
employment without regard to their age, race, religion,
creed, color, sex, marital status, sexual orientation,
political ideology, ancestry, national origin, or the
presence of any mental or physical handicap. Such
action shall include, but not be limited to the
following: employment upgrading; demotion or transfer;
LAX:81492.9 Date of Printing: January 31, 1995 —
1
recruitment or recruitment advertising; layoff or
termination; rates of pay or other forms of
compensation; and, selection for training.
2) [NAME OF CONTRACTOR] understands and agrees that if it
violates this non - discrimination provision, this
Agreement may be terminated by the City and further
that [NAME OF CONTRACTOR] shall be barred from
performing any services for the City now or in the
future, unless a showing is made satisfactorily to the
City that discriminatory practices have been terminated
and that a recurrence of such action is unlikely.
WITNE88 the execution of this Agreement on the day and year written
above.
CITY OF DOWNEY
By:
BARBARA J. RILEY, MAYOR
ATTEST:
Judith E. McDonnell, City Clerk
APPROVED AS TO FORM:
Cheryl J. Kane, City Attorney
(NAME OF CONTRACTOR]
By:
LAX:81492.9 Data of Printing: January 31, 1995 -35-
STATE OF
COUNTY OF
On before me,
personally appeared
personally known to me or proved to be the person who executed the
within instrument entitled AGREEMENT BETWEEN THE CITY OF DOWNEY AND
[NAME OF CONTRACTOR] FOR INTEGRATED WASTE MANAGEMENT SERVICES FOR
COMMERCIAL SOLID WASTE, on behalf of [NAME OF CONTRACTOR] a Cali-
fornia corporation, and , and acknowledged to
me that such execution was pursuant to its bylaws or resolutions of
its board of directors.
DATE:
CORPORATE SEAL
ACKNOWLEDGMENT
) ss
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1
EXHIBIT "A"
FORMAT FOR LANDFILL
HAZARDOUS SUBSTANCES INDEMNIFICATION
County Sanitation "District" (with respect to the Puente Hills
Landfill and Spadra Landfill)) agrees to indemnify, defend (with
counsel selected by District), protect and hold harmless City from
and against all claims, actual damages, natural resources damages,
injuries, costs, response, remediation and removal costs, losses,
liabilities, causes of action, interest, and expenses (including
but not limited to reasonable attorney's and expert's fees) of any n
kind whatsoever paid, incurred, suffered or incurred by or against
City resulting from any repair, cleanup, removal action or response
action undertaken pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et
seq. (hereinafter "CERCLA "), the California Health and Safety Code
(hereinafter "H &S Code ") or other similar federal, state or local
law or regulation, with respect to Commercial Solid Waste
collected, transported and disposed of by [NAME OF CONTRACTOR] at
the Puente Hills Landfill or the Spadra Landfill; provided,
however, the foregoing indemnity shall be null and void as to City
in the event City delivers or causes delivery of Excluded Waste
from City owned or operated facilities to the Puente Hills Landfill
or the Spadra Landfill. The term of the foregoing indemnity shall
be for a period of five (5) years from and after the effective date
of the Commercial Agreement and shall automatically continue
thereafter for the term of the Commercial Agreement unless
terminated by the District at least ninety (90) days prior to the
initial five (5) year term of the Commercial Agreement. If
terminated by the District, the foregoing indemnity will not apply
to Commercial Solid Waste delivered to the Puente Hills Landfill or
the Spadra Landfill, respectively, on and after the effective date
of termination, but will continue to apply to Commercial Solid
Waste delivered to the Puente Landfill or the Spadra Landfill,
respectively, prior to the effective date of termination.
The foregoing indemnity is intended to operate as an agreement
pursuant to Section 107(e) of CERCLA and Section 25364 of the H &
S Code to defend, protect, hold harmless and indemnify City from
all forms of liability under CERCLA, the H & S Code or other
similar federal, state or local law or regulation.
Notwithstanding any provision herein to the contrary, the foregoing
indemnity is expressly conditioned upon the implementation by City,
pursuant to the Commercial Agreement, of a program for minimization
and proper recycling, treatment and disposal of Hazardous Waste
generated or accumulated by Commercial Premises.
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pomts
The following terms used above shall have the indicated meanings:
"District" means the Los Angeles County Sanitation District
No. 2.
"Puente Hills Landfill" means the solid waste (Class III)
landfill located on Worlonanmill Road, La Puente, California.
"Spadra Landfill" means the solid waste landfill located at
4125 West Valley Blvd., Walnut, California.
"City" means the City of Downey, its elected officials,
officers, employees, agents, volunteers, assigns and any
successor or successors to City's interest.
"Commercial Agreement" means the Agreement Between the City of
Downey and [NAME OF CONTRACTOR] For Integrated Waste
Management of Commercial Solid Waste.
"Commercial Premises" means all premises in the City, other
than Single Family and Multi- Family Residences. The term
"Commercial Premises" includes, but is not limited to, stores;
offices; federal, state, City and local governmental
facilities, including but not limited to schools, school
district offices, special districts and water districts (to
the extent permitted by law); restaurants; rooming houses;
hotels; manufacturing, processing, or assembly shops or
plants; hospitals; clinics; and convalescent centers and
nursing homes (non - medical waste only).
"Commercial Solid Waste" means all types of solid waste
generated or accumulated at, or collected from, Commercial
Premises within City's geographical boundaries by or on behalf
of City, which waste is permitted to be disposed of at the
Puente Hills Landfill or the Spadra Landfill and falls within
the definition of "Nonhazardous Solid Waste" set forth in
Title 23, Chapter 15, Section 2523 (a) of the California Code
of Regulations.
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"Excluded Waste" means waste other than Commercial Solid
Waste, including but not limited to Hazardous Waste.
Notwithstanding any provision herein to the contrary,
"Excluded Waste" does not include de minimis quantities of
Hazardous Waste of a type, nature, quantity, amount or
concentration commonly present in Residential Solid Waste
remaining in the waste stream following implementation of the
program for minimization and proper recycling, treatment and
disposal of Hazardous Waste set forth above.
"Hazardous Waste" means any waste materials or mixture of
wastes defined as "hazardous substances ", "hazardous waste"
or "designated waste" pursuant to the Resource Conservation
and Recovery Act, 42 U.S.C. Section 6901 et seq., the
Title:
Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. Section 9601 et seq., the California
Health and Safety Code, the California Water Code, the
California Integrated Waste Management Act, or other similar
federal, state or local law or regulation. Where there is a
conflict in the definitions employed by two or more agencies
having jurisdiction over hazardous or solid waste, the term
"Hazardous Waste" shall be construed to have the broader, more
encompassing definition.
"Residential Solid Waste" means nonhazardous solid waste
generated or accumulated at, or collected from, Single Family
and Multi- Family Residences located within City's geographical
boundaries by or on behalf of the City.
COUNTY SANITATION DISTRICT NO. 2
By:
Date:
ACKNOWLEDGED BY [NAME OF CONTRACTOR]:
By:
Title:
Date:
Address:
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