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HomeMy WebLinkAbout1993-12-14 - AGENDA REPORTS - BIN REPLACEMENT (2)City Manager Approval Item to be presented by: ITIAIi/ lil. I`I ►1 .Y:7 DATE: December 14, 1993 SUBJECT: Bin Replacement Service Permit DEPARTMENT: Public Works, Solid Waste Division BACKGROUND On July 13, 1993, the City Council adopted Resolution 93-83 which granted modified exclusive commercial- solid waste permits to Atlas Refuse Removal Company, Blue Barrel Disposal Company, and Santa Clarita Disposal Company. This modified exclusive permit includes services for regularly scheduled routes. Temporary bin and roll -off box services were to be included as a separate permit program to preserve competitive prices. Solid Waste staff initiated the temporary bin and roll -off box service permit process in August of this year. STAFF RESEARCH In order to determine the total number of haulers providing temporary bin and roll -off box services in the City of Santa Clarita, staff distributed a letter to all haulers listed in the local phone books and yellow pages, inviting them to apply for the temporary bin and roll -off box permit. Letters were also sent to the Greater Los Angeles Solid Waste Management Association and the California Disposal Association. The Solid Waste division received seventeen (17) responses to the invitation. Subsequently, each applicant was surveyed by telephone and provided with information of the City's intentions on the specific provisions of the permit. Attachment A includes the list of applicants, their corresponding services, and responses to the telephone survey. Attachment A also includes a survey of sixteen (16) cities similar in nature to Santa Clarita in order to ensure objectivity of terms and to develop consistency with industry practices. ContinuedTo: I -i�— �� Agen : /S Item Page 2 Agenda Report Bin Replacement Service Permit PERMIT CONDITIONS HAULER PARTICIPATION In addition to participating in the telephone survey, the applicants were invited to attend a meeting with staff to discuss the results of the telephone survey and the proposed conditions of the permit. It was requested by many of the haulers that the CERCLA indemnification, reporting, customer billing, and term of contract be modified to accommodate the needs of the large hauling companies as well as the small companies. The majority of the haulers, with the exception of Blue Barrel Disposal Company and Santa Clarita Disposal Company, agreed conceptually with the "consensus" proposal. At the conclusion of the meeting, the haulers were asked to submit any additional comments they may have' in written form. Minutes of this meeting and a summary of the major issues are included in Attachment B. Since Blue Barrel Disposal and Santa Clarita Disposal did not agree to the provisions of the permit, staff met separately with the two companies subsequent to the previous meeting to resolve the major issues. Staff modified the proposal to include a semi -exclusive permit system, increase the term of the permit, and ensure a minimum of five haulers through out the term of the agreement. Staff was successful in obtaining support from Santa Clarita Disposal. However, Blue Barrel Disposal remains opposed to any permit proposal by the City or other haulers that incorporates a franchise fee based on gross revenues. Blue Barrel contends that this would be a form of taxation to do business in Santa Clarita, and countered the City's proposal by suggesting that a fee per truck be used instead of a franchise fee based on gross revenues. Although Blue Barrel's proposal is favorable to their company's needs, it presents a level of inequity to other companies who may run one truck to service one business in the City. This could potentially eliminate the small hauler from doing business in the City. On December 8, 1993, City staff once again met with representatives from Blue Barrel Disposal to reach an agreement. However, a mutual agreement was not achieved. Blue Barrel requested that a system be developed where the city regulates rates through exclusive or semi -exclusive franchises. Attachment C includes an evaluation of the advantages and disadvantages of these two systems and other combinations or variations to these systems. Having evaluated the options outlined in Attachment C, the most equitable system is the Semi -Exclusive Unregulated Rate System which is based upon the haulers percentage of gross revenues. This system maintains competition and the customers freedom to choose their preferred hauler. Page 3 Agenda Report Bin Replacement Service Permit PERMIT CONDITIONS Based on staff research and comments received from all applicants, the following terms of permit agreements have been agreed upon by all participating haulers: ■ Establish a semi -exclusive franchise with all existing haulers. ■ Minimum of five haulers to be operational within the City at any given time. ■ Establish franchise fees based on 8% of gross revenues. ■ Require a minimum one million dollars ($1,000,000.00) general liability and one million dollars ($1,000,000.00) per occurrence insurance policy. ■ Establish a granting fee of $500. ■ Provide the city with total quantities of recyclables and non-recyclables. ■ Establish an identification list for all permitted providers. ■ CERCLA/AB939 Indemnification system based on hauler/recycler percentage of market share. Although staff was unable to reach agreement with all 13 participating haulers, it is incumbent upon the city to implement a system to meet the goals of AB939. The system proposed by the city can be used as a temporary measure until a agreement can be reached with all participating haulers. RECOMMENDATIONS Adopt Resolution 93-167 granting a semi -exclusive, un -regulated rate permit for Bin Replacement Service to Santa Clarita Disposal Company, Atlas Refuse Removal Company, Crown Disposal, A Trojan Disposal, Rent -A -Bin, Cal Coast Recycling, Larey Rubbish Pick - Up Service Inc., Lopez Rubbish Disposal Inc., AWM Disposal Service, Hi -Waste Disposal, American Waste Industries, and Empire Disposal. ATTACHMENTS Attachment A -Bin Replacement Service Haulers Survey AttachmentA-Municipal Refuse Recycling Survey Attachment B -Meeting Minutes of Oct. 22, 1993 Resolution No. 93=167 Attachment C -Semi -Exclusive Permit Fee Options Semi -Exclusive agreement -on file in the City Clerk reading file. City of Santa Clarita Attachment A Bin Replacement Service Haulers Survey :: ;::..... f....: f..:..,.. ,..:. rorvy.:r:$'.b:';::[./........:.:..: r. ..:::::.$: F.676. .ar ::i.'y, r..$.'< $$>":E":E>N.:>.:.5 i.. i.(xE `.yi:g•:g•::"i:' R..t ¢k. :::..:.., 5' ?:x`3$3 ::."'..}.>i i4(:isi:(Z ai+n;S:h>".tr.'.$'.tri.'tr"4....tr.$.`$,!(:.:::MM £;£.tt:£ 5'6'I<:':tr'.!tr:(% •T.. .3:::��:<�5: �>n :k/.(Min:EA26](.'trYd'Y.`M`::.tk�T,`$z.. ����. k � k z f.MhRvf�:^:1:(ES::SS:fii:SR:SE:fRn.Lti �,; �a:) k$$: �.�v. �1i f+A•ti� "fF:'r''[ �4.c¢i"'kk'tii:"uL,�/�e�.n::L£k 1 Should fees be based on 10% of gross receipts not including RC costs? 14 3 2 1 Should haulers have at least $1 million Insurance? 16 1 3 Should the City require AB 939, CERCLA indemnification -based on % of 14 3 4 Should hauler have a Recycling Coordinator? 15 2 5 Is a Non Exclusive Franchise reasonable? 14 3 6 Is hauler able to separate bill to show RC and LF Charges? 13 4 7 Is an application fee of $250 reasonable? 14 3 Note. RC= Recycling, LF= Land F$pill '1f=) j—y A': Cai y[]kHi Mtlp4'k�kY;.l^ :WM6+M'j(T\Yd"4SYtrSyg �.i.L .eY � t t P. .. : }�L1• {FP �`i1 n\h�:�1' R_IiM{R#Yf.l1�: aw.!xr.»:u!.u33x3x3i8:3:3:>:t:Psszs�wwusaYa`�aLx�2FE i`.«�.«!«` '!�x,�xk[sxum .«[« 1 lCrown Disposal RC, MRF, C&DF, 27 2 Valley Rolloff RC, RF 1 3 Lopez Rubbish Disposal RC, RF 0 4 Atlas Refuse Removal Co. RC,RF 25 5 AWM Disposal Service Inc. RC,.RF 1 6 Browning Ferris Industries of California As needed 0 7 Blue Barrel Disposal Co. RC, RF 149 B Cal Coast Recycling Inc. RC, RF 10 9 Valencia Disposal Inc. RC, RF 5 10 American Waste Industries RC, RF 0 11 Larey Rubbish Pickup Service Inc. RC, RF Not Provided 12 Santa Clarita Disposal RC, RF 9 13 Rent A Bin RC, RF Not Provided 14 Waste Control RF, Not Provided 15 A Trojan Disposal RC, RF Not Provided 16 Hi Waste Disposal RC, RF 0 17 National Disposal and Rolloff RC, RF 6 Note: RC= Recycling, MRF= Marterials Recovery Facility C&DF= Construction and Demolition Facility, RF= Refuse JEBRSQ&A.XLS Printed on Recycled Paper City of Santa Clarita Attachment A Municipal Refuse Recycling Survey 1 Glendale nja Nan Exclusive <fe # :a 10°% of gross 11ysxt ..°r4 111 million c f➢ $0 2 West Hollywood Non Exclusive $2,000 per truck 111 million $0 3 Burbank Non Exclusive 11°% of gross 111 million $0 4 Beverly Hills Non Exclusive 12°% of gross 1013 million $1,000 5 Pasadena Nan Exclusive 11% of gross 211 million $200 6 La Mirada Semi Exclusive 9% of gross 512.5 million $0 7 Diamond Bar Semi Exclusive fee per user 10 million $10,0001$1,000 ann. 8 Covina Exclusive 6% of gross 5 million $.87 per cu. yd. 9 La Canada Non Exclusive 10% of gross 111 million $25 10 Long Beach Semi Exclusive 8% of gross 211 million $0 11 Claremont City is Hauler 10% of gross Self Insured $0 12 Arcadia Semi Exclusive 9% of gross 211 million $70 per truck 13 Palmdale Exclusive 7.5 to 10°% of gross 515 million $0 14 Simi Valley Semi Exclusive 0.0 to 5% of gross 1 million $0 15 Lancaster Semi Exclusive 6°% of gross 5 million $0 16 San Fernando Open System $200.1 st truck $40- additional trucks .7511 million $0 Note: the above information was compiled from cities that combine regularly scheduled front loading haulers and bin replacementitemporary container haulers. BPSMPOMAS Printed on Recycled Paper Attachment B CITY OF SANTA CLARITA BIN REPLACEMENT SERVICE MEETING MINUTES FRIDAY OCTOBER 22,1993 The Bin Replacement Service Meeting began at 2:40 p.m., Friday October 22, 1993 in the City Hall Orchard Meeting Room, 23920 Valencia Blvd., Santa Clarita, CA 91355. Individuals in attendance were: Hazel Joanes, Solid Waste Coordinator; Jon Emerson, Solid Waste Analyst; Ron Ektarian; Paul Richardson; Daniel A. Agajanian; Judi DeLugg; Mike Lopez; Alex Dmitriew; Karl McCarthy; Steve Arklin; Dennis Verner; Steven Larey; Kerri Budimir; Jerry Goodman; Lefty Randall. I. INTRODUCTIONS/OPENING REMARKS Hazel Joanes began the meeting with introduction and overview of the preliminary Bin Replacement Permit process and stated that this permit would be a non-exclusive permit open to all Bin Replacement Service providers and that the City that anticipates a permit program for this service to be in place by December 1, 1993. II. GENERAL DISCUSSIONIPARTICIPANT COMMENTS Customer Service ■ Hi Waste Disposal expressed concern about staffing hours and answering service during business hours. ❑ City Responded that an answering machine is acceptable instead of an answering service or a company representative. Indemnification ■ Crown Disposal expressed concern about CERCLA indemnification. City Responded that the indemnification is only on solid waste collected and hauled by the company and not for allthe waste generated in the City. ■ AWM Disposal expressed concern about AB 939 indemnification. The representative stated that if a business hires a recycler to collect the recyclables and a trash hauler to collect the trash, a trash hauler cannot divert 50% of the business' waste from a landfill. o City Responded that the haulers are asked to make a commitment to divert any recyclables collected in their loads. Attachment B Fees ■ AWM Disposal/Empire Disposal expressed concern about the City's request to itemize the franchise fee amount on customer's billing statements. Most of the haulers engaged in a discussion about this issue.' Empire Disposal stated that if the franchise fee is not indicated as a separate line item, customers will think that the hauler is simply increasing profit. AWM Disposal stated that the public should be made aware of the franchise fee for the refuse service. A general consensus was agreed upon by a majority of the haulers to add a separate line item fee to the customer's billing statement. ❑ City Responded that the fee could be itemized to the billing statement. ■ Santa Clarita Disposal voiced concern about the 10% of gross revenues fee and questioned why the City needed the fee? Several other haulers questioned the way the fee would be collected. ❑ City Responded that the revenues are used to administer AB 939 programs and maintain public streets and facilities. ■ AWM Disposal proposed a percentage mark up or surcharge fee added onto a customers's bill. The surcharge or mark up is collected and sent to the City. Instead of a percentage of gross revenues fee collected by the City. 0 City Responded that the City is open to the idea. ■ Blue Barrel Disposal proposed a per truck fee in place of percentage of gross revenues fee. There was no response from any other haulers regarding this proposal. ❑ City Responded that it is open to the idea. The City is also concerned about the effectiveness of this method and fees that this will pose an unfair situation to smaller haulers. ■ Larey Rubbish stated that the fee should only be placed on hauling charges -- not dumping fees -- as it is done in Palmdale. 0 City Responded that the City will explore this possibility with the Finance Dept. ■ Empire DisposallRent a Bin stated that the public should be charged a flat fee for waste management through a utility fee or county tax. 0 City Responded that Santa Clarita does not have the necessary mechanisms in place to assess taxes on the public for utilities. This type of a system will not be considered at this time. 2 Attachment B RenortinE ■ Crown Disposal stated that the diversion reporting section was too complex. 1:1 City Responded that section can be simplified. Residential Hauling Restriction ■ Rent a Bin expressed concern about the residential hauling restriction. Rent a Bin representative contended that his company was assured by the City that the residential franchise would not restrict Rent a Bin's business activity because the franchise does not address temporary bin hauling. City Responded that they will review meeting minutes for the commercial negotiation process and then discuss this this issue with Rent -A -Bin separately. III. CLOSING COMMENTS 13 City Requested that any further comments should be in written form and should be faxed or mailed to the City by Tuesday October 26, 1993. ■ Haulers stated that Tuesday -Thursday between 10-11:00am is a better meeting time. f:\home\solwaste\bier \brs1022m.je Attachment B Summary of Group Comments/Major Issues Issue Haulers ■An exclusive contract with all present haulers - Santa Clarita Disposal American Waste Industries ■A 4-6% of gross revenues franchise fee or less than 10% of gross. Santa Clarita Disposal Rent A Bin AWM Disposal Atlas Refuse Removal ■A fee per truck Santa Clarita Disposal Blue Barrel Disposal ■Retain PRC 49520 five year rights for a — one year exclusive contract Santa Clarita Disposal Rent A Bin Atlas Refuse Removal ■Franchise fee should be itemized on customer's bill ■Marketing and sales figures should not be released to the City American Waste Industries Rent A Bin Atlas Refuse Removal Iarey Rubbish Service Rent A Bin Attachment B City of Santa Clarita . Bin Replacement Service Written Comments and Questions SANTA CLARITA DISPOSAL SUGGESTS THE FOLLOWING: ■City should set refuse rates ■An exclusive contract with all present haulers 0 5% of gross revenues franchise fee ■A fee per truck ■Retain PRC 49520 five year rights for a one year exclusive contract AMERICAN WASTE INDUSTRIES SUGGESTS THE FOLLOWING: ■A % of gross revenues fee as a percentage mark up or surcharge fee added onto a customers's bill. ■An exclusive contract. ■A high fee may deter haulers ■City should pole haulers for monthly receipts in order to arrive at a fair percentage ■All customers requesting building or street permits should be required to indicate which hauler they are using to insure that only permitted haulers are used. ■Not opposed to paying pro -rata share of fines if state requirements are not met ■Able to give detailed reports which show total monthly tonnage hauled, recycled, type and tonnage of material recycled and locations where recycled materials were taken RENT A BIN SUGGESTS THE FOLLOWING: ■5% of gross revenues accumulated from non recyclable waste ■$500,000 general liability insurance ■Granting fee of $125 per year ■Retain PRC 49520 five year rights for a one year exclusive contract Attachment B ■Advance payment deadline to the following working day in the case of a holiday or weekend. ■Diversion reporting section is too complex ■Disposal reporting is reasonable ■Marketing and sales figures should not be released to the City ■Franchise fee should be itemized on customer's bill AWM DISPOSAL SERVICE SUGGESTS THE FOLLOWING: ■A 4-6% of gross revenues franchise fee ■No CERCLA Indemnification EAB 939 Indemnification should be required of the generator BLUE BARREL DISPOSAL SUGGESTS THE FOLLOWING: ■$1000 to $2000 per truck fee each year ■Fee based on the number of roll -offs as an alternative to the truck fee ATLAS REFUSE REMOVAL SUGGESTS THE FOLLOWING: ■Flat fee per cubic yard ■Franchise fee should be itemized on customer's bill ■City Building Inspectors should provide enforcement of the permit ■Retain PRC 49520 five year rights for a one year exclusive contract 010% of gross revenues is too high ■Collection from all sites except those within 500 feet of a residence, should be permitted 365 days per year, 24 hours a day. Some customers will have conflicts with the schedule outlined in the contract. ■WAITING FOR TWO COAIMENTS FROM CHARLIE, Attachment B LAREY RUBBISH PICKUP SERVICE SUGGESTS THE FOLLOWING: ■Disposal fees should not be part of the "Gross Revenues" fee. ■Does granting fee pay for attorney's fees? Hauling companies should not have to pay for City's Attorneys ■Is the AB 939 fee charge to haulers or businesses? ■Can portable compaction vehicles be utilized in this permit? ■Unreasonable deadline for delivery of franchise fees. City should accept fees that are post marked on the due date ■Marketing and sales figures should not be released to the City ■Hauler's books should not be open to City f:Utomelsolweste\bimeou\brscmm.je RESOLUTION NO. 93467 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA CLARITA GRANTING SEMI -EXCLUSIVE BIN REPLACEMENT SERVICE PERMITS WHEREAS, the Legislature of the State of California, by enactment of the California Integrated Waste Management Act of 1989 ("AB 939"), has declared that it is within the public interest to authorize and require local agencies to make adequate provisions for solid waste handling within their jurisdictions; and WHEREAS, AB 939 authorizes and requires local agencies to make adequate provisions for solid waste handling within their jurisdictions; and WHEREAS, the City is obligated to protect the public health and safety of the residents of the City of Santa Clarita by taking steps to enable solid waste haulers to make arrangements for the collection of solid wastes in a manner consistent with the protection of public health and safety; and NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Santa Clarita as follows: Section 1. The City Council of the City of Santa Clarita hereby finds, determines, and declares that the public convenience and necessity are served by the award of semi - exclusive Bin Replacement Service Permits to Atlas Disposal Company, Santa Clarita Disposal Company, Crown Disposal, A Trojan Disposal, Rent -A -Bin, Cal Coast Recycling, Larey Rubbish Pick-up Service, Inc., Lopez Rubbish Disposal, Inc., AWM Disposal Service, Hi -Waste Disposal, American Waste Industries, and Empire Disposal to arrange with businesses and other entities in the City of Santa Clarita for the collection, recycling, composting, and safe transport and disposal of recyclables, green wastes, and commercial solid wastes. Section 2. The permit agreements by which, on . the City granted semi -exclusive permits to the above mentioned companies are hereby ratified, confirmed, and approved are attached hereto and are hereby incorporated into this resolution by reference as if fully and accurately included herein. . PASSED, APPROVED, AND ADOPTED this day of , 1993. MAYOR ATTEST: CITY CLERK STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES) SS CITY OF SANTA CLARITA) I, Donna M. Grindey, hereby certify that the foregoing Resolution was duly adopted by the City Council of the City of Santa Clarita at a regular meeting thereof, held on the day of , 1993 by the following vote of the Council: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS : ABSENT: COUNCILIIlEAMERS: CITY CLERK council\93-167.res Attachment C SEMI -EXCLUSIVE PERMIT FEE OPTIONS Bin Replacement Services PERMIT SYSTEM PRIMARY ADVANTAGES PRIMARY DISADVANTAGES Regulated Rate System ■ Cost effective revenue tracking ■ Requires rate study (Permit fee based on gross revenues) ■ Guaranteed flow of revenues to City ■ Increase in contract administration costs ■ Ease of contract administration ■ Requires annual rate adjustment ■ Decreased opportunity for competition ■ Perception: government regulation ■ City. responsible for any rate increases December 14, 1993 Attachment C SEMI -EXCLUSIVE PERMIT FEE OPTIONS Bin Replacement Services PERMIT SYSTEM PRIMARY ADVANTAGES PRIMARY DISADVANTAGES Regulated Rate Band System ' ■ Maximum rate provides protection ■ Minimum rates; limits price competition Minimum and Maximum rates against unlimited rate increases. (Permit fee based on gross ■ Requires rate study revenues) ■ Minimum rate reduces risk of competitors attempting to drive one ■ Requires annual rate adjustment ' by service level another out of business by charging rates below actual operating costs. ■ May increase existing rates which are below minimum levels ■ Guaranteed revenues to the City ■ Perception: government regulation ■ City responsible for any rate increases Unregulated Rate System ■ Cost effective revenue tracking ■ No rate protection for ratepayers if (Permit fee based on gross competition does not succeed in revenues) ■ Guaranteed revenues to the City maintaining reasonable rates ■ Ease of contract administration ■ Fluctuation in revenues to the City ■ Rates negotiated by customer ■ Increase in competition December 14, 1993 Attachment C SEMI -EXCLUSIVE PERMIT FEE OPTIONS Bin Replacement Services PERMIT SYSTEM PRIMARY ADVANTAGES • PRIMARY DISADVANTAGES Non-disposal/Unregulated Rates" ■ Guaranteed revenues to City ■ No rate protection for ratepayers if (Permit fee based on gross competition does not succeed in revenues) ■ Rates negotiated by customer maintaining reasonable rates. ' fee based on a portion of total ■ Increase in price competition ■ Fluctuation in revenues to the City rate charged to the customer ■ Reduction of revenues to the City Flat Rate Per Truck ■ Rates negotiated by customer ■ May limit potential for small hauler to continue operation in City ■ Minimum contract management costs ■ Significantly decreases revenues to City Regulated Rates -- Exclusive ■ Reduction in revenues to City ■ No customer choice among service Contract providers (Permit fee based on gross ■ Level of inequity may limit potential of revenues) small hauler ■ Ease of contract administration December 14, 1993 . 3 CITY OF SANTA CLARITA INTEROFFICE MEVICORANDUM PARI v: ;r TO: City Council—�s/-9� MEETING FROM: George Caravalho, City Managert� [110, /_5 DATE: December 10, 1993 SUBJECT: Bin Replacement Permit- Blue Barrel Disposal In August of this year, Solid Waste staff began to develop a permit system for the collection of permanent roll -offs and temporary roll -off bin services. All haulers providing this type of service were invited to apply and participate in the design of a permit system. Thirteen haulers applied to the city for the opportunity to participate in this process. Staff worked jointly with the haulers to formulate a system acceptable to all parties. Twelve haulers and the city cooperatively agreed to a semi -exclusive permit. system. It was also agreed that the city permit fee system would be based on a percentage of the haulers gross revenues. Blue Barrel Disposal Company did not agree to the system developed by the city and the haulers. Naz Chobanian from Blue Barrel Disposal conveyed to the city that a permit fee based on a percentage of gross revenues would penalize his company for doing good business since he has over 60% of the roll -off accounts in this city. He further indicated that his company would stand to lose revenues if it paid the city a permit fes based on gross revenues. Naz is also concerned with increased competition from other haulers. He feels that other haulers may offer an artificially low rate to customers. He feels that Blue Barrel Disposal may not be able to compete, since some of the participating haulers own either disposal or non -disposal facilities, and therefore would not.charge the customer a "true" rate for roll -off services. Staff met with Naz on December 8, 1993, to reach a mutual agreement, however this was not accomplished. He requested that a system be developed where the city regulates rates through exclusive or semi -exclusive franchises. Naz mentioned to the staff that he would be meeting individually with council members to discuss his proposal prior to the December 14, 1993 council meeting. Staff recommends that a semi -exclusive system with a permit fee based on the haulers gross revenues is an equitable system. It maintains a competitive market and retains the customer's freedom to choose their preferred hauler. It applies equally an 8 % permit fee to all haulers gross revenues. The franchise fee on the existing residential and commercial franchise agreements is 10% of gross revenues. Many of the participating haulers appreciate the city's interest in establishing a fair system. f:lhomeleoiweetelbi=o"\rolloff.bb DRAFT SEMI -EXCLUSIVE AGREEMENT BETWEEN THE CITY OF SANTA CN MIA- FOR THE COLLECTION, TRANSPORTATION, RECYCLING, COMPOSTING AND DISPOSAL OF MUNICIPAL SOLID WASTE THROUGH A BIN REPLACEMENT SERVICE revised 1213193 f. \home\solwaste\binrcorr\brscont2. je DRAFT TABLE OF CONTENTS Paee No. SECTION 1. GRANT OF A SEMI -EXCLUSIVE RIGHT AND 2 PRIVILEGE TO ARRANGE FOR THE COLLECTION OF MUNICIPAL SOLI) WASTE AND RECYCLABLE MATERIALS A. Semi -Exclusive Right 2 B. Annexations 3 C. Bin Replacement Service 3 SECTION 2. APPLICATION FEE 3 SECTION 3. DEFINITIONS 3 A. AB 939 3 B. AB 939 Fee 3 C. Bins 4 D. Bin Replacement Service 4 E. Bulky Goods 4 F. City Boundaries 4 G. Commercial Solid Waste 4 H. Commercial Waste Generating Sector 4 I. Compostable Materials 4 I. Construction and Demolition Waste 5 K. Franchise Fee 5 L. Gross Revenues 5 M. Hazardous Waste 5 N. Industrial Waste 5 O. Industrial Waste Generating Sector 5 P. Intermediate Processing Centers 5 Q. Materials Recovery Facility 6 R. Municipal Solid Waste 6 S. Non -Compaction Vehicle 6 T. Recycling Container 6 U. Recycling Coordinator 6 V. Recyclable Materials 6 W. Recycled 6 X. Regularly Scheduled Collection Routes 6 Y. Residential Premises 6 Z. Residential Waste Generating Sector 7 A.A. Semi -Exclusive Right 7 BB. Temporarily Scheduled Collection Routes 7 CC. White Goods 7 i SECTION 4. TERM 7 SECTION 5. FRANCHISE FEE 7 SECTION 6. LEVELS OF SERVICE 7 A. Collection 7 B. Recycling Coordinator/Government Liaison 7 SECTION 7: AB 939 REPORTING; PUBLIC OUTREACH 7 A. Diversion Reports 8 B. Disposal Reports 8 C. Submittal of Reports 8 D.. Marketing of Recyclables 8 SECTION 8. OWNERSHIP OF MUNICIPAL SOLID WASTE 9 AND RECYCLABLES SECTION 9. COMPLIANCE WITH LAWS AND REGULATIONS 9 SECTION 10. BILLING 9 SECTION 11. PRIVACY 9 SECTION 12. SERVICE EXCEPTIONS - HAZARDOUS WASTE 10 NOTIFICATIONS SECTION 13. INDEMNIFICATION AND INSURANCE 10 A. Indemnification of City 10 B. AB 939 Indemnification 10 C. Hazardous Substances Indemnification 11 D. AB 939 Obligations of City 11 E. Workers' Compensation Insurance 11 F. General Liability Insurance 12 G. Evidence of Insurance Coverage; Insurance Repository 13 SECTION 14. HAULER'S BOOKS AND RECORDS; AUDITS 13 SECTION 15. CITY'S SOURCE REDUCTION AND RECYCLING 14 ELEMENT; INCORPORATION BY REFERENCE ii SECTION 16. CUSTOMER SERVICE 14 A. General 14 B. Office Hours 14 SECTION 17. TERMINATION 14 SECTION 18. PERMIT TRANSFERABLE; CITY CONSENT REQUIRED 15 A. Right to Transfer 15 B. Material Breach 16 C. Minimum of Five Haulers 16 SECTION 19. PERMIT TRANSFER; FEES 16 SECTION 20. GENERAL PROVISIONS 17 A. AB 939 17 B. Amendment 17 C. Failure to Report 17 D. Force Majeure 17 E. Identification Required 17 F. Independent Contractor 18 G. Joint Drafting 18 H. Law to Govern; Venue 18 I. Notices 18 J. Pavement Damage 19 K. Property Damage 19 L. Reasonable Determinations 19 M. Right of Entry 19 N. Savings Clause and Entirety 19 O. Submittal of Reports 20 iii SEMI -EXCLUSIVE AGREEMENT BETWEEN THE CITY OF SANTA CLARITA AND FOR THE COLLECTION, TRANSPORTATION, RECYCLING, COMPOSTING AND DISPOSAL OF MUNICIPAL SOLID WASTE THROUGH A BIN REPLACEMENT SERVICE This SEMI -EXCLUSIVE AGREEMENT ("Agreement") is entered into this day of 1993, by and between the CITY OF SANTA CLARITA ("City") and ( ) ("Hauler") for the collection, transportation, recycling, composting and disposal of municipal solid waste, compostable materials and recyclable materialthrough a Bin Replacement Service. RECITALS WHEREAS, the Legislature of the State of California, by enactment of the California Integrated Waste Management Act of 1989 ("AB 939"), has declared that it is within the public interest to authorize and require local agencies to make adequate provisions for solid waste handling within their jurisdictions; and WHEREAS, AB 939 authorizes and requires local agencies to make adequate provisions for solid waste handling within their jurisdictions; and WHEREAS, City is obligated to protect the public health and safety of the residents of the City of Santa Clarita by taking stepsto enable solid waste haulers to make arrangements for the collection of solid waste in a manner consistent with the protection of public health and safety; and WHEREAS, City.and Hauler are mindful of the provisions of the laws governing the safe collection, transport, recycling and disposal of solid waste, including AB 939, the Resource Conservation and Recovery Act ("RCRA") 42 U.S.C. §§ 6901 et se=.c ., and the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601 et s=ec.; and WHEREAS, City and Hauler desire to leave no doubts as to their respective roles, and that by entering into this Agreement, City is not thereby becoming a "generator" or an "arranger" as those terns are used in CERCLA § 107(a)(3), and that it is Hauler, not City, which is "arranging for" the collection, the transport for disposal, composting of compostable materials and the recycling of recyclables, compostable materials and municipal solid wastes; and WHEREAS, there are no places .within the City limits of the City of Santa Clarita where landfills are located, or which are suitable for the siting of a landfill, and solid waste must, therefore, be exported from the City; and WHEREAS, City and Hauler agree that it is Hauler and not City, which will select the landfill or transformation facility destination of the non -recyclable waste which Hauler will arrange to collect, that City has not, and, by this Agreement does not, instruct Hauler on its collection methods, nor supervise the collection of waste, and nothing in this Agreement, or other action of the City shall be construed to place title to such .waste in Hauler, the parties recognizing that whatever, if any, title Hauler, may gain to such waste by operation of law, and is not the result of this Agreement; and WHEREAS, Hauler has represented and warranted to City that it has the experience, responsibility and qualifications to conduct recycling programs and to arrange with businesses and other entities in the City of Santa Clarita for the collection, safe transport and disposal of their recyclables and municipal solid wastes which may inadvertently contain hazardous substances. The City Council of the City of Santa Clarita determines and finds that the public interest, health, safety and well being would be served if Hauler were to make arrangements with business owners and other entities to perform these services for the City's commercial and industrial sectors. NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS: SECTION 1. GRANT OF A SENH-EXCLUSIVE RIGHT AND PRIVILEGE TO ARRANGE FOR THE COLLECTION OF MUNICIPAL SOLID WASTE AND RECYCLABLE MATERIALS THROUGH A BIN REPLACEMENT SERVICE A. Semi -Exclusive Rights This Agreement grants to Hauler for the term of this Agreement (including all extensions or renewals), a semi -exclusive right and privilege to arrange for the collection, transportation, recycling, composting and disposal of municipal solid waste through an Industrial and Commercial sector Bin Replacement Service and to arrange for the collection of recyclable materials generated or accumulated within the City of Santa Clarita as its existing boundaries at the date of execution of this Agreement are now constituted or may hereafter be changed pursuant to the City of Santa Clarita Municipal Code and California Public Resources Code Section 40059 (a) (1). Hauler agrees to be bound by and comply with all the requirements of this Agreement. Hauler waives any right it may have to challenge the terms of this Agreement under federal, state or local law or administrative regulation. Hauler waives any right or claim to serve Santa Clarita or any part of the City as its boundaries exist as of the date of execution of this Agreement under any prior grant of agreement, contract, license or permit issued or granted by any governmental entity including any right under the Public Resources Code (PRC). This Agreement is subject to all of the provisions of this Agreement, and to any rights, if any, which maybe held by any other solid waste enterprise holding rights pursuant to Public Resources Code Section 49520 or other laws and those rights pursuant to the City of Santa Clarita Resolutions 91-27 and 93-83. B. Annexations Territory annexed to the City, subsequent to the date of this Agreement, shall be added to the service area covered by this Agreement and serviced by Hauler. Provided however, the City Council at its sole discretion, may allow any Municipal solid waste enterprise currently servicing the annexed area to compete with Hauler within the annexed area only subject to the terms of this Agreement. In the event that City Council chooses to add an annexed area to the service area of Hauler, the City and Hauler agree that this Agreement shall supersede any previous franchise agreement, permit, or license granted by another public entity, subsequent to any rights held pursuant to Public Resources Code Section 49520, if any. C. Bin Replacement Service The Bin Replacement Service entitles Hauler to collect municipal solid waste from the commercial and industrial waste generating sectors using non -compaction vehicles. The residential waste generating sector can only be serviced if hired by a commercial contractor. The Bin Replacement Service prohibits the use of one and one half (1.5) to six (6) cubic yard bins for use in regularly scheduled collection routes of municipal solid waste or recyclables from the commercial waste generating sector pursuant to the City of Santa Clarita Resolution 93-83. SECTION 2. APPLICATION FEE Hauler, upon submission of this Agreement to City Council for approval, shall pay the City $500.00 to reimburse it for attorneys' fees and expenses associated with granting this Agreement. In the event that the City Council shall fail to approve this Agreement, the funds deposited with the City by Hauler shall be returned by City to Hauler. SECTION 3. DEFINITIONS Whenever any term used in this Agreement has been defined by the Santa Clarita Municipal Code or Division 30, Part 1, Chapter 2 of the California Public Resources Code (PRC) §§ 49500 et. spec . and §§ 40100 et sem., the definitions in the Municipal Code or Public Resources Code shall apply unless the term is otherwise defined in this Agreement. A. "AB 939" means the California Integrated Waste Management Act of 1989, codified in part at Public Resources Code §§ 40000 et seq., as it may be amended from time to time and as implemented by the regulations of the California Integrated Waste Management Board. B. "AB 939 Fee" means a line item fee placed on all businesses that generate waste. The fee shall be based on a dollar per ton basis. This fee is authorized through "AB 939." The revenue collected is used to cover City costs of monitoring, reporting, pilot programs and technical assistance. The fee shall not be utilized for any other purpose. C. "Bins" shall mean those containers provided by Hauler for commercial, industrial, recycling, constriction and demolition. Bins are one and one half (1.5) cubic yards to six (6) cubic yards in size. Rolloff containers are ten (10) to forty (40) yards in size. D. 'Bin Replacement Service" means the collection of municipal solid waste from the commercial and industrial sectors using non -compaction vehicles where an empty bin is exchanged for the bin full of solid waste or recyclables at the time of collection. E. 'Bulky Goods" shall mean large and small appliances, furniture, carpets, mattresses, clothing, tires and oversized yard waste such as tree trunks and large branches if no larger than two (2) feet in diameter and four (4) feet in length, furnishings or appliances, including white goods, automobile parts, residential material resulting from building construction, alteration or repair (except asbestos -containing materials), rock, brick, stone, cement, plaster, manure, soil or sod, and similar large items which cannot be placed in a bin furnished to the customer and any item which is impractical for placement in such bin because of weight configuration which protrudes above the water level of such bin. . F. "City Boundaries" shall mean the boundaries of the City together with all amendments and. changes thereto, which boundaries are shown by maps incorporated herein by reference and which are on file in the office of the Clerk of the City Council. G. "Commercial Waste Generating Sector" means the establishments within the City that generate commercial solid waste. H. "Commercial Solid Wastes" shall mean those wastes generated or accumulated by stores, offices, governmental institutions and other commercial sources which are listed in PRC § 49503 as well as Bulky Goods, Compostable Materials, Green Waste, Yard Waste and Industrial Waste as those terms are defined in this Agreement. Commercial Solid Waste does not.include those wastes collected pursuant to the City of Santa Clarita Resolution No. 91-27. I. "Compostable Materials" means Green Waste or Yard Waste which shall include leaves, grass clippings, brush, branches and other forms of organic materials separated trom other solid waste. "Compostable Materials" does not include stumps or branches exceeding four (4) inches in diameter or four (4) feet in length. J. "Construction and Demolition Waste" means the discarded building materials, packaging, plaster, rock or brick, drywall, cement and rubble resulting from construction, remodeling, repair and demolition operations on pavements, buildings and other structures (except asbestos -containing materials). K. "Franchise Fee" means the fee or assessment imposed by the City on Hauler because of its status as party to this Agreement, and which, inter alia, is intended to offset the City's expenses in administering this Agreement and to compensate City for damage to its streets, sidewalks, curbs and gutters and other infrastructure resulting from Hauler's exercise of this Agreement. L. "Gross Revenues" shall mean any and all revenue or compensation in any form received, directly or indirectly, by Hauler, its affiliates, subsidiaries, parents and any person or entity in which Hauler has a financial interest from the collection of municipal solid waste pursuant to this Agreement. Such shall, however, be reduced by the amount of any refunds returned to persons by Hauler, provided that their revenue with respect thereto has been included in the computation of gross revenues. Provided further, that "gross revenues" shall not include gross revenues received by Hauler from the collection, processing and. sale of recycled materials. M. "Hazardous Waste" means any hazardous substances or waste materials or mixture of wastes defined as such pursuant to the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq., or the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601 et seq., and all future amendments to either of them, or as defined by the California Environmental Protection Agency or the California Integrated Waste Management Board, or either of them. Where there is a conflict in the definitions employed by two or more agencies having jurisdiction over hazardous or solid waste, the term "Hazardous Waste" shall be construed to have the broader, more encompassing definition. N. "Industrial Waste" means all solid waste and semi-solid waste which results from industrial processes and manufacturing operations. O. "Industrial Waste Generating Sector" means the establishments within the City that generate industrial waste. P. "Intermediate Processing Centers" (IPCs) means facilities that accept source separated recyclable or compostable items and materials. Recyclable items are often received in a mixed (commingled) form. Commingled items are usually sorted manually, contaminants are removed and mechanized equipment is used to prepare materials to buyer specifications. (CIWMB Definition.) Q. "Materials Recovery Facility" (MRF) means a permitted solid waste facility where solid wastes or recyclable materials are sorted or separated by hand or by use of machinery for the purposes of recycling or composting. (CIWMB Definition.) R. "Municipal Solid Waste" means Solid Waste generated or accumulated within the City of Santa Clarita which is designated for collection under this Agreement. S. "Non -Compaction Vehicle" means a vehicle that does not compact the solid waste collected using front, side and rear loading systems or by any other means. T. "Recycling Container" means.a container for the temporary storage and collection of recyclables. U. "Recycling Coordinator" means a person responsible for recycling operations, education and outreach, waste surveys, site specific recycling plans and diversion reporting. V. "Recyclable Material' means materials that are diverted from the landfill and taken to recycling centers, Materials Recovery Facilities and Intermediate Processing Centers and which are collected by Hauler pursuant to this Agreement. W. "Recycled" means the act of having processed or arranged for the processing of recyclable materials into a form suitable for reuse and having marketed those processed materials for a use consistent with the require- ments of AB 939 for recycled materials. The act of marketing does not require that revenue is generated from the processed materials. X. "Regularly Scheduled Collection Routes" means collection of solid waste or recyclables on a fixed Schedule. Y. "Semi -Exclusive Right" means .the right and privilege to arrange for the collection, transportation, recycling, composting and disposal of municipal solid waste through a Bin Replacement Service as described in Section 1 (Grant of a Semi -Exclusive Right and Privilege to Arrange for the Collection, Transportation, Recycling, Composting and Disposal of Municipal Solid Waste Through a Bin Replacement Service). Z. "Residential Premises" means any "single-family or multi -family" dwelling unit which utilizes one or more individual ninety (90) gallon residential type solid waste containers or bins as defined in .this Agreement for the collection of solid waste and recyclables. AA. "Residential Waste Generating Sector" means the area that contains Residential Premises. BB. "Temporarily Scheduled Collection Routes" means collection of solid waste or recyclables not on a fixed Schedule. CC. "White Goods" means appliances such as refrigerators, dishwashers, dryers, water heaters, and all large household appliances. SECTION 4. TERM The term of this Agreement shall be for a base period of three (3) years, commencing on January 1, 1994, and ending on December 31, 1997. Sixty (60) days before the conclusion of the term, a one year extension may be implemented if mutually agreed upon by Hauler and City. SECTION 5. FRANCHISE FEE Each month, Hauler shall pay to City an amount equal to eight percent (8 %) of the Gross Revenues as defined in Section 3L (Gross Revenues) of the preceding month pursuant to this Agreement. Such monthly installment of the Franchise Fee shall be due and payable to the City no later than 3:00 p.m., Pacific time, on the fifteenth (15th) day of the succeeding month. If the monthly installment is not so received by City, interest at the maximum rate allowable by law shall be levied against the Hauler. SECTION 6. LEVELS OF SERVICE A. Collection Collection shall not occur between the hours of 10:00 p.m. and 6:00 a.m. No collection will take place on the following holidays each year: Christmas Day, New Year's Day, Memorial Day, Independence Day, Labor Day, and Thanksgiving Day. Collection must be rescheduled for these days. B. Recycling Coordinator/Government Liaison Hauler is required to have a`staff person responsible for recycling operations, education and outreach, waste surveys, training, site specific recycling plans and diversion reporting. The staff person shall be referred to as the "Recycling Coordinator." SECTION 7. AB 939 REPORTING; PUBLIC OUTREACH Hauler shall be required to cooperate with City to produce solid waste diversion reports and waste stream audits and to implement measures to achieve the City's source reduction, recycling and waste stream diversion goals. Hauler agrees to submit such reports and information by fax or typed format required by the City. These reports are to include, but are not necessarily limited to those listed below. A. Diversion Reports Hauler shall provide a quarterly statement showing the type of material, tonnage and each buyer/user, and net sales. Hauler shall provide a certification statement by responsible official under penalty of perjury. Hauler shall submit quarterly reports (to comply with California Integrated Waste Man- agement Act) using the following quarterly breakdown: First Quarter - January, February and March Second Quarter - April, May and June Third Quarter - July, August and September Fourth Quarter - October, November and December On or before January 15 of each year, Hauler shall submit a year-end annual report to include a collated summary of the information contained in the quarterly reports and a discussion of highlights and other noteworthy experiences, along with measures taken to resolve problems, increase efficiency, and increase participation. B. Disposal Reports Hauler shall retain copies of landfill dump slips for each load disposed of from the City. Hauler shall submit quarterly reports on Municipal solid waste landfilled using the following quarterly breakdown: First Quarter - January, February and March Second Quarter - April, May and June Third Quarter - July, August and September Fourth Quarter - October, November and December C. Submittal of Reports Reports shall be submitted to: Director of Public Works City of.Santa Clarita 25663 Avenue Stanford Santa Clarita, CA 91355 D. Marketing of Recyclables Hauler shall be responsible for marketing and sale of all recyclables collected pursuant to this Agreement and Hauler shall retain all revenues from the sales of these materials. All sale prices, volumes, terms and purchasers shall be reported to the City. SECTION 8. OWNERSHIP OF MUNICIPAL SOLID WASTE AND RECYCLABLES Ownership and the right to possession of municipal solid waste, compostable materials and recyclable materials placed in containers, bins or bundles for collection shall transfer directly from the service recipient to Hauler by operation of state law, when the service recipient surrenders ownership by placing municipal solid waste or recyclables in Hauler's container or bin for collection. At no time does the City obtain any right of ownership or possession of municipal solid waste placed for collection, and nothing in this Agreement shall be con- strued as giving rise to any inference that City has any such rights. The City retains the right to direct that a portion of or all of any one or more recyclables collected under the program be delivered to specific locations or purchasers for any purpose including but not limited to pilot testing materials markets, achieving the highest and best use of materials, and meeting California Integrated Waste Management Act. - In the event that the City exercises the right to direct materials, Hauler will be compensated at a rate to be determined by agreement. - In the event the City exercises its right to direct materials, Hauler will retain responsibility for the quality of collected recyclables. SECTION 9. COMPLIANCE WITH LAWS AND REGULATIONS Hauler warrants that it will comply with all applicable laws, including implementing regulations, as they from time -to -time may be amended, specifically including but not limited to the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601 et. §e q., the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901, et seq., the California Integrated Waste Management Act, and all other applicable laws of the State of California, the County of Los Angeles, ordinances of the City, the requirements of Local Enforcement Agencies and other agencies with jurisdic- tion. SECTION 10. BILLING Bills to service recipients shall be itemized showing charges for landfill collection and disposal, and recyclable materials collection and processing. Upon approval by the City Manager or his appointee, the portion of a customer's bill attributable to the Agreement Franchise Fee may be designated as a separate item on customers' bills. SECTION 11. PRIVACY Hauler shall strictly observe and protect the rights of privacy of customers. Information identifying individual customers or the composition or contents of a customer's Municipal solid waste or recyclables shall not be revealed to any person, governmental unit, private agency or company unless upon the authority of a court of law, by statute, or upon valid authorization of the customer. This provision shall not be construed to preclude Hauler from preparing, participating in or assisting in the preparation of waste characterization studies or waste stream analyses which may be required by AB 939. Hauler shall not market or distribute mailing lists with the.names and addresses of customers unless approved by the Director of Public Works. The rights accorded customers pursuant to this Section shall be in addition to any other privacy rights accorded customers pursuant to federal or state law. SECTION 12. SERVICE EXCEPTIONS - HAZARDOUS WASTE NOTIFICATIONS When solid waste is not collected from any solid waste customer, Hauler shall notify its customer in writing, at the time collection is not made, and why the collection was not made. Hauler has represented to City that Hauler will carry out its duties to notify all agencies with jurisdiction, including the California Department of Toxic Substances Control and Local Emergency Response Providers, and if appropriate, the National Response Center, of reportable quantities of hazardous waste found or observed in solid -waste anywhere within the City including on, in, under or about City property including streets, easements, rights-of-way and City waste containers. In addition to other required notifications, if Hauler observes any substances which it or its employees reasonably believe or suspect to contain hazardous wastes unlawfully disposed of or released on City property including streets, storm drains or public rights-of-way, Hauler also will immediately notify the City Manager, or the City Manager's designee. SECTION 13. INDEMNIFICATION AND INSURANCE A. Indemnification of City Hauler agrees that it shall protect, defend with counsel selected by City, and Hauler.shall indemnify and hold harmless City, its officers; employees and agents from and against any and all losses, liabilities, fines, penalties, claims, damages, liabilities or judgments, including attorneys fees arising out of or resulting in any way from City's granting of this Agreement to Hauler or Hauler's exercise of the Agreement, unless such claim is due to the sole negligence or willful acts of the City, its officers, employees, agents or contractors. Subject to the scope of this indemnification and upon demand of. the City, made by and through the City Attorney, Hauler shall protect City from and appear in and defend the City and its officers, employees and agents in any claims or actions, whether judicial, administrative or otherwise arising out of the exercise of the Agreement. B. AB 939 Indemnification The parties acknowledge and agree that the California Public Resources Code requires the City to develop and implement a Solid Waste Management Plan. Hauler shall cooperate with the City and/or the City's AB 939 consultant in collecting and transmitting such information and data as may be required for the preparation and implementation of this plan. To the extent that Hauler has control of a share of the City's Municipal solid waste and recyclable stream, Hauler guarantees to City that it will achieve the AB 939 diversion goals and assumes responsibility for payment of proportionate fines and penalties imposed by the State on the City should said diversion goals not be achieved to the State's satisfaction. Hauler shall make a commitment to separate recyclables from non-recyclables. In tum, and as a 10 condition to Hauler providing such aforementioned guarantee, City agrees to cooperate in good faith with the Hauler to facilitate Hauler's compliance with said goals. Such actions shall include, but not be limited to, the consideration of adoption and enforcement by the City of necessary ordinances, local regulations and other administrative and legislative acts to insure business owners' cooperation in compliance with Hauler's programs. In addition, and as a further condition to Hauler providing such aforementioned guarantee, the City agrees to cooperate with Hauler in approving and implementing local resource recovery and waste diversion programs proposed by Hauler to comply with the State mandate. C. Hazardous Substances Indemnification Hauler shall indemnify, defend with counsel selected by City and Hauler, protect and hold harmless City, its officers, employees, agents, assigns and any successor or successors to City's interest from and against all claims, actual damages (including but not limited to special and consequential damages), natural resources damages, punitive damages, injuries, costs, response, remediation and removal costs, losses, demands, debts, liens, liabilities, causes of action, suits, legal or administrative proceedings, interest, fines, charges, penalties and expenses (including but not limited to attorneys' and expert witness fees and costs incurred in connection with defending against any of the foregoing or in enforcing this indemnity) of any kind whatsoever paid, incurred or suffered by, or asserted against City or its officers, employees, or agents arising from or attributable to any repair, cleanup or detoxification, or preparation and implementation of any removal, remedial, response, closure or other plan (regardless of whether undertaken due to governmental action) concerning any hazardous substance or hazardous wastes at any place where Hauler transfers, transports, stores or disposes of Municipal Solid Waste pursuant to this Agreement, or Solid Waste has otherwise come to be located, or its activities pursuant to this Agreement otherwise result in a release of hazardous substances into the environment. The foregoing indemnity is intended to operate as an agreement pursuant to § 107(e) of the Comprehensive Environmental Response, Compensation and Liability Act, "CERCLA", 42 U.S.C. § 9607(e), and California Health and Safety Code § 25364, to defend, protect, hold harmless and indemnify City from liability pursuant to performance under this Agreement. D. AB 939 Obligations of City City agrees to comply with its statutory duties and obligations with respect to planning for the collection, transportation, recycling and disposal of Municipal solid waste, imposed by AB 939 (Public Resources Code Section 40000, et.,) as it may, from time -to -time be amended. The indemnification and defense provisions of Section 13A (Indemnification of City) and Section 13B (AB 939 Indemnification) shall not apply if City fails to carry out its statutory duties imposed by AB 939 (Public Resources Code Section 40000, et.,) as it may, from time -to -time be amended to plan for the safe disposal of Municipal solid waste. E. Workers' Compensation Insurance Hauler shall obtain and maintain in full force and effect throughout the entire term of this Agreement full workers' compensation insurance in accordance with the provisions and requirements of the Labor Code of the State of California. Endorsements that implement the 11 required coverage shall be filed and maintained with the City Clerk throughout the term of this Agreement. The policy providing coverage shall be amended to provide that the insurance shall not be suspended, voided, cancelled, reduced in coverage or in limits except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to City. The policy shall also be amended to waive all rights of subrogation against the City, its elected or appointed officials, employees, or agents for losses which arise from work performed by the named insured for the City. F. General Liability Insurance Hauler shall obtain and maintain in full force and effect throughout the entire term of this Agreement a Broad Form Comprehensive General Liability (occurrence) policy with a minimum limit of ONE MILLION DOLLARS ($1,000,000.00) aggregate and ONE MILLION DOLLARS ($1,000,000.00) per occurrence for bodily injury and property damage with any self-insured retention not exceeding $100,000.00 per occurrence. Said insurance shall protect Hauler and City from any claim for damages for bodily injury including accidental death, as well as from any claim for property damage which may arise from operations performed pursuant to this Agreement, whether such operations be by Hauler itself or by its agents; employees and/or subcontractors. Copies of the policies or endorsements evidencing the above required insurance coverage shall be filed with the City Clerk. The following language is required to be made a part of all of the insurance policies required by this Section: 1. "The City of Santa Clarita, is hereby added as insureds as respects liability arising out of activities performed by or on behalf of Hauler." 2. "This policy shall be considered primary insurance as respects any other valid and collectible insurance the City may possess including any self-insured retention the City may have, and any other insurance the City does possess shall be considered excess insurance and shall not contribute with it." 3. "This policy shall act for each insured, as though a separate policy had been written for each. This, however, will not act to increase the limit of liability of the insuring company." 4. "Thirty (30) days prior written notice by certified mail, return receipt requested, shall be given to the City in the event of suspension, cancellation, reduction in coverage or in limits or non -renewal of this policy for whatever reason. Such notice shall be sent to the City Clerk." 12 The insurance required by this.Agreement shall be with insurers which are California - admitted. The limits of. such insurance coverage, and companies, shall be subject to review and approval by the City Manager every year and may be increased at that time to match the coverage provided by the City's own liability insurance policy. The City shall be included as a named insured on each of the policies or policy endorsements. G. Evidence of Insurance Coverage; Insurance Repository Contemporaneously with the execution of this Agreement, Hauler shall deposit copies of insurance policies or endorsements evidencing the existence of policies of insurance required pursuant to this Agreement. City agrees to establish an insurance policy repository and to maintain copies of insurance policies required pursuant to this Agreement for one hundred years (100 years) after the end of the collection period covered by this Agreement, and to notify City's Risk Manager and City Attorney before destroying copies of such policies. This provision shall survive the termination of this Agreement. SECTION 14. HAULER'S BOOKS AND RECORDS; AUDITS. Hauler shall maintain all records relating to the services provided hereunder, including but not limited to customer lists, billing records, maps, and AB 939 records for the full term of this Agreement and an additional period of not less than three (3) years, or any longer period required by law. The City shall have the right, upon ten (10) business days advance notice, to inspect and audit all records relating to this Agreement, including, but not limited to, customer lists, billing records, maps, and AB 939 records. Such records shall be made available to City at Hauler's regular place of business, but in no event outside the County of Los Angeles. Should any examination or audit of Hauler's records reveal an underpayment of any fee required under this Agreement, the amount of such underpayment shall become due and payable to City no later than thirty (30) days after written notice of such underpayment is sent to Hauler by City. Should an underpayment of more than three percent (3l) be discovered, Hauler shall bear the entire cost of the accounts receivable audit. Hauler shall locally maintain current, accurate and complete financial records in accordance with the Hauler's regularly maintained method of accounting relating to Agreement opera- tions, including original ledgers, journals, accounts, and records in which are recorded entries reflecting its activities hereunder, as well as supporting documents such as bank statements, cancelled checks, bank account reconciliations, tax returns, contracts, employee files, time records, invoices, and receipts. All accounts shall be maintained in accordance with Generally Accepted Accounting Principles. Notwithstanding anything to the contrary herein, the City shall have the right during normal business hours, and upon reasonable notice, to inspect all financial records pertaining to any City contract related account and any other records of Hauler reasonably and directly neces- sary for City administration of its right of review, approval or enforcement by this Agreement. 13 In addition to the foregoing, City shall have the right, for a period of three years following the delivery of an Auditor's report and.financial statements, at no expense to the City, during normal business hours and upon reasonable notice, to inspect for the purpose of audit all fmancial and other records of Hauler concerning its operation pursuant to this Agreement. SECTION 15. CITY'S SOURCE REDUCTION AND RECYCLING ELEMENT; INCORPORATION BY REFERENCE During the term of this Agreement Hauler, at no expense to City, is willing to assist the City with information and reports required by City to meet its reporting obligations imposed by AB 939 as amended, the regulations implementing AB 939, and to comply with the guidelines in the City's Source Reduction and Recycling Element, with respect to the waste stream covered by this Agreement in a manner approved by City. Hauler agrees to submit such reports and information by fax or typed format required by the City. Hauler agrees to comply with the guidelines of City's Source Reduction and Recycling Element and agrees that City's Source Reduction and Recycling Element, as it may be amended from time -to -time, shall be deemed conclusively to comply with the requirements of AB 939. Upon adoption, City's Source Reduction and Recycling Element, by this reference, shall be deemed to be incorporated into, and to constitute an amendment to this Agreement. Costs incurred by Hauler in complying with this provision shall be incorporated in the annual rate review process. SECTION 16. CUSTOMER SERVICE A. General Hauler shall collect, transport, recycle, compost and dispose of Municipal solid waste, compostable materials and recyclable materials pursuant to this Agreement. B. Office Hours Hauler's office hours shall be, at a minimum, from 8:00 a.m. to 5:00 p.m. Monday through Friday. Hauler shall also maintain an after hours telephone answering machine for use during other than normal business hours. Hauler shall be accessible by a Santa Clarita phone number. SECTION 17. TERMINATION This right of termination is in addition to any other rights of City upon a failure of Hauler to perform its obligations under this Agreement. The City further reserves the right to terminate this Agreement in the event of any of the following of this Agreement: 1. If Hauler practices or attempts to practice, any fraud or deceit upon the City or practiced any fraud or deceit or made any intentional misrepresentations in 14 the negotiations which preceded the execution of this Agreement; If Hauler becomes insolvent, unable or unwilling to pay its debts, or upon listing of an order for relief in favor of Hauler in a bankruptcy proceeding; 3. If Hauler fails to provide or maintain in full force and effect, the workers compensation, liability and indemnification coverage as required by the Agreement; 4. If Hauler willfully violates any orders or rulings of any regulatory body having jurisdiction over Hauler relative to this Agreement, provided that Hauler may contest any such orders or rulings by appropriate proceedings conducted in good faith, in which case no breach of the Agreement shall be deemed to have occurred until a final decision adverse to Hauler is entered; 5.. If Hauler ceases to provide collection service as required under this Agreement over all or a substantial portion of its Permit Area for a period of seven (7) days or more, for any reason within the control of Hauler; 6. If Hauler willfully fails to make any payments required under the Agreement and/or refuses to provide City with required information, reports and/or test results in a timely manner as provided in the Agreement; Any other act or omission by Hauler which materially violates the terms, conditions or requirements of the Agreement and which is not corrected or remedied within the time set in the written notice of the violation or, if Hauler cannot reasonably correct or remedy the breach within the time set forth in such notice, if Hauler should fail to commence to correct or remedy such vio- lation within the time set forth in such notice and diligently effect. such cor- rection or remedy thereafter. SECTION 18. PERMIT TRANSFERABLE; CITY CONSENT REQUIRED A. Right to Transfer The permit granted by this Agreement shall not be transferred, sold, hypothecated, sublet or assigned, nor shall any of the rights or privileges herein be hypothecated, leased, assigned, sold or transferred, either in whole or in part, nor shall title thereto, either legal or equitable, or any right, interest or. property therein, pass to or vest in any person, either by act of Hauler or by operations of law, without the prior written consent of the City expressed by resolution. For purposes of this Agreement, any dissolution, merger, consolidation or other reorganization of Hauler or the We or other transfer of an accumulative fifty percent (50%) or more of the voting stock shall be deemed an assignment of this Agreement. Any attempt by Hauler to assign this Agreement without the consent of City shall be void. 15 If Hauler attempts to transfer the Agreement prior to obtaining City consent, all of the profits or ten percent (10%) of the Gross Revenues, from the date of attempted transfer until the date of City consent, whichever is greater, shall be returned to the customers, on a pro rata basis. The City shall not unreasonably withhold its consent to a transfer of the permit granted by this Agreement. The City may impose reasonable conditions of approval on a transfer, including, but not limited to conditions requiring the payment of a transfer fee to the City. B. Material Breach Any change in control of Hauler occurring without prior City approval shall constitute a material breach of this -Agreement. C. Minimum of Five Haulers City has granted to Santa Clarita Disposal Company, Atlas Refuse Removal Company, Crown Disposal, A Trojan Disposal, Rent -A -Bin, Cal Coast Recycling, Larey Rubbish Pick - Up Service Inc., Lopez Rubbish Disposal Inc., AWM Disposal Service, Hi -Waste Disposal, American Waste Industries, and Empire Disposal (collectively "the Haulers") a semi - exclusive right and privilege to arrange for the collection, transportation, recycling, composting and disposal of municipal solid waste through a Bin Replacement Service. Any of the Haulers may sell or otherwise transfer its semi -exclusive right to a third party or one of the other haulers by seeking consent to do so from the City as provided for in Section 18A (Right to Transfer) and Section 18B (Material Breach) of this Agreement. Provided, however, that should one of the Haulers seek to sell or otherwise transfer its semi -exclusive right to another of the Haulers, City shall have the right to ensure that there are a minimum of five Haulers throughout the term of this Agreement. Thus, should one or several of the Haulers buy or otherwise acquire the semi -exclusive rights of the remaining Haulers, so that less than five Haulers remain, City may at the sole discretion of the City Council grant another semi -exclusive right on the same terms and conditions of this Agreement to another hauler. SECTION 19. PERMIT TRANSFER; FEES Any application for a permit transfer shall be made in a manner prescribed by the Director of Public Works. The application shall include a transfer fee in an amount to be set by City by Resolution of the City Council, to cover the anticipated cost of all direct and indirect administrative expenses including consultants and attorneys, necessary to adequately analyze the application and to reimburse City for all direct and indirect expenses. In addition, Hauler shall reimburse the City for all consultants', attorneys,' and staff costs not covered by the transfer fee not to exceed five thousand dollars ($5,000). City's request for reimburse- ment shall be supported with evidence of the expense or cost incurred. The applicant shall pay such bills within thirty (30) days of receipt. 16 SECTION 20. GENERAL PROVISIONS A. AB 939 This Agreement is part of the City's efforts to comply with the provisions of the California Integrated Waste Management Act of 1989, ("AB 939") as it from time -to -time may be amended and as implemented by the regulations of the California Integrated Waste Manage- ment Board ("Regulations"), as they from time to time may be amended, and the City's Source Reduction and Recycling Element, as it may be amended from time to time. In the event that AB 939 or other state,or federal laws or regulations enacted after this Agreement has been executed, prevent or preclude compliance with one or more provisions of this Agreement, such provisions of the Agreement shall be modified or suspended as may be necessary to comply with such state or federal laws or regulations. B. Amendment Except as otherwise provided in this Agreement, no other amendment of this Agreement shall be valid unless in writing duly executed by the parties. C. Failure to Report The refusal or failure of Hauler to file any of the reports required, or to provide required information to City, or the inclusion of any false or intentionally misleading statements or representations by Hauler in such report shall entitle the City to all remedies specified iri this Agreement. D. Force Majeure Hauler shall not be in default under this Agreement in the event that the collection, transpor- tation, recycling, composting, and disposal services of Hauler are temporarily interrupted for any of the following reasons: riots, war or national emergency declared by the President or Congress and affecting the City of Santa Clarita, sabotage, civil disturbance, insurrection, explosion, natural disasters such as floods, earthquakes, landslides and foes, strikes, lockouts and other labor disturbances; or other catastrophic events which are beyond the reasonable control of Hauler. "Other catastrophic events" does not include the financial inability of Hauler to perform or failure of Hauler to obtain any necessary permits or licenses from other governmental agencies or the right to use the facilities of any public utility where such failure occurs despite the exercise of reasonable diligence by Hauler. E. Identification Required Hauler shall provide its employees and representatives with identification for all individuals who may make personal contact with residents of the City. 17 F. Independent Contractor Hauler is an independent contractor and not an officer, agent, servant or employee of City. Hauler is solely responsible for the acts and omissions of its officers, agents, employees, contractors and subcontractors, if any. Nothing in this Agreement shall be construed as creating a partnership or joint venture between City and Hauler. Neither Hauler nor its officers, employees, agents or subcontractors shall obtain any rights to retirement or other benefits which accrue to City employees. G. Joint Drafting This Agreement was drafted jointly by the parties to this Agreement. H. Law to Govern; Venue The law of the State of California shall govern this Agreement. In the event of litigation between the parties, venue in state trial courts shall lie exclusively in the County of Los Angeles. In the event of litigation in a U.S. District Court exclusive venue shall lie in the Central District of California. L Notices. All notices required or permitted to be given under this Agreement shall be in writing and shall be personally delivered or sent by telecopier or United States certified mail, postage prepaid, return receipt requested, addressed as follows: To City: City Manager City of Santa Clarita 23920 Valencia Blvd., Suite. 300 Santa Clarita, California 91355 Telecopier Number (805) 259-8125 Copy to: Director of Public Works/Integrated Waste Management Coordinator City of Santa Clarita 25663 Avenue Stanford Santa Clarita, California 91355 Telecopier Number (805) 294-2517 And to: City Attorney City of Santa Clarita c/o Burke, Williams & Sorensen 611 West 6th Street, 25th Floor Los Angeles, CA 90017 Telecopier Number (213) 236-2700 is To (Hauler Name) Telecopier Copy to: Hauler's Attorney or to such other address as either party may from time to time designate by notice to the other given in accordance with this Section. Notice shall be deemed effective on the date personally served or sent by telecopier or, if mailed, three (3) business days from the date such notice is deposited in the United States mail. I Pavement Damage Hauler shall be responsible for any extraordinary damage to City's driving surfaces, whether or not.paved, resulting from the illegal weight of vehicles providing Municipal solid waste collection services at the location of bins and containers on public property. This Agreement does not purport to affect in anyway Hauler's civil liability to any third parties. K. Property Damage Any physical damage caused by the negligent or willful acts or omissions of employees of Hauler to public property shall be repaired or replaced by Hauler at Hauler's sole expense. This Agreement does not purport to affect, in any way, Hauler's civil liability to any third parties. L. Reasonable Determinations Where any provision of this Agreement requires the consent or approval of either party, such consent or approval shall not be unreasonably or arbitrarily withheld. Where any provision of this Agreement requires the action of either party, such action must be reasonable in nature. M. Right of Entry Hauler shall have the right, until receipt of written notice revoldng permission to pass is delivered to Hauler, to enter or drive on any private streets, court,. place, easement or other private property for the purpose of collecting or transporting Municipal solid waste pursuant to this Agreement. N. Savings Clause and Entirety If any non -material provision of this Agreement shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of such provision shall not affect the validity and enforceability of any of the remaining provisions of this Agreement. 19 O. Submittal of Reports Reports shall be submitted to: Director of Public Works City of Santa Clarita 25663 Avenue Stanford Santa Clarita, California 91355 20 WIINFSS the execution of this Agreement on the day and year written above. ATTEST: Donna M. Grindey, City Clerk APPROVED AS TO FORM: Carl Newton, City Attorney CITY OF SANTA CLARITA Jan Heidt, Mayor CITY OF SANTA CLARITA George Caravalho, City Manager HAULER COMPANY NAME M 21 ACKNOWLEDGMENT STATE OF CALIFORNIA ss COUNTY OF LOS ANGELES On before me personally appeared personally known to me or proved to be the person who executed the within instrument entitled AGREEMENT BETWEEN THE CITY OF SANTA CLARITA AND ( ) FOR THE COLLECTION, TRANSPORTATION, RECYCLING, COMPOSTING AND DISPOSAL OF MUNICIPAL SOLID WASTE THROUGH A BIN REPLACEMENT SERVICE on behalf of ,a California corporation, and acknowledged to me that such execution was pursuant to its bylaws or a resolution of its board of directors. DATE: CORPORATE SEAL 22