Loading...
HomeMy WebLinkAbout29 - Residential Solid Waste Transfer Services & MRFCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 29 June 10, 2008 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: General Services Department Mark Harmon, Director, (949) 644 -3055 mharmonOcity. newport- beach. ca. us SUBJECT: Approval of Ten Year Agreement with CR &R Inc. to Provide Residential Solid Waste Transfer Services and Materials Processing/ Recycling (MRF) ISSUE: Should the City Council approve the agreement with CR &R, Inc. to provide residential solid waste transfer services and material processinglrecovery (MRF) for ten years? RECOMMENDATION: Approve the terms and award a ten -year agreement with CR &R, Inc. through July 1, 2018 to provide. residential solid waste transfer services and material processing /recycling (MRF). The provisions included in this agreement ensure that the transportation, recycling, and disposal functions of the City's solid waste program is completed in a cost effective and efficient manner. In addition, the 40% recycling level will ensure future compliance with State mandated recycling levels (AB939). Entering into this agreement will allow the City to eliminate two positions in the Refuse Collection Division. DISCUSSION: Background The current contract for residential refuse processing services expires on June 30, 2008. The scope of work in the proposed negotiated contract with CR &R includes full responsibility for transportation of the solid waste, collected by our refuse crews, from the City Yard to the contractor's processing facility, which is the same processing facility our refuse is currently hauled to in City trucks. Once the recyclable materials (40% Approval of Ten Year Agreement with CR &R to Provide Residential Solid Waste Transfer Service and Materials Processing /Recycling (MRF) June 10, 2008 Page 2 minimum} are removed, the contractor will dispose of the residual materials in the Orange County Landfill system. On May 13, 2008, the City Council unanimously directed staff to n?potiate a ten -year contract with CR &R to provide these services. A copy of the May 13 agenda report is attached. Contract Terms During the past three weeks, staff and representatives from CR &R met in good faith and agreed to the terms and conditions included in the attached agreement. Some of the terms and conditions include: Processing/Transportation Start Dates: Processing the solid waste materials under the proposed agreement will commence on July 1, 2008. The transportation element of the proposed agreement will commence on July 7, 2008, to avoid transitioning the work during the week of the July 4th Holiday. Sale of City Equipment: CR &R will purchase two (2) tractors and four (4) transfer trailers from the City for a combined cost of $226,000. The purchase cost per vehicle is: Unit # Year /Make Mileage Purchase Price' #5037 2000 Kenworth 213,000 $35,000.00 #5034 2002 Kenworth 158,000 $41,000.00 #5051 2006 Peerless Tdr n/a $35,000.00 #5052 2006 Peerless Trlr n/a $35,000.00 #5053 2007 Peerless Trlr n/a $40,000.00 #5054 2007 Peerless Trlr n/a $40,000.00 'The values for the two Kenworth transport trucks were derived from two sources: The Truck Blue Book Price Digest, published by Penton Media, and Carmenita Truck Center in Santa Fe Springs. The values for the Peerless trailers were provided by Swertfeger's Equipment Inc. located at 12438 Michigan St. in Grand Terrace. Swertfeger's is the Southern California dealer for new and used Impco, Peerless, and Travis transfer trailers. Fees Charged /Credited to City: The City will pay CR &R $39.93 for each ton of solid waste processed under the terms of this agreement. CR &R will credit City $97.63 for each truck load of solid waste that is transported from City under the terms of this agreement. Approval of Ten Year Agreement with CR &R to Provide Residential Solid Waste Transfer Service and Materials Processing /Recycling (MRF) June 10, 2008 Page 3 • Insurance Coverage Requirements: CR &R shall maintain the following; $1,000,000 Worker's Compensation Coverage, $5,000,000 General Liability Coverage, $5,000,000 Automobile Liability Coverage, and $1,000,000 Pollution Liability Coverage. • RecyclingtDiversion Rate: CR &R will recycle /divert from landfill 40% of all material received from City. • Disposal: CR &R shall dispose of all residual materials (60% of materials delivered maximum) in the Orange County landfill system. • Reporting Requirements: CR &R shall submit monthly reports showing tons transported, recycled, disposed of and location(s), recycling facilities used, equipment records (including safety information and CHP inspections, and driver records). • Licensed /Permitted Facility: CR &R shall maintain a properly licensed and permitted Material Recovery Facility with sufficient capacity for City's waste flow. • Transfer Station Operation: CR &R shall stage four transfer trailers in the City Yard at all times. Two trailers will be kept in the loading docks and two are staged in a stand -by area. At no time should the lack of station capacity impact the City's route collection trucks. An empty trailer will be delivered every time a full trailer is removed for shipment. This will keep the minimum number of four trailers in the Yard at all times. • Landfill Cost Increases: CR &R may apply to the City for an increase in the Disposal Fee portion of their fees charged to the City for any direct increase in the Orange County Landfill system fee charged. • Annual Consumer Price Index Adjustment: The City shall grant CR &R an annual CPI increase (not to exceed 4 %) at the end of the first year, and every year thereafter, on the processing fee (less disposal) charged to the City, and the transportation fee credited to the City (Section 6 of the Agreement). The Consumer Price Index to be used in such calculation is the Consumer Price Index, All Urban Consumers (All Items), for the Los Angeles, Anaheim, Riverside Metropolitan Area, published by the United States Department of Labor, Bureau of Labor Statistics (1982 84 = 100). • Term: At the end of the ten -year term, there is an option to extend the agreement in 5, one -year increments. Approval of Ten Year Agreement with CR &R to Provide Residential Solid Waste Transfer Service and Materials Processing /Recycling (MRF) June 10, 2008 Page 4 Financial Review 1) Program Savings: Funding for this agreement is included in the proposed Fiscal Year 2008 -09 budget. The current cost for transportation, pro cessing /recycling, and the disposal of solid waste is approximately $1,845,000 per year with a 25% guaranteed recycling rate. This cost is based on the current program of City staff and equipment transporting the materials to CR &R for processing. The proposal from CR &R, in which they will transport the materials and process the recyclables, will be approximately $1,245,000 per year, saving the City $600,000 per year, and over $6,000,000 during the life of the agreement. CONTRACTOR ANNUAL COST RECYCLING RATE A) Current Contract (City /CR &R, Inc.) $1,845,000 25% Recycling Rate B) CR &R Inc. (Transport and Process) $1,245,000 40% Recycling Rate 2) Sale of City Equipment: By the terms of the agreement, CR &R will purchase the City's remaining transfer equipment for $226,000. This will be a one-time payment to the City due on delivery of equipment (July 7, 2008). 3) Reduction in Equipment Replacement Fund: There is currently $244,000 set aside in the City's Equipment Replacement Fund for the future purchase of transfer trucks and trailers. Staff recommends that these funds be retained in the sanitation Equipment Replacement Fund for the future purchase of CNG refuse collection vehicles. Environmental Review: This project does not require environmental review. Public Notice: This agenda item may be noticed according to the Ralph M. Brown Act (72 hours in advance of the public meeting at which the City Council considers the item). Approval of Ten Year Agreement with CR &R to Provide Residential Solid Waste Transfer Service and Materials Processing /Recycling (MRF) June 10, 2008 Page 5 Legal Review The City Attorney's Office has reviewed this report and the attached Agreement. Submitted/ epa ed . Mark Harmon General Services Director Revie ed by: Aaron Harp Assistant City Attomey Attachments 1) May 13, 2008, City Council Staff Report 2) Draft Agreement with CR &R, Inc. CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Attachment I Agenda Item No.. 27 May 13, 2008 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM. General Services Department Mark Harmon; Director, (949) 644 -3055 mha rm on @city. n ewaort-bea ch. ca. us SUBJECT: Vendor Selection for Contract Negotiations for Residential Solid Waste Transfer Services and Materials Processing /Recycling (MRF) ISSUE: Should the City Council select a vendor and direct staff to negotiate a ten -year contract to provide residential solid waste transfer services and material . processing/recycling services? RECOMMENDATION: Direct staff to negotiate a ten -year contract with CR &R Inc. to provide residential solid waste transfer services and material processing /recycling services. DISCUSSION: Background On January 22, 2008, the City Council approved a contract amendment with CR &R Inc. to continue- processing the City's residential solid 'waste materials through dune 30; 2008. The City currently transfers all solid waste .collected by City ^equipment and personnel to CR &R Inc. for processing and removal of recyclable materials: The current contract requires a. 25°% diversion or recycling level of all materials delivered to . the facility. Staff recommended the e4enslon with CR &R Inc. to allow time -to include the transfer /shipping of the materials, currently performed by City crews to be included in the specificationstrequest for proposals. A copy of the January 22nd agenda report and minutes, and approved 'contract amendment are attached. Vendor Selection for Contract Negotiations for Residential Solid Waste Transfer Services and Materials Processing/Recycling (MRF) May 13, 2008 Page 2 Project Description /Scope of Services The current contract for residential refuse processing services expires on June 30, 2008. The scope of work in the proposed contract includes full responsibility for transportation of solid waste and recycling materials from the City Yard to the contractor's processing facility. Once the recyclable materials (406/6 minimum) are removed, the contractor will dispose of the residual materials in the Orange County Landfill system. A copy of the Request for Proposal document is attached. Experience has proven that a multi -year contract is the most cost- effective means to have solid waste services performed for both the City and the contractor. The term of the proposed contract is for ten years due to the large commitment of personnel and equipment required to provide transfer and processing services. At the conclusion of ten years, the City will. hold an option to continue the agreement with five one -year extensions. An annual CPI increase on the non - disposal portion of the contractor's proposal is included after the 1st year of service and is capped at a maximum of 4 % per year. Disposal cost increases will be available based on County landfill increases, after proof of such increase has been verified by City staff and approved by City Council. . Bid Process and Analysis On April 11, 2008, a copy of the RFP was mailed. to each of the City's franchised commercial solid waste haulers, Proposals were due to the City by Tuesday, April 29th at 12 pm. Prior to this deadline, the City received three bids for transfer and processing services from the following solid waste contractors: • CR &R Inc. • Rainbow Disposal, Inc. • Waste Management of Orange County During the analysis of the proposals, it was determined that CR &R Inc. and Rainbow Disposal had used two different tonnage levels when determining their cost for transfer services; CR &R Inc. used 20 tons per truck load and Rainbow Disposal used 22 tons per truck load in their calculations. To ensure fairness, staff re- released the. transfer, or cost per load /trip, part of the RFP document and gave all three companies the opportunity to adjust their transfer cost proposal based on a documented average weight of 21.14 tons per truck load /trip. The companies could not change their bid on the processing cost that they had submitted on April 29"'. The.adjusted proposals were due to the General Services Department on Monday, May 5, 2008, at 10am. Both CR &R Inc. and Rainbow Disposal took advantage of the opportunity to adjust their transfer cost proposals; Rainbow Disposal lowering their cost by 51 %, and CR &R Inc. lowering their proposed cost by 67 %. I Vendor Selection for Contract Negotiations for Residential Solid Waste Transfer Services and Materials Processing /Recycling (MRF) May 13, 2008 Page 3 Evaluation Criteria As indicated in Section 16.of the RFP, costs /fees were this agreement. Evaluation criteria for the proposals ii responsiveness to the RFP, .experience with MRF pro fee schedules /total cost, applicable permits and exi vehicle safety records, and distance from City Yard to City retains. transfer services). Responsiveness to RFP Process not the sole criteria for award of eluded the following categories; :essing and transfer operations, sting capacity, LEA and motor :ontractor's processing facility (if All three proposals were from very reputable solid waste companies in Orange County. Each proposal was responsive to the requirements of the RFP. MRF Processing and Transfer Station Operations Experience CR &R Inc. provides solid waste collection and material recovery services to a population in excess of 2.5 million people, and 5,000 commercial establishments in Orange, Los Angeles; Imperial, San Bernardino, San Diego, and 'Riverside Counties. Their material processing efforts result in the recovery of more than 135,000 tons of recyclable material each year. At' their Material Recovery Facility located in Stanton, CR &R Inc. has long -term agreements for handling solid waste from the cities of Costa Mesa, Buena Park, La Palma, County of Orange, Stanton, and Midway City: CR &R Inc. has also held the City of Newport Beach materials processing contract since 1956, and is largely responsible for the City s full compliance will all State waste diversion mandates (AB939). Cost Information Each proposal was required. to,complete two separate cost attachments - l) Total Cost. per Load / Trip from City Yard to Processing Facility, and, 2) Total Cost per Ton for Processing Materials (Base Processing Cost plus Disposal Fee). This was done to allow City Council the option of selecting only the processing proposal "and' Continue to provide transfer services with City crews. As the following charts indicate, CR &R was the lowest, responsive bid. 5 Vendor Selection for Contract Negotiations for Residential Solid Waste Transfer .Services and Materials Processing /Recycling (MRF) May 13, 2008 Page 4 TOTAL COST PER TON CONTRACTOR TRANSFER PROCESSING COST /.TON 1) Current Contract $8.24 (City) $44.06 (CR &R) $52.30 2) Waste Management $6.23 $44.00 $50.23 3) City /Rainbow Disposal $8.24 (City) $37.00 (Rainbow) $45.24 4) Rainbow Disposal $2.91. $37.00 $39.91 5) CR &R Inc. -$4.62 (pay) $39.93 $35.31 COST PER TON: Assumes 21.14 tons per transfer station loaddrip based on current 3 -month Orange County Solid waste Enforcement Agency report submitted April 24, 2008. TOTAL COST PER LOAD CONTRACTOR TRANSFER PROCES$IN43 1) Current Contract $174.28 (City) $931.43 (CR &R) 2) Waste Management $131.74 $930.16 C S M r' $1,105.71' $1,061.90. 3) City/Rainbow Disposal $174.28 (City) $782.18 (Rainbow) $956.46 4) Rainbow Disposal $61.50 $782.18 $843.68 5) CR &R Inc. - $97.63 (pay) $844.12 $746.49 COST PER LOAD: Assumes 21.14 tons per transfer station load/trip based on current 3 -month Orange County Solid waste Enforcement Agency report submitted April 24, 2008. I Vendor Selection for Contract Negotiations for Residential Solid Waste Transfer Services and Materials Processing /Recycling (MRF) May 13, 2008 Page 5 ESTIMATED ANNUAL CONTRACT COST 1) Current Contract" 2) Waste Management 3) City /Rainbow Disposal 4) Rainbow Disposal 5) CR&R Inc. `City Transfer with CR &R Processing ANNUAL COST RECYCLING RATE $1,844,324.00 20% $1,771,249.00 40% $1,595,375.00 40% $1,407,258.00 1 40% $1,245,145.00 40% ANNUAL COST: Assumes 1,668 annual transfer station load/tdps (35,262 tons) based on actual .tonnage reported to, Orange County Solid waste Enforcement Agency report submitted April 24, 200B. Applicable Permits.and Existing Capacity. CR &R Inc. currently owns and operates a Material Recovery Facility (MRF) in the City of . Stanton. This facility is permitted to receive and process source separated recyclables, mixed residential trash, green waste products, and construction and demolition materials.. The MRF facility currently, processes materials from several communities,, including the commercial materials and Newport Coast residential refuse collected by CR &R Inc. trucks operating in the City of Newport Beach. CR &R Inc. currently has a permitted daily capacity'of 1,800 tons per day, with over 700 tons per day of non- committed (non - contracted) tonnage capacity. Local Enforcement Agency (LEA) and Motor Vehicle Safety Records No reportable Areas of Concern (AOC) notices or violations in the past. three years. Optional Service Information Both CR &R Inc. and Rainbow Disposal included "optional. services" as part of their proposals. Optional-services included such. items as the purchase.of the City's existing fleet of transfer equipment, use of the contractor's natural gas fueling facility, electronic waste collection, transfer of C &D materials from the City Yard,.and utilizing: the excess Capacity in the City's.transfer.station. 5 Vendor Selection for Contract Negotiations for Residential Solid Waste Transfer Services and Materials Processing/Recycling (MRF) May 13, 2008 Page 6 Although not requested as part of the RFP process, Council may direct staff to include discussion of these service enhancements as part of the contract negotiation process. Financial Review Funding for this agreement is included in the Fiscal Year 2008 -09 budget. The current cost for solid waste processing /recycling services, based on the. current per ton processing charge of $44.06 (contract), and internal City services cost for the transfer operation, is $1,844,324 per year. Based on the bid from CR &R Inc. of $39.93 per ton processing, and a payment to the City of $97.63 for each load transferred, .staff estimates that the total. cost for services will be $1,245,145 next fiscal year. This cost represents a savings of approximately $600,000 per year, and approximately $6,000,000 during the life of the agreement. In addition to the ongoing operational savings listed above, staff has identified significant one -time cost savings with the proposal from CR &R Inc. Currently, the City's Equipment Replacement Reserve Fund includes $340,000 for the future replacement of four transfer trailers and three tractor - trucks currently used in the Citys transfer operation. In addition to these funds, City.staff would negotiate the sale of the City's existing transfer equipment during the contract negotiation phase of this project. CONTRACTOR ANNUALCOST 1) Current Contract $1,844,324 2) Waste Management $1,771,249 3) City/Rainbow Disposal . $1,595,375 4) Rainbow Disposal $1,407,258 5) CR &R Inc. $1,245,145 Recommendation Based on the evaluation of bids using the criteria above, City staff believes the proposal from CR &R, Inc. will provide the best value for the City in terms of transfer costs and materials processing fees. Following City Council's direction to negotiate the terms of the contract with CR &R Inc., staff will enter into a 2 -week negotiation period to discuss the service lever terms in the agreement. .During this .period, both parties will have the ability to negotiate all terms, with the exception of cost. Following the negotiation period, staff will return to the City Council on June 10, 2008 for the final approval of the agreement and execution of the contract. F Vendor Selection for Contract Negotiations for Residential Solid Waste Transfer Services and Materials Processing /Recycling (MRF) May 13, 2008 Page 7 Environmental Review: This project does not require environmental review. Public Notice: This agenda item may be noticed according to the Ralph M. Brown Act (72 hours in advance of the public meeting.at which the City Council considers the item). Legal Review The City Attorney's Office has reviewed this report. General Services Director Revi ed by: re C ffa�L,� Aaron Harp Assistant City Attorney Attachments 1) January 22 City Council Staff Report including attachments 2) January 22 City Council Minutes 3) RFP Attachment 2 AGREEMENT WITH CR &R INCORPORATED FOR RESIDENTIAL SOLID WASTE TRANSFER SERVICES AND MATERIAL PROCESSING AND RECYCLING THIS AGREEMENT is made and entered into as of this day of , 2008, ( "Commencement Date ") by and between the CITY OF NEWPORT BEACH, a Municipal Corporation and Charter City ( "City"), and CR &R Incorporated, a California corporation whose address is 11292 Western Avenue, Stanton, California 90680, ( "Hauler "), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Hauler to provide an efficient solid waste management system, which includes the transfer and transportation of solid waste and recyclable material to a processing facility, separation and marketing of recyclable materials, and disposal of residual solid waste in the Orange County landfill system. C. Hauler possesses skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. D. City has solicited and received a proposal from Hauler, has negotiated with Hauler, has reviewed the previous experience and evaluated the expertise of Hauler, and desires to retain. Hauler to render services under the terms and conditions set forth in this Agreement. E. Hauler acknowledges that City has relied upon Hauler's representations and Hauler commits to faithfully perform the services required by this Agreement and in accordance with the terms and conditions of this Agreement. F. Hauler has examined the location of all proposed work, carefully. reviewed and evaluated the specifications relative to the type, nature, frequency of work to be performed, is familiar with all conditions relevant to the performance of services, and has committed to perform all required work for the price specified in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: TERM Unless earlier terminated in accordance with Section 28 of this Agreement, the Term of this Agreement shall be for a period often (10) years. The Term shall commence on July 1, 2008, following City Council approval of this contract, and upon receipt and approval of all required bonds and insurance. The term of this Agreement shall automatically be extended for five (5) additional one (1) year terms (automatic extensions) with the extensions to automatically commence upon the expiration of the initial term or any extended term, unless the City notifies Hauler or Hauler notifies City in writing at least one hundred and eighty (180) days before the end of the initial term or any extended term, of its intent to terminate this Agreement at the conclusion of the initial term or any extension. Time is of the essence in the performance of services under this Agreement. 2. SCOPE OF SERVICES In compliance with all terms and conditions of this Agreement, Hauler shall perform all of the solid waste transfer, processing, and disposal services specifically described in, and in strict compliance with the requirements of Exhibit A (Scope of Services). Services to be provided by Hauler include full responsibility for the transportation of residential solid waste that is collected by City personnel and loaded into transfer trucks, owned and operated by Hauler, at the City Corporate Yard located at 592 Superior Avenue in the City of Newport Beach. The materials will be shipped by Hauler to the Haulers Material Recovery Processing Facility (MRF) for the processing and recovery of recyclable materials. Hauler is required to recover a minimum of 40% by weight of materials received per this Agreement. Residual trash (60% maximum of materials received) will be transferred by Hauler for disposal in the Orange County landfill system. 3. SALE OF CITY EQUIPMENT Hauler agrees to purchase the City's existing fleet of transfer equipment as identified and at the cost listed below: Unit# Year /Make /Model Mileage Purchase Pdce #5037 2000 Kenworth 213,000 $35,000.00 #5034 2002 Kenworth 158,000 $41,000.00 #5051 2006 Peerless Trlr. n/a $35,000.00 #5052 2006 Peerless Trlr. n/a $35,000.00 #5053 2007 Travis Tdr. n/a $40,000.00 #5054 2007 Travis Tdr. n/a $40,000.00 To effectuate the sale, City and Hauler will execute a Bill of Sale Agreement substantially in the form of Exhibit C attached hereto and incorporated by this reference. City will be responsible to ensure all equipment meets AQMD /CARB /BACT air emission standards and regulations prior to the sale of equipment to Hauler. 2 4. LICENSES. FEES, PERMITS AND ASSESSMENTS Hauler shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement. Hauler shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the Hauler's performance of the serves required by this Agreement, and shall indemnify, defend and hold harmless City against any such fees, assessments, taxes, penalties or interest levied, assessed or imposed against City hereunder. 5. FURTHER RESPONSIBILITIES OF PARTIES Both parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the service of the other. 6. COMPENSATION TO HAULER City shall pay Hauler for the Services in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Hauler shall submit invoices for services provided to City on a monthly basis and all invoices submitted to the City shall be accompanied by a monthly report indicating in detail all Services performed. City shall pay invoices within thirty (30) days after approval of an invoice by the City. Payment shall be deemed made when deposited in the United States mail, first class postage pre -paid, and addressed to Hauler as specified in Section entitled "Notices." Annually, upon the anniversary date of the Commencement Date, and upon each anniversary of the Commencement Date thereafter: (1) the Processing Cost, less Disposal Fees, set forth on Exhibit B (Schedule of Billing Rates) shall be adjusted in proportion to changes in the Consumer Price Index, subject to a four percent (4 %) maximum adjustment increase set forth below; and (2) the Transportation Cost set forth on Exhibit B (Schedule of Billing Rates) shall be adjusted in proportion to changes in the Consumer Price Index, subject to a four percent (4 %) maximum adjustment decrease in the amount Hauler is paying to the City. Such adjustment to the Processing Cost shall be made by multiplying the Processing Cost, less Disposal Fees, set forth on Exhibit B (Schedule of Billing Rates) in effect by a fraction, the numerator of which is the value of the Consumer Price Index for the calendar month three (3) months preceding the calendar month for which such adjustment is to be made and the denominator of which is the value of the Consumer Price Index for the same calendar month immediately prior to the Commencement Date. For example, if the adjustment to the Processing Cost is to occur effective July 1, 2009, the index to be used for the numerator is the index for the month of April 2009 and the index to be used for the denominator is the index for the 3 month of April preceding the Commencement Date. Such adjustment to the Transportation Cost shall be made by multiplying the Transportation Cost set forth on Exhibit B (Schedule of Billing Rates) in effect by a fraction, the denominator of which is the value of the Consumer Price Index for the calendar month three (3) months preceding the calendar month for which such adjustment is to be made and the numerator of which is the value of the Consumer Price Index for the same calendar month immediately prior to the Commencement Date. For example, if the adjustment the Processing Cost is to occur effective July 1, 2009, the index to be used for the denominator is the index for the month of April 2009 and the index to be used for the numerator is the index for the month of April preceding the Commencement Date. The "Consumer Price Index" to be used in such calculation is the Consumer Price Index, All Urban Consumers (All Items), for the Los Angeles Anaheim Riverside Metropolitan Area, published by the United States Department of Labor, Bureau of Labor Statistics (1982 84 = 100). If both an official index and one or more unofficial indices are published, the official index shall be used. If said Consumer Price Index is no longer published at the adjustment date, it shall be constructed by conversion tables included in such new index. The parties hereto expressly agree that the maximum yearly increase to the Processing Cost, less Disposal Fees, set forth on Exhibit B (Schedule of Billing Rates) shall not exceed four percent (4 %) and that the maximum yearly decrease to the Transportation Cost set forth on Exhibit B (Schedule of Billing Rates) that Hauler pays to the City shall not exceed four percent (4 %). Except as expressly provided herein or in Exhibit B, the Hauler shall be responsible for all other costs and expenses related to Hauler's performance of this Agreement. Notwithstanding the foregoing, in the event the Orange County Landfill increases disposal fees and/or Hauler is required by the City to divert more than forty percent (40 %) of the solid waste from landfills, the Hauler may apply to the City for an increase in the Processing Fee (to increase the 40% diversion level) and /or for an increase in the Disposal Fee (Orange County landfill fee increases), described in Exhibit B, charged to the City. The Hauler shall supply the City with any and all information and documentation requested by the City that the City determines is necessary to analyze the request including, but not limited to, performing an audit and reviewing /verifying Hauler's landfill records and tonnage reports. Hauler and City agree that the decision to increase the Disposal Fee, described in Exhibit B, charged the City shall be within the sole discretion of the City and the City shall not be obligated to increase the amount charged the City. 7. INDEPENDENT CONTRACTOR It is understood that City retains Hauler on an independent contractor basis and Hauler is not an agent or employee of City. The manner and means of conducting the work are under the control of Hauler, except to the extent they are limited by statute, rule or regulation and the express terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Hauler or any of Hauler's employees or agents, to be the agents or employees of City. Hauler shall have the responsibility for and control over the means of performing the work, provided that Hauler is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Hauler as to the details of the performance or to exercise a measure of control over Hauler shall mean only that the Hauler shall follow the desires of City with respect to the results of the services. 9 8. FAMILIARITY WITH WORK A. By executing this Agreement, Hauler warrants that Hauler (a) has thoroughly investigated and considered the scope of services to be performed, (b) has carefully considered how the services should be performed, (c) fully understands the difficulties and restrictions attending performance of the services under this Agreement. Hauler warrants that Hauler has investigated the City's Transfer Station site and is fully acquainted with the conditions there existing, prior to commencement of services hereunder. Should the Hauler discover any latent or unknown conditions, which will materially affect the performance of the services hereunder, Hauler shall immediately inform City of such fact and shall not proceed except at Haulers risk until written instructions are received from City. B. City and Hauler agree that City has made no representation regarding the order or condition of any area or location for which Hauler is to provide services or that the site or location of work will be free from defects, apparent or hidden, at the commencement of, or at any time, during the term of this Agreement. 9. RECYCLING / DISPOSAL OF SOLID WASTE A. Except as expressly provided in this Section, Hauler shall comply with all recycling and diversion requirements imposed by law, ordinance, or regulation on the City and/or Hauler. On a quarterly basis, Hauler shall divert forty percent (40 %) of all solid waste delivered to, or caused to be delivered to, Hauler by City. In no event shall Hauler deposit sixty percent (60 %) or more of the solid waste collected pursuant to this Agreement at any landfill during any calendar quarter. In the event new or additional diversion requirements are imposed by law, ordinance or regulation on City and/or Hauler, the City shall have the right to require Hauler to divert additional solid waste from landfills by providing Hauler with ten (10) days written notice of the new diversion requirements. Hauler may apply for increases in processing costs associated with increase in diversion levels required by City. On or before the 30th day of the month following the end of the previous calendar month, Hauler shall provide all documents and information designated by the General Services Director to prove that Hauler has complied with this subsection, any applicable law, ordinance, regulation, or condition related to recycling and diversion of solid waste. B. Hauler shall dispose of solid waste collected or transported by Hauler only by taking such solid waste to an Orange County certified /licensed landfill, State certified /licensed transfer station, State certified /licensed recycling facility or State certified /licensed materials recovery facility which is lawfully authorized to accept that specific type of solid waste material. Hauler shall not dispose of solid waste by depositing it on any land, (except a permitted facility) whether public or private, or in any river, stream or other waterway, or in any sanitary sewer or storm drainage system. Nothing in this Agreement shall be deemed or construed as authorizing Hauler to operate a landfill, recycling center, or other solid waste disposal facility. C. If Hauler violates the terms in Section 9(A) and Section 9(B) above, Hauler agrees that the City has the future right to direct that solid waste be delivered to a permitted disposal facility designated by City. This exercise of "flow control" by the City shall be made upon at least 30 days prior written notice to Hauler, and written notice shall include the violation(s) prompting the City's action regarding 'slow control." Failure to comply with the recycling /diversion requirements and delivery/disposal of materials to a certified /licensed facility shall be a material breach of this Agreement. 10. REPORTING REQUIREMENTS A. Hauler shall submit to City monthly reports setting forth the total amount (in tons) of solid waste which Hauler transported from the City of Newport Beach during the reportable month; the total weight (in tons) of solid waste disposed of by Hauler at landfills and transfer stations which Hauler transferred from the City of Newport Beach during the reportable month; the name and location of all solid waste and recycling facilities where City of Newport Beach materials were delivered; and such other tonnage or other information as requested by the General Services Director including, but not limited to, weigh tickets and recycling records. Such monthly reports shall be prepared on such form as required by the General Services Director. In addition, on a quarterly basis, the Hauler shall submit to the City any equipment, terminal safety, employee safety and inspection reports, citations, records and other documents for all Hauler's operations and activities that relate in any way to this Agreement including, but not limited to, periodic California Highway Patrol biennial terminal inspection reports; vehicle citations; California Highway Patrol Incident reports; citations issued to drivers /operators; other citations issued to the Hauler or its employees; California Occupational Safety and Health Administration 300 reports; and Lead Environmental Agency inspection /compliance reports. Each quarterly report and accompanying reports /citations shall be submitted on or before the 15th day of the month following the end of the quarter (i.e. report due October 15, 2008, for first quarter after the Commencement Date) and submitted to: General Services Director City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 B. Except as expressly provided herein, Hauler shall comply with all recycling and diversion requirements imposed by law, ordinance, or regulation on the City. Monthly reports stating the total amount (in tons) of solid waste which Hauler transferred, transported, recycled, and landfilled (disposal) should accurately reflect a forty (40 %) diversion rate as required by the City. At the end of each quarter, monthly reports will be evaluated for compliance. Failure to comply with the recycling and diversion requirements shall be a material breach of this Agreement. 11. EQUIPMENT A. The Hauler shall use transfer vehicles that comply with all applicable AQMD /GARB air quality standards and mandates at all times during the term of this Agreement. Hauler shall, at all times, provide such number of vehicles and such equipment as will be adequate for the transportation and disposal services which it is authorized to provide under this Agreement. All vehicles utilized by Hauler in the performance of this Agreement shall be registered with the California Department of Motor Vehicles. All vehicles shall pass the required periodic California Highway Patrol biennial inspection of the terminals ( "BIT'). Within fifteen (15) days of the BIT inspection, Hauler shall provide records from all of the terminal(s) responsible for the maintenance and repair of equipment used in the City. All vehicles and equipment used by Hauler in the performance of this Agreement shall be subject to inspection by the City upon twenty -four (24) hours notice by the General Services Director. All vehicles shall be properly maintained, kept clean and in good repair, and shall be uniformly painted. All drivers employed by Hauler and operating equipment in the City shall be properly licensed for the class of vehicle they drive, enrolled in the Department of Motor Vehicles Employee Pull Notice (EPN) program, and abide by all State and federal regulations for driver hours and alcohol and controlled substances testing. B. Each vehicle shall be so constructed and used in a manner so that no rubbish, garbage, debris, oil, grease or other material will blow, fall, or leak out of the vehicle. All solid waste shall be transported by means of vehicles which are covered in such a manner as to securely contain all solid waste and to prevent such solid waste from projecting, blowing, falling or leaking out of the vehicles. A communications device such as a two -way radio or a cellular telephone shall also be maintained on each vehicle at all times. C. Hauler shall not store any vehicle or equipment on any public street, public right -of -way or other public property in the City of Newport Beach without obtaining a Temporary Street Closure Permit from the Public Works Department and prior written consent of the General Services Director. D. Should the General Services Director at any time give written notification to Hauler that any vehicle does not comply with the standards hereunder, the vehicle shall be promptly removed from service by Hauler and not used again until inspected and authorized in writing by the General Services Director. E. All vehicles used in performance of this Agreement shall be maintained and operated in conformance with all applicable laws, statutes, rules and regulations. In performance of this Agreement, the issuance of four (4) or more vehicle, driver /operator or other citations that relate in any way to this Agreement within a 12 month period shall be deemed to be breach of this Agreement. 12. STANDARD OF CARE, WORKMANSHIP, SUPERVISION A. The Hauler shall provide a work force sufficient to perform the Contract Services and all members of the work force shall be hired in compliance with State and Federal law. B. All Contract Services shall be performed by competent and trained employees. Hauler represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with community professional standards. All services shall be performed by qualified and trained personnel who are not 7 employed by City, nor have any contractual relationship with City. Hauler hereby certifies that all work performed under this Agreement will conform to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. C. Hauler represents and warrants to City that it has, shall obtain, and shall keep in full force in .effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Hauler to practice its profession. Hauler shall maintain a City of Newport Beach business license during the term of this Agreement. D. Whenever Hauler has knowledge that any actual or potential labor dispute is delaying or threatens to delay the timely performance of this Agreement, Hauler shall immediately give notice to the City and any and all relevant information. In the event of a labor dispute which delays or impacts the performance of Contract Services, the City reserves the right to use its own forces or to contract with other haulers to perform the Contract Services. The City and Hauler agree that it will be deemed a breach of this Agreement if Hauler cannot provide full Contract Services seven (7) days after services have been impacted or delayed as a result of a labor dispute. E. Hauler shall attend meetings, special events and public meetings as requested by the City. Hauler shall provide all necessary and appropriate personnel to attend each meeting and any requested promotional material so that the topics on the agenda can be addressed fully and completely. 13. HOLD HARMLESS To the fullest extent permitted by law, Hauler shall Defend, indemnify, release and hold harmless the City and each of its past, present and future elected officials, officers, employees, agents, consultants, volunteers, affiliates, assignees, representatives, attorneys, subsidiaries, and affiliated entities and their respective successors, heirs and assigns (collectively, "Indemnified Parties ") from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to the request for proposal process in regards to this Agreement, the award of this Agreement to Hauler and/or any alleged violation of law, ordinance, rule, or regulation by Hauler. This indemnification shall include, but not be limited to, damages awarded against the Indemnified parties, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, or proceeding whether incurred by Hauler, City, and /or the parties initiating or bringing such proceeding. 14. INSURANCE Without limiting Hauler's indemnification of City, and prior to commencement of work, Hauler shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. E3 A. Certificates of Insurance. Hauler shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of a permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of Califomia, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. i. Workers' Compensation Coverage. Hauler shall maintain Workers' Compensation Insurance and Employers Liability Insurance for his or her employees in accordance with the laws of the State of California; however, in no event shall the Employer's Liability Insurance be less than one million dollars ($1,000,000) per occurrence. Any notice of cancellation or non - renewal of all Worker's Compensation policies must be received by City at least thirty (30) calendar days (ten (10) calendar days written notice of non - payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Hauler for City. ii. General Liability Coverage. Hauler shall maintain commercial general liability insurance in an amount not less than five million dollars ($5,000,000) per occurrence for bodily injury; personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liabilitv Coverage. Hauler shall maintain automobile insurance covering bodily injury and property damage for all activities of the Hauler arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than five million dollars ($5,000,000) combined single limit for each occurrence. iv. Pollution Liability Coverage. Hauler shall maintain Hauler's environmental liability insurance with limits in an amount of not less than one million dollars ($1,000,000) per occurrence and annual aggregate covering claims for on -site, under -site, or off -site bodily injury and property damage and regulatory fines as a result of pollution conditions arising out of its operations under this Agreement. M E. Endorsements. Each general liability, automobile liability and pollution liability insurance policy shall be endorsed with the following specific language: i. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Hauler. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Hauler's operations or services provided to City. Any insurance maintained by City, including any self - insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers.. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non - payment of premium) written notice has been received by City. F. Timely Notice of Claims. Hauler shall give City prompt and timely notice of claim(s) made or suit instituted arising out of or resulting from Hauler's performance under this Agreement. G. Additional Insurance. Hauler shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and execution of the work. 15. RESPONSIBILITY FOR DAMAGES AND INJURYIINDEMNIFICATION A. General Indemnification. Hauler shall indemnify, hold harmless, and defend City, and each of its past, present and future elected officials, officers, employees, agents, consultants, volunteers, affiliates, assignees, representatives, attorneys, subsidiaries, and affiliated entities and their respective successors, heirs and assigns (collectively, 'Indemnified Parties ") for, from and against any costs, expenses, damages, and losses, including actual attorneys fees ( "Losses ") of any kind or character to any person or property arising directly or indirectly from or caused by any of the following: (i) any act or omission of Hauler or its respective officers, directors, shareholder members, partners, employees, agents, contractors, subcontractors, i1O suppliers, representatives and affiliates ( "Hauler Representatives "); (ii) Haulers or Hauler Representative's activities; (iii) any accident or casualty within or arising out of the services /work performed under the Agreement; (iv) any violation or alleged violation of any law, ordinance or statute now or hereafter enacted arising out of services/work performed pursuant to the Agreement; (v) the negligence or willful misconduct of Hauler or any of Hauler Representatives in the performance of the services/work under the Agreement; and (vi) any breach of the Agreement. Hauler shall not be required to indemnify, hold harmless and defend the Indemnified Parties from the sole negligence, active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Hauler. B. Hazardous Substances Indemnification. Hauler shall indemnify the Indemnified Parties from and against all claims, actual damages including, but not limited to, special and consequential damages, natural resource damage, 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 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, the Indemnified Parties or Hauler arising directly or indirectly from or caused by any of the following: (i) the violation of any Environmental Laws or the failure to clean up and mitigate the consequences of the spill or release of any Hazardous Substance; and (ii) Hauler's activities under this Agreement concerning any Hazardous Substance at any place where Hauler stores or disposes of solid or hazardous waste pursuant to this Agreement, or preceding Agreements between City and Hauler. The foregoing indemnity is intended to operate as an agreement pursuant to the Comprehensive Environmental Response, Compensation and Liability Act 42. U.S.C. Section 9607(e) and any amendments thereto; California Health and Safety Code Section 25364, to insure, protect, hold harmless, and indemnify City from liability. As used herein, the term "Environmental Laws" shall mean "any and all present and future federal, state or local laws (whether common law, statute, rule, regulation or otherwise), permits, orders and any other requirements of Governmental Authorities relating to the environment or any "Hazardous Substance" or "Hazardous Substance Activity" (as defined herein) (including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. §§ 9601 et seq.) as amended from time to time and the applicable provisions of the California Health and Safety Code and California Water Code). As used herein, the term "Hazardous Substance" shall mean "any (a) chemical, compound, material, mixture or substance that is now or hereinafter defined or listed in, or otherwise classified pursuant to any Environmental Law as a "hazardous substance ", "hazardous material," "hazardous waste," "extremely hazardous waste," "infectious waste," "toxic waste," "toxic pollutant," or any other formulation intended to define, list or classify substances by reason of deleterious properties or affect and (b) 11 petroleum, petroleum by- products, natural gas, natural gas liquids, liquefied natural gas, synthetic gas usable for fuel (or mixtures of natural gas in such synthetic gas), ash, municipal solid waste, steam, drilling fluids, produced waters and other wastes associated with the exploration, development and production of crude oil, natural gas or geothermal resources." C. AB939 Indemnification. Hauler agrees to meet the diversion requirements set forth in Section 9A of this Agreement and, except as expressly provided herein, all requirements of City's Source Reduction and Recycling Element as to the portion of the solid waste stream handled by Hauler. Hauler agrees to protect, defend, indemnify, and hold City harmless against all fines or penalties imposed by the California Integrated Waste Management Board, or other entity, arising from the failure of Hauler to meet the diversion requirements set forth in Section 9A with respect to the portion of the solid waste stream covered under this Agreement. D. Notice. City agrees to give notice to Hauler when the City receives a claim for damages or other liability for which Hauler has provided indemnification under this Section. 16. The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Hauler. Assignments of any or all rights, duties or obligations of the Hauler under this Agreement will be permitted only with the express written consent of City. Hauler shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of City. 17. CONFIDENTIALITY All documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of Information. 18. PROHIBITION AGAINST TRANSFERS OR ASSIGNMENT A. Hauler may not assign any right or obligation of this Agreement or any interest in this Agreement without the prior written consent of City. Any attempted or purported assignment without consent of City shall be null and void. Hauler acknowledges that these provisions relative to assignment are commercially reasonable and that Hauler does possess special skills, abilities, and personnel uniquely suited to the performance of contract services and any assignment of this Agreement to a third party, in whole or in part, could jeopardize the satisfactory performance of contract services. Contractor may not employ any subcontractors unless specifically authorized by City. 12 B. The sale, assignment, transfer, or other disposition of any of the issued and outstanding capital stock of Hauler, or of the interest of any general partner or joint venture which shall result in changing the control of Hauler, shall be construed as an assignment of this Agreement. 19. RECORDS A. Hauler shall maintain a complete and accurate set of books and other business records with respect to the costs incurred under this Agreement including any labor and disposal costs incurred under this Agreement, any Contract Services performed under this Agreement, and any expenditures and/or disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Hauler under this Agreement. All such records shall be clearly identifiable. All Hauler's books and other business records, or such part as may be used in performance of this Agreement, shall be subject to inspection and audit by authorized City representative during regular business hours upon two (2) business days notice. Hauler shall allow inspection of all work, data, records, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Hauler under this Agreement. The Hauler shall be responsible for all audit and other costs and expenses incurred that relates in any way to audits performed by the City to verify that Hauler is in compliance with the terms and conditions of this Agreement including, but not limited to, the auditing of facility recycling records, diversion statistics, landfill rate increases, vehicle records, and safety records. B. No report, information or other data given to or prepared or assembled by Hauler pursuant to this Agreement may be made available to any individual or organization without prior approval by City unless such disclosure is required by law or court proceedings. 20. This Agreement will be administered by the General Services Department. The General Services Director, or his/her designee, shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his/her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 21. DISPUTES PERTAINING TO PAYMENT FOR WORK Should any dispute arise respecting whether any delay is excusable, or its duration, the value of any extra work done, or any work omitted, or any extra work which Hauler may be required to do, or respecting any payment to Hauler during the performance of the Agreement, such dispute shall be decided by the Project Administrator with any appeal to the City Manager. The City Manger's decision shall be final. 13 22. REIMBURSEMENT FOR EXPENSES Except as provided in this Agreement and Exhibit B, Hauler shall not be reimbursed for any disposal fee increases or other costs and expenses unless prior written authorization is obtained from the Project Administrator. 23. PERFORMANCE BOND A. Concurrently with the execution of this Agreement, Hauler shall deliver to the City a performance bond in the amount of two hundred fifty thousand dollars ($250,000.00), in the form provided by the City Clerk, which secures the faithful performance of this Agreement, unless such requirement is waived by the City Administrator. The bond shall contain the original notarized signature of an authorized officer of the surety and affixed thereto shall be a certified and current copy of his power of attorney. The bond shall be unconditional and remain in force during the entire term of the Agreement and shall be null and void only if the Hauler promptly and faithfully performs all terms and conditions of this Agreement. B. The performance bond required by this Agreement shall be satisfactory only if issued by a company qualified to do business in California, rated "A" or better in the most recent edition of Best Rating Guide, the Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VII or better, unless such requirements are waived by the Risk Manager of the City. 24. NONDISCRIMINATION BY CONTRACTOR Hauler represents and agrees that it does not, and will not, discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, sex, handicap, national origin, or other basis that is violative of the federal or state constitution or federal or state law. Haulers obligation not to discriminate shall apply, but not be limited to, the following: employment, upgrading, demotion, transfers, recruitment, recruitment advertising, layoff, termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. 25. CITY'S RIGHT TO EMPLOY OTHER HAULERS City reserves the right to employ other Haulers in connection with the Project if Hauler breaches any term or condition of this Agreement. 26. CONFLICTS OF INTEREST A. The Hauler or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act' ), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 14 The Hauler will provide a completed disclosure form noting the above. Contractor will comply with the Act and relevant City Resolutions. B. If subject to the Act, Hauler shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Hauler shall indemnify and hold harmless City for any and all claims for damages resulting from Haulers violation of this Section. 27. NOTICES All notices, demands, requests or approvals to be given under this Agreement must be given in writing and will be deemed served when delivered personally, or on the second business day after the deposit thereof in the United States mail, postage prepaid, registered or certified, addressed as hereinafter provided. All notices, demands, requests or approvals from Hauler to City shall be addressed to City at: City of Newport Beach General Services Department Attention: Mark Harmon, Director 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949 - 644 -3055 Fax: 949 - 650 -0747 All notices, demands, requests or approvals from City to Hauler shall be addressed to Hauler at: CR &R Incorporated Attention: Dean A. Ruffridge, Senior Vice President 11292 Western Avenue Stanton, California 90680 Phone: (714) 826 -9049 Fax: (714) 890 -6347 28. TERMINATION /DEFAULT A. In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement If such default is not cured within a period of ten (10) working days, or if more than ten (10) working days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within ten (10) working days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non - defaulting party may terminate this Agreement by giving to the defaulting party written notice of termination. 15 B. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving one hundred eighty (180) calendar days prior written notice to Hauler. Upon termination, City shall pay to Hauler that portion of compensation specified in the Agreement that is earned and unpaid prior to the commencement date of termination. 29. COMPLIANCE WITH LAW All services rendered hereunder by Hauler shall be provided in accordance with all ordinances, statutes, resolutions, rules, and regulations of the City and any Federal, State or local governmental agency having jurisdiction in effect at the time services is rendered. 30. WAIVER A waiver by City of any breach of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 31. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein in this Agreement. No verbal agreement or implied covenant shall be held to vary the provisions herein. 32. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Contractor and City and approved as to form by the City Attorney. 33. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 34. CONTROLLING LAW AND VENUE The laws of the State of California shall govem this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 16 35. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: By:_ A ( ff Aaron . Harp, Assistant City Attorney for the City of Newport Beach ATTEST: By: LaVonne Harkless, City Clerk CITY OF NEWPORT BEACH, A Municipal Corporation By: Mayor Edward D. Selich for the City of Newport Beach HAULER: (Corporate Officer) Print Name: A (Financial Officer) Print Name: Attachments: Exhibit A - Scope of Services Exhibit B - Schedule of Billing Rates Exhibit C - Form Bill of Sale Agreement 17 Exhibit A Scope of Services The City currently operates a Trash Transfer Station at the City Yard, located at 592 Superior in Newport Beach. The Transfer Station is used for the direct transfer of residential mixed solid waste loads from neighborhood collection trucks into large transfer trucks. By this Agreement, the City will manage the transfer of trash into transfer trucks owned and operated by CR &R. CR &R will then transport the loaded trucks to their Material Recovery Facility (MRF) in Stanton, CA. for processing and removal of recyclable materials. It is a condition of this Agreement that CR &R shall remove 40% by weight from the mixed waste loads for recycling. 1) Effective July 1, 2008, the City shall deliver loads utilizing City owned and operated equipment to the CR &R MRF. The cost shall be $39.93 per ton for each ton delivered as shown in Exhibit B. 2) Effective July 7, 2008, CR &R will assume full responsibility for the transportation of loaded trucks to their facility with a payment or credit to the. City of <$97.63> per truck load, as shown in Exhibit B. 3) Prior to August 1, 2008, CR &R shall purchase and take control of City equipment listed in Section 3 of the Agreement. 4) CR &R shall at all times maintain four (4) transfer trailers in the City Yard - two trailers located in the station ready for loading, and two trailers staged next to the station. At no time should collection trucks be delayed in emptying their loads due to the lack of capacity at the transfer station. CR &R staff may be required to move trailers into and out of the transfer bays. 5) CR &R shall maintain sufficient personnel and transfer equipment to transport materials from the City Yard to the CR &R MRF so that there are no delays in the City's residential refuse collection schedules. CR &R shall designate a contact person responsible for direct communication with City with regards to status of transfer trucks. 6) CR &R shall weigh and record the weight of full loads prior to leaving the transfer station and again prior to emptying containers at the MRF. If the weight measurements differ, the weight at the certified MRF scales shall be used for billing purposes. 7) CR &R shall maintain a properly permitted, licensed solid waste processing facility with adequate capacity to accept all City's solid waste/recyclable material per this Agreement, between the hours of 7:00 a.m. and 6:00 p.m., Monday through Saturday. 8) It is a requirement of this Agreement that CR &R divert from landfill disposal 40% of all materials received under this Agreement. CR &R shall maintain sufficient personnel and equipment to process all loads of materials received at the MRF to maintain a 40% diversion rate of the Waste Stream covered under this Agreement. 9) Following separation of recyclable materials, CR &R shall dispose of all residual solid waste materials at an Orange County operated disposal facility, in a manner that fully complies with all relevant local, State and Federal laws, rules, and regulations, and as defined in Section 9 of the Agreement. 10) CR &R shall maintain a contract throughout the term of the Agreement for green waste materials with a properly licensed and permitted facility to divert the City's green waste materials that are separated from the mixed waste collected per this Agreement. The diversion of green waste materials will be included in the overall diversion figures unless future State mandates no longer permit the use of green waste in diversion statistics. 11) CR &R shall provide monthly documentation, satisfactory to City and the County of Orange, and as required by State law, documenting the tonnage of solid waste delivered to a County landfill facility from CR &R and listed as originating from the City as it relates to this Agreement. Exhibit B Schedule of Billing Rates 1. Fee Schedule for Material Recovery (Processing) and Disposal The Fee listed below shall be the PER TON charge to the City for each ton of solid waste material delivered or caused to be delivered under the terms of this Agreement: (A) *PROCESSING COST PER TON: 2$ 6.73 (B) DISPOSAL FEE PER TON: $13.20 (C) TOTAL COST PER TON FOR PROCESSING AND DISPOSAL: $39.93 2. Fee Schedule for Transfer of Material from City Yard The Fee listed below shall be the PER TRUCK LOAD from the City Yard, to the CR &R Material Recovery Facility for Processing. (A) *TRANSPORTATION COST PER TRUCK LOAD -$97.63** * *CR &R will pay City, or credit against processing charges listed above, Ninety Seven Dollars and Sixty Three Cents ($97.63) per truck load of solid waste that CR &R transports from the City Corporate Yard to the CR &R Material Recovery Facility. *ONLY THE PROCESSING FEE AND TRANSPORTATION COST ARE SUBJECT TO THE CPI ADJUSTMENTS AS OUTLINED IN SECTION 6 OF THE AGREEMENT. Exhibit C BILL OF SALE AGREEMENT WITH [ADD NAME OF PERSON/ COMPANY] FOR [PROPERTY TO BE SOLD] THIS AGREEMENT is made and entered into as of this _ day of 200_, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and a [type of business, i.e., an Individual, a partnership, a joint venture, a California Corporation or some other business entity] whose address is California, ( "Buyer"), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City presently owns [PROPERTY TO BE SOLD] (hereinafter "Property"). C. The City and Buyer desire to enter into this Agreement to set forth the terms of purchase of the Property by Buyer. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties that this AGREEMENT is made for the purchase and sale of the Property on the following terms and conditions as set forth herein. PROPERTY TO BE SOLD City, in consideration of the covenants and agreements of Buyer hereinafter set forth, does hereby agree to sell, transfer, assign and convey unto Buyer, its. successors and assigns the Property including, but not limited to the following: 2. AS -IS PURCHASE It is expressly understood and agreed that Buyer has fully examined the assets and has relied on its own discretion and judgment with regard to the transactions contemplated hereunder. Except as expressly provided herein, the assets have been sold on an "as is" basis, with no representations or warranties of City of any kind, type or nature, including, without limitation, any representation or warranty regarding the value, compliance with specifications, age, use, merchantability, design, quality, description, durability, operation or conditions of the assets, whether visible or not. 3. CONSIDERATION In consideration of the total sum of $ sell and Buyer agrees to buy the Property. 4. PAYMENT TERMS the City agrees to Buyer agrees to pay $ as deposit on the day of , 20 ; and Buyer further agrees to pay the balance due of $ on or before the day of 20 5. COSTS Buyer shall pay all taxes, costs, and fees imposed by any governmental entity as well as all operating costs and expenses. The property will be delivered to Buyer at ( "Delivery Location "). 6. REGISTRATION AND OWNERSHIP TERMS Upon confirmation of payment in full as set forth in paragraph 4 above, the City agrees to promptly execute all necessary papers and to take all necessary steps to transfer ownership and registration of the Property to Buyer. Buyer shall bear all costs associated with the transfer of ownership and registration and shall pay said amount prior to delivery of the Property. 7. RISK OF LOSS Until this transaction is consummated the entire risk of loss with respect to the Property shall be borne by the City. From and after the closing of this transaction, risk of loss shall be borne by Buyer. 8. ADMINISTRATION This Agreement will be administered by the Administrative Services Department. shall be the Sale Administrator and shall have the authority to act for City under this Agreement. The Sale Administrator or his /her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 9. HOLD HARMLESS To the fullest extent permitted by law, Buyer shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the `Indemnified Parties ") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes FA of action, suits, losses, Judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to this Agreement, the breach of any term of this Agreement or the Property. Notwithstanding the foregoing, nothing herein shall be construed to require Buyer to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Buyer. 10. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non - defaulting .party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Buyer. 11. COMPLIANCE WITH ALL LAWS Buyer shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including, but not limited to, federal, state, county or municipal, whether now in force or hereinafter enacted. 12. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 13. INTEGRATED CONTRACT 3 This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 14. CONFLICTS OR INCONSISTENCIES In the event there are. any conflicts or inconsistencies between this Agreement any other attachments attached hereto, the terms of this Agreement shall govern. 15. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 16. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Buyer and City and approved as to form by the City Attorney. 17. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent Jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 18. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent Jurisdiction in the County of Orange. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: CITY OF NEWPORT BEACH, A Municipal Corporation By: City Attorney City Manager for the City of Newport Beach for the City of Newport Beach ATTEST: Id CONSULTANT: LaVonne Harkless, City Clerk Lei (Corporate Officer) Title: Print Name: e� Title: (Financial Officer) Print Name: F:l usersl caflshared \ContractTemplatesPublishedon I ntra net1FORMBI LLOFSALE.doc