HomeMy WebLinkAbout05 - Landfill Rate AdjustmentCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 5
April 27, 2010
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: General Services Department
Mark Harmon, Director, (949) 644 -3055
mharmon(a-)newportbeachca.gov
SUBJECT: Landfill Rate Adjustment for the City's Solid Waste Disposal
Agreements
ISSUE:
Should the City Council approve the Landfill Rate Adjustment as requested by CR &R
Inc. for the disposal of the City's solid waste?
RECOMMENDATION:
Approve the landfill rate adjustments as specified in the following two (2) solid waste
agreements with CR &R Inc.; the Residential Solid Waste Collection and Recycling in
Newport Coast Agreement (Coast Agreement), and the Residential Solid Waste
Transfer Services and Material Processing and Recycling Agreement (Transfer
Agreement). Copies of both agreements are attached to this report.
DISCUSSION:
Agreements
On August 14, 2007, City Council approved an agreement with CR &R Inc., to provide
solid waste and recycling collection services to the residents of Newport Coast. CR &R
currently services 3,974 accounts under the Coast Agreement, and charges the City a
monthly fee of $11.14 per account. CR &R also charges the City $1.03 per account, up
to 400 accounts (10% of total number of accounts), for extra refuse containers as
outlined in the agreement. The City pays the full cost for refuse collection services in
Newport Coast. This monthly fee includes a disposal portion of $2.67, as outlined in
Exhibit C in the Agreement.
Landfill Rate Adjustment for the City's Solid Waste Agreements
April 27, 2010
Page 2
The number of accounts or homes serviced by CR &R Inc. was verified by the City
during the competitive bid process. Section 4A of the agreement allows CR &R to apply
for an increase in the disposal portion of the basic service fee in the event that Orange
County increases their disposal fees.
On June 10, 2008, City Council approved a separate agreement with CR &R Inc., to
provide the transfer, processing, and disposal of all residential materials collected by
City crews. The scope of services in this Transfer Agreement requires CR &R to
transport all materials from the City Yard to their processing facility in Stanton, where
the materials will be sorted and processed to divert and recycle 40% from the landfill.
The remaining waste is to be disposed of in the Orange County Landfill system. CR &R
Inc. currently charges the City a $13.20 disposal fee for every ton processed. The City
collects approximately 34,000 tons of solid waste per year. As with the Coast
Agreement, Section 6 of the Transfer Agreement allows CR &R to apply for an increase
in the disposal portion of the fee in the event that Orange County increases their
disposal fees.
Oranae Countv Fee Increase
On April 28, 2009, City Council approved a ten -year Agreement with the County of
Orange for the delivery and disposal of all controllable municipal solid waste from the
City to the County Landfill system. The significant element in this agreement was the
change in disposal fees. Effective July 1, 2010, the landfill disposal fee will increase
from the current rate of $22.00 per ton to $29.95 per ton, or a 36% increase in disposal
costs. Per the agreement, the City agrees to deliver, or cause to be delivered through
contracts, all controllable solid waste to a County landfill.
Staff has received formal requests (attached) from CR &R Inc. for an adjustment to the
agreements due to the increase in the County landfill disposal fee.
FINANCIAL REVIEW:
Coast Agreement: The current cost for the Coast Agreement is $537,000 per year. This
includes a disposal fee for the 3,974 accounts of $2.67 per account per month. This fee
would increase to $3.63 (36 %) per account if Council approves the request from CR &R
Inc., increasing the total cost per account from $11.14 to $12.10 per month. The
projected annual increase of the contract cost would be approximately $45,000.
Transfer Agreement: The current cost for the Transfer Agreement is approximately
$1,350,000 per year. This cost includes a disposal fee of $13.20 per ton for the 34,000
tons that the City collects and sends to CR &R for processing. This fee would increase
to $17.95 (36 %) per ton if Council approves the request from CR &R Inc., increasing the
annual cost for the Transfer Agreement by $160,000.
Landfill Rate Adjustment for the City's Solid Waste Agreements
April 27, 2010
Page 3
The financial impact due to the County landfill fee increase would be $205,000 to the
City through the increased cost of the CR &R contracts. There are sufficient funds for
this adjustment in the FY2010 -11 proposed budget.
ENVIRONMENTAL REVIEW:
This action 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).
Submitted /Prepared by:
General Services Director
Attachments
1) Agreement- Residential Solid Waste Collection and Recycling Services in Newport
Coast
2) Agreement- Residential Solid Waste Transfer Services and Material Processing and
Recycling
3) Fee Increase Request from CR &R Inc.
AGREEMENT WITH
C
(a Fly
R &R INCORPORATED
FOR RESIDENTIAL SOLID WASTE COLLECTION AND RECYCLING SERVICES
IN NEWPORT COAST
THIS AGREEMENT is made and entered into as of this 14th day of August, 2007, by
and between the CITY OF NEWPORT BEACH, a charter City and municipal
corporation ( "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. On January 1, 2002, City annexed the area referred to as Newport Coast which
is depicted on Exhibit A ( "Newport Coast ").
C. City is planning to hire a waste hauler to provide fully automated curbside refuse
collection services for single - family residential properties in Newport Coast
( "Project ") which will be paid for by the City.
D. The principal memberis] of Hauler for purposes of Project shall be Dean A.
Ruffridge, Senior Vice President.
E. -City has solicited and received a proposal from Hauler and desires to retain
Hauler to render residential waste hauling services under the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. TERM
The term of this Agreement shall commence on the above written date, and shall
terminate on the 1st of October 2017, unless terminated earlier as set forth herein.
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. For
purpose of this Agreement the term ( "Effective Date ") shall refer to October 1, 2007,
which is the date that waste collection services are to begin under this Agreement.
2. SERVICES TO BE PERFORMED
Hauler shall diligently perform all the services described herein and in the Scope
of Services attached hereto as Exhibit B and incorporated herein by reference
( "Contract Services "). The City may elect to delete certain tasks of the Scope of
Services at its sole discretion.
3. TIME OF PERFORMANCE
Time is of the essence in the performance of services under this Agreement and
Hauler shall perform the services in accordance with the schedule included in
Exhibit B. The failure by Hauler to strictly adhere to the schedule may result in
termination of this Agreement by City.
4. COMPENSATION TO HAULER
A. From the Effective Date, City shall pay Hauler for the Contract Services in
accordance with the provisions of this Section and the Schedule of Billing
Rates attached hereto as Exhibit C and incorporated herein by reference.
Annually, upon the anniversary date of the Effective Date, the billing rates
set forth on the Schedule of Billing Rates shall be adjusted in proportion to
changes in the Consumer Price Index, subject to a three percent (3 %)
maximum increase per year. Such adjustment shall be made by
multiplying the billing rates then 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 one (1) year prior.
For example, if the adjustment is to occur effective July 1, 2008, the index
to be used for the numerator is the index for the month of April 2008 and
the index to be used for the denominator is the index for April 2007. 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 shall not exceed three percent (3 %).
Except as expressly provided herein or in Exhibit C, the Hauler shall be
responsible for all other costs and expenses related to Hauler's
performance of this Agreement including, but not limited to, the cost of
providing additional containers and fees imposed for disposal regardless
of increases in landfill disposal and recycling facility costs.
- -� 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 collected by Hauler from landfills
by City, the Hauler may apply to the City for an increase in the disposal
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portion of the basic service fee rate, described in Exhibit C, 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 portion of the basic
service fee rate, described in Exhibit C, 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.
B. Hauler shall submit invoices for Contract 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 Contract Services performed.
City shall pay invoices within thirty (30) days after receipt 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."
5. INCREASE OR DECREASE IN SCOPE OF SERVICES
Hauler shall perform fully automated refuse collection services as requested by
the Project Administrator, as described herein and as noted on Exhibit B. The
Administrator may give written authorization for additional services up to one
thousand dollars ($1,000) per month.
6. 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.
7. REIMBURSEMENT FOR EXPENSES
Except as provided in this Agreement and Exhibit C, Hauler shall not be
reimbursed for any disposal fees or other costs and expenses unless prior written
authorization is obtained from the Project Administrator.
8. LABOR AND PERFORMANCE BONDS
Hauler shall furnish, concurrently with the Effective Date of this Agreement, a
bond or other instrument satisfactory to the Project Administrator in an amount
equal to one hundred percent (100 %) of six months of the contract price /amount
to be paid under this Agreement in any one year as security for the faithful
performance of this Agreement. The Labor and Performance Bond shall remain
in effect throughout the term of this Agreement.
9. DISPOSAL OF SOLID WASTE
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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 collected by Hauler from
landfills. 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. 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 a State 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. All solid waste, in addition to recyclables, collected by Hauler shall
become the property of Hauler upon placement by the customer for
collection. 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 "flow 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.
D. Hauler shall implement a load check program that includes, at a
minimum, a visual check of all containers to be emptied to protect against
inclusion of hazardous waste and shall prepare a written record of all
hazardous waste discovered during the process. The records shall
comply with all State and Federal Hazardous Waste Regulations, shall be
maintained for the length of the term of the Agreement, and shall be
provided to the City on or before the 15th day of the month following the
end of the previous calendar month.
10. REPORTS
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A. Hauler shall submit to City monthly reports setting forth any complaints
(e.g. written or oral comments received by Hauler expressing
dissatisfaction with Hauler or any services provided by Hauler that relate in
any manner to this Agreement); the total amount (in tons) of solid waste
which Hauler collected in 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 collected in the City of
Newport Beach during the reportable month; the total weight and the
weight by material category (in tons) of solid waste disposed of by Hauler
at recycling and materials recovery facilities during the reportable month
which Hauler collected in the City of Newport Beach; 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 January 15 for first quarter
after the Effective Date) and submitted to:
General Services Director
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92663
B. 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 landfilled, recycled and
collected 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 AB939 compliance. Failure to comply with the recycling and diversion
requirements shall be a material breach of this Agreement.
11. VEHICLES, EQUIPMENT AND SERVICES
A. Any and all containers provided to customers of Hauler for storage,
collection or transportation of solid wastes shall meet the requirements
designated by the General Services Director as well as State of California
minimum standards for solid waste handling established under Public
Resources Code Section 43020 and applicable health requirements. The
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General Services Director shall have the right to approve the color of
containers, manufacturer of containers, and lettering and decals used on
containers. Hauler shall repair or replace any container which is
damaged, broken, lost or stolen with a container approved by the General
Services Director at no cost to the City.
B. All containers and all vehicles used by Hauler in the performance of solid
waste handling services shall be marked with Hauler's name and
telephone number in letters which are easily read by the general public.
All solid waste containers used in the performance of this Agreement shall
be kept clean and in good repair to the satisfaction of the General
Services Director.
C. Equipment,
1. The vehicles used pursuant to this Agreement shall have the name
of the Hauler, the Hauler's local telephone number, and a unique vehicle
identification number for each vehicle prominently displayed on all
collection vehicles. The vehicles shall also display a statement as to the
type of alternative fuel being used.
2. The Hauler shall use alternative fuel vehicles approved by the
South Coast Air Quality Management District for fully automated refuse
collection services. Vehicles shall meet all requirements specified per
AQMD Rule 1193. Vehicles used for collection services must be fully
automated side - loading refuse trucks, using a fully mechanized arm to
pick up and dump automated waste collection containers. Drivers should
not exit the vehicle to assist with securing the containers to, or lifting the
containers into, the refuse collection truck. Hauler shall, at all times,
provide such number of vehicles and such equipment as will be adequate
for the collection, 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 property 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.
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3. 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
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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. Any solid waste dropped or spilled in
collection, transfer or transportation shall be immediately cleaned up by
Hauler. A broom and a shovel shall be carried at all times on each vehicle
for this purpose. Should a hydraulic or other type of material spill occur as
a result of collection services, Hauler shall notify the City within 1 hour.
Hauler shall not transfer loads from one vehicle to another on any public
street or private roadway, unless it is necessary to do so because of
mechanical failure or damage to a collection vehicle which renders it
inoperable and the vehicle cannot be towed. In addition, each collection
vehicle shall be equipped with trash bags, masking tape and notice of
non - collection tags for the purpose of separating hazardous waste for
return to the generator. A communications device such as a two -way
radio or a cellular telephone shall also be maintained on each vehicle at all
times.
4. 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.
5. 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.
6. 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.
D. Quarterly reports setting forth information regarding Hauler's vehicles and
equipment shall be prepared on such form as required by the General
Services Director. Each quarterly report shall be submitted on or before the
15th day of the month following the end of the previous calendar quarter.
E. Litter Abatement: Hauler shall use due care to prevent any waste material
collected pursuant to this Agreement from being spilled or scattered during
the collection or transportation process. If any waste material is spilled,
hauler shall promptly clean up all spilled materials whether on private or
public property. Hauler shall clean up existing litter in the immediate vicinity
of any collection container (including the areas on private and public
property where collection containers are delivered for collection) whether or
not Hauler has caused the litter.
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12. ADMINISTRATION
This Agreement will be administered by the General Services Department.
The General Services Director, or his 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.
13. CITY'S RESPONSIBILITIES
To assist Hauler in the execution of its responsibilities under this Agreement, City
agrees to, where applicable, provide access to and upon request of Hauler, one
copy of all existing relevant information on file at City. City will provide all such
materials in a timely manner so as not to cause delays in Haulers work
schedule.
14. 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 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. The work force shall include thoroughly skilled, experienced, and
competent supervisors who shall be responsible for adherence to the
terms of this Agreement by directly overseeing the Contract Services
operations. All supervisory personnel must be able to communicate
effectively in English (both orally and in writing). An order given to
supervisory personnel shall be deemed delivered to the Hauler. Hauler
shall provide City with a designated supervisors name(s) and shall notify
the City of the name of any successor within ten (10) days of change in
supervision.
D. All Hauler personnel working in Newport Coast shall be neat in
appearance and in uniform.
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E. 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
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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.
F. 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.
G. 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.
15. CUSTOMER PRIVACY
Hauler shall strictly observe and protect the rights of privacy of customers.
Information identifying the contents and composition of a customer's containers
shall not be revealed to any person, governmental unit, agency or company,
unless authorized by the customer or by order of a court of law, or by statute.
This provision shall not be construed to prohibit Hauler from preparing,
participating in, or assisting in the preparation of solid waste characterization
studies, waste stream analyses that may be required by any law or regulation, in
preparing or assisting in the preparation of any reports /audits required pursuant
to this Agreement, or providing any information required to be provided to City by
other provisions of this Agreement or that is necessary for City to comply with
any law or regulation. Hauler shall not market or distribute customer mailing lists
to any party except the City.
16. CUSTOMER SERVICE SURVEYS
The Hauler shall conduct customer service studies to help the City evaluate
performance. Prior to the Effective Date, the City shall provide a list of questions
that shall be used in the customer service survey. At the Hauler's expense, the
Hauler will prepare and mail a survey form /card to each Newport Coast
residence serviced by Hauler pursuant to this Agreement. All survey forms and
cards will be mailed directly from the resident to the City at the Hauler's expense,
via business reply mail. The City shall share the results of the survey with the
Hauler. Upon receipt of the results from the initial survey, City and Hauler will
meet and mutually determine the future service levels to be incorporated into the
contract as a contract condition and enforced under the provisions of this
agreement. The customer service survey shall be repeated at the completion of
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6 (six) months from the Effective Date, and every year thereafter to determine
whether the Hauler is meeting the agreed contract performance requirements.,
17. 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 terns of this Agreement.
18. COOPERATION
Hauler agrees to work closely and cooperate fully with City's designated Project
Administrator and any other agencies that may have jurisdiction or interest in the
work to be performed. City agrees to cooperate with the Hauler on the Project.
19. CITY POLICY
Hauler shall discuss and review all matters relating to policy and Project direction
with City's Project Administrator in advance of all critical decision points in order
to ensure the Project proceeds in a manner consistent with City goals and
policies.
20. HAZARDOUS WASTE
A. General. Hauler shall be aware of, and comply with, all laws and
regulations relating to the handling and transportation of Hazardous
Substances, as defined in Section 22, including those requiring training
and documentation. If Hauler observes any substances which it believes
to contain a Hazardous Substance within the City, including but not
limited to in containers designed for waste Hauler shall not collect such
Hazardous Substance but shall immediately notify the appropriate regulatory
agencies and the City.
B. Notice to Customers. Hauler shall notify all Customers at least once a
year in writing by mail of. (i) the prohibition against the Disposal of
Hazardous Substance in authorized containers and (ii) the obligation of
each customer to provide for the proper handling and disposition of
Hazardous Substance. To the extent that Hauler has actual knowledge of
the existence of such Hazardous Substance in a container placed for
collection, Hauler shall not collect such container. Hauler shall, prior to
leaving the location where such Hazardous Substance has been
observed, leave a tag at least 2" x 6" which informs the customer why the
collection was not made and lists the telephone number for the Orange
County Department of Environmental Management.
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C. Hauler to Segregate and Dispose. In the event Hauler inadvertently
collects any Hazardous Substance and during the course of
transportation and disposition becomes aware that it has collected such
Hazardous Substance, Hauler shall segregate Hazardous Substance, and
shall arrange for its transport and Disposal to a properly permitted
Recycling, treatment or disposal facility of Hauler's choosing at Hauler's
sole expense. Hauler shall be solely responsible for the transport and
disposition of all Hazardous Substance that is collected by the Hauler.
Hauler will cooperate with City attempts to locate and collect the costs of
such transport and disposition from the responsible customer.
D. Operating Procedures and Employee Training. Hauler shall establish,
implement and maintain written operating procedures designed to ensure
Hauler's utilization of techniques generally accepted in the waste hauling
industry for cities of the size and nature of the City of Newport Beach, to
handle and dispose of Hazardous Substance and its compliance with the
provisions of this Section. Hauler shall establish, implement and maintain
an employee training program and shall ensure that employees
responsible for the identification of Hazardous Substance are fully trained.
Hauler shall maintain documentation which describes the training
received by its employees.
21. INSURANCE REQUIREMENTS
Without limiting Haulers indemnification of City, 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.
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 the Agreement. 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 California, 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.
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1. Workers' Compensation Coverage. Hauler shall maintain Workers'
Compensation Insurance and one million dollars ($1,000,000) Employer's
Liability Insurance for his or her employees in accordance with the laws of
the State of California. Any notice of cancellation or non - renewal of all
Workers' Compensation policies must be received by City at least thirty
(30) calendar days (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 that relates in any way
to this Agreement.
2. 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.
3. Automobile Liability 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.
4. 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.
E. Endorsements. Each general liability, automobile liability and pollution
liability insurance policy shall be endorsed with the following specific
language:
1. 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.
2. 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
12
may have, shall be considered excess insurance only and not contributory
with the insurance provided hereunder.
3. 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.
4. The insurer waives all rights of subrogation against City, its elected
or appointed officers, officials, employees, agents and volunteers.
5. 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.
6. 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 prosecution of the
work.
22. RESPONSIBILITY FOR DAMAGES AND INJURY /INDEMNIFICATION
A. Hauler Responsibility. Hauler shall be responsible for any damages
caused as a result of Haulers acts or omissions including, but not limited
to injuries to or death of any person or damage to public and/or private
property and damages public improvements as a result of Haulers
placement and retrieval of the solid waste containers.
1. City shall refer complaints about damage to private property,
including common areas in common -area subdivisions, to Hauler. Hauler
shall promptly repair, or arrange for the repair of, all damage to private
property caused by its employees at Hauler's sole expense.
2. Hauler shall use commercially reasonable efforts to prevent
damage to all streets over which its collection equipment may be
operated, and Hauler shall obtain all required approvals for operation of
its Collection vehicles on private streets.
3. Hauler shall use commercially reasonable efforts to prevent spills of
fuel, fluids (such as oil, hydraulic fluid, brake fluid, etc.) on streets, and if
such a spill occurs, Hauler shall within 1 hour notify the City (including the
Director of General Services or his /her designee) and all proper
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regulatory authorities of said spill and release of fluids, and shall clean, at
Hauler's expense, the spilled fluids in coordination with, and to the
satisfaction of, City and applicable regulatory agencies. Upon a release of
such fluids, the driver shall immediately park the vehicle and it shall
remain parked until the leak is repaired. In such event Hauler shall not
park the leaking vehicle within two hundred (200) feet of a storm drain
and shall utilize absorbent, sand bags or other appropriate means to
prevent leaking fluids from entering storm drains. In the event of any type
of spill or other emergency, Hauler shall be responsible for securing the
immediate safety of the vehicle driver, all other employees of Hauler and
all persons and property in the surrounding vicinity.
B. 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, 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.
C. 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
14
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)
i 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) 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."
D. AB939 Indemnification. Hauler agrees to meet the diversion
requirements set forth in Section 9A of this Agreement and 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 9 A of this Agreement and the
Integrated Waste Management Act diversion requirements with respect to
the portion of the solid waste stream collected by Hauler.
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E. 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.
23. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following
shall be construed as an assignment: 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 venturer or syndicate member or cotenant
if Hauler is a partnership or joint- venture or syndicate or cotenancy, which shall
result in changing the control of Hauler. Control means fifty percent (50 %) or
more of the voting power, or twenty -five percent (25 %) or more of the assets of
the corporation, partnership or joint-venture.
24. SUBCONTRACTING
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.
25. 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.
26. INTELLECTUAL PROPERTY INDEMNITY
The Hauler shall defend and indemnify City, its agents, officers, representatives
and employees against any and all liability, including costs, for infringement of any
United States' letters patent, trademark, or copyright infringement.
27. RECORDS
A. Hauler shall maintain a complete and accurate 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)
16
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.
28. WITHHOLDINGS
City may withhold payment to Hauler of any disputed sums until satisfaction of
the dispute with respect to such payment provided that City notifies Hauler in
writing as soon as possible specifying the reason for such withholding. Such
withholding shall not be deemed to constitute a failure to pay according to the
terms of this Agreement. Hauler shall not discontinue work as a result of such
withholding. Hauler shall have an immediate right to appeal to the City Manager
or his/her designee with respect to such disputed sums. Hauler shall be entitled
to receive interest on any withheld sums at the rate of return that City earned on
its investments during the time period, from the date of withholding of any
amounts found to have been improperly withheld.
29. CITY'S RIGHT TO EMPLOY OTHER HAULERS
Hauler shall have an exclusive right to provide the Contract Services under this
Agreement. City reserves the right to employ other haulers in connection with
the Project if Hauler breaches any term or condition of this Agreement and the
contract is terminated per Section 33.
30. CONFLICTS OF INTEREST
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.
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 Hauler's violation of this Section.
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31. NOTICES
All notices, demands, requests or approvals to be given under the terms of this
Agreement shall be given in writing, and conclusively shall be deemed served
when delivered personally, or on the third business day after the deposit thereof
in the United States mail, postage prepaid, first -class mail, addressed as
hereinafter provided. All notices, demands, requests or approvals from Hauler to
City shall be addressed to City at:
Attn: Mark Harmon
General Services Department
City of Newport Beach
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:
Attention: Dean A. Ruffridge, Senior Vice President
CR &R Incorporated
11292 Western Avenue
Stanton, California 90680
Phone: (714) 826 -9049 Fax: (714) 890 -6347
32. LIQUIDATED DAMAGES
Failure of the Hauler to strictly comply with each and every term and condition of
this Agreement will result in damages being sustained by the City. Such
damages are, and will continue to be, impracticable and extremely difficult to
determine. Hauler and City agree that any violations of the terms and conditions
of this Agreement shall be corrected within the time frame set forth by the City, in
its sole discretion, in the City's written Notice of Deficiency. For each and every
violation noted in the Notice of Deficiency that is not corrected within the time
frame set forth in the Notice of Deficiency, Hauler shall pay to the City, or have
withheld from moneys due it, the sum of $250 per calendar day. Execution of
the contract shall constitute agreement by the Hauler and City that $250 per
calendar day is the minimum value of the costs and actual damage caused by
failure of the Hauler to comply with any term or condition of this Agreement, that
such sum is liquidated damages and shall not be construed as a penalty, and
that such sum may be deducted from payments due the Hauler.
33. DEFAULT/TERMINATION
If either party fails or refuses to perform any of the provisions of this Agreement at
the time and in the manner required by the terms or conditions of this agreement„
or if no time is given within 10 days of written notice, that parry shall be deemed in
default in the performance of this Agreement. If City in its sole discretion
determines that more than ten (10) calendar days are reasonably required to cure
the default and Hauler fails to give adequate assurance of due performance within
ten (10) calendar days after receipt of written notice of default that specifies the
nature of the default and the steps necessary to cure the default, and thereafter
diligently take steps to cure the default, the City may terminate the Agreement
forthwith by giving Hauler written notice of the termination..
34. COMPLIANCE WITH ALL LAWS
Hauler shall at its own cost and expense comply with all statutes, ordinances,
regulations and requirements of all governmental entities, including federal, state,
county or municipal, whether now in force or hereinafter enacted. Hauler shall
conform to all applicable provisions of State and Federal law including, applicable
provisions of the California Labor Code and the Federal Fair Labor Standards
Act. In addition, all work performed by Hauler shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be
subject to approval of the Project Administrator and City.
35. 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.
36. INTEGRATED CONTRACT
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.
37. CONFLICTS OR INCONSISTENCIES
In the event there are any conflicts or inconsistencies between this Agreement and
the Scope of Services or any other attachments attached hereto, the terms of this
Agreement shall govern.
38. 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.
39. AMENDMENTS
., This Agreement may be modified or amended only by a written document executed
by both Hauler and City and approved as to form by the City Attorney.
19
J
40. 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.
41. 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.
42. EQUAL OPPORTUNITY EMPLOYMENT
Hauler represents that it is an equal opportunity employer and it shall not
discriminate against any subcontractor, employee or applicant for employment
because of race, religion, color, national origin, handicap, ancestry, sex or age.
20
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 Corp ation
By: By:
Aaron C. Harp, Assistant City orne Mayor Steven Rosa
for the City of Newport Beach for the City of Newpo each
ATTEST:
LaVonne Harkless,
City Clerk
W
a
Title: q. Q(titc5 Dnc 1
Print Name:DAVQ I�a1r.t�1Pe,1 (0
By.
(Financial Officer)
Title: C r— v
Print Name: JZ) !j e- G" stwvf ?�
Attachments: Exhibit A — Newport Coast Map
Exhibit B - Scope of Services
Exhibit C — Schedule of Billing Rates
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Exhibit B
Refuse Contract Services
1.) Within 10 calendar days of the execution of this Agreement, Hauler shall
develop a detailed Implementation Plan to be approved by the City which
shall set forth the steps Hauler will take, and the schedule on which Hauler
will take them, to prepare for commencement of collection operations as
provided in the Agreement. The Implementation Plan shall set forth
Hauler's schedule (shown on a week -by -week basis) for preparing
customer relations materials including, but not limited to, a written
notification of transition of services mailer which is to be mailed by Hauler
at Hauler's cost and expense at least 30 days prior to the transition of
services to Hauler and distributing new containers to all customers.
Hauler shall bear all costs and expenses associated with preparing the
Implementation Plan and notifying customers regarding the transition of
services to Hauler. The City and Hauler agree that Hauler may use Los
Trancos Canyon View Park (Lower) parking lot from September _, 2007
to September _, 2007 as a staging area for assembly and distribution of
containers.
2.) Hauler shall provide weekly residential curbside refuse collection,
recycling and disposal services to single - family residences in the Newport
Coast Area annexed on January 1, 2002 by the City as depicted on
Exhibit A beginning October 1, 2007.
3.) The Hauler will handle all resident inquiries or complaints of service in an
expeditious manner.
4.) The Hauler shall provide a bulky item pickup twice per year for each
single - family residence with a limit of 4 items per request, at no cost to the
City. Bulk Item collection requests shall be collected within 1 -week of call
and scheduled for the same day as refuse and recycling collection.
5.) The Hauler shall provide fully automated solid waste and recyclable
material containers for residential customers at no additional cost to the
City. The automated solid waste container will have suitable handles and
wheels, tight - fitting covers for holding garbage without leakage or escape
of odors; and be constructed of watertight metal or plastic. All refuse and
recycling containers shall be 90 gallons, unless the resident requests a
smaller size. If a customer requests a smaller size container, the smaller
size container shall be provided within fourteen (14) calendar days. The
minimum size of the containers shall be 35 gallons. The City shall not be
charged by Hauler for any cost or expense related in any way to providing
the containers, for changing the size of the containers, and /or for repairing
\� or replacing any container which is damaged, broken, lost or stolen.
6.) The weekly basic service will consist of providing service for two individual
automated style containers, one for refuse and one for recyclable
materials, and all collection, disposal and other services related in any
way thereto. At the request of the residential customer, Hauler shall
provide an additional recyclable container and, on a weekly basis, all
collection, disposal and other services related in any way thereto at no
additional cost to the City.
7.) If requested by any residential customer serviced by this Agreement and
approved by the City in writing, Hauler shall provide an additional refuse
container and, on a weekly basis, all collection, disposal and other
services related in any way thereto. Subject to the limitations set forth in
this Section, City agrees to pay the cost of services related to the one
additional refuse container and services provided to residential customers
in the amount set forth in Exhibit C, Section 2. Hauler and City agree that
in no event shall the total number of additional refuse containers for which
the City is to incur any charges, costs or expense including, but not limited
to, costs and expenses associated with providing the extra containers or
service related thereto, exceed ten percent (10 %) of the number of
residential accounts in the Newport Coast Route subject to this Agreement
(e.g. if there are currently 4,000 residences in the Newport Coast Route,
the maximum number of additional containers that the City may be
charged for is 400 containers.) Hauler shall bear all costs and expenses
associated with providing additional containers or service in excess of the
ten percent (10 %) cap.
8.) Collection schedule will remain the same as existing schedule unless
agreed upon between City and Hauler in writing. The Hauler will collect
solid waste and recyclable materials at intervals not less than once per
week. Collection of solid wastes and recyclable materials may not
commence earlier than 7:00 a.m. and will stop no later than 6:30 p.m.
each collection day. The collection days for Newport Coast are currently
done Monday, Tuesday, Wednesday and Friday and will not be changed
without City approval. In no event shall the City approve a request to
collect on Saturday or Sunday unless authorized by the City's General
Services Director. No change to the current schedule will be considered
with less than 60 days notice to the City. The City shall only make
changes to the existing schedule if the City, in its sole discretion,
determines that the proposed change in the schedule increases the level
of service or has no impact on the level of service being provided.
9.) Hauler shall provide curbside collection of Christmas trees on the first two
regularly scheduled collection days for each home after Christmas Day at
no cost to the City.
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10.) When notified of a missed pick -up, Hauler shall collect all containers
missed by 5:00 P.M. of the following business day.
11.) Hauler shall use due care when handling containers. Containers shall not
be thrown from trucks, roughly handled, damaged or broken. Containers
shall be returned to the collection point upright, with lids properly closed.
Hauler shall ensure that its employees close all gates opened by them in
making collections, unless otherwise directed by the customer, and avoid
crossing landscaped areas and climbing or jumping over hedges and
fences_
12.) The Hauler shall keep data on the origin and tonnage of solid waste
collected in the Newport Coast area. The Hauler shall provide to the city,
on a monthly basis, the following information in a format supplied by or
approved by the General Services Director:
A. The tonnage of Solid Waste collected by the gross number of
tons collected each month.
B. The origin and tonnage of solid waste that is actually delivered
to the designated landfill each month.
C. The weight of recyclable materials collected in the Newport
Coast area and delivered for recycling.
D. The facility to which each type of recyclable material or
recovered material is delivered by the Hauler.
E. Total weight, by type of material, of glass, aluminum, plastic,
paper, cardboard, concrete, dirt, asphalt, green waste, lumber and
white goods collected monthly.
F. Any other information reasonably requested by the City to meet
State or Federal regulatory reporting requirements of the City's
Source Reduction and Recycling Element (SRRE), as it may be
amended from time to time.
Exhibit C
Refuse Billing Rates
1.) Except as provided in Exhibit C, Section 2, Compensation
for all Contract Services shall be $10.89 per residence per
month. The monthly rate of $10.89 per residence is
composed of a base service fee component of $8.22 and a
disposal fee component of $ 2.67.
2.) In addition to the monthly rate of $10.89 per residence, City
will pay for extra automated containers for refuse collection
as requested by individual residents in the amount of $1.00
per resident request per month, subject to the express
limitations set forth in Exhibit B, Section 7. The City and
Hauler agree that said amount shall cover all costs and
expenses related to providing the additional container and all
services related thereto.
3.) City franchise fees pursuant to NBMC Section 12.63.070
shall be waived, but only for the Contract Services provided
t' in this agreement.
4.) The City will be billed in arrears by the Hauler on a monthly
basis_
5.) The monthly compensation per residence shall be increased
on October 1, 2008, and every 12 months thereafter to
reflect any increase in the Consumer Price Index as stated in
Section 4 of the agreement.
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 10`h day of June, 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:
1. TERM
Unless earlier terminated in accordance with Section 28 of this Agreement, the
Term of this Agreement shall be for a period of ten (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 Price
#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 Trlr.
n/a
$40,000.00
#5054
2007 Travis Trlr.
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 /GARB /BACT air emission
standards and regulations prior to the sale of equipment to Hauler.
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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
R'
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.
I
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 Hauler's 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.
5
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 "flow 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
I
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
7
perform all services in a manner commensurate with community professional standards.
All services shall be performed by qualified and trained personnel who are not
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
N
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.
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 California, 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 Employer's 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 Liability 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,
a
d
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.
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 INJURY /INDEMNIFICATION
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
10
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,
suppliers, representatives and affiliates ( "Hauler Representatives "); (ii) Hauler's 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
11
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)
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. SUBCONTRACTING
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
12
services. Contractor may not employ any subcontractors unless specifically authorized
by City.
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. ADMINISTRATION
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
13
a
Administrator with any appeal to the City Manager. The City Manger's decision shall be
final.
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. Hauler's 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
14
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.
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 Hauler's 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,
15
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.
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
16
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.
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:
Aaron C. Harp, Assistant City Attorney
for the City of Newport Beach
ATTEST:
By .e -
La onne Harkless,
City Clerk
for the City of Newport Beach
HAULER:
By:
(Corporate )QNce
Title: SR. V : ?AQ
Print Name:An3 AY -Iutct I
<
BI
y:
(Financial Officer)
C/ 1-': -V
Print Name: d �i�
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 credit to the City of <$97.63> per
truck load, as shown in Exhibit B.
3) Prior to July 7, 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.
12) CR &R and City mutually agree that CR &R will not use the City Transfer Station
for the transfer of residential or commercial solid waste collected by CR &R at any other
location in the City. The excess capacity, if any, at the City Transfer Station shall not be
used by CR &R without prior City Council approval.
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: $26.73
(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 credit City 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.
1. 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
2
against any and all claims (including, without limitation, claims for bodily injury,
death or damage to property), 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 (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 parry 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 Attorney
} for the City of Newport Beach
ATTEST:
4
CITY OF NEWPORT BEACH,
A Municipal Corporation
By:
City Manager
for the City of Newport Beach
CONSULTANT:
By: By:
LaVonne Harkless, (Corporate Officer)
City Clerk
5
Print Name:
By:
(Financial Officer)
Title:
Print Name:
cRsrzl
April 12, 2010
Mr. Mark Harmon
General Services Director
City of Newport Beach
3300 Newport Beach Blvd.
Newport Beach, CA 92663
Re: Disposal Portion of Basic Service Fee adjustment for Solid Waste and
Recycling Rates for the 2010 -2011 fiscal year for Newport Coast
Dear Mr. Harmon:
As provided for in Section 4.A of the Franchise Agreement between the City of Newport
Beach and CR &R Incorporated, the rates illustrated in Exhibit C for the disposal
component of the basic service fee rate are hereby requested to be adjusted to reflect
increases in Orange County landfill disposal fees.
Effective July 1, 2010, the contract disposal rate at all Orange County landfills will
increase from $22.00 per ton to $29.95 per ton (a 36% increase). The increased
disposal rates have been approved by the Orange County Board of Supervisors, as well
as the Newport Beach City Council
Current Disposal Fee Component is $2.67 x 36 %= $3.63 per month per household (new
Disposal Component)
Requested Changes:
July 1, 2010 the house rate to be increased from $11.14 to $12.10, and
July 1, 2010 the extra cart rate to be increased from $1.03 to $1.12
($2.67 of $10.89 = 24.4 %; Disposal Component of the is $1.03 x 24.5% =0.25;
0.25x136% =$0.34 increase) Result is 1.03 - .25 +.34= $1.12.
I believe the above calculations and request reflect our agreement. Please, review and
let me know if you have any corrections or questions. As always, it's a pleasure being of
service to the City of Newport Beach. _
Sincerely,
Dean A. Ruffridge
Senior Vice President
Cc: Trish Throop
David Ronnenberg
CR &R INCORPORATED
11292 WESTERN AVE.
PO, BOX 125
STANTON, CA 90680
800.826.9677
714.826.9049
714.890.6347 Fax
CRRWASTESERVICES.COM recr,apa paper
� iRsrr�
April 13, 2010
Mr. Mark Harmon
General Services Director
City of Newport Beach
3300 Newport Beach Blvd.
Newport Beach, CA 92663
Re: Landfill Rate Adjustment for Residential Waste Transfer Services and Material
Processing and Recycling
Dear Mr. Harmon:
As provided for in Section 6 (Compensation to Contractor) of the "Agreement with CR &R
Incorporated for Residential Solid Waste Transfer Services and Material Processing and
Recycling ", dated June 10, 2008, the rates illustrated in Exhibit 'B" shall be adjusted'
annually to reflect the change in the Disposal Fee Per Ton.
Effective July 1, 2010, the contract disposal rate at all Orange County landfills will
increase from $22.00 per ton to $29.95 per ton (a 36% increase). The increased
disposal rate has been approved by the Orange County Board of Supervisors, as well as
the Newport Beach City Council.
Other factors of the "Total Cost per Ton for Processing and Disposal" (Exhibit B) will not
be adjusted until the Consumer Price Indexes are available.
Based upon Exhibit "B" of the Agreement, please accept this letter as our request for
adjustment to the Disposal per Ton fee from $13.20 to $17.95 (a 36% increase).
Should you have any questions, please feel free to contact me at any time.
As always, it's a pleasure being of service to the City of Newport Beach.
CRespectfully,
Dean A. Ruffridge,
Senior Vice President
cc David Ronnenberg
Joyce Amato
Julie Weaver
CRU INCORPORATED .
11292 WESTERN AVE.
PO. BOX 125 -
STANTON, CA 90680 - - -
800.826.9677
714.826.9049
714.890.6347 Fox
1
CRRWASTESERVICES.COM mcyc.ea paper