2020/04/01 USA Waste of California, Inc. Amended and Restated Franchise Agreement USA Waste of California, Inc., dba Waste Management of the Inland Empire for Solid Waste Hanlding ServicesAMENDED AND RESTATED
FRANCHISE AGREEMENT
BETWEEN
CITY OF MENIFEE
AND
USA WASTE OF CALIFORNIA, INC., dba WASTE
MANAGEMENT OF THE INLAND EMPIRE
FOR
SOLID WASTE HANDLING SERVICES
EFFECTIVE APRIL 1, 2020
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SECTION 1. RECITALS; AMENDMENT AND RESTATEMENT OF ORIGINAL
AGREEMENT 2
SECTION2. DEFINITIONS......................................................................................................2
2.1 AB 341..................................................................................................................2
2.2 AB 939..................................................................................................................2
2.3 AB 1594................................................................................................................2
2.4 AB 1826................................................................................................................2
2.5 Affiliate.................................................................................................................3
2.6 Animal Waste........................................................................................................3
2.7 Applicable Laws....................................................................................................3
2.8 Billings..................................................................................................................3
2.9 Bins.......................................................................................................................3
2.10 Bulky Items...........................................................................................................3
2.11 CalRecycle............................................................................................................4
2.12 Cart........................................................................................................................4
2.13 City........................................................................................................................4
2.14 City Council..........................................................................................................4
2.15 City Limits............................................................................................................4
2.16 City Manager.........................................................................................................4
2.17 Collect/Collection/Collecting...............................................................................
2.18 Collection Vehicle.................................................................................................5
2.19 Commercial Customers.........................................................................................5
2.20 Commercial Premises............................................................................................5
2.21 Construction and Demolition (C&D) Waste.........................................................5
2.22 Container...............................................................................................................5
2.23 Contractor..............................................................................................................5
2.24 Curbside................................................................................................................6
2.25 Customer...............................................................................................................6
2.26 Dwelling Unit........................................................................................................6
2.27 Effective Date........................................................................................................6
2.28 Environmental Laws.............................................................................................6
2.29 Exempt Waste.......................................................................................................6
2.30 Food Waste............................................................................................................7
2.31 Franchise Area.......................................................................................................7
2.32 Franchise Fee.........................................................................................................7
2.33 Green Waste..........................................................................................................7
2.34 Gross Receipts.......................................................................................................7
2.35 Hazardous Substance.............................................................................................8
2.36 Hazardous Waste...................................................................................................8
2.37 Indemnified Parties...............................................................................................8
2.38 Multi -Family Dwelling........................................................................................9
2.39 Municipal Code.....................................................................................................9
2.40 NPDES..................................................................................................................9
2.41 Organics................................................................................................................9
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2.42 Original Agreement...............................................................................................9
2.43 Overage.................................................................................................................9
2.44 Person....................................................................................................................9
2.45 Premises..............................................................................................................10
2.46 Recyclable Material.............................................................................................10
2.47 Recycling Bin......................................................................................................10
2.48 Recycling Cart.....................................................................................................10
2.49 Recycling Container............................................................................................10
2.50 Responsible Customer.........................................................................................10
2.51 Rolloff Box..........................................................................................................10
2.52 SB 1383...............................................................................................................10
2.53 Single Family Dwelling......................................................................................1 1
2.54 Solid Waste.........................................................................................................1 1
2.55 Solid Waste Handling Services...........................................................................1 1
2.56 Temporary Service..............................................................................................1 1
2.57 Term....................................................................................................................1 1
2.58 Transformation....................................................................................................II
SECTION 3. GRANT OF EXCLUSIVE FRANCHISE FOR SOLID WASTE
HANDLING SERVICES FROM ALL PREMISES, AND FOR
PROVIDING TEMPORARY SOLID WASTE HANDLING SERVICE .......... 12
3.1 Scope of Franchise..............................................................................................12
3.2 Matters Excluded from Scope of Franchise........................................................12
SECTION 4. ENFORCEMENT OF EXCLUSIVITY..............................................................13
SECTION 5. ACCEPTANCE; WAIVER.................................................................................14
SECTION6. TERM..................................................................................................................14
SECTION 7. CONDITIONS TO EFFECTIVENESS OF AGREEMENT..............................14
7.1 Accuracy of Representation................................................................................14
7.2 Absence of Litigation..........................................................................................14
7.3 Furnishing of Insurance and Bonds, and Corporate Guarantee ..........................15
7.4 Effectiveness of City Council Action..................................................................15
7.5 Payment of Fees and Costs..................................................................................15
SECTION 8. SOLID WASTE HANDLING SERVICES PROVIDED BY
CONTRACTOR.................................................................................................. 15
8.1 General................................................................................................................15
8.1.1 Equipment...............................................................................................15
8.1.2 Performance Standards............................................................................15
8.1.3 Noise and Disruption...............................................................................15
8.1.4 Collection Times.....................................................................................15
8.1.5 Collection Schedule.................................................................................16
8.1.6 Commingling of Routes..........................................................................16
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8.1.7
Replacement of Containers.....................................................................16
8.1.8
Contractor's Containers...........................................................................16
8.1.9
Missed Pick-ups......................................................................................18
8.1.10
Record of Non-collection........................................................................18
8.1.11
Contaminated Recyclable Materials and Organic Waste
Containers................................................................................................18
8.2
Single
Family Dwelling Waste Handling Service...............................................19
8.2.1
Single Family Dwelling — Automated Collection...................................19
8.2.2
Valet Service...........................................................................................20
8.2.3
Single Family Dwelling Recycling Program..........................................20
8.2.4
Curbside Food Waste Collection Program..............................................21
8.2.5
Green Waste Program for Single Family Dwellings Using Carts ...........
21
8.2.6
Bulky Item Service for Single Family Dwellings...................................22
8.2.7
Bulky Item Diversion..............................................................................22
8.2.8
Proper Handling of Bulky Items.............................................................22
8.2.9
Residential Sharps Collection Program...................................................22
8.2.10
Rolloff Service ....................................... ................23
.................................
8.2.11
Senior Discount.......................................................................................23
8.2.12
Customer -Requested Service Interruptions.............................................23
8.3
Commercial
Solid Waste Handling Services......................................................23
8.3.1
Commercial Bins and Rolloff Boxes (Including for Multi -
Family Dwelling Customers).................................................................23
8.3.2
Commercial Bulky Item Service.............................................................24
8.3.3
Recycling Program for Commercial Premises........................................24
8.3.4
Organic Waste Recycling Program for Commercial Premises ...............25
8.3.5
SB 1383 Organics Recycling Program....................................................26
8.3.6
Scout and Push Out Services...................................................................26
8.3.7
Overage of Containers.............................................................................26
8.4
Other Collection Programs As May Be Required by Law..................................27
8.5
Temporary
Services.............................................................................................28
8.6
Recycling
Obligations and Public Education Program.......................................28
8.6.1
Minimum Requirements for Recyclable Materials, Organic
Waste and Rolloff Boxes.........................................................................28
8.6.2
Extent of Applicable Franchise Rights....................................................29
8.6.3
AB 939 Obligations, Guarantee, and Indemnification ............................29
8.6.4
Waste Generation/Characterization Studies............................................30
8.6.5
Implementation of Additional Diversion Services..................................31
8.7
Additional Services to Single Family Dwellings and Multi -Family
Dwellings............................................................................................................31
8.7.1
Shredding Service...................................................................................31
8.7.2
Holiday Trees..........................................................................................32
8.7.3
Used Oil...................................................................................................32
8.7.4
Home Composting..................................................................................32
8.8
Additional Services to City.................................................................................32
8.8.1
Services at City Premises........................................................................32
8.8.2
Collection at City Sponsored Events.......................................................33
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8.8.3 Fluorescent Lightbulb Collection and Recycling Program for
CityFacilities..........................................................................................33
8.8.4 Used Battery Recycling..........................................................................34
8.8.5 Community Cleanups..............................................................................34
8.8.6 Litter Abatement Partnership..................................................................34
8.8.7 Illegal Dumping.......................................................................................34
8.9 Special Services...................................................................................................34
SECTION 9. MINIMUM STANDARDS FOR CONTRACTOR'S SOLID WASTE
HANDLING SERVICE COLLECTION VEHICLES........................................35
9.1 General................................................................................................................35
9.2 Air Quality/Fuel Requirements...........................................................................35
9.3 Specific Requirements.........................................................................................35
9.4 Costs of Operation and Damages........................................................................38
9.5 City Inspection....................................................................................................38
9.6 Correction of Defects and Removal of Vehicles from Use within City..............38
SECTION 10. CONTRACTOR'S SOLID WASTE HANDLING SERVICE
PERSONNEL......................................................................................................3 8
10.1
Uniforms..............................................................................................................38
10.2
Identification of Employees................................................................................38
10.3
Employee List.....................................................................................................38
10.4
Driver's License..................................................................................................38
10.5
Screening of Field Employees.............................................................................39
10.6
Discontinued Use of Unsatisfactory Employees.................................................39
10.7
Training and Legal Compliance..........................................................................39
10.8
Customer Service................................................................................................39
10.8.1 Office Hours............................................................................................39
10.8.2 Telephone Customer Service Requirements...........................................39
10.8.3 Complaint Documentation......................................................................40
10.8.4 Resolution of Customer Complaints.......................................................40
10.8.5 Government Liaison................................................................................41
10.9
Education and Public Awareness........................................................................41
10.9.1 General....................................................................................................41
10.9.2 Written Program Materials......................................................................41
10.9.3 Public Outreach.......................................................................................42
10.9.4 City Newsletter........................................................................................42
10.9.5 Corrective Action Notice........................................................................42
10.9.6 Contractor Representative.......................................................................42
SECTION 11. CONTRACTOR'S CONSIDERATION.............................................................43
11.1 Consideration for Agreement..............................................................................43
11.2 Franchise Fee.......................................................................................................43
11.3 Administrative Cost Reimbursement; Street Sweeping, and Street
Maintenance/Rehabilitation; Program Implementation Costs ............................43
11.3.1 Administrative Cost Reimbursement......................................................43
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11.3.2 Street Sweeping, and Street Maintenance/Rehabilitation;
Program Implementation Costs...............................................................44
SECTION 12. CHARGE FOR LATE PAYMENTS ....................
................44
SECTION 13. CONTRACTOR'S BILLING SERVICES AND SYSTEMS .............................44
13.1 Billing..................................................................................................................44
13.1.1 Suspension of Service; Tax Roll Collection for Delinquent
Accounts..................................................................................................45
13.2 Minimum Requirements for Billing Statements.................................................45
13.3 Billing System.....................................................................................................46
13.3.1 Computerization of Account Information...............................................46
13.3.2 Minimum Computer Programming Requirements..................................46
13.3.3 Contractor Billing....................................................................................47
13.3.4 Billing Inquiries ............................
13.4 Payment, Accounting Systems............................................................................47
13.4.1 Collection and Processing of Payments..................................................47
SECTION 14. FAITHFUL PERFORMANCE...........................................................................47
14.1 Surety..................................................................................................................47
14.1.1 Forfeiture of Surety.................................................................................48
14.1.2 Use of Surety by City..............................................................................48
SECTION 15.
INSURANCE COVERAGE...............................................................................48
15.1
Minimum Scope of Insurance.............................................................................48
15.2
Minimum Limits of Insurance.............................................................................49
15.2.1 Commercial General Liability.................................................................49
15.2.2 Automobile Liability...............................................................................49
15.2.3 Workers' Compensation and Employers Liability..................................49
15.3
Deductibles and Self -Insured Retentions............................................................49
15.4
Other Insurance Provisions.................................................................................49
15.4.1 General Liability.....................................................................................49
15.4.2 Workers' Compensation and Employers Liability Coverage .................50
15.4.3 Environmental Pollution Control Insurance............................................50
15.4.4 All Coverages..........................................................................................50
15.5
Acceptability of Insurers.....................................................................................50
15.6
Verification of Coverage.....................................................................................50
15.7
Loss or Reduction in Insurance...........................................................................50
SECTION 16. ASSIGNMENT, SUBLETTING, AND TRANSFER;
REQUIREMENTS AND LIMITATIONS..........................................................51
16.1 General................................................................................................................51
16.2 Assignment to be Broadly Interpreted................................................................51
16.3 Nature of Agreement — Personal to Contractor...................................................51
16.4 Procedure for Consideration of Assignment.......................................................52
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SECTION 17. REVIEW OF SERVICES AND PERFORMANCE...........................................53
17.1 Mid Term Detailed Rate Review........................................................................53
17.2 Performance Hearing...........................................................................................53
SECTION 18. CITY'S REMEDIES; DEFAULT AND TERMINATION................................54
18.1
Notice of Default.................................................................................................54
18.2
Failure to Cure.....................................................................................................55
18.3
Review by City Manager.....................................................................................55
18.4
City Council Review...........................................................................................55
18.5
Performance During Reviews.............................................................................55
18.6
Termination without Right to Cure.....................................................................56
18.7
Liquidated Damages............................................................................................57
18.7.1 General....................................................................................................57
18.7.2 Service Performance Standards; Liquidated Damages for
Failure to Meet Standards.......................................................................57
18.7.3 Calculations for Liquidated Damages.....................................................58
18.7.4 Process for Assessment of Liquidated Damages.....................................59
18.7.5 Timing of Payment ...................
SECTION 19. CONTRACTOR'S REMEDIES; ADMINISTRATIVE HEARING..................60
19.1 Administrative Hearing.......................................................................................60
19.2 Other Remedies; Claims......................................................................................61
19.3 Actions for Damages...........................................................................................61
SECTION 20. CITY' S ADDITIONAL REMEDIES.................................................................61
SECTION 21. RIGHTS OF CITY TO PERFORM DURING EMERGENCY .........................62
21.1 Provision of Service............................................................................................62
21.2 Possession of Equipment..............................................................
21.3 Exclusions from Right to Possession of Equipment without
Compensation......................................................................................................62
SECTION 22. PRIVACY
...............................................................62
SECTION 23. REPORTS AND ADVERSE INFORMATION.................................................63
23.1
Quarterly Reports................................................................................................63
23.2
Annual Reports....................................................................................................64
23.3
Format of Reports................................................................................................66
23.4
Adverse Information...........................................................................................66
23.5
Disaster Plan........................................................................................................66
23.6
Failure to Report ..................................................................................................67
SECTION 24. COMPENSATION.............................................................................................67
24.1 Contractor Rates..................................................................................................67
24.2 Resolution of Disputes Regarding Rate Adjustments.........................................67
24.3 Annual Consumer Price Index Adjustments.......................................................67
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24.3.1 Service Component.................................................................................68
24.3.2 Disposal/Green Waste Processing Component.......................................68
24.3.3 City Manager Approval of Rate Increases..............................................68
24.4 Limitations to Annual Adjustments....................................................................68
24.5 Contractor Responsibility to Calculate Rate Adjustments..................................69
24.6 Extraordinary Adjustments................................................................................69
24.6.1 General....................................................................................................69
24.6.2 Contractor Requests for an Extraordinary Adjustment ...........................70
24.6.3 City Denial of Contractor Request for an Extraordinary
Adjustment..............................................................................................70
24.7 Grants..................................................................................................................71
SECTION 25. IDENTIFICATION OF CONTRACTOR...........................................................71
SECTION 26. TRANSPORTATION OF SOLID WASTE.......................................................71
SECTION 27. INDEMNIFICATION.........................................................................................71
27.1 General................................................................................................................71
27.2 Hazardous Substances Indemnification..............................................................72
SECTION 28. CONTRACTOR'S BOOKS AND RECORDS; AUDITS..................................74
28.1 Maintenance and Inspection of Records.............................................................74
28.2 CERCLA Defense Records.................................................................................74
28.3 Ongoing Compliance Review.............................................................................74
28.4 Confidentiality of Contractor's Records.............................................................75
28.5 Audits..................................................................................................................75
28.5.1 Examination of Services..........................................................................75
28.5.2 Route Audit.............................................................................................76
SECTION 29. TRANSITION OBLIGATIONS.........................................................................77
SECTION 30. GENERAL PROVISIONS..................................................................................78
30.1 Force Majeure.....................................................................................................78
30.2 Independent Contractor.......................................................................................78
30.3 Property Damage.................................................................................................78
30.4
Right of Entry......................................................................................................79
30.5
Law to Govern; Venue........................................................................................78
30.6
Amendment.........................................................................................................79
30.7
Notices.................................................................................................................79
30.8
Guarantee of Contractor's Performance..............................................................80
30.9
Savings Clause....................................................................................................80
30.10
Exhibits Incorporated..........................................................................................80
30.11
Joint Drafting.......................................................................................................80
30 12
Attorne s' Fees and Liti ation Costs
80
yg.................................................... I.............
30.13 City's Authorized Agent.....................................................................................80
30.14 Integrated Agreement..........................................................................................80
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30.15 Section Headings.................................................................................................81
30.16 Compliance with Law.........................................................................................81
30.17 No Third Party Beneficiaries...............................................................................81
EXHIBIT A MAXIMUM RATE SCHEDULE FOR SOLID WASTE HANDLING
SERVICES
EXHIBIT B CONTAINER SPECIFICATIONS
EXHIBIT C RECYCLABLES SPECIFICATIONS
EXHIBIT D CORPORATE GUARANTEE
EXHIBIT E CURRENT CITY -SPONSORED COMMUNITY EVENTS
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AMENDED AND RESTATED FRANCHISE AGREEMENT
This AMENDED AND RESTATED FRANCHISE AGREEMENT ("Agreement") is
entered into to be effective as of the 1st day of April 2020, by and between the CITY OF MENIFEE,
a California municipal corporation ("City"), and USA WASTE OF CALIFORNIA, INC., a
Delaware corporation, dba WASTE MANAGEMENT OF THE INLAND EMPIRE
("Contractor") (individually, a "Party," and collectively, the "Parties") to provide an exclusive
franchise for Solid Waste Handling Services within the City.
RECITALS:
A. 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 in the public interest to
authorize and require local agencies to make adequate provision for the disposal of all Solid Waste
within their jurisdictions.
B. Pursuant to California Public Resources Code Section 40059(a)(1), in December
2009, the City Council of the City determined that the public health, safety, and welfare required
that an exclusive franchise agreement be awarded to a qualified solid waste enterprise for Solid
Waste Handling Services within the City Limits.
C. City and Contractor (as USA Waste of California, Inc.) previously entered into that
certain Solid Waste Franchise Agreement, dated December 21, 2010 (the "Original Agreement"),
and the parties now wish to supersede the Original Agreement and enter into this Amended and
Restated Franchise Agreement, to be effective as of April 1, 2020.
D. City and Contractor are mindful of the provisions of the laws governing the safe
collection, transport, recycling, and disposal of Solid Waste, including AB 939, AB 341, the
Resource Conservation and Recovery Act ("RCRA"), and the Comprehensive Environmental
Response, Compensation and Liability Act ("CERCLA"). City and Contractor desire to leave no
doubts as to their respective roles, and to memorialize that by entering into this Agreement, City
is not thereby becoming an "arranger" or a "generator" as those terms are used in CERCLA, and
that it is Contractor, not City, who is "arranging for" the collection, transport for disposal,
composting, and recycling of municipal Solid Waste in the City which may contain hazardous
substances. City and Contractor understand and agree that it is Contractor, and not City, who will
arrange to collect Solid Waste, that City has not, and, by this Agreement does not, instruct
Contractor on its collection methods, nor supervise the collection process, nor do the Parties intend
to place title to such Solid Waste in City, but rather intend that whatever, if any, title in and to such
Solid Waste that otherwise might exist in or with City in the absence of this Agreement is hereby
transferred to Contractor, and further that if Contractor gains title to such Solid Waste it is by
operation of law and agreement with its Customers and is not the result of this Agreement. By
entering into this Agreement City and Contractor further desire to confirm that Contractor has
agreed to indemnify City in connection with any claims relating to the inadvertent or intentional
collection, transportation and/or disposal of hazardous materials that may occur in connection with
Contractor's performance under this Agreement.
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E. Contractor has agreed to provide such services as set forth in this Agreement
designed to ensure City complies with the requirements of laws and regulations applicable to the
proper Collection, processing and disposal of Solid Waste, including without limitation AB 939,
AB 341, AB 1826, SB 1383, and Public Resources Code Section 40000, et seq.
COVENANTS:
Based upon the foregoing Recitals and for good and valuable consideration, the receipt and
sufficiency of which is acknowledged by each of the Parties, City and Contractor hereby agree as
follows:
SECTION 1.
RECITALS; AMENDMENT AND RESTATEMENT OF ORIGINAL AGREEMENT
The Parties acknowledge the above recitals are true and correct and incorporate them herein
as if they were fully restated.
This Agreement fully amends and restates the Original Agreement.
SECTION 2.
DEFINITIONS
Whenever any term used in this Agreement has been defined by the California Public
Resources Code, the definition of such term set forth therein shall apply unless the term is
otherwise defined in this Agreement.
2.1 AB 341
"AB 341" shall mean Assembly Bill 341 from the 2011-2012 Regular Session of the
California Legislature (Chapter 476, Statutes 2011).
2.2 AB 939
"AB 939" shall mean the California Integrated Waste Management Act of 1989, currently
codified as California Public Resources Code Section 40000 et seq., as it may be amended from
time to time.
2.3 AB 1594
"AB 1594" shall mean Assembly Bill 1594 from the 2013-2014 Regular Session of the
California Legislature (Chapter 719, Statutes 2014).
2.4 AB 1826
"AB 1826" shall mean Assembly Bill 1826 from the 2013-2014 Regular Session of the
California Legislature (Chapter 727, Statutes 2014).
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2.5 Affiliate
"Affiliate" shall mean a business in which Contractor owns a direct or indirect ownership
interest, a business (including corporations, limited and general partnerships and sole
proprietorships) which has a direct or indirect ownership interest in Contractor and/or a business
which is also owned, controlled or managed by any business or individual which has a direct or
indirect ownership interest in Contractor. For purposes of determining whether an indirect
ownership interest exists, the constructive ownership provisions of Section 318(a) of the Internal
Revenue Code of 1986, as in effect on the date of this Agreement, shall apply; provided, however,
that (i) "ten percent (10%)" shall be substituted for "fifty percent (50%)" in Section 318(a)(2)(C)
and in Section 318(a)(3)(C) thereof; and (ii) Section 318(a)(5)(C) shall be disregarded. For
purposes of determining ownership under this paragraph and constructive or indirect ownership
under Section 318(a), ownership interest of less than ten percent (10%) shall be disregarded and
percentage interests shall be determined on the basis of the percentage of voting interest or value
which the ownership interest represents, whichever is greater.
2.6 Animal Waste
"Animal Waste" shall mean animal carcasses, dead animals, and/or parts or portions of
dead animals. Animal Waste shall not include manure.
2.7 Applicable Laws
"Applicable Laws" shall mean all federal, state, county, and local laws, regulations, rules,
orders, judgments, decrees, permits, approvals, or other requirements of any governmental agency
having jurisdiction over an aspect of this Agreement that are in force on the Effective Date, and as
may be enacted, issued or amended thereafter, including without limitation City's Municipal Code,
AB 341, AB 939, AB 1594, AB 1826, and SB 1383.
2.8 Billings
"Billings" or "Billing" or "Bill" shall mean the statements of charges provided to
Customers or Responsible Customers for services rendered by Contractor pursuant to the terms of
this Agreement.
2.9 Bins
"Bins" shall mean a Container, including dumpsters, compactors, and any similar such
devices with a capacity of one (1) to six (6) cubic yards.
2.10 Bulk, Items
tems
"Bulky Items" shall mean Solid Waste that cannot and/or would not typically be
accommodated within a Cart or Bin including specifically: furniture (including chairs, sofas,
mattresses, and rugs); appliances (including refrigerators with and without Freon, ranges, washers,
dryers, water heaters, dishwashers, plumbing, small household appliances and other similar items,
commonly known as "white goods"); and bundled residential wastes (including wood waste, tree
branches, scrap wood, in the aggregate not exceeding one cubic yard per Collection). For purposes
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of this Agreement, and notwithstanding any provision hereof to the contrary, Bulky Items shall
specifically include items commonly known in the waste industry as "brown goods" and "e-waste"
(including, without limitation all types of electronic waste, stereos, televisions, computers and
monitors, cellular phones, VCRs, microwaves and other similar type of equipment and products).
Bulky Items do not include car bodies, Construction and Demolition (C&D) Waste, Hazardous
Waste, or (with the exception of appliances/white goods described above) items that cannot
reasonably and safely be loaded and unloaded into a vehicle by two people using equipment of the
type which, pursuant to industry standards, would normally be carried in a vehicle used in
Collecting Bulky Items. In the event a question arises as to whether a specific item, or category
of items meets the definition of Bulky Items, City shall be responsible to determine whether said
definition shall apply, which determination shall be final and binding on the Parties.
2.11 CalRecvcle
"CalRecycle" shall mean the State of California Department of Resources Recycling and
Recovery, the department within the State Natural Resources Agency responsible for the
administration of the Integrated Waste Management Act of 1989, California Public Resources
Code Section 40000 et seq. ("Act"), or any successor department or agency created or designated
for such purpose pursuant to the Act.
2.12 Cart
"Cart" shall mean a plastic Container with a hinged lid and wheels serviced by an
automated or semi -automated process, as opposed to a manual process of lifting and dumping.
2.13 City
"City" shall mean the City of Menifee, a municipal corporation, located in Riverside
County, California.
2.14 City Council
"City Council" shall mean the City Council of City.
2.15 City Limits
"City Limits" shall mean the territorial boundaries of the City together with all amendments
and changes thereto, which boundaries are depicted on maps, incorporated herein by reference,
that are kept on file in the office of the City Clerk of the City of Menifee, and which are from time
to time amended to reflect changes.
2.16 City Matiager
"City Manager" shall mean the City Manager of the City of Menifee or his or her designee.
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2.17 Collect/Collection/Collecting
"Collect," "Collection," or "Collecting" shall mean to take physical possession of,
transport, and remove Solid Waste from a Premises.
2.18 Collection Vehicle
"Collection Vehicle" shall have the meaning ascribed in Section 9 of this Agreement.
2.19 Commercial Customers
"Commercial Customers" shall mean Customers at Commercial Premises, including Multi -
Family Dwellings receiving Solid Waste Handling Services via Bins.
2.20 Commercial Premises
"Commercial Premises" shall mean Premises upon which business activity is conducted,
including but not limited to retail sales, wholesale operations, manufacturing, assembling, storage,
industrial operations, and services, including, but not limited to, professional services, hospitality
services, and restaurant and food services, but excluding Single Family Dwellings upon which
business activities are conducted when such activities are permitted under applicable zoning
regulations and are not the primary use of the property. Multi -Family Dwellings receiving Solid
Waste Handling Services via Bins shall be deemed Commercial Premises. Notwithstanding any
provision to the contrary herein, in the Municipal Code, or otherwise, for purposes of this
Agreement and to the extent permitted by Applicable Law, Premises upon which assisted living
facilities, community care facilities (and other similar types of facilities), hotels, and motels are
operated shall be deemed to be Commercial Premises.
2.21 Construction and Demolition (C&D) Waste
"Construction and Demolition (C&D) Waste" shall mean Solid Waste generated,
produced, or discarded in connection with construction, demolition, landscaping, land clearing, or
general clean-up activities within the City, including, but not limited to, concrete, plaster, drywall,
green waste, wood, wood scraps, dirt, rock and rubble, without regard to whether such materials
are Recycled.
2.22 Container
"Container" shall mean any and all types of Solid Waste receptacles, including but not
limited to Carts and Bins.
2.23 Contractor
"Contractor" shall mean USA Waste of California, Inc., a Delaware corporation, dba Waste
Management of the Inland Empire, the entity granted the franchise pursuant to this Agreement, or
any party permitted pursuant to the terms hereof to become the successor or assignee thereof.
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2.24 Curbside
"Curbside" shall mean a location for placement of Containers along a publicly available
right of way that provides for safe and efficient access by a Collection Vehicle, which generally
includes the sidewalk or in the street gutter, against the curb, in front of their Premises, or adjacent
to their Premises in the alley or easement in the rear of their Premises.
2.25 Customer
"Customer" or "Customers" shall mean any Person receiving Solid Waste Handling
Services from Contractor within the Franchise Area.
2.26 Dwelling Unit
"Dwelling Unit" shall mean one or more rooms designed for occupancy by one family for
living and sleeping purposes and containing kitchen facilities or an area designed for the
preparation of food for use solely by one family.
2.27 Effective Date
"Effective Date" shall mean the 1st day of April 2020.
2.28 Environmental Laws
"Environmental Laws" shall mean all federal and state statutes, county, local and City
ordinances concerning public health, safety and the environment including, by way of example
and not limitation, the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, 42 USC §9601 et seq.; the Resource Conservation and Recovery Act, 42 USC §6901
et seq.; the Federal Clean Water Act, 33 USC §1251 et seq.; the Federal Clean Air Act, 42 USC
§7401 et sea.; the Toxic Substances Control Act, 15 USC §2601 et seq.; the Occupational Safety
and Health Act, 29 USC §651 et sea.; the California Hazardous Waste Control Act, California
Health and Safety Code §25100 et seq.; the Carpenter -Presley -Tanner Hazardous Substance
Account Act, California Health and Safety Code §25300 et seq.; the Porter -Cologne Water Quality
Control Act, California Water Code §13000 et seq.; the Safe Drinking Water and Toxic
Enforcement Act, California Health and Safety Code §25249.5 et seq.; as currently in force or as
hereafter amended, and all rules and regulations promulgated thereunder.
2.29 Exempt Waste
"Exempt Waste" shall mean shall mean Biohazardous radioactive, or Biomedical Waste,
Hazardous Substances, Hazardous Waste, Universal Waste (except for E-Waste), Sharps, Sludge,
used cooking FOG (fats, oil, grease and similar materials), animal waste, explosive substances,
firearms, tires, automobiles, boats, boat trailers, or any parts thereof, internal combustion engines,
lead -acid batteries, and those wastes under the control of the Nuclear Regulatory Commission.
Exempt Waste also includes any material that is prohibited from being collected, transported,
processed by Contractor or disposed of in Class III landfills by a change in law or that Contractor
reasonably believes would, as a result of or upon collection, transportation, processing and/or
disposal, be a violation of Applicable Laws or in Contractor's reasonable opinion would present a
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significant risk to human health or the environment, or requires special handling. Exempt Waste
also includes materials containing information (in hard copy or electronic format, or otherwise)
which information is protected or regulated under any local, state or federal privacy or data security
laws, including, but not limited to the Health Insurance Portability and Accountability Act of 1996,
as amended.
2.30 Food Waste
"Food Waste" shall mean compostable Organics, excluding Green Waste, that will readily
decompose and/or putrefy, including, but not limited to: (i) all food (including fruits, vegetables,
meat, poultry, seafood, shellfish, bones, rice, beans, pasta, bread, cheese and eggshells); and (ii)
tea bags and coffee grounds. The materials included within the definition of Food Waste may be
modified to reflect, among other things, technological advances or improved markets, upon mutual
agreement between Contractor and City.
2.31 Franchise Area
"Franchise Area" shall mean all Premises within the City Limits, including Premises which
may be annexed and thereby added to the City Limits following the Effective Date.
hereof.
2.32 Franchise Fee
"Franchise Fee" shall mean the franchise fee set forth and more fully defined in Section 11
2.33 Green Waste
"Green Waste" shall mean tree trimmings, grass cuttings, dead plants, leaves, branches and
dead trees (not more than six (6) inches in diameter or 48 inches in length) that fit within a Cart
and similar materials as more fully described herein.
2.34 Gross Receipts
"Gross Receipts" shall mean and include all monies, fees, charges, consideration, and
revenue received by Contractor, in connection with, arising from, or in any way attributable to the
Solid Waste Handling Services carried out by or on behalf of Contractor pursuant to this
Agreement. Gross Receipts includes, without limitation, quarterly Customer charges that are
received by Contractor for Collection of Solid Waste, without subtracting Franchise Fees, fees
imposed and collected pursuant to this Agreement, sums collected in connection with Temporary
Services, and transportation charges. Notwithstanding the foregoing, when calculating Gross
Receipts for any given period, amounts paid by Contractor as so called tipping fees for disposal at
a landfill shall be deducted from the otherwise applicable total for such period; and, further, Gross
Receipts does not include revenue from the sale of Recyclable Material, Organic Waste, or other
material which is diverted from disposal by Contractor.
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2.35 Hazardous Substance
"Hazardous Substance" shall mean any of the following: (a) any substances defined,
regulated or listed (directly or by reference) as "Hazardous Substances," "hazardous materials,"
"Hazardous Wastes," "toxic waste," "pollutant" or "toxic substances" or similarly identified as
hazardous to human health or the environment, in or pursuant to (i) the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 USC §9601
et seg.(CERCLA); (ii) the Hazardous Materials Transportation Act, 49 USC §5101, et seq.;
(iii) the Resource Conservation and Recovery Act, 42 USC §6901 et seq.; (iv) the Clean Water
Act, 33 USC §1251 et seq.; (v) California Health and Safety Code §§25115-25117, 25249.8,
25281, and 25316; (vi) the Clean Air Act, 42 USC §7401 et seq.; and (vii) California Water Code
§ 13050; (b) any amendments, rules or regulations promulgated thereunder to such enumerated
statutes or acts currently existing or hereafter enacted; and (c) any other hazardous or toxic
substance, material, chemical, waste or pollutant identified as hazardous or toxic or regulated
under any other applicable federal, state or local laws or regulations, including any of the
Environmental Laws, currently existing or hereinafter enacted, including, without limitation,
friable asbestos, polychlorinated biphenyl's ("PCBs"), petroleum, natural gas and synthetic fuel
products, and by-products.
2.36 Hazardous Waste
"Hazardous Waste" shall mean all substances defined as Hazardous Waste, acutely
Hazardous Waste, or extremely Hazardous Waste by the State of California in Health and Safety
Code §25110.02, §25115, and §25117 or in future amendments to or recodifications of such
statutes or identified and listed as Hazardous Waste by the US Environmental Protection Agency
(EPA), pursuant to the Federal Resource Conservation and Recovery Act (42 USC §6901 et seg.),
all future amendments thereto, and all rules and regulations promulgated thereunder; and any
chemical, pollutant, contaminant, hazardous or toxic substance, constituent or material that under
Applicable Law is considered to be hazardous or toxic or is or may be required to be remediated,
including, without limitation, (a) any petroleum or petroleum products and their derivatives,
radioactive materials, asbestos in any form that is or could become friable, transformers or other
equipment that contain dielectric fluid containing polychlorinated biphenyls and processes and
certain cooling systems that use chlorofluorocarbons, or (b) any chemicals, materials or substances
which are now or hereafter become defined as or included in the definition of "hazardous
substances," "hazardous wastes," "hazardous materials," "extremely hazardous wastes,"
"restricted hazardous wastes," "toxic substances," "toxic pollutants," or any words of similar
import pursuant to Applicable Laws.
2.37 Indemnified Parties
"Indemnified Parties" shall mean City and its past and present elected and appointed
officials, officers, council members, employees, consultants and agents, and volunteers.
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2.38 Multi -Family Dwelling
"Multi -Family Dwelling" shall mean any building or lot containing more than one
Dwelling Unit at which Contractor determines (and City agrees) the Dwelling Units must receive
Solid Waste Handling Services through the use of shared Solid Waste Bins, since they are not
reasonably able to store Carts or otherwise receive individualized Solid Waste Handling Service
through the use of the automated Collection system utilizing Carts contemplated by this Agreement
for Single Family Dwellings. Multi -Family Dwelling includes, without limitation, Premises
containing condominiums, residential apartments, and mobile home parks. Any ambiguity as to
whether a Customer's Premises qualifies for purposes of this Agreement as a Single Family
Dwelling or Multi -Family Dwelling shall be resolved by the City Manager whose decision shall
be final.
2.39 Municipal Code
"Municipal Code" shall mean City's Municipal Code ("Menifee Municipal Code").
2.40 NPDES
"NPDES" shall mean the National Pollutant Discharge Elimination System.
2.41 Organics
"Organics" or "Organic Waste" means Food Waste, Green Waste, landscape and pruning
waste, and nonhazardous wood waste as defined in Public Resources Code Section 42649.8(c).
2.42 Original Agreement
"Original Agreement" means that certain agreement titled "Solid Waste Franchise
Agreement" dated December 21, 2010, between City and Contractor (as USA Waste of California,
Inc.).
2.43 Overa e
"Overage" shall mean when the Solid Waste placed in a Container exceeds the Container's
intended capacity such that the lid is lifted more than ten (10) inches or more (or ten (10) inches if
there was a lid), or when Solid Waste is placed on top of or in the immediate vicinity of the
Container.
2.44 Person
"Person" shall mean any individual, firm, association, organization, partnership,
corporation, business trust, joint venture, the United States, the State of California, the County of
Riverside, towns, cities, and special purpose districts.
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2.45 Premises
"Premises" shall mean any land, building, and/or structure within the City Limits where
Solid Waste is generated or accumulated.
2.46 Recyclable Material
"Recyclable Material" or "Recyclables" shall mean Solid Waste Collected within the
Franchise Area and source -separated either by the generator or by Contractor for the purpose of
being returned to the economic mainstream by Contractor. As of the Effective Date, the materials
identified on Exhibit C as Recyclables shall be handled as Recyclable Material. Contractor may
request a change in the materials to be treated as Recyclable Material due to the lack of economic
viability of any processes or markets. Contractor shall bear the burden of demonstrating such lack
of viability to the City Manager, and the City Manager's approval of a request shall not be withheld
unreasonably.
2.47 Recycling Bin
"Recycling Bin" shall mean a Bin designated for the Collection of Recyclable Materials.
2.48 Recycling Cart
"Recycling Cart" shall mean a Cart designated for the Collection of Recyclable Materials.
2.49 Recycling Container
"Recycling Container" shall mean a Recycling Bin or Recycling Cart, as the context
requires.
2.50 Responsible Customer
"Responsible Customer" shall mean the Customer who is responsible for making
arrangements with Contractor to ensure Collection services are provided at Commercial Premises
or Single Family Dwellings in circumstances where a management company, homeowner
association, or similar type entity arranges Collection services for such Premises. In the event of
any dispute as to whether a right or obligation set forth herein is held by a Customer or a
Responsible Customer, the City Manager is authorized to resolve such dispute.
2.51 Rolloff Box
"Rolloff Box" shall mean Solid Waste Collection Containers of ten (10) yards or larger,
including compactors.
2.52 SB 1383
"SB 1383" shall mean Senate Bill 1383 from the 2015-2016 Regular Session of the
California Legislature (Chapter 395, Statutes 2016)
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2.53 Single Family Dwelling
"Single Family Dwelling" shall mean a building or lot containing one Dwelling Unit, and
for purposes of this Agreement includes buildings and lots with more than one Dwelling Unit
where such Dwelling Units are determined by the City to be reasonably able to receive
individualized Solid Waste Collection service by the automated process utilizing Carts
contemplated herein.
2.54 Solid Waste
"Solid Waste" shall mean and include all discarded putrescible and non putrescible solid,
semisolid, and liquid wastes, including garbage, trash, refuse, rubbish, Construction and
Demolition (C&D) Waste, industrial waste, commercial Solid Waste, Bulky Items, and any other
discarded solid, semisolid, and liquid waste permitted to be disposed of at a Class III landfill and
which are included within the definition of "Nonhazardous Solid Waste" set forth in the California
Code of Regulations, as it may be amended from time to time. Solid Waste does not include
Exempt Waste.
2.55 Solid Waste Handling Services
"Solid Waste Handling Services" shall mean the Collection, transfer, transport, recycling,
processing, and disposal of Solid Waste, including discarded Recyclable Material and Organics
from Premises within the City.
2.56 Temporary Service
"Temporary Service" shall mean Solid Waste Handling Services provided by Contractor
on an as -needed and temporary basis to any Premises within the City in conjunction with
construction, demolition, cleanup or other projects, and by use of temporarily placed Bins or
Rolloff Boxes.
2.57 Term
"Term" shall have the meaning ascribed in Section 6 of this Agreement.
2.58 Transformation
"Transformation" shall mean incineration, pyrolysis, distillation, gasification, or biological
conversion other than composting. "Transformation" does not include composting.
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SECTION 3.
GRANT OF EXCLUSIVE FRANCHISE FOR SOLID WASTE
HANDLING SERVICES FROM ALL PREMISES, AND FOR PROVIDING
TEMPORARY SOLID WASTE HANDLING SERVICE
3.1 Scope of Franchise
Except as hereinafter expressly set forth, City hereby grants to Contractor and Contractor
hereby accepts from City, for the Term hereof, the exclusive contract, right, and privilege to
provide Solid Waste Handling Services for Solid Waste generated or accumulated within the
Franchise Area. The exclusive franchise, right and privilege to provide Solid Waste Handling
Services within City granted to Contractor by this Agreement shall be interpreted to be consistent
with all applicable state and federal laws, now in effect and adopted during the Term of this
Agreement, and the scope of this Agreement shall be limited by all applicable current and
developing laws and regulations. In the event that future interpretations of current law or future
enactments limit the ability of City to lawfully grant Contractor the scope of services as specifically
set forth herein, Contractor agrees that the scope of this Agreement will be limited to those services
and materials which may be lawfully provided, and that City shall not be responsible for any lost
profits claimed by Contractor as a result thereof.
3.2 Matters Excluded from Scope of Franchise
Notwithstanding any other provisions set forth in this Agreement to the contrary, the
exclusive franchise granted herein shall exclude the Collection, transportation, recycling, and
disposal of:
(A) any Solid Waste otherwise within the scope of this Agreement which is
transported by a Self -Hauler as that term is used in the Municipal Code, as such may be
adopted or amended from time to time;
(B) any Solid Waste otherwise within the scope of this Agreement during a
locally proclaimed emergency (defined as a "local emergency" pursuant to Section 8630
of the California Emergency Services Act) or subsequent recovery period, provided that
Contractor lacks the ability to perform the necessary work in a timely manner, or for any
other reason determined by City related to public health, safety or welfare;
(C) the sale, donation, or transfer of Recyclable Material by the person or entity
that generated such Recyclable Material (the "Generator") to any person or entity other
than Contractor; provided, however, to the extent permitted by law, if the Generator is
required to pay monetary or non -monetary consideration for the Collection, transportation,
transfer, recycling, or processing of Recyclable Material to any person or entity other than
Contractor, then this exclusion shall not apply. Further, a reduction or discount in price (or
in other terms of the consideration the Generator is required to pay) shall not be considered
a sale, donation, or transfer of Recyclable Material that is exempted from the exclusive
franchise granted under this Agreement;
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(D) any Solid Waste otherwise within the scope of this Agreement which is
Collected or transported to a disposal or recycling facility by City agents or employees in
the course and scope of services provided for the City;
(E) any Solid Waste Collected at any City sponsored event if City does not
request Contractor provide Collection services for the City sponsored event;
(F) the Collection, transportation, or disposal of Exempt Waste or other
materials which do not constitute Solid Waste;
(G) the Collection, transportation, and disposal of Construction and Demolition
(C&D) Waste by a contractor, handyman, repairman, or other similar service provider,
using its own equipment, as an incidental part of the services provided to its Customers,
rather than as a hauling service, provided that such waste is not Collected or transported by
a third party hired for the primary purpose of Collecting and transporting said materials; in
addition to the foregoing, following a request for Contractor to provide Construction and
Demolition (C&D) Waste service, if such service has not commenced within three (3)
business days after such request, the Customer requesting such service may contract with
another contractor that provides Solid Waste Handling Services to provide such service;
(H) the Collection, transportation, and disposal of Green Waste by a gardener,
or landscaper, as an incidental part of the gardening or landscaping services provided to its
customers, rather than as a hauling service provided that such Solid Waste is not collected
or transported by a third party hired for the primary purpose of Collecting and transporting
said materials; and
(I) Solid Waste Handling Services provided by any Person having a legal right
to continue doing so, pursuant to Public Resources Code Section 49520, et. seq., or
otherwise, as long as and to the extent such legal right continues to exist; except that to the
degree any territory in which Contractor has a franchise granted by another governmental
entity is annexed into City during the Term, Contractor agrees the provisions of this
Agreement shall apply to such territory.
SECTION 4.
ENFORCEMENT OF EXCLUSIVITY
Contractor shall be responsible for enforcing the exclusivity of this Agreement. City shall
reasonably assist Contractor in its efforts to enforce the exclusivity hereof. In addition, City shall
adopt such ordinances or other regulations as it deems to be necessary or desirable to protect the
exclusive rights granted herein. City shall have the right, but not the obligation, to enforce the
exclusivity hereof, including by instituting appropriate legal proceedings, and/or to request that
Contractor do so. Contractor shall have an affirmative obligation to enforce such exclusivity
provisions when requested to do so by City. Contractor shall reimburse City for its reasonable
legal costs, administrative costs (including staff time), or other expenses incurred in connection
with City's actions to either enforce the exclusivity hereof, or to assist Contractor in doing so.
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SECTION 5.
ACCEPTANCE; WAIVER
Contractor agrees to be bound by and comply with all the requirements of this Agreement.
Contractor waives Contractor's right to challenge the award of this Agreement under federal, state,
or local law, or administrative regulation. Contractor waives any right or claim to serve the City
or any part of the City under any prior grant of franchise, contract, license, or permit issued or
granted by any governmental entity including any right under Section 49520 of the Public
Resources Code.
SECTION 6.
TERM
The term of this Agreement (the "Term") shall be for a period of fifteen (15) years
commencing on the Effective Date. The Term of this Agreement shall end at midnight on
December 31, 2035, unless this Agreement is terminated sooner pursuant to Section 18 hereof, or
otherwise. On or about January 1, 2035, Contractor may request a further extension of the Term.
In the event that Contractor is in substantial compliance with the terms and conditions of this
Agreement, the City Council, upon recommendation of the City Manager, shall review
Contractor's request in good faith and may not unreasonably deny an extension of the Term for an
additional five (5) years, through December 31, 2040.
If the City Council does not approve Contractor's request to extend the Term as set forth
above, as evidenced by a formal action of the City Council taken in a duly noticed open meeting,
on or before September 30, 2035, said option shall expire and this Agreement shall automatically
terminate at 1 1:59 p.m. on December 31, 2035.
SECTION 7.
CONDITIONS TO EFFECTIVENESS OF AGREEMENT
The satisfaction of each and all of the conditions set out below, each of which may be
waived in whole or in part by City in writing, is a condition precedent to the effectiveness of this
Agreement, and a condition of Contractor's continued right to the benefits conveyed herein:
7.1 Accuracy of Representation
All representations and warranties made by Contractor and set forth in this Agreement shall
be accurate, true, and correct on and as of the Effective Date of this Agreement.
7.2 Absence of Litigation
There shall be no litigation pending in any court challenging the award of this Agreement
to Contractor or the execution of this Agreement or seeking to restrain or enjoin its performance.
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7.3 Furnishing of Insurance and Bonds, and Corporate Guarantee
Contractor shall have furnished evidence of the insurance and sureties required by Sections
14 and 15 hereof, and shall comply with all ongoing requirements relating thereto, and shall
provide the Corporate Guarantee required by Section 30.8 hereof.
7.4 Effectiveness of City Council Action
The City Council's action approving this Agreement shall have become effective pursuant
to California law.
7.5 Payment of Fees and Costs
Contractor shall have made payment to City of all fees, costs and other payments due as
more fully set forth in Section 11.
SECTION 8.
SOLID WASTE HANDLING SERVICES
PROVIDED BY CONTRACTOR
8.1 General
8.1.1 Equipment
Contractor shall furnish all labor, supervision, materials, supplies, and equipment
necessary to provide for all services required by the terms of this Agreement.
8.1.2 Performance Standards
Contractor shall perform Solid Waste Handling Services as required hereunder in a
workmanlike manner consistent with good housekeeping standards and all relevant provisions of
Applicable Laws.
8.1.3 Noise and Disruption
Contractor shall perform Solid Waste Handling Services as required hereunder in such a
manner as to minimize noise and other disruptive impacts including, without limitation, those upon
traffic.
8.1.4 Collection Times
Collection from Single Family Dwellings will occur on Monday through Friday.
Collection from Commercial Premises and Multi Family Dwellings may occur on Monday through
Saturday. Collection from Single Family Dwellings shall not begin prior to 6:00 am and shall be
completed by 6:00 pm. Collection from Commercial/Multi Family Dwellings shall not begin prior
to 5:30 am where the Premises are within five hundred (500) feet of an occupied Single Family
Dwelling or Multi Family Dwelling, and shall be completed by 7:00 pm. No Solid Waste
Collection shall occur on Sundays, except in exceptional circumstances for which specific
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approval is given by the City Manager. Solid Waste Collection shall not occur on the following
holidays: New Year's Day, Memorial Day, the Fourth of July, Labor Day, Thanksgiving Day, and
Christmas Day.
8.1.5 Collection Schedule
All Collection routes shall be subject to final approval by the City Manager. Customers at
all Premises within the City shall have not less than one established Collection day each week.
Contractor shall provide notice to each Customer of its established Collection day(s), and shall
provide at least thirty (30) days' notice to Single Family Dwelling Customers of any change in
their established Collection day(s). Notwithstanding any provision herein to the contrary, should
any established Collection day fall on a legal holiday, or on any other holiday which is observed
by either a landfill or other lawful disposal site to which Solid Waste is taken for disposal, or a
recycling facility to which Recyclable Material is taken, Contractor shall provide for Collection
one (1) day later during the pick-up week, and the regular Collection schedule shall be resumed
the following week. A pick-up week shall be defined as Monday through Saturday. Contractor
may not change its established Collection schedules without obtaining the prior written consent of
the City Manager.
8.1.6 Commingling of Routes
Contractor shall not during its Collection process commingle Solid Waste Collected
hereunder with Solid Waste Collected in any other City, or on behalf of any other entity operating
or existing within City that is not subject to this Agreement, unless approved by the City Manager,
in his or her reasonable discretion, following Contractor's submittal to City of an allocation
methodology that ensures Solid Waste generated in other cities are not attributable to City.
8.1.7 Replacement of Containers
Contractor shall, whenever possible, return Carts to the location where they were found
(e.g., on the sidewalk or in the street gutter, adjacent to the curb) upon completing Collection.
Contractor shall replace all Bins in the location upon the property of each Customer utilizing Bins
designated for storage of Bins, and shall secure gates, doors, and/or enclosures when applicable.
8.1.8 Contractor's Containers
(A) Contractor's Containers shall meet the minimum standards set forth in
Exhibit B.
(B) Contractor shall be responsible to maintain and replace, as necessary, all
Containers.
(C) All Containers shall be maintained by Contractor in good repair, and any
question as to the meaning of this standard shall be resolved by the City Manager.
(D) Except as otherwise provided in this Agreement, Contractor shall deliver
Containers to each Customer at no additional charge.
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(E) Contractor shall ensure it maintains an accurate list that contains the total
number of Carts, Bins, and indoor recycling containers at each service address or other
identifying location associated with each account. Contractor shall keep this list up to date
at all times, provide it to City upon request, and shall include a current updated list with
each annual report as set forth in Section 23.2. In addition, Contractor shall provide this
list to City within thirty (30) days of the Effective Date.
(F) All Carts shall be maintained by Contractor in a watertight condition, as
shall all Bins which are used primarily for the disposal of Solid Waste containing liquids,
and shall at all times comply with the provisions of any applicable NPDES permit.
(G) Upon request and up to one time per calendar year, Contractor shall
exchange a Customer's Cart for a "like new" Cart at no additional charge. In addition,
within three (3) business days after notification, Contractor shall repair and maintain,
remove graffiti from, and replace lost, stolen or damaged Carts at no charge to Customers.
However, Contractor shall be entitled to charge Customers for the replacement of any Cart
that has been damaged by a Customer's willful neglect or abuse, ordinary wear and tear
excepted, with such charges being subject to the City Manager's approval and at a fee no
higher than Contractor's actual cost of repair and replacement.
(H) Contractor shall, at Responsible Customer's request, refurbish, replace, and
steam clean as necessary all Bins and Rolloff Boxes at no charge to Customers up to one
(1) time per calendar year. City may require the steam cleaning or replacement of Bins
more frequently if it determines such action is needed to protect public health and safety.
Additional steam cleaning or replacement beyond one (1) per calendar year shall be
provided within three (3) business days of notification by City or request by a Responsible
Customer at a charge not to exceed the maximum rate set forth in Exhibit A hereto.
(I) Contractor shall remove any graffiti that appears on a Container within three
(3) business days after becoming aware of it at no charge to Customers.
(J) All Bins and Rolloff Boxes shall be kept freshly painted in a uniform
fashion. All Bins and Rolloff Boxes shall be identified with Contractor's name and phone
number in letters not less than three inches high on its exterior so as to be visible and legible
when the Container is placed for use.
(K) At a Responsible Customer's request, Contractor shall provide Bins with
slots or locking lids and locks and may charge rates to Customers for slotted or locking
Bins which do not exceed the maximum rates set forth in Exhibit A.
(L) Contractor shall mark its Containers with conspicuous warning notices
stating disposal of Hazardous Substances in the Containers is prohibited.
(M) All Containers provided by Contractor are the sole property of Contractor
at all times.
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8.1.9 Missed Pick-ups
In case of a missed pick-up called in by a Customer, Contractor shall Collect Solid Waste
and Recyclable Material from such Customer by 5:00 p.m. on the day of the call if Contractor was
notified before 12:00 p.m. that same day or, for calls received after 12:00 p.m., within one (1)
business day after the call is received. Records of the addresses of all missed pick-ups shall be
maintained by Contractor, and shall be reported to City on a quarterly basis in accordance with
Section 23.1. If Contractor demonstrates to the satisfaction of the City Manager a pattern of
ongoing late "set -outs" by a given Customer, missed pick-ups resulting from late set -outs by that
Customer shall not be counted as missed pick-ups in evaluating Contractor's performance
hereunder. The Customer service phone system required by Section 10.8.2.1 hereof is intended,
among other things, to serve as a "hotline" for Customers to call in the event Solid Waste placed
for Collection is not Collected by Contractor and to facilitate having such Solid Waste Collected
as soon as reasonably possible, and in no event later than as required by the provisions hereof.
8.1.10 Record of Non -collection
As more fully set forth herein, Contractor shall Collect all Solid Waste placed for
Collection by Customers in Containers, excepting Exempt Waste or materials commingled with
Exempt Waste. Whenever Contractor determines not to Collect any Solid Waste deposited for
Collection, Contractor shall leave a tag, in a size reasonably acceptable to the City Manager,
indicating the reason for Contractor's refusal to do so. Contractor shall maintain a record of all
such taggings at its place of business. Such record shall contain the date of such notice, street
address, reason for non -collection, and a summary of any communications between Contractor
and the Customer involved. Such record shall be retained and reported to the City on a quarterly
basis in accordance with Section 23.1.
8.1.11 Contaminated Recyclable Materials and Organic Waste Containers
Contractor and City anticipate that Customers in City will participate in
Contractor's Recycling and Organic Waste Collection Programs as required by Applicable Laws,
in a manner such that the total level of contamination in Recycling Containers within the Franchise
Area will not exceed ten percent (10%) by volume and the total level of contamination in Organic
Waste Containers within the Franchise Area will not exceed three percent (3%) by volume, as
determined by visual inspection of Contractor. As used herein, "contamination" refers to materials
placed in a Recycling Container or Organic Waste Container other than those Recyclable Materials
or Organic Waste (as applicable) which the Parties agree are appropriate for Collection therein as
more fully set forth in this Agreement. Without limiting Contractor's overall diversion obligations
in any way, City and Contractor agree to utilize the following procedures to assist in achieving the
above noted contamination goal:
If Contractor documents that a particular Customer has a Recycling Container or Organic
Waste Container with excessive contamination, Contractor may refuse Collection and leave a
written notice explaining the reason for non -Collection, or may service the Recycling Container
or Organic Waste Container (as applicable), by Collecting the Recycling Container or Organic
Waste Container (as applicable) as Solid Waste with a separate pickup, and may charge an extra
pickup/contamination fee, in an amount that does not exceed the maximum rate set forth in Exhibit
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A. Contractor will tag the Recycling Container or Organic Waste Container (as applicable) with
a notice that includes:
A. The fact the Recycling Container or Organic Waste Container (as
applicable) required special Solid Waste Handling Services and the contents could not be recycled
due to the presence of inappropriate material in the Recycling Container or Organic Waste
Container (as applicable);
B. A description of the Recyclable Materials or Organic Waste that are
appropriate for Collection in the Recycling Container or Organic Waste Container (as applicable);
C. An explanation that a subsequent incident of excessive contamination may
result in non -Collection, the imposition of another extra pickup/contamination fee, in an amount
that does not exceed the maximum rate set forth in Exhibit A, and, where warranted, requiring
additional or larger -sized Solid Waste Containers, or additional Collections of existing Containers,
or the use of locking or slotted Bins, at an additional cost to the Customer; and
D. A phone number to contact Contractor to obtain additional information
and/or receive responses to questions the Customer may have.
In the event the Customer in question continues to place Recycling Containers or Organic
Waste Containers (as applicable) with excessive contamination out for Collection, Contractor may
Collect the Recycling Container or Organic Waste Container (as applicable) as Solid Waste, in a
separate pickup, and charge the Customer an extra pickup/contamination fee in an amount that
does not exceed the maximum rate set forth in Exhibit A. In addition, where there have been three
(3) or more instances of excessive contamination by a Customer in any twelve (12) month period,
Contractor may (with approval of the City Manager) (i) deliver additional or larger Solid Waste
Containers, Recycling Containers, or Organic Waste Containers (as applicable) to the Customer,
and/or require additional weekly Collections as appropriate, and charge the Customer for such
increased or additional services at rates that do not exceed the maximum rates set forth in Exhibit
A, or (ii) install locking or slotted Bins at the Premises for the charge set forth in Exhibit A.
8.2 Single Family Dwelling Waste Handling Service
8.2.1 Sin_fle Family D%\elling, — Automated Collection
Contractor shall provide each Single Family Dwelling Customer with one (1)
approximately ninety-five (95) gallon Cart ("Refuse Cart") designated for the Collection of Solid
Waste. Single Family Dwelling Customers generating a small volume of Solid Waste may request
service using an approximately sixty-four (64) gallon Refuse Cart, at a reduced rate.
Contractor shall Collect all Solid Waste placed out for Collection by the Customer in a
Refuse Cart not less than once per week using an automated Collection system at rates that do not
exceed the maximum rates set forth in Exhibit A. Upon request from any Customer, and if
approved by the Responsible Customer (where applicable), Contractor shall provide such
Customer with one or more additional Refuse Carts, and shall Collect all Solid Waste placed for
Collection in such additional Refuse Carts at rates that do not exceed the maximum rates set forth
in Exhibit A. Wherever feasible, Customers shall be directed by Contractor to place Carts for
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Collection on the sidewalk or in the street gutter, against the curb, in front of their Premises, or
adjacent to their Premises in the alley or easement in the rear of their Premises. If a Customer and
Contractor cannot agree upon a Collection location, or if City determines the selected location may
cause safety or other concerns, City may make the final determination of the Collection location,
subject to Contractor's right to request an administrative hearing pursuant to Section 19 of this
Agreement.
The Carts Contractor provides Single Family Dwelling Customers shall meet the minimum
standards set forth in Exhibit B, In the event of any dispute as to the adequacy of the number of
Carts at any given Single Family Dwelling, the City Manager shall have the ability to approve the
number of Carts used at such location.
In the event extra pickups are required at a Single Family Dwelling in any given month,
Contractor may charge the Responsible Customer for such pickups an amount that does not exceed
the maximum rate for "extra dumps" or "extra pick-ups" as set forth in Exhibit A.
8.2.2 Valet Service
Contractor shall provide eligible Single Family Dwelling Customers with "valet service"
as set forth in this paragraph at no additional charge. This service shall require Contractor to use
its own forces to bring a Customer's Carts from the garage, backyard, side yard, or such other
location of a Dwelling Unit at which the Containers are regularly stored, to Contractor's Collection
Vehicle; and, after disposal of the contents thereof, returning said Containers to the location where
they are regularly stored. To be eligible for this service the person at the Single Family Dwelling
shall have a DMV issued disabled person placard/license plates, and provide a letter to Contractor
from a physician confirming the he or she is unable to move his/her Carts to the curb, and that to
the best of the physician's knowledge there is no other capable persons living in the Single Family
Dwelling to provide this service. Contractor may require each eligible person at the Single Family
Dwelling to provide a new letter from a physician on an annual basis in order to maintain eligibility
for valet service. Any dispute regarding eligibility for valet service shall be resolved by the City
Manager, subject to Contractor's right to request an administrative hearing pursuant to Section 19
of this Agreement. Contractor may provide Customers who are not eligible for free valet service
pursuant to the forgoing with valet service at a rate which shall not exceed the maximum rate set
forth in Exhibit A.
Contractor may require as a condition of valet service that a Customer sign a standardized
agreement, the terms of which shall be subject to City's approval, which authorizes entry onto the
Single Family Dwelling serviced under Customer's account and holds Contractor harmless from
liability (including specifically liability related to pets escaping) associated with Contractor
providing such service.
8.2.3 Single Family Dwelling Recycling Program
Contractor shall provide a recycling program to all Single Family Dwellings (the
"Recycling Program") that maximizes the recovery of materials and provides for the Collection of
Recyclable Materials in Carts. Contractor's Recycling Program shall include Collection of the
Recyclable Materials identified in Exhibit C. Contractor shall produce, keep current, and provide
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public information specifically outlining its Recycling Program, which shall specifically include
the annual publication and distribution of a brochure describing this service to all applicable
Customers in City.
For each corresponding Refuse Cart a Single Family Dwelling Customer receives,
Contractor shall provide such Single Family Dwelling Customer with one (1) approximately
ninety-five (95) gallon Cart designated for the Collection of Recyclables (a "Recycling Cart").
Any Customer requesting an additional Recycling Cart shall be provided a second Cart at no
additional cost. Upon request from any Customer, and if approved by the Responsible Customer,
Contractor shall provide such Customer with one or more additional Recycling Cart(s) (above two)
at rates that do not exceed the maximum rates set forth in Exhibit A. Contractor shall Collect
Recyclable Material placed in Recycling Carts for Collection on the same day as such Customer's
Refuse Cart is Collected, utilizing an automated Collection process. Customers shall be directed
to place Recycling Carts in the same location for Collection as Refuse Carts.
8.2.4 Curbside Food Waste Collection Program
If requested to do so by City, or if required during the Term by CalRecycle, or any federal
or state law or regulation, Contractor shall design a program for the Curbside Collection of food
waste generated from Single Family Dwellings (the "Curbside Food Waste Collection Program"),
to be approved by the City Manager. Contractor shall be responsible to ensure the Curbside Food
Waste Collection Program complies with all Applicable Laws. At such time as a Curbside Food
Waste Collection Program is implemented at the request of City, and in order to ensure that
Contractor is fairly compensated for any additional costs incurred in implementing such a program,
Contractor and City shall meet and confer in good faith in advance to determine a fair and
reasonable adjustment to the maximum rates set forth in Exhibit A in order to fairly compensate
Contractor for implementing such a program.
In the event that a Curbside Food Waste Collection Program is implemented, Organic
Waste Collected shall be transported to a commercially viable option for processing, as mutually
acceptable to Contractor and City, each in their reasonable discretion.
8.2.5 Green Waste Program for Single Family Dwellings Using Carts
Contractor shall provide all Customers at Single Family Dwellings to whom it provides
Refuse Carts, with one (1) approximately ninety-five (95) gallon Cart for Collection of
commingled Green Waste (a "Green Waste Cart"). Upon request from any Customer at a Single
Family Dwelling, Contractor shall provide such Customer with one (1) or more additional Green
Waste Carts at rates that do not exceed the maximum rates set forth in Exhibit A. Contractor shall
Collect Green Waste placed in Green Waste Carts for Collection from each Customer on the same
day as such Customers' Refuse Cart is Collected, using an automated Collection process.
Customers shall be directed to place Green Waste Carts in the same location for Collection as
Refuse Carts.
Notwithstanding the above, unless otherwise directed by the City Manager, Contractor
shall not distribute Green Waste Carts to Customers living in areas governed by homeowner
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associations if (i) the governing association requests that Green Waste Carts not be delivered to its
members, and (ii) the governing association handles all landscaping for the development.
8.2.6 Bulky Item Service for Single Family Dwellings
Contractor shall provide Bulky Item Collection services to Single Family Dwellings at no
charge on an on -call basis. Customers are limited to scheduling four (4) Bulky Item Collection
services per calendar year, with a maximum of six (6) items per service. Bulky Item Collection
service shall involve Contractor removing and Collecting the requested Bulky Items from the
Curbside. In order to receive such service, residents shall provide Contractor with notice by phone
of the number and type of Bulky Items to be collected. Bulky Item Collection shall take place on
the next regular Collection day, provided that the request for service is received not less than one
(1) business day prior to the regular Collection day. Contractor shall produce, keep current, and
provide public information specifically outlining its Bulky Item Collection service, which shall
specifically include the annual publication and distribution of a brochure describing this service to
all Single Family Dwellings in City.
8.2.7 Bulky Item Diversion
Bulky Items Collected pursuant to this Agreement may not be landfilled until the following
hierarchy of diversion efforts has been followed by Contractor:
Reuse as is (if energy efficient);
b. Disassemble for reuse or Recycling;
Recycle, Transformation, other means of diversion; and
d. Disposal.
This hierarchy is intended to preclude the use of front or rear loading packer vehicles for Bulky
Items unless the compaction mechanism is not used to compact the Bulky Items. The disposition
of Bulky Items shall be tracked by Contractor and this information shall be included in
Contractor's quarterly reports to City.
8.2.8 Proper Handling of Bulky Items
Contractor shall properly handle all materials required to be collected as Bulky Items,
including specifically items that require special handling pursuant to the Environmental Laws,
such as materials that constitute "e-waste."
8.2.9 Residential Sharps Collection Program
Contractor shall provide a program for the Collection of used needles (the "Sharps
Collection Program") to all Single Family Dwelling Customers and Multi -Family Dwelling
Customers who request to participate in such Sharps Collection Program. At a minimum, the
Sharps Collection Program shall result in each Single Family Dwelling Customer or Multi -Family
Dwelling Customer who desires to participate in it annually receiving two "kits", which shall be
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comprised of a Collection container and a mailing box for such container preaddressed for delivery
to a properly permitted disposal location. Each Single Family Dwelling Customer and Multi -
Family Dwelling Customer participating in the Sharps Collection Program shall receive two (2)
mailing boxes annually which have been marked so as to provide for prepaid postage. The total
cost of the Sharps Collection Program shall not exceed Seven Thousand Five Hundred Dollars
($7,500) during any July 1 — June 30 period during the Term. Initial kits in excess of such amount,
or additional Collection containers and mailing boxes for Customers participating in the Sharps
Collection Program shall be provided on such basis as may be requested by participating
Customers at rates that do not exceed the maximum rates set forth in Exhibit A. As part of the
Sharps Collection Program, Contractor shall provide twenty (20) sharps containers per fiscal year
to the City of Menifee Parks and Community Services Department for use by Park Rangers at no
cost to the City. Contractor shall be responsible to ensure the Sharps Collection Program complies
with all Applicable Laws, and shall produce, keep current, and provide written public information
outlining its Sharps Collection Program, which shall be annually distributed to Single Family
Dwelling Customers and Multi -Family Dwelling Customers in City.
8.2.10 Rolloff Service
Single Family Dwellings shall, if requested by a Customer, receive Rolloff Collection
services in the same manner as Commercial Premises as set forth in Section 8.3.1 below.
8.2.11 Senior Discount
Contractor shall provide Single Family Dwelling Customers who are senior citizens
with a discount of nine percent (9%) where (i) the occupant of the Dwelling Unit is sixty (60) years
or older (with reasonable proof of age provided to the reasonable satisfaction of Contractor) and
is the head of the household, and (ii) the Single Family Dwelling utilizes a sixty-four (64) gallon
Cart for Solid Waste.
8.2.12 Customer -Requested Service Interruptions
Single Family Dwelling Customers may request a temporary hold in Solid Waste
Handling Services, for a period not less than forty five (45) days, for the purposes of premise
vacancy due to any reason, including vacation, property condemnation, construction, renovations,
or military deployments. A service exemption must be requested at least two (2) weeks in advance
of the planned exemption period, and may be validated through low utility usage bills during the
requested exemption period, as provided by the Customer to the Contractor. Service exemptions
are subject to annual review by the Contractor.
8.3 Commercial Solid Waste Handling Services
8.3.1 Commercial Bins and Rolloff Boxes (Including fOr Multi -Family
Dwelling Customers)
Contractor shall provide all Commercial Customers with at least one Cart, Bin and/or
Rolloff Box for Collection of Solid Waste, and shall Collect all Solid Waste placed therein for
Collection not less than once per week, at rates that do not exceed the maximum rates set forth in
Exhibit A. Contractor shall provide additional Containers to Customers and shall provide
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additional Collections upon request, if approved by the Customer or Responsible Customer, where
applicable, or as may be required by City's Municipal Code, health and safety requirements,
Applicable Law, or by the City Manager, and may charge rates for such services which do not
exceed the maximum rates set forth in Exhibit A. Bins and Rolloff Boxes shall be Collected by
Contractor from the location upon each Customer's property designated for their storage, and
replaced to that location with gates and/or doors secured, as applicable, after Collection is
completed, unless different arrangements are agreed upon by the Customer or Responsible
Customer, where applicable, and Contractor.
8.3.2 Commercial Bulky Item Service
Contractor shall provide unlimited Bulky Item Collection services to Commercial Premises
on an on -call basis. Contractor may charge rates for such services which shall not exceed the rates
set forth in Exhibit A. Bulky Item Collection service calls shall be responded to within a
reasonable time but not longer than seven (7) calendar days from the date of the Customer's call
for service. Contractor shall produce, keep current, and provide public information specifically
outlining the Bulky Item pick-up service. Bulky Items Collected pursuant to this Section are
subject to the diversion and handling requirements set forth in Section 8.2.7.
8.3.3 Recycling Program for Commercial Premises
(A) Contractor shall offer and provide a Recycling program for Commercial Premises
(the "Commercial Premises Recycling Program") that at a minimum meets the standards required
under AB 341, and such program shall be consistent with any ordinances adopted by the City to
implement AB 341. Contractor shall assist the City in identifying Commercial Premises that are
not in compliance with the Recycling requirements set forth in AB 341. Contractor shall provide
periodic on -site visits to such Premises to offer and promote Recycling services as required,
attempt to resolve any logistical detriments to implementing the Commercial Premises Recycling
Program, and notify and request assistance from City for potential follow up action where a
Commercial Customer refuses to implement the Commercial Premises Recycling Program. City
agrees to assist Contractor, which may include adding its name to materials prepared for
distribution to Commercial Premises regarding AB 341 requirements, consideration of ordinances
which may assist with gaining compliance with AB 341 requirements, and participation by City
personnel in meetings with Commercial Customers who refuse to implement the Commercial
Premises Recycling Program. Contractor shall be responsible for preparing and implementing a
Recycling program for Commercial Recyclable Materials that, combined with its other services
and programs, is designed to assist City to comply with AB 341. Subject to the requirements of
Sections 8.4 and 8.6.3.4 and 8.6.5, as applicable, Contractor acknowledges that Contractor may be
required to modify its Recyclable Materials services from time to time to Commercial Customers,
to assist City to meet AB 341 requirements.
(B) Contractor shall provide source separated Recycling Collection services to all
Commercial Customers at rates that do not exceed the maximum rates set forth in Exhibit A.
Contractor will Collect Recyclable Materials in Containers designated for Recycling, either Bins
or Carts as appropriate to each individual Commercial Premises. Contractor shall Collect
Recyclable Material placed in Recycling Containers from each Commercial Premises at
frequencies agreed upon with each such Commercial Customer, but not less than once per week.
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Contractor shall Collect Recyclable Materials which shall at a minimum include those identified
in Exhibit C. City and Contractor agree to meet from time to time as needed, and in good faith
consider modifications to the list in Exhibit C of acceptable Recyclable Material to address
developments in processing technologies, emerging uses for various types of materials, changes
in available markets, or other relevant issues.
8.3.4 Organic Waste Recycling Program for Commercial Premises
(A) Contractor shall offer and provide source separated Organic Waste Collection and
recycling services to all Commercial Premises that at a minimum meet the standards required
under AB 1826. Contractor shall assist the City in identifying Commercial Premises that are not
in compliance with the requirements set forth in AB 1826. Contractor shall provide periodic on -
site visits to such Premises to offer and promote Organic Waste Collection and recycling services
as required, attempt to resolve any logistical detriments to implementing these services, and notify
and request assistance from City for potential follow up action where a Commercial Customer
refuses to implement the Organic Waste Collection and recycling services. City agrees to assist
Contractor, which may include adding its name to materials prepared for distribution to
Commercial Premises regarding AB 1826 requirements, consideration of ordinances which may
assist with gaining compliance with AB 1826 requirements, and participation by City personnel in
meetings with Commercial Customers who refuse to implement the Organic Waste Collection and
recycling services. Contractor shall be responsible for preparing and implementing Organic Waste
Collection and recycling that, combined with its other services and programs, is designed to assist
City to comply with AB 1826. Subject to the requirements of Sections 8.3.5, 8.4 and 8.6.3.4 and
8.6.5, as applicable, Contractor acknowledges that Contractor may be required to modify its
Organic Waste Collection and recycling services for Commercial Premises from time to time, to
assist City to meet AB 1826 requirements.
(B) Contractor shall deliver all source separated Organic Waste it Collects to a properly
permitted facility for recycling, such that Collected Organic Waste qualifies for diversion credit.
Contractor shall offer Organic Waste Collection and recycling services at rates based on Container
size and service frequency that do not exceed the maximum rates set forth in Exhibit A. Contractor
shall offer Organic Waste Collection and recycling services using either a 1.5-cubic yard Bin or
an approximately 65-gallon Cart, each to be Collected one (1) to three (3) times per week.
(C) On behalf of City, Contractor shall regularly identify opportunities for, barriers to,
and incentives for Organic Waste recycling, and shall engage in Customer education and outreach
related to Organic Waste recycling, all in a manner that assists City in its compliance with its
obligations pursuant to AB 1826. The method(s) by which Contractor contacts Customers for
these purposes, unless otherwise specified, may be by any reasonable means Contractor desires
(which may include direct mail, email, telephone calls, site visits and/or such other methods as
Contractor reasonably deems appropriate), provided that such methods result in compliance with
the requirements of this Agreement.
(D) Contractor shall identify Commercial Premises that create large amounts of
Organic Waste, including specifically hotels, business parks, Multi -Family Dwelling Customers,
and Customers engaged in food service operations (i.e., restaurants, grocery stores, hospitals,
corporate cafes, and bakeries). Once identified, Contractor shall engage in education and outreach
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efforts. Contractor shall specifically advise such Customers if they are not in compliance with
AB 1826. If requested by a Customer, Contractor shall: conduct visual waste audits of
Commercial Customers and Multi -Family Dwelling Customers to evaluate the Organic Waste
service requirements and service level needs. Contractor shall annually conduct Customer
outreach and onsite waste assessments of Commercial Premises and Multi -Family Dwelling
Customers subject to the requirements of AB 1826, including those that do not receive Contractor
provided Organic Waste recycling, utilize an in-house program, donate edible foods to a charitable
organization, and/or recycle Organic Waste using a third party vendor. Contractor shall provide
copies of waste assessments performed each quarter and submit copies of all waste assessments as
part of the annual report to the City in accordance with Section 23.2 of this Agreement. In the
event a Customer who is subject to the requirements of AB 1826 refuses Contractor provided
Organic Waste recycling services, and does not report to Contractor that it achieves compliance
with AB 1826 through other methods (such as in-house recycling, food donations, or a third party
recycling program), Contractor (to the extent allowable under any applicable privacy laws) shall
provide City with the Customer's name, address, contact information and such other information
available to Contractor as may be requested by City, in a format approved by City, for inclusion
with State reporting.
8.3.5 SB 1383 Organics Recycling Program
City and Contractor acknowledge and agree that SB 1383 has required or will
require implementation of additional Organics recycling programs. City and Contractor will meet
and confer regarding regulations adopted by CalRecycle to implement SB 1383 in good faith in
advance to determine a fair and reasonable adjustment to the maximum rates set forth in Exhibit
A in order to compensate Contractor for implementing said additional Organics programs. The
City Manager is authorized to approve the Organics programs and any associated increase to the
maximum rates set forth on Exhibit A.
8.3.6 Scout and Push Out Services
Certain Commercial Premises within the City Limits are uniquely configured such that
Contractor may determine that a smaller vehicle may be needed to retrieve a Customer's Container
in order for a regular Collection vehicle to service the Container ("Scout Service"). Certain
Commercial Premises may be configured such that a Customer's Container must be manually
moved in order to be serviced by a Collection Vehicle ("Push Out Service"). Contractor shall
provide Scout Service and Push Out Service to Commercial Premises as it deems appropriate, at
rates that do not exceed the maximum rates set forth in Exhibit A.
8.3.7 Overage of Containers
Contractor is not obligated to collect Overage, unless caused by spillage of non -overloaded
Containers during Collection. Where Contractor observes and documents with a photograph an
Overage of Bins or Rolloff Boxes at any Commercial Premises receiving Solid Waste Handling
Services, Contractor may (i) collect such Overage at no additional charge as a courtesy; (ii) refuse
Collection and leave a written notice explaining the reason for non -Collection; or (iii) Collect the
Overage and charge the Customer an Overage charge not to exceed the maximum rates set forth
in Exhibit A. After three (3) instances of Overage in any twelve (12) month period for a particular
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service (i.e., Refuse, Recyclables, or Organic Waste), Contractor may increase the capacity or
frequency of Collection and increase the charges to such Customer according to the increased
services level, or require locking or slotted Containers to match documented service needs, as
provided below.
Upon Customer's request, Contractor shall provide Customer a copy of the notice via e-
mail, U.S. mail, or in person with the date, description and photograph of the Overage. Contractor
may increase the capacity or collection frequency of the Solid Waste Handling Services or require
locking or slotted Bins to match documented service needs; provided, however, that at least ten
(10) business days prior to increasing the service levels, or requiring locking or slotted Bins,
Contractor's representative must contact the Responsible Customer by telephone, e-mail or in
person to ensure that the Customer has the appropriate level of service.
8.4 Other Collection Programs As May Be Required by Law
In the event CalRecycle, or any federal, state, or local law or regulation (including but not
limited to regulations adopted by CalRecycle to implement SB 1383), imposes upon City or
Contractor a new requirement for the implementation of any source separated program for the
Collection of any waste material (whether or not meeting the definition of Solid Waste hereunder),
whether commercial or residential in nature, increases City's diversion requirement under Public
Resources Code Section 41780, or changes the methods for obtaining or measuring compliance
with diversion requirements, Contractor shall design and present a program to City to comply with
such requirement, which: program shall meet the City Manager's reasonable approval ("Proposed
Program"). Except with respect to programs which are required due to Contractor's failure to
achieve the diversion requirements set forth herein (which programs are subject to Section 8.6.5),
at such time as (if) any such Proposed Program is implemented, Contractor and City shall meet
and confer in good faith to determine a fair and reasonable adjustment to the maximum rates set
forth in Exhibit A in order to compensate Contractor for implementing said Proposed Program.
In determining a fair and reasonable rate adjustment, City may consider the cost to
Contractor in providing the Proposed Program. If City and Contractor cannot agree on a rate
adjustment for the Proposed Program within ninety (90) days from the date Contractor presents
the Proposed Program to City, then the City Manager shall establish a reasonable rate, subject to
Contractor's right to request an administrative hearing pursuant to Section 19 of this Agreement.
Alternatively, Contractor may agree that the Proposed Program shall be exempt from the
exclusivity granted to Contractor in this Agreement.
Contractor shall present the Proposed Program within sixty (60) days of a request to do so
by City. The Proposed Program shall include a detailed description of the following: (1)
Containers to be used and method of Collection; (2) equipment to be used (e.g., vehicle number,
models, capacity, and age); (3) number of employees required for the Proposed Program; (4)
materials to be Collected; (5) promotional and public education materials; (6) a two-year projected
financial analysis of the Proposed Program's operations, including documentation of the key
assumptions underlying the projections, and the support for those assumptions; and (7) any other
information reasonably required by City to evaluate the Proposed Program.
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8.5 Temporary Services
Contractor shall provide Temporary Services on an on -call basis to any Customer
requesting such service pursuant to the following conditions:
(A) Bins and Rolloff Boxes utilized in connection with Temporary Services
shall meet the minimum standards set forth herein.
(B) Contractor shall charge rates not exceeding the maximum rates set forth in
Exhibit A related to Bins or Rolloff Boxes utilized in connection with Temporary Services,
unless a different charge is approved in accordance with Section 8.9 (Special Services).
(C) Temporarily placed Bins may be used for small cleanup type projects at
Single Family and Multi -Family Dwellings; provided, however, Bins used for such
purposes shall not remain at the same address for a period that exceeds four (4) consecutive
weeks. Bins may not be placed in any public rights -of -way so as to create a safety hazard
or so as to block any right-of-way to a degree that it is not reasonably usable. An
encroachment permit shall be obtained by the Customer from the City prior to placement
of Bins within the right-of-way, and any Bins so placed shall at a minimum be equipped
with reflectors, reflective tape, reflective paint, or other reflective devises which, to the
satisfaction of the City Manager, make such Bins reasonably visible to vehicle traffic at
night.
(D) Contractor shall work with Customers requesting Construction and
Demolition (C&D) Waste Collection services to assist Customers in meeting requirements
under the City's ordinance regulating the recycling and disposal of Construction and
Demolition (C&D) Waste, including, but not limited to, the minimum required diversion
level. Contractor agrees to comply with all provisions of the ordinance applicable to it, and
to provide educational materials to construction contractors in City as may be contemplated
by any such ordinance.
(E) In addition to complying with any related requirements that may exist in
any ordinance which may be in effect in City regulating Construction and Demolition
(C&D) Waste, including specific diversion levels that may be required by any such
ordinance, Contractor shall make all reasonable efforts to recycle all Construction and
Demolition (C&D) Waste it Collects, especially to the degree such loads contain clean inert
materials.
8.6 Recycling Obligations and Public Education Program
am
8.6.1 Minimum Requirements for Recyclable Materials, Organic Waste and
Rolloff Boxes
Contractor shall utilize a truck dedicated for the purpose of Collecting Recyclable
Materials, such that Recyclable Material Collected in Recycling Carts or Recycling Bins, once
Collected, is not commingled with other Solid Waste (including Organic Waste). All material
Collected by Contractor in Recycling Carts or Bins pursuant to this Agreement shall be delivered
to a properly permitted facility for recycling and reuse purposes. All Organic Waste separated
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prior to Collection and thereafter Collected by Contractor pursuant to this Agreement (including
specifically materials Collected in Green Waste Carts) shall be delivered to a properly permitted
facility for recycling, mulching, composting, or alternative uses for which diversion credit is
provided as may be approved by CalRecycle. Contractor shall not be entitled to a rate adjustment
due to the State elimination of diversion credit for Green Waste used as alternative daily cover
pursuant to AB 1594 or other Applicable Laws. All Containers filled with Green Waste or C&D
shall be delivered to a properly permitted facility for recycling and reuse purposes unless it is
contaminated.
8.6.2 Extent of Applicable Franchise Rights
Nothing in this Agreement shall be construed as giving Contractor the right to Collect
Recyclable Material or Organic Waste which has not been discarded and placed for Collection in
Containers provided by Contractor in the location designated for that purpose.
8.6.3 AB 939 Obligations. Guarantee, and Indemnification
8.6.3.1 Warranties and Representations
Contractor warrants and represents that it is aware of and familiar with City's Source
Reduction and Recycling Element (the "SRRE"), that it is familiar with City's waste stream, and
that it has the ability to and will provide sufficient programs and services designed to assist City
to meet or exceed the diversion goals (including, without limitation, amounts of Solid Waste to be
diverted, time frames for diversion, and any other requirements) set forth in AB 939, and all
amendments thereto, and that it shall do so without imposing any costs or fees other than those set
forth in Exhibit A except as otherwise provided herein (e.g. Section 8.4 above).
8.6.3.2 Mutual Cooperation
City and Contractor shall reasonably cooperate in good faith with all efforts by each other
to meet City's diversion and other compliance requirements imposed by AB 939, AB 341,
AB 1826, SB 1383 and any other Applicable Laws. In this regard, City's obligations shall include,
without limitation, making such petitions and applications as may be reasonably requested by
Contractor for time extensions in meeting diversion goals, or other exceptions from the terms of
AB 939, AB 341, AB 1826, SB 1383 and any other Applicable Laws.
8.6.3.3 Waste Reduction and Program Imhlcmcntation
Contractor shall implement the programs identified in this Agreement immediately upon
the Effective Date hereof. On and after the Effective Date, Contractor shall provide City with
quarterly and annual written reports in a form adequate to meet City's filing and reporting
requirements to CalRecycle and to the County of Riverside pursuant to AB 939 and AB 341,
AB 1826, SB 1383 and any other Applicable Laws throughout the Term of this Agreement
wherein City's performance under the above programs shall be set forth in detail. Contractor assist
City with the preparation of, all reports and other information as may be required by any agency,
including specifically, the State of California, in order to comply with AB 939 and AB 341,
AB 1826, SB 1383 and any other Applicable Laws.
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8.6.3.4 Guarantee and Indemnification
Except for programs currently required by Applicable Law but not set forth in this
Agreement, or that Contractor is expressly instructed by City not to implement, services which a
Customer refuses to accept, or to the extent resulting from the acts or omissions of City, and subject
to Section 8.4, Contractor warrants and guarantees that it will carry out its obligations under this
Agreement such that: (i) both it and City will at all times be in compliance with the requirements
of all Applicable Laws including specifically AB 939, AB 341 and AB 1826, and (ii) City will
meet or exceed the diversion requirements (including, without limitation, amounts of Solid Waste
to be diverted, time frames for diversion, and any other requirements) set forth in AB 939, and all
amendments thereto. In this regard, Contractor agrees that it will, at its sole cost and expense:
(A) to the extent legally permitted, subject to Public Resources Code
Section 40059.1, defend, with counsel reasonably approved by City, indemnify, and hold
harmless City and City's officials, employees, and agents from and against all fines and/or
penalties and other liabilities which may be imposed by CalRecycle if: (1) Contractor fails
or refuses to timely provide information relating to its operations which is required
pursuant to this Agreement and such failure or refusal prevents or delays City from
submitting reports required by AB 939 in a timely manner; or (2) the source reduction and
recycling goals, diversion goals, program implementation requirements are not met with
respect to the waste stream Collected under this Agreement; provided, however, that the
foregoing obligation shall not apply to fines and/or penalties and other liabilities to the
extent arising from the acts of omissions of the City.
(B) assist City in responding to inquiries from CalRecycle;
(C) assist City in preparing for, and participating in, any review of City's SRRE;
(D) assist City in applying for any extension if so directed by City;
(E) assist City in any hearing conducted by CalRecycle relating to City's
compliance with AB 939;
(F) assist City with the development of and implement a public awareness and
education program that is consistent with the City's SRRE pursuant to AB 939; or
(G) provide City with recycling, source reduction, and other technical assistance
related to compliance with AB 939.
8.6.4 Waste Gen eration/Characterization Studies
Contractor acknowledges that City must perform Solid Waste generation and disposal
characterization studies periodically to comply with the requirements of AB 939. Contractor
agrees to participate and cooperate with City and its agents and to accomplish studies and data
collection and prepare reports, as needed and directed by City, to determine weights and volumes
of Solid Waste Collected and characterize Solid Waste generated, disposed, transformed, diverted
or otherwise handled/processed to satisfy the requirements of AB 939.
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8.6.5 Implementation of Additional Diversion Services
8.6.5.1 State Diversion Requirements.
Subject to Section 8.4, and except to the extent resulting from the acts or omissions of City,
Contractor shall maintain City compliance with the diversion requirements set forth in Public
Resources Code Section 41780. Contractor specifically acknowledges that the City's current
mandated diversion requirement is fifty percent (50%). In determining compliance with Public
Resources Code Section 41790, City and Contractor agree to cooperate in good faith to develop
representative per capita disposal calculations, as appropriate.
8.6.5.2 Compliance Plan.
If City fails to comply with Public Resources Code Section 41780 due to Contractor's
failure to implement the programs provided for in this Agreement, Contractor will submit a plan
ninety (90) days before the end of the calendar year to enable the City to comply with Public
Resources Code Section 41780 in the following calendar year through, among other things,
implementation of applicable portions of City's Source Reduction and Recycling Element adopted
in accordance with Public Resources Code Section 42649.3. Contractor's plan shall be deemed
approved by the City within forty-five (45) days after submission unless the City provides written
comments on the plan to Contractor prior to expiration of such forty-five (45) day period.
Implementation of the plan shall be at Contractor's sole cost and expense.
If, following implementation of the plan, City still does not achieve compliance with Public
Resources Code Section 41780, Contractor shall implement additional programs required for
compliance with Public Resources Code Section 41780 as directed by the City Manager, at
Contractor's sole cost and expense.
8.7 Additional Services to Single Family Dwellings and Multi-l:amily Dwellings
As part of the consideration for entering into this Agreement, Contractor shall provide the
following additional services at no charge, and shall not adjust its rates to Customers to offset costs
incurred in providing any of the following services:
8.7.1 Shredding; Service
City may direct Contractor to provide an on -site mobile shredding service for use by City
residents (a "Shredding Event") up to two (2) times per year. Each Shredding Event shall be
provided at dates, times, and locations designated or approved by the City Manager, in his or her
reasonable discretion, and should be for a minimum of three (3) hours in duration. In the event
inclement weather prevents a Shredding Event from occurring, Contractor shall reschedule the
Shredding Event to a date, time and location designated or approved by the City Manager. Each
Shredding Event shall be conducted at Contractor's sole cost and expense, utilizing equipment,
personnel, and methods appropriate for such event, as approved by the City Manager. Prior to
each Shredding Event, Contractor shall coordinate with City staff and/or public safety personnel
to make arrangements for convenient, and effective access to and participation by City residents
in the Shredding Event, and shall procure all necessary insurance coverage. Each Shredding Event
shall be designed to accommodate up to a maximum of three (3) "Bankers" boxes of paper or other
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media suitable for shredding from each Dwelling Unit within the Franchise Area that is
participating in the Shredding Event. Residents participating in the Shredding Event must be able
to visually observe the materials they delivered to the Shredding Event. Contractor shall publicize
each Shredding Event through methods, and using materials, approved by the City Manager, at no
cost to the City.
8.7.2 Holiday Trees
Contractor shall, free of charge, Collect holiday trees placed out for such Collection by
Single Family Dwelling Customers and by Multi -Family Dwelling Customers receiving Cart
service on each of the two (2) weeks after December 25 of each year as part of regularly scheduled
Collections. All such trees shall be diverted from the landfill by deposit at a composting facility
or grinding operation. Contractor will not be required to divert from landfill disposal artificial
holiday trees, or holiday trees with flocking, tinsel, or numerous ornaments.
8.7.3 Used Oil
Contractor shall Collect used oil left at the Curbside by Single Family Dwelling Customers
and by Multi -Family Dwelling Customers in a container provided by Contractor, on the normal
Collection day.
8.7.4 Home Composting
Contractor shall provide two (2) home composting workshops at a location within the City
each calendar year, at no additional cost. Single Family Dwelling Customers and Multi -Family
Dwelling Customers successfully completing the workshop are eligible to receive a free
composting bin for residential use, and may opt out of receiving Green Waste Collection service.
Contractor is not obligated to provide more than two hundred (200) free home composting bins
each calendar year. Additional home composting bins shall be provided at a cost not to exceed the
cost set forth in Exhibit A.
8.8 Additional Services to City
8.8.1 Services at Citv Premises
Contractor shall provide Collection services at all Premises owned and/or operated by City,
at no cost to City and shall provide Containers for such service as City deems appropriate for each
of its various Premises (i.e., Carts, Bins or Rolloff Boxes). Collection services Contractor provides
for City Premises shall include, but are not limited to, Collection of all Solid Waste, including
Recyclable Materials, Organic Waste, Green Waste. Such services shall be provided for all
existing City Premises, as they may be expanded from time to time, as well as all new or additional
Premises acquired/constructed during the Term hereof at no additional cost; provided, however,
that City may be charged by Contractor for Solid Waste Handling Services provided for
Construction and Demolition (C&D) Waste generated as part of City public works projects, and
in connection with the construction of any new City facilities, at rates that do not exceed the
maximum rates set forth in Exhibit A. Contractor shall carry out its obligations pursuant to this
provision in a manner, and to a degree (including specific days and times), approved by the City
Manager.
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In addition, Contractor shall continue to provide to City, at no charge, for storage purposes:
(i) two (2) locking storage Containers at Fire Station 7, and (ii) five (5) locking storage Containers
at the old City Hall site/Menifee Police Station.
8.8.2 Collection at City Sponsored Events
Contractor shall provide Solid Waste, Organic Waste, and Recyclable Materials Collection
at all City -sponsored events. The number, type and service requirements for these events may
vary from year to year. The current list of City -sponsored events is set forth in Exhibit E. This
service shall include providing, servicing, and storing Containers (cardboard boxes and liners,
Carts, Bins and/or Rolloff Boxes) to Collect and dispose of all Solid Waste generated, and
providing, servicing and storing Containers to Collect and process source -separated Organic Waste
and Recyclable Materials. Contractor shall provide these services at no cost.
City may request similar services for non -City -sponsored programs and events. Such
services shall be provided by Contractor at rates subject to approval by the City Manager,
following a site and service evaluation.
Contractor shall assist persons who are responsible to coordinate any such programs or
events for which services are provided pursuant to this Section 8.8.2 in the implementation of
recycling programs, as requested by City.
8.8.3 Fluorescent Lightbulb Collection and Recycling Program for City
Facilities
Contractor shall provide fluorescent lightbulb recycling services for City facilities that rely
on fluorescent lighting pursuant to the following requirements:
(A) Each calendar year, Contractor shall provide up to two (2) WM
LampTracker® containers for placement at each City facility selected by City. Contractor
shall provide and deliver to each City facility the selected WM LampTracker® mail -back
containers, free of charge. The collective annual cost for Collection and recycling of such
WM LampTracker® containers shall not exceed Two Thousand Dollars ($2,000).
Additional service requested by City beyond the service provided free -of -charge by
Contractor shall be paid by City at a rate not to exceed the maximum rate set forth in
Exhibit A.
(B) City shall place used fluorescent lightbulbs in the WM LampTracker®
containers and mail such containers to Contractor for handling, utilizing pre -paid postage
labels to be provided by Contractor. City shall not place any other waste including Exempt
Waste, materials containing polychlorinated biphenyl ("PCB), or high intensity discharge
bulbs in the WM LampTracker® containers; any such waste shall be deemed non-
conforming waste and title and liability related to such non -conforming waste shall remain
with the City.
(C) Contractor's Fluorescent Lightbulb Collection and Recycling Program only
applies to City -generated 4-foot, 6-foot and 8-foot commercial fluorescent lightbulbs,
including HID, UV, Unbent, and other similar commercial fluorescent lightbulbs.
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8.8.4 Used Battery Recycling
Contractor shall provide two (2) BatteryTracker® used battery containers at agreed upon
City facilities, as specified by City, for use by Single Family Dwelling Customers and Multi -
Family Dwelling Customers. Contractor shall remove the container when full and replace it with
an empty container. The annual cost to Contractor to provide this service shall not exceed Two
Thousand Dollars ($2,000). Additional service requested by City beyond the service provided
free -of -charge by Contractor shall be paid by City at a rate not to exceed the rate set forth in
Exhibit A.
8.8.5 Communi , Cleanups
Contractor shall provide up to forty-eight (48) Roll -off Boxes each calendar year, delivered
to locations determined by City, for Collection of Solid Waste, Green Waste, Bulky Items and e-
waste. These events shall take place on up to four (4) selected Saturdays determined by City, and
shall occur between the hours of 8:00 a.m. and 12:00 p.m., with up to twelve (12) Roll -off Boxes
delivered per event, with no more than one (1) event per Council District. City shall use reasonable
efforts to have disposal costs waived by Riverside County. Contractor shall deliver Roll -off Boxes
to the agreed upon Collection locations and shall remove Containers and dispose of Collected Solid
Waste at the conclusion of said period.
8.8.6 Litter Abatement Partnership
City and Contractor shall work cooperatively to develop an Adopt -a -Road program to
address litter abatement in the City. At no charge to City, Contractor shall provide City with one
(1) Collection Vehicle and four (4) staff members for eight (8) hours per month to assist with
City's litter abatement efforts. Contractor will coordinate with City to identify target areas for litter
collection, consisting of not more twenty-six (26) miles per month (13 road segments). City shall
install and maintain "Adopt -a -Road" signs on Contractor -adopted road segments at no cost to
Contractor. Contractor shall not be required to Collect or dispose of Exempt Waste.
8.8.7 Illegal Dumping
Contractor shall arrange to remove and dispose of illegally dumped materials located
within twenty (20) feet of the public right of way in the City, within two (2) business days from
its observation of the illegally dumped Solid Waste or a request for removal from the City, as the
case inay be. Abandoned vehicles and objects or appliances larger than conventional household
furniture or appliances as well as Exempt Waste are exempt from the above requirements; provided
however, that should Contractor observe any of such exempt items within the public right of way
Contractor shall immediately report such items to City. Contractor may provide an accounting of
the cost of providing this service to City, and may request an adjustment in rates, to reimburse it
for a substantial increase in costs to provide this service in accordance with Section 24.6.
8.9 Special Services
Contractor may provide special pickup procedures or services in addition to the services
described herein for Customers who request or require such services at reasonable rates established
by Contractor, which rates are subject to approval by the City Manager. Contractor shall notify
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the City Manager of any such services prior to such time as they are provided in order to allow the
City an opportunity to conduct necessary inspections, review the proposed rate, and impose
appropriate regulations.
SECTION 9.
MINIMUM STANDARDS FOR CONTRACTOR'S SOLID
WASTE HANDLING SERVICE COLLECTION VEHICLES
9.1 General
Contractor shall provide vehicles for the Collection of Solid Waste ("Collection Vehicles")
that are sufficient in number and capacity to efficiently perform the work required by this
Agreement in strict accordance with its terms. Contractor is expressly obligated to provide such
Collection Vehicles and routes as are required to meet the service standards set forth herein.
Contractor shall have available on Collection days sufficient back-up vehicles for each type of
Collection Vehicle used to respond to complaints and vehicle breakdowns. Upon or prior to the
Effective Date of this Agreement and prior to the start of any extension period of this Agreement
pursuant to Section 6, Contractor shall provide City with a report containing the information
required under South Coast Air Quality Management District's Rule I I93(d)(7). Notwithstanding
anything in this Agreement to the contrary, the vehicles Contractor utilizes solely for delivery of
Bins, pick-up of Bulky Items, route supervision, or spare vehicles shall not be considered
"Collection Vehicles" for purposes of Section 9.2, Section 9.3(A), Section 9.3(B), and Section
9.3(C).
9.2 Air (duality/Fuel Requirements
Contractor's Collection Vehicles shall comply with all rules and regulations of the South
Coast Air Quality Management District, the Air Resource Board, and any other regulatory body
that may be in effect during the Term of this Agreement, as well as other federal, state and local
laws and regulations that may be enacted during the Term of this Agreement. Contractor's
Collection Vehicles shall meet or exceed such air quality standards as may be adopted by the
forgoing regulatory bodies during the Term. Contractor's Collection Vehicles shall comply with
the requirements in the South Coast Air Quality Management District's Rule 1193.
9.3 Specific Requirements
Each Collection Vehicle utilized by Contractor in the performance of [his Agreement shall
meet the following minimum standards:
(A) Each Collection Vehicle must be an alternative fuel vehicle as defined by
the South Coast Air Quality Management District.
(B) Each Collection Vehicle shall be equipped with a tag axle.
(C) Each Collection Vehicle shall be registered with the California Department
of Motor Vehicles.
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(D) Each Collection Vehicle shall be inspected regularly by Contractor to
ensure it meets the requirements of the California Vehicle Code and the California
Highway Patrol. Contractor shall make copies of its Biannual Inspection of Terminal
("BIT") inspection reports, including Contractor's maintenance records, available to City
upon request by the City Manager.
(E) Each Collection Vehicle shall be equipped with devices capable of covering
every open section of the vehicle in which Solid Waste may be placed and, while operating
upon the public rights -of -way, shall be covered so as to prevent any Solid Waste from
falling or being blown or otherwise dislodged from the vehicle.
(F) Each Collection Vehicle shall be continuously maintained so as to both: (1)
meet the highest industry standards with regards to efforts to prevent liquid from leaking
and to the degree possible ensure each Collection Vehicle is "leak -resistant" and, (2) at all
times comply with the provisions of all laws and regulations including the Vehicle Code
and any applicable NPDES permit, with regard to materials leaking from Collection
Vehicles. Contractor shall be responsible to promptly clean any spillage or Solid Waste
that leaks or otherwise escapes the vehicle.
(G) As frequently as determined necessary by the City Manager, each
Collection Vehicle shall be painted (but not more than once every three (3) years), shall
have routine body work performed, and shall be cleaned, so that such vehicles do not
become unsightly, as determined by the City Manager. Each vehicle shall be painted with
Contractor's colors and identifying information as required herein.
(H) Contractor's name, local or toll free telephone number, and a vehicle
number shall be visibly printed or painted in letters not less than five (5) inches in height
so as to be legible on both sides of each Collection Vehicle. Any other information or
signage printed, painted, or displayed on Contractor's Collection Vehicles, when such
Vehicles are providing Collection services within City Limits, shall be subject to approval
by City.
(I) Each Collection Vehicle shall be maintained in a clean and sanitary
condition both inside and out.
(J) Each Collection Vehicle shall carry a broom, shovel, and operable fire
extinguisher, and shall be equipped with a communication device sufficient to allow the
driver to communicate directly with Contractor's dispatcher and/or main office.
(K) Each Collection Vehicle shall be kept in good repair and working order, and
shall be equipped with appropriate safety equipment, including any new safety related
technologies that become standard in the waste industry, and at a minimum shall have a
video monitor based back-up system, or its equivalent. Contractor shall keep a sufficient
supply of replacement parts and equipment on hand to ensure adequate vehicle
maintenance and timely and continuous performance of the services contemplated by this
Agreement.
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(L) Contractor shall inspect each Collection Vehicle daily to ensure that all
equipment is operating properly. Collection Vehicles which are not operating properly
shall be removed from service until repaired and operating properly. Contractor shall
perform all scheduled maintenance functions upon Collection Vehicles in accordance with
the manufacturer's specifications and schedule. Contractor shall repair, or arrange for the
repair of, all of its vehicles and equipment for which repairs are needed because of accident,
breakdown or any other cause so as to maintain all equipment in a safe and operable
condition. Contractor shall keep accurate records of all Collection Vehicle maintenance
and repair, recorded according to date and mileage, including signed verifications that
repairs and maintenance have been properly performed, and shall make such records
available to City upon request.
(M) No Collection Vehicle shall be utilized if it is leaking brake, hydraulic, or
other fluids, and Contractor shall clean up any leaks or spills from their vehicles per the
NPDES permits in effect at the time. No fluids shall be washed into storm drains at any
time. All NPDES dry-cleaning measures shall be complied with. All Collection Vehicles
must be equipped with absorbent for such cleanup efforts.
(N) Upon request, Contractor shall furnish City a written inventory of all
equipment, including Collection Vehicles, used in providing service pursuant to this
Agreement. This inventory shall list all equipment by manufacturer, ID number, date of
acquisition, type and capacity.
(0) Contractor shall not load Collection Vehicles in excess of the
manufacturer's recommendations or limitations imposed by state or local laws or
regulations.
(P) Collection Vehicles shall comply with EPA noise emission regulations,
currently codified at 40 CFR Part 205.
(Q) The average fleet age, when applied to all Collection Vehicles used by
Contractor in the Franchise Area, shall be no more than ten (10) years of age at any time
during the Term, nor may any Collection Vehicle be purchased for use in the Franchise
Area that is over seven (7) years of age at the time of purchase. For purposes of the average
fleet age requirement, Collection vehicles refurbished to specifications approved by the
City Manager shall be considered as new when placed back into service.
(R) All Collection Vehicles used by Contractor to perform Collection services
under this Agreement shall be equipped with on -board routing systems capable of tracking
vehicle miles traveled (VMT). VMT systems must be capable of generating reports as
requested by City. In addition, all Collection Vehicles shall, at a minimum, be equipped
with a global positioning system (GPS) and Contractor shall be able to provide evidence
of the route location of each Collection Vehicle throughout each service day. City, in its
sole discretion, may grant Contractor a waiver of this requirement due to the unavailability
of equipment or delays in manufacture; evidence of such unavailability or delay shall be
used by City to determine the period for which the waiver shall apply.
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9.4 Costs of Operation and Damages
Contractor shall be responsible for ensuring all Collection Vehicles comply with all
Applicable Laws.
9.5 City Inspcction
City may cause or require any Collection Vehicle used in performance of this Agreement
to be inspected and tested at any time and in such manner as may be appropriate to determine that
the vehicle is being maintained in compliance with the provisions of this Agreement.
9.6 Correction of Defects and Removal of Vehicles from Use within City
Contractor agrees to immediately remove from service, and replace or repair, to the City's
satisfaction, any Collection Vehicle which City reasonably determines to be of unsightly
appearance, unsafe, unsanitary, leaking, out of compliance with any law or regulation or this
Agreement, or otherwise in an unsatisfactory operating condition; and any such vehicle shall not
be returned to service until the City Manager gives his written consent for its return, which shall
not be unreasonably withheld.
SECTION 10.
CONTRACTOR'S SOLID WASTE HANDLING
SERVICE PERSONNEL
10.1 Uniforms
Each of Contractor's Collection employees shall wear a clean uniform bearing Contractor's
name. Uniforms must be well maintained and in good condition.
10.2 Identification of Employees
Contractor shall provide identification badges, cards or similar devices, for all of its
employees, and all authorized subcontractors, who may make personal contact with residents of
the City. City may require Contractor to notify Customers yearly, or more frequently if determined
necessary by City, of the form of said identification.
10.3 Employee List
Contractor shall provide a list of current employees and authorized subcontractors,
providing Solid Waste Collection Services to City upon request.
10.4 Driver's License
Each employee operating a vehicle as part of his or her duties shall, at all times, carry a
valid operator's license for the type of vehicle he or she is operating.
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10.5 Screening of Field Employees
Contractor shall make reasonable efforts to determine if its employees working in the field
(i.e., drivers of Collection Vehicles, and employees otherwise involved in Collection at Customer
Premises) have been convicted of a felony. Contractor shall use reasonable efforts to ensure that
any employee so determined by Contractor not work in the field within City.
10.6 Discontinued Use of Unsatisfactory Employees
No employee shall continue to have any involvement whatsoever with regard to any work
in the field within City if City gives notice to Contractor that such employee is determined by City
to be discourteous, disorderly, inefficient, unable to communicate effectively with Customers, or
otherwise objectionable (provided the term "otherwise objectionable" shall not permit City to
"ban" an employee for reasons that violate public policy; and, further, City shall give a reason for
requesting the "ban" of any employee from engaging in work in the field within City).
10.7 Training; and Legal Compliance
Contractor shall provide operating and safety training that meets minimum OSHA
standards for all personnel, and shall comply with all laws and regulations applicable to its
employees and personnel. Contractor shall periodically train employees on all the specific
requirements of this Agreement applicable to the employee's effective performance of his or her
duties. In addition, Contractor shall require that all new employees with duties related to this
Agreement receive the above "Agreement -specific" training as part of the orientation process as
appropriate. Upon City's request, Contractor shall provide documentation to City demonstrating
said training has occurred.
10.8 Customer Service
10.8.1 Office Hours
Contractor shall maintain a customer service office with assigned personnel accessible by
a local phone number or a toll -free number for communication with the public that at a minimum
will be open from 8:00 a.m. to 5:00 p.m. Monday through Friday. At least one responsible and
qualified representative of Contractor, capable of communicating in English and Spanish, shall be
present and available during all times that an office is required to be open as noted above ("Office
Hours"), for personal communication with the public rcgarding Billings, complaints, customer
service inquiries, etc.
10.8.2 Telephone Customer Service Requirements
10.8.2.1 Toll Free Number
Contractor shall maintain a toll free telephone number that rings at an office at all times
during Office Hours. Both English and Spanish speaking personnel will be available during Office
Hours to assist Customers with telephonic inquiries. Contractor shall have the ability (through the
use of outside resources or otherwise) to communicate with Customers who only speak Spanish,
to ensure their inquiries, questions, complaints and other matters are dealt with in a reasonably
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timely fashion. All such personnel shall be polite and responsive, and shall be sufficiently
knowledgeable, and have the authority to respond and/or advise Customers seeking assistance.
Contractor's telephone system shall be adequate to handle the volume of calls typically
experienced on the busiest days. Contractor shall provide City with a 24-hour emergency
telephone number to a live person, not voice -mail.
10.8.2.2 Call Responsiveness
Contractor shall make reasonable attempts to answer all phone calls within five (5) rings.
If a call has been placed on hold for three (3) minutes, the caller will either be switched to a
message center which shall be responsible to obtain the caller's address and phone number, or a
Customer service representative will obtain the Customer's address and a number at which the call
can be returned. Contractor shall make at least three attempts within the next business day to
return the call, with the first such attempt not more than one (1) hour after the caller leaves the
message. If Contractor is unsuccessful in contacting the Customer after following this procedure,
it shall either leave a voicemail or, if voicemail is not available, send a letter to the caller indicating
its efforts.
10.8.3 Complaint Documentation
All service complaints shall be directed to Contractor. Contractor shall log all complaints
received and said log shall include the date and time the complaint was received, the name, address
and telephone number of the complaining party, a description of the complaint, the name of the
employee recording the complaint and the action taken by Contractor to respond to and remedy
the complaint. All written Customer complaints and inquiries shall be date -stamped when
received. All complaints shall be initially responded to within one (1) business day (Monday
through Friday) of receipt. Contractor shall log action taken to respond to and remedy the
complaint. Daily logs of complaints shall be retained for a minimum of twenty-four (24) months.
All Customer service records and logs kept by Contractor shall be available to City upon request.
City shall, at any time during regular Office Hours, have access to Contractor's Customer service
department for purposes that may include monitoring the quality of Customer service or
researching Customer complaints. Contractor shall provide to City on a quarterly and annual basis,
a complaint log, in a form satisfactory to the City, that includes all of the complaints logged
pursuant to this Section, the complainant and the resolution. Notwithstanding the foregoing,
Contractor shall not be required to disclose any information that is protected under the California
Consumer Privacy Act or its implementing regulations, as may be amended.
10.8.4 Resolution of Customer Complaints
Disputes between Contractor and its Customers regarding the services provided in
accordance with this Agreement may be resolved by the City. The City's decision shall be final
and binding. Should Contractor and Customers not be able to establish a mutually acceptable fee
to be charged for special services as set forth in Section 8.9, the matter shall be dealt with pursuant
to this Section, be determined by the City, and the City's decision shall be final, subject to
Contractor's right to request an administrative hearing under Section 19 of this Agreement.
Intervention by the City is not a condition precedent to any rights or remedies third parties might
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otherwise have in any dispute with Contractor. Nothing in this Section is intended to affect the
remedies of third parties against Contractor.
10.8.5 Government Liaison
Contractor shall designate in writing a "Government Liaison" who shall be responsible for
working with City and/or City's designated representative(s) to resolve Customer complaints. City
shall have the right to approve Contractor's choice for a liaison, which approval shall not be
unreasonably withheld. It is anticipated that the Government Liaison will regularly attend City
meetings related to Contractor's performance of the Agreement and City events involving
community outreach programs.
10.9 Education and Public Awareness
10.9.1 General
Contractor acknowledges and agrees that education and public awareness are critical, key
and essential elements of any efforts to achieve the requirements of AB 939 and AB 341.
Accordingly, Contractor agrees to prepare and implement a plan designed to exploit opportunities
to expand public and Customer knowledge concerning needs and methods to reduce, reuse and
recycle Solid Waste and to cooperate fully with City in this regard. Annually on or before October
31 of each year during the Term, Contractor shall develop or update a public education and
information program plan for review and approval by the City Manager, to explain program
offerings, maximize participation in the Recycling effort, and assist City's overall sustainability
efforts, and to provide information on other matters such as instructions on the proper filling of
Containers, instructions as to what materials may or may not be placed in Recyclable Materials or
Organic Waste Containers, and the amount of overage and contamination fees in the event of non-
compliance, holiday Collection schedules, the availability of Bulky Items and sharps Collection,
Temporary Services and other special Collection services, as well as procedures for complaints
and service requests. In addition, Contractor shall distribute electronic welcome brochures with
the above information to new Single Family Dwelling Customers and Multi -Family Dwelling
Customers at the time they apply for service. Contractor shall also provide a website specific to
City providing the above information. The direct costs of implementing such program shall be
borne by Contractor.
10.9.2 Written Program Materials
Contractor shall maintain a program of providing information relevant to the need and the
methods to reduce, reuse and recycle Solid Waste, and Contractor upon request from City, may
include such information along with bills provided to Customers. All public education materials
shall be approved in advance by City, be produced and/or made available in both English and
Spanish languages, and shall bear the City seal. Contractor shall keep a record of all promotional
and public education materials utilized, and shall provide quarterly reports summarizing its public
outreach and education efforts.
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10.9.3 Public Outreach
At a minimum, Contractor shall promote recycling through presentations and educational
materials to businesses, business groups, homeowners associations, construction contractors and
other civic groups. Contractor shall also provide articles on relevant waste and recycling topics
for the City's website on at least a quarterly basis. With respect to Organics, Contractor, with such
support from City as may be reasonably necessary, shall perform at least the following public
outreach:
(A) Initial Direct Mailing Outreach to be performed by Contractor:
Immediately following the Effective Date, Contractor shall prepare a letter regarding the
requirements of AB 341 and AB 1826 for City approval. Upon receipt of City approval the letter
shall be printed using the City's electronic letterhead and mailed or delivered by Contractor to all
Commercial Customers, informing Commercial Customers of the availability of Contractor -
provided Recyclable Materials and Organic Waste services and the requirements for compliance
with AB 341 and AB 1826. The letter shall note that participation is mandatory under State law
for Customers that meet the participation thresholds under AB 341 and AB 1826.
(B) Annual Outreach to be performed by Contractor: Contractor, under the
guidance of City, shall annually contact all Customers who are not in compliance with AB 341 or
AB 1826 and shall explain the requirements of AB 341 and AB 1826, detail the Customer's
specific reasons for non-compliance, and explain the annual reporting requirements to CalRecycle.
Contractor shall annually provide City (to the extent allowable under applicable privacy laws) with
a list of all Customers in non-compliance with AB 341 or AB 1826 (including but not limited to a
contact person, service and billing addresses, phone number, email, account notes and any other
information reasonably necessary) as well as all available information relating to any refusal by
the Customer to utilize Recyclable Materials or Organic Waste Collection services, in order that
such information may be included in reports to CalRecycle.
10.9.4 City Newsletter
Contractor shall pay City Three Thousand Seven Hundred Fifty Dollars ($3,750)
quarterly, up to Fifteen Thousand Dollars ($15,000) annually, for publication and distribution of a
City newsletter. Contractor shall be entitled to editorial space of not less than one-half page in
each edition of the newsletter, which shall be utilized to promote waste diversion, sustainability
efforts, and community partnerships.
10.9.5 Corrective Action Notice
Contractor shall develop a corrective action notification form for use in instances where a
Customer sets out inappropriate materials for Collection that explains the appropriate manner for
disposal of such items.
10.9.6 Contractor Representative
Contractor shall retain on its staff an individual who shall as part of his or her job function
routinely visit civic groups, and homeowners' associations, to promote and explain the Recycling
and other programs that Contractor offers, and participate in demonstrations, and civic events.
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SECTION 11.
CONTRACTOR'S CONSIDERATION
In addition to any other consideration set forth herein, as part of its consideration for
entering this Agreement, and for the exclusive franchise, right and privilege to provide Solid Waste
Handling Services within City as specified herein Contractor shall provide the following:
11.1 Consideration for Agreement
As consideration for City entering into this Amended and Restated Franchise Agreement,
within fifteen (15) business days after the Effective Date, Contractor shall pay to City an extension
fee of Three Million Dollars ($3,000,000).
11.2 Franchise Fee
Contractor shall pay to City, a franchise fee equal to twelve percent (12%) of Contractor's
annual Gross Receipts each year, or portion thereof, throughout the Term of this Agreement (the
"Franchise Fee"). Said Franchise Fee shall be paid to City quarterly, within thirty (30) calendar
days following the close of each quarter. Should any such due date fall on a weekend or holiday
in which the City's business offices are closed, payment shall be due on the first day thereafter in
which the City's business offices are open. The amount of each payment shall be equal to twelve
percent (12%) of Contractor's Gross Receipts in the calendar quarter preceding the date payment
was due. The Franchise Fee due hereunder shall apply to Gross Receipts of Contractor collected
after the expiration of the Term hereof relating to Contractor's performance during the Term
hereof. Franchise Fees shall be accompanied by a statement certified by an officer of Contractor
attesting to the accuracy of the amounts paid, and setting forth the basis for their calculation in a
manner acceptable to City.
l l .3 Administrative Cost Reimbursement; Street Sweeping, and Street
Maintenance/Rehabilitation, Program Implementation Costs
11.3.1 Administrative Cost Reimbursement
Contractor shall make a payment to City in the amount more fully set forth in this paragraph
intended to defray its administrative costs related to this Agreement (the "Administrative Cost
Reimbursement"). The amount of the annual Administrative Cost Reimbursement shall be the
sum of the cost (salary and fringe benefits) for employees engaged to provide oversight and
assistance related to Solid Waste Handling Services, and out-of-pocket costs (including
specifically consultant and legal fees) incurred in the administration of this Agreement, including
fees and costs associated with analyzing new legislation, considering requests from Contractor
(including specifically, without limitation, requests for rate increases), and otherwise analyzing
issues that arise in connection with this Agreement; provided, however, that the maximum annual
Administrative Cost Reimbursement shall not exceed One Hundred Fifty Thousand Dollars
($150,000). Invoices for the Administrative Cost Reimbursement will be provided to Contractor
by City and shall be due to City within forty-five (45) days of the date such invoice is mailed by
City. The initial payment shall be made within fifteen (15) business days after the Effective Date,
and shall be in the amount of One Hundred Fifty Thousand Dollars ($150,000). Contractor
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acknowledges and agrees that City shall not be obligated to submit an invoice to Contractor with
respect to said initial payment.
11.3.2 Street Sweeping, and Street Maintenance/Rehabilitation; Program
Implementation Costs
Commencing after the Effective Date, for each July 1 - June 30 period during the Term,
prorated as needed, Contractor shall make a payment to City for Solid Waste and Recycling
program implementation, street sweeping and street maintenance/rehabilitation. The initial
payment shall be made within fifteen (15) business days after the Effective Date, and shall be in
the amount of Three Hundred Thousand Dollars ($300,000). Subsequent annual payments of Three
Hundred Thousand Dollars ($300,000) each shall be made on or before July 15, 2021 and each
July 15 thereafter during the Term. Street sweeping debris placed into Contractor's Containers at
the City yard shall be disposed of by Contractor at no cost to City.
SECTION 12.
CHARGE FOR LATE PAYMENTS
In the event Contractor fails to timely make any of the payments provided for in this
Agreement (whether reimbursements, Franchise Fees, payments of funds collected in connection
with billing services, or otherwise), Contractor shall pay to City, as additional consideration, a sum
of money equal to five percent (5%) of the amount due. This amount is required in order to defray
those additional expenses and costs incurred by City by reason of the delinquent payment
including, but not limited to, the cost of administering, accounting for, and collecting said
delinquent payment and the cost to City of postponing services and projects necessitated by the
delay in receiving the revenue. In addition, any amounts not paid to City by Contractor within
sixty (60) days of the due date shall be subject to interest in the amount of ten percent (10%) per
annum, calculated on a daily basis for each day such sums remain past due.
SECTION 13.
CONTRACTOR'S BILLING SERVICES AND SYSTEMS
13.1 Billing
Contractor shall provide services pursuant to this Agreement at rates it sets, charges to, and
collects from Customers and Responsible Customers; provided, however, Contractor's rates shall
not exceed those set forth in Exhibit A, which sets out the maximum rates that may be charged by
Contractor for the various different service options that may occur hereunder, as such maximum
rates may be adjusted from time to time pursuant to the terms hereof. Contractor shall provide all
Customers, or Responsible Customers, where applicable, with itemized Bills, detailing charges for
all services, including charges for late payments, as well as the period of service to which the Bill
applies. Contractor acknowledges that it, and not Customers nor Responsible Customers, is to pay
a Franchise Fee and the other fees noted herein to City as consideration for this Agreement.
Accordingly, Contractor's Bills shall not include separate itemization of a "Franchise Fee" or other
similar designation relating to fees which Contractor is required to pay to City.
Billings may be made on a quarterly basis in advance for all Customers and Responsible
Customers at Single Family Dwellings receiving regular service, and monthly in advance for all
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Customers and Responsible Customers at Commercial Premises receiving regular service. Billing
for temporary service or non -routine charges (e.g. extra pickup/contamination fee) will be made
in arrears. Premises ordering service after the first of the quarter or month (as applicable) or
canceling service prior to the end of the quarter or month (as applicable) shall be charged on a
prorated per -pickup basis.
13.1.1 Suspension of Service; Tax Roll Collection for Delinquent Accounts
Contractor may discontinue service to any Customer, or Responsible Customer, where
applicable, as set forth in this Section. Customers or Responsible Customers, where applicable,
who have not remitted required payments within sixty (60) days after the date of Billing shall be
notified in writing that services may be discontinued fifteen (15) days from the date of the notice
if payment is not made before that time. If payment is not made by the expiration of said fifteen
(15) day period, Contractor may discontinue service to that Customer or Responsible Customer.
Contractor shall resume Solid Waste Collection on the next regularly scheduled Collection day for
any Customer or Responsible Customer, as applicable, whose service is discontinued upon receipt
of payment of delinquent fees, late fees and any related service restart charges in amounts not to
exceed the maximum amounts set forth in Exhibit A. Contractor may not charge for service during
any period in which service was suspended. A deposit equal to the rate for one month's service
based upon the Customer's three-month average billing history may be required of accounts which
have been discontinued for non-payment prior to re -instituting service at such accounts.
Notwithstanding the above, in order to avoid negatively impacting public health or safety,
Contractor shall not suspend service to any Customer or Responsible Customer without the City's
prior consent, and shall continue to provide service to any Customer or Responsible Customer if
directed to do so by City without regard to the status of said Customer's or Responsible Customer's
account.
On or before April 1 of each year during the Term, Contractor shall provide City with a list
of delinquent Single Family Dwelling accounts, to ensure proper notification and opportunity to
cure prior to a City Council hearing to add the delinquent accounts to the tax roll. Following such
City Council hearing and determination by the City Council to add the delinquent accounts to the
tax roll, City, with cooperation from Contractor, shall work with the Riverside County Assessor's
Office to prepare and file all documentation required for tax roll collection of account
delinquencies, for placement of an assessment on the Premises receiving services.
13.2 Minimum Requirements for Billing Statements
Bills shall be prepared and provided in a manner that adequately presents the services
rendered in an easy to understand and verifiable format. The format of Contractor's Bills must be
approved by City prior to the commencement of Solid Waste Handling Services under this
Agreement. City reserves the right to require changes to the Bill format during the Term of this
Agreement. In addition to any other pertinent data, Billing statements mailed by Contractor shall
be printed to contain the following information, and the language contemplated for compliance
with this requirement shall be subject to the City Manager's approval:
(A) A "statement date" indicating the date the Bill is generated and mailed.
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(B) A notice to Customers or Responsible Customers that payments are due
within thirty (30) days of the statement date, an advisement that the Customer's or
Responsible Customer's account will become delinquent if payment is not received by the
60th day following the statement date, an advisement of the date and time by which
payments must be received in order to avoid delinquent fees (i.e., 4:00 p.m. on the 75th
day following the statement date), and a notification of the amount of fees that will be
imposed and the potential for service interruptions if payments are not received by the
specified date and time.
(C) An advisement to Customers and Responsible Customers that payment can
be made in the following manner:
(1) by mailing payment to Contractor at such address as Contractor may
designate;
(2) by automatic withdrawal from a checking account; or
(3) by major credit card on-line (i.e., via the Internet).
(D) An advisement that inquiries relating to Solid Waste Collection should be
directed to Contractor, including an address, phone number and internet site, for such
inquiries.
13.3 Billing; System
13.3.1 Computerization of Account Information
Contractor shall provide and maintain, at its expense, computer equipment sufficient to
operate pertinent computer programs and otherwise provide the services required by this Section.
Contractor shall maintain, at its own expense, computer programs sufficient to operate a
computerized billing system, permanently maintain all account records and otherwise meet the
requirements of this Section.
13.3.2 Minimum Computer Programming Requirements
In addition to any other requirements set forth herein, but subject to the California
Consumer Privacy Act, Contractor's billing system shall at a minimum be able to perform the
following functions:
(A) create a permanent record of any adjustment to a Customer's or Responsible
Customer's (as applicable) account;
(B) work in connection with a backup system such that all Customer and
Responsible Customer account data and records are protected from a computer failure and
permanently preserved on not less than a daily basis; and
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(C) allow Customers or Responsible Customers to make payments on-line (i.e.,
via the Internet) by a major credit card, automatic withdrawal from a checking account,
mail, or other acceptable forms of payment.
13.3.3 Contractor Billing
Contractor shall be responsible to bill all Customers (residential, commercial,
construction, special, and all others).
13.3.4 Billing Inquiries
All Billing inquiries shall be entered into the computerized billing system. Contractor's
computer programs shall keep a permanent record of all Billing inquiries and all adjustments to
Customer's or Responsible Customer's Bills resulting therefrom.
13.4 Payment, Accounting Systems
13.4.1 Collection and Processing, of Payments
13.4.1.1 Accountingand nd Deposit of Funds
All payments received by Contractor shall be appropriately credited to Customer and
Responsible Customer accounts, deposited in a bank account and accounted for in a businesslike
manner utilizing generally accepted accounting principles. To facilitate audits and record keeping
Contractor shall make all payments to third parties from its bank accounts by check, ACH
debit/credit or wire.
13.4.1.2 Allocation of Funds
With respect to payments received from each Customer or Responsible Customer, unless
a Customer or Responsible Customer (as applicable) specifically directs a different allocation,
funds shall be allocated first to outstanding charges for Solid Waste Collection, from oldest to
most recent charges, then to any related delinquency fees or service charges, and lastly to other
administrative charges, up to the amount of any outstanding balance. Any overpayment shall be
credited to future Bills in the same sequence, or returned to Customers or Responsible Customers,
as appropriate.
SECTION 14.
FAITHFUL PERFORMANCE
14.1 Surety
Contemporaneously with execution of this Agreement, as security for Contractor's faithful
performance of all obligations of this Agreement, Contractor shall provide a surety mechanism
(the "Surety") as more fully defined below in the amount of Two Hundred Fifty Thousand Dollars
($250,000.00). The Surety shall be in the form of a performance bond issued by a duly authorized
corporate surety company authorized to do business in California, and in a form acceptable to the
City Attorney. The cost of the Surety shall be the sole responsibility of Contractor. The Surety
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shall be released within thirty (30) days after both (i) the expiration of the Term of this Agreement;
and (ii) Contractor's satisfactory performance of all obligations hereunder, but in no event more
than two (2) years following expiration of the Term of this Agreement.
14.1.1 Forfeiture of Surety
In the event Contractor shall for any reason become unable to, or fail in any way to, perform
as required by this Agreement, City may declare a portion or all of the Surety, as may be necessary
to recompense and make whole the City, forfeited to the City. Upon partial or full forfeiture of
the Surety, Contractor shall restore the Surety to its original amount within thirty (30) days of the
City's notice to do so. Failure to restore the Surety to its full amount within thirty (30) days shall
be a material breach of this Agreement.
14.1.2 Use of Surety y City
Notwithstanding any provision hereof to the contrary, thirty (30) days following City
providing Contractor with written notice of its failure to pay City any amount owing under this
Agreement, the performance bond may be utilized by City for: (1) Payment of sums due under
the terms of this Agreement which Contractor has failed to timely pay to City, including
specifically liquidated damages; and (2) Reimbursement of costs borne by City to correct
violations of this Agreement not corrected by Contractor.
SECTION 15.
INSURANCE COVERAGE
Contractor shall procure and maintain during the entire Term of this Agreement the
following types of insurance, and shall maintain the following minimum levels of coverage, which
shall apply to claims which may arise from or in connection with Contractor's performance
hereunder or the actions or inactions of any of Contractor's officers, agents, representatives,
employees, or subcontractors (performing Solid Waste Handling Services only) in connection with
Contractor's performance. The insurance requirements hereunder in no way limit Contractor's
various defense and indemnification obligations, or any other obligations as set forth herein.
15.1 Minimum Scope of Insurance
Coverage shall be at least as broad as:
1. The most recent editions of Insurance Services Office Commercial General
Liability coverage ("occurrence" form CG 00 01).
2. The most recent editions of Insurance Services Office form number CA 00 01 1001
covering Automobile Liability, code I "any auto".
3. Workers' Compensation insurance as required by the Labor Code of the State of
California and Employers Liability insurance.
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15.2 Minimum Limits of Insurance
Contractor shall maintain in force for the Term of this Agreement limits no less than:
15.2.1 Commercial General Liability
Ten Million Dollars ($10,000,000.00) limit aggregate and Five Million Dollars
($5,000,000.00) limit per occurrence for bodily injury, personal injury and property damage. Such
limits can be achieved through a combination of primary and excess liability policies.
15.2.2 Automobile Liability
Ten Million Dollars ($10,000,000.00) combined limit per accident for bodily injury and
property damage. Such limits can be achieved through a combination of primary and excess
liability policies.
15.2.3 Workers' Compensation and Employers Liability
Workers' compensation statutory limits as required by the Labor Code of the State of
California and Employers Liability limits of One Million Dollars ($1,000,000.00) per accident.
15.3 Deductibles and Self -Insured Retentions
All deductibles or self -insured retentions (i) shall be for the account of Contractor and paid
entirely by Contractor without contribution from City, and (ii) shall be declared to City. If, in the
reasonable opinion of the City, Contractor does not have sufficient financial resources to protect
the City from exposure with respect to any deductibles or self -insured retentions Contractor shall
procure a bond guaranteeing payment of losses and related investigations, claim administration
and defense expenses.
15.4 Other Insurance Provisions
The policies are to contain, or be endorsed to contain, the following provisions:
15.4.1 General Liability
City and its elected and appointed officials, officers, employees, agents and volunteers shall
be named as additional insureds in connection with liability arising out of activities performed by
or on behalf of Contractor; Premises owned, leased or used by Contractor. The coverage shall
contain no special limitations on the scope of protection afforded to City or its elected and
appointed officials, officers, employees, agents and volunteers. As respects the liabilities assumed
by Contractor under this Agreement, Contractor's insurance coverage shall be the primary
insurance for the City and its elected and appointed officials, officers, employees, agents and
volunteers in connection with the above enumerated categories. Any insurance or self-insurance
maintained by City or its elected and appointed officials, officers, employees, agents and
volunteers shall be in excess of Contractor's insurance and shall not contribute with it. Any failure
to comply with the reporting provisions of the policies shall not affect coverage provided to City
or its elected and appointed officials, officers, employees, agents and volunteers. Coverage shall
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state that Contractor's insurance shall apply separately to each insured against whom a claim is
made or suit is brought, except with respect to the limits of the insurer's liability.
15.4.2 Workers' Compensation and Employers Liability Coverage
The insurer shall agree to waive all rights of subrogation against City and its elected and
appointed officials, officers, employees, agents and volunteers for losses arising from work
performed by Contractor for City. A Waiver of Subrogation Endorsement must be issued to City
by the insurer.
15.4.3 Environmental Pollution Control Insurance
Contractor shall maintain either an endorsement to its general liability policy, or a separate
policy of insurance covering environmental pollution and contamination that names the City as an
additional insured. Said coverage shall be in the amount of not less than One Million Dollars
($1,000,000) per occurrence, and One Million Dollars ($1,000,000) in the aggregate, and shall
substantially comply with all other provisions set forth in Section 15.4.1.
15.4.4 All Coverages
Except for Worker's Compensation, each insurance policy required by this clause shall be
endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days'
(ten (10) days' for nonpayment of premium) prior written notice has been given to City.
Additionally, Contractor agrees that it will not suspend, void or reduce in coverage or limits each
insurance policy required by this clause without notice to the City.
15.5 Acceptability of Insurers
The insurance policies required by this Section shall be issued by an insurance company or
companies authorized to do business in the State of California and with a rating in the most recent
edition of Best's Insurance Reports of size category VII or larger and a rating classification of A -
or better, unless otherwise approved by the City Manager.
15.6 Verification of Coverage
Contractor shall furnish City with certificates of insurance and with original endorsements
affecting coverage required by this Article. The certificates and endorsements for each insurance
policy are to be signed by a Person authorized by that insurer to bind coverage on its behalf. The
certificates and endorsements are to be on forms provided by or acceptable to City and are to be
received and approved by City before work commences. City shall have the right to inspect
complete, certified copies of all required insurance policies, at any office of Contractor, upon not
less than ten (10) business days' advance notice.
15.7 Loss or Reduction in Insurance
In the event that Contractor fails to retain or maintain insurance with the scope and amounts
of coverage required hereunder, City shall have the right, but not the obligation to either terminate
this Agreement, or obtain insurance coverage as required herein on behalf of Contractor and utilize
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funds from the (Surety" (as that term is defined in Section 14) to pay the cost of providing such
coverage.
SECTION 16.
ASSIGNMENT, SUBLETTING, AND TRANSFER;
REQUIREMENTS AND LIMITATIONS
16.1 General
Contractor shall not assign any portion of or all of its rights, nor delegate, subcontract or
otherwise transfer any portion of or all of its obligations under this Agreement (collectively
referred to as an "Assignment") to any other Person without the prior approval by the City Council.
The City Council has unfettered discretion to approve or deny such an Assignment. The City
Council's exercise of its unfettered discretion may include City Council review and approval of
any Assignment terms, including, but not limited to, insurance obligations, indemnification
language, bonding requirements, and any and all other terms the City Council may in its unfettered
discretion require. Any such Assignment made without the approval by the City Council shall be
void and the attempted Assignment shall constitute a material breach of this Agreement.
16.2 Assignment to be Broadly Interpreted
For purposes of this Section, the term "Assignment" shall be given the broadest possible
interpretation, and shall include, but not be limited to: (i) a sale, exchange or other transfer of
substantially all of Contractor's assets dedicated to service under this Agreement to a third party;
(ii) a sale, exchange or other transfer of any membership interest of Contractor to a third party;
(iii) any dissolution, reorganization, consolidation, merger, re -capitalization, stock issuance or re -
issuance, voting trust, pooling agreement, escrow arrangement, liquidation or other transaction
which results in a change of ownership or control of Contractor; (iv) any assignment by operation
of law, including those resulting from mergers or acquisitions by or of Contractor or any of its
Affiliates, insolvency or bankruptcy, making assignment for the benefit of creditors, writ of
attachment for an execution being levied against this Agreement, appointment of a receiver taking
possession of Contractor's property, or transfer occurring in the event of a probate proceeding; (v)
any combination of the foregoing (whether or not in related or contemporaneous transactions)
which has the effect of any such transfer or change of ownership, or change of control of
Contractor; and (vi) Contractor's subcontracting of only a portion of its rights and obligations
under this Agreement (e.g., the Bulky Item Collection service). Notwithstanding the foregoing,
an assignment by Contractor to an Affiliate having the same parent guarantor shall not be
considered as an "Assignment" for purposes of this Section 16, except for transactions that would
result in a change in control of Contractor's parent guarantor.
16.3 Nature of Agreement — Personal to Contractor
Contractor acknowledges that this Agreement involves rendering a vital service to City's
residents and businesses, and that City has selected Contractor to perform the services specified
herein based on (1) Contractor's experience, skill and reputation for conducting its Solid Waste
Handling Services in a safe, effective and responsible fashion, at all times in keeping with
applicable Environmental Laws, regulations and best Solid Waste management practices, and
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(2) Contractor's financial resources to maintain the required equipment and to support its
indemnity obligations to City under this Agreement. City has relied on each of these factors,
among others, in choosing Contractor to perform the services to be rendered by Contractor under
this Agreement.
16.4 Procedure for Consideration of Assignment
If Contractor requests City's consideration of and consent to an Assignment, the City
Council may deny, approve or conditionally approve such request in its sole and absolute
discretion. Under no circumstances shall City be obliged to consider any proposed Assignment if
Contractor is in default of any terms of this Agreement at any time during the period of
consideration. Should the City consent to any Assignment request, such Assignment shall not take
effect until all conditions relating to the City's approval have been met Any request for an
Assignment shall be made in a manner to be prescribed by the City Manager, and no request by
Contractor for consent to an Assignment need be considered by City unless and until Contractor
has met (or with respect to matters that would only occur upon completion of the Assignment if
approved, made reasonable assurances that it will meet) the following requirements:
(A) Contractor shall undertake to pay City its reasonable expenses, including
administrative, investigative, consulting, and reasonable attorneys' fees and costs
necessary to investigate the suitability of any proposed assignee, and to review and finalize
any documentation required as a condition for approving any such Assignment
(collectively the "Administrative Assignment Fee"). An advance non-refundable payment
in an amount to be determined by the City Manager towards the Administrative
Assignment Fee shall be paid to the City prior to City's consideration of any Assignment
request, although Contractor shall be responsible to pay all costs incurred by City in
considering a request for Assignment, including those in excess of the aforesaid deposit
amount, regardless of whether City consents to the Assignment.
(B) If requested to do so, Contractor shall furnish City with audited financial
statements of the proposed assignee's operations for the immediately preceding three (3)
operating years.
(C) Contractor shall furnish City with satisfactory proof: (i) that the proposed
assignee has at least ten (10) years of Solid Waste management experience on a scale equal
to or exceeding the scale of operations conducted by Contractor under this Agreement; (ii)
that in the last five (5) years, the proposed assignee has not suffered any significant citations
or other censure from any federal, state or local agency having jurisdiction over its Solid
Waste management operations due to any significant failure to comply with state, federal
or local laws, including the Environmental Laws and that the assignee has provided City
with a complete list of such citations and censures; (iii) that the proposed assignee has at
all times conducted its operations in an environmentally safe and conscientious fashion;
(iv) that the proposed assignee conducts its Solid Waste management practices in
accordance with sound Solid Waste management practices in full compliance with all
federal, state and local laws regulating the Collection and disposal of Solid Waste including
Hazardous Substances; and, (v) of any other information required by City to ensure the
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proposed assignee can fulfill the terms of this Agreement in a timely, safe and effective
manner.
(D) The proposed assignee shall execute an agreement assuming all of
Contractor's rights and liabilities under this Agreement.
SECTION 17.
REVIEW OF SERVICES AND PERFORMANCE
17.1 Mid Term Detailed Rate Review
(A) On or about January 1, 2030, either Party may request a detailed rate review.
The Parties understand and acknowledge that the purpose of the detailed rate review is to
address material changes in costs and revenues from those in existence as of the Effective
Date, which have not otherwise been addressed in accordance with Section 24, with a goal
of ensuring the parties are in the same relative economic position as they were as of the
Effective Date. For a period of thirty (30) days following the completion of such a review,
either Party will have the right to request in writing an adjustment to the maximum rates
set forth in Exhibit A based upon any material financial impact evidenced by such review.
Following such a request, City and Contractor agree to negotiate in good faith regarding
the requested adjustment, the subject of which negotiations may include, among other
things, increases or reductions in programs, services, or fees and charges, and rebates,
credits or assessments to Customers. Following the conclusion of such negotiations the
parties shall each have the right to accept or deny a requested adjustment to the maximum
rates set forth in Exhibit A in their sole and absolute discretion. If an adjustment requested
by either party is not agreed to and approved within one hundred and twenty (120) days
from the request for an adjustment, then for a period of ninety (90) days after the expiration
of the foregoing one hundred twenty (120) day period, either Party may terminate this
Agreement by providing a written notice of termination. Such termination shall be
effective no sooner than one (1) year after the written notice of termination has been
received by the other Party.
17.2 Performance Hearine
(A) Commencing in or about January 2022, and on a biennial basis thereafter,
City may hold a hearing to review Contractor's Solid Waste Collection efforts, source
reduction, processing and other diversion services and overall performance under this
Agreement (the "Solid Waste Services and Performance Review Hearing"). The purpose
of the Solid Waste Services and Performance Review Hearing is to provide for a discussion
and review of technological, economic, and regulatory changes in Collection, source
reduction, recycling, processing and disposal to achieve a continuing, advanced Solid
Waste Collection, source reduction and recycling and disposal system; and to ensure
services are being provided by Contractor with adequate quality, effectiveness and
economy and in full compliance with the terms of this Agreement. Topics for discussion
and review at the Solid Waste Services and Performance Review Hearing shall include,
but shall not be limited to, services provided, feasibility of providing new services,
application of new technologies, Customer complaints, amendments to this Agreement,
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developments in the law, new initiatives for meeting or exceeding AB 939's goals and
where applicable the goals of AB 341, AB 1826, SB 1383 and other Applicable Laws,
regulatory constraints and Contractor performance. City and Contractor may each select
additional topics for discussion at any Solid Waste Services and Performance Review
Hearing.
(B) In addition to the Solid Waste Services and Performance Review Hearings
City may hold in accordance with the immediately preceding paragraph, if the number of
Customer complaints regarding Contractor's Solid Waste Collection are deemed by City
to be excessive or the nature of to be significant, City may, at any time (subject to the
paragraph immediately below), hold a Solid Waste Services and Performance Review
Hearing.
(C) City shall notify Contractor of its intent to hold a Solid Waste Services and
Performance Review Hearing at least ninety (90) days in advance thereof. The notice will
indicate whether the hearing will occur before City staff, the City Council, or such other
body as the City may designate in the notice. Forty-five (45) days after receiving notice
from City of a Solid Waste Services and Performance Review Hearing, Contractor shall
submit a report to City which may contain such information as it wished to have considered,
and shall contain the following:
(1) Current diversion rates and a report on Contractor's outreach
activities for the past year.
(2) Recommended changes and/or new services to improve the City's
ability to meet the goals of AB 939 and AB 341 and to contain costs and minimize impacts
on rates.
(3) Any specific plans for provision of changed or new services by
Contractor.
(D) The reports required by this Agreement regarding Customer complaints
shall be used as one basis for review of Contractor's performance, and Contractor may
submit other relevant performance information and reports for consideration at the Solid
Waste Services and Performance Review Hearing. In addition to the above, City may
request Contractor to submit any other specific information relating to its performance
consistent with Section 28.1, for consideration at the Solid Waste Services and
Performance Review Hearing, and any Customer may submit comments or complaints
during or before the Hearing, either orally or in writing. Contractor shall be present at and
participate in the Solid Waste Services and Performance Review Hearing.
SECTION 18.
CITY'S REMEDIES; DEFAULT AND TERMINATION
18.1 Notice of Default
If the City Manager determines that Contractor has defaulted in the performance of any
obligation hereunder, or that Contractor's performance pursuant to this Agreement with respect to
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such matters has not been in conformity with reasonable industry standards which are obtained in
similar cities in Southern California, the provisions of this Agreement, the requirements of the
Municipal Code, the requirements of Applicable Law, including, but not limited to, requirements
for source reduction and recycling, the City Manager may provide written notice to Contractor of
such default. The City Manager may, in such written notice, set a reasonable time within which
correction of such default shall be made. Unless a longer or shorter time is otherwise specified by
the City Manager, a reasonable time for correction shall be thirty (30) days from the date such
written notice is given.
18.2 Failure to Cure
If Contractor fails to correct, to the satisfaction of the City Manager, all deficiencies
contained in the written notice thereof within the specified time, or within a reasonable time if it
is not reasonably possible to correct such deficiencies within the specified time, and Contractor
fails to commence to correct or remedy such deficiencies within the specified time and diligently
effect such correction or remedy thereafter, then the City Manager may refer the matter to the City
Council for review, or review the matter himself.
18.3 Review by City Manager
If the City Manager reviews the matter and determines that Contractor has failed to
properly or adequately cure any default set forth above, the City Manager, in the exercise of his
discretion, may terminate this Agreement, or take such other action as he deems appropriate to
pursue any remedy available to City. A decision or order of the City Manager shall be final and
binding on Contractor unless Contractor files a "Notice of Appeal" with the City Clerk within five
(5) business days of the date the notice of the City Manager's decision is given. The City Manager
shall schedule any appeal for consideration by the City Council no later than the earliest feasible
regular City Council Meeting following the date a Notice of Appeal is given to City.
18.4 City Council Review
In the event an appeal of a decision of the City Manager is filed, or if the City Manager
refers the matter to the City Council without rendering a decision, the City Council shall set the
matter for consideration before the City Council as an agenda item at either a regular, adjourned
regular, or special meeting. In reviewing the matter the City Council may consider any information
reported by the City Manager regarding the deficiencies, and shall give Contractor, or its
representatives and any other interested person, a reasonable opportunity to be heard including
presentation of witnesses and documents for consideration by City Council. The City Council
shall determine whether Contractor has failed to properly or adequately perform as set forth above,
and if so whether to terminate the Agreement, or to pursue any other remedy available to City,
subject to Contractor's right to request an administrative hearing pursuant to Section 19 of this
Agreement.
18.5 Performance During Reviews
Contractor's performance under this Agreement is not excused during any period of time
when its performance is under review as set forth above, including at any time prior to a final
decision as to whether such performance is deficient.
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18.6 Termination without Right to Cure
The above right of termination as a result of Contractor's failure to timely cure any
deficiency is in addition to City's right to terminate this Agreement without affording Contractor
an opportunity to cure in circumstances where Contractor is determined by City to have materially
breached this Agreement. City shall thus be afforded the right to terminate this Agreement in the
event of any material breach hereof by Contractor without affording Contractor the right to cure
as a result of any action, inaction or circumstance which is a legally defined material breach, or is
defined herein as a material breach, including under any of the following circumstances, which are
hereby specifically defined as material breaches:
(A) If Contractor practices, or attempts to practice, any fraud upon City.
(B) If Contractor becomes insolvent, unable, or unwilling to pay its debts, or
upon listing of an order for relief in favor of Contractor in a bankruptcy proceeding.
(C) If Contractor willfully violates any orders or rulings of any regulatory body
having jurisdiction over Contractor with respect to this Agreement. So long as City's rights
are not prejudiced during the pendency of any challenge to such orders or rulings by
Contractor, Contractor may contest any such orders or rulings by appropriate proceedings
conducted in good faith, in which case no material breach of this Agreement shall be
deemed to have occurred until a final ruling has been rendered.
(D) If Contractor ceases to provide Solid Waste Handling Services, including
Collection of Solid Waste and/or Recyclable Material, as required under this Agreement
over all or any portion of the Franchise Area for a period of seven (7) days or more, for
any reason not specified in Section 30.1 of this Agreement as a force majeure event
hereunder.
(E) If Contractor fails to materially comply with any insurance or
indemnification requirement set forth in this Agreement.
(F) If City is required to pay any fine or penalty, which is not paid on its behalf
by Contractor or which Contractor fails, refuses, neglects or is unable to pay or indemnify
City against, relating to any diversion or other requirement of AB 939 and/or AB 341 as
required in this Agreement.
(G) If Contractor, Contractor's shareholders, Contractor's directors, or any
senior management level employee of Contractor (defined for purposes of this provision
as any representative of Contractor who regularly is in communication with or regularly
has contact with any member of the City Council or City Manager, or any of Contractor's
employees who communicate with any City Department Head or City employee with
decision making authority on matters related to the performance of the Agreement) is
convicted of a Criminal Matter (as defined herein). For purposes of this Section the term
Criminal Matter refers to any (i) felony offense relating to either public corruption
(including, without limitation, bribery, conflict of interest related allegations, vote selling,
or any similar type charges) (any of the foregoing, a "Public Corruption Offense"), or any
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Solid Waste Handling Services, or (ii) misdemeanor offense that constitutes a Public
Corruption Offense.
(H) If Contractor fails to establish programs and services necessary to ensure
City meets the Recycling diversion requirement in Section 8.6.5 for each calendar year
during the Term of this Agreement.
18.7 Liquidated Daman
18.7.1 General
The City finds, and Contractor agrees, that as of the time of the execution of this
Agreement, it is impractical, if not impossible, to reasonably ascertain the extent of damages which
shall be incurred by City as a result of a breach by Contractor of certain specific obligations under
this Agreement. The factors relating to the impracticability of ascertaining damages include, but
are not limited to, the fact that: (i) substantial damage results to members of the public who are
denied services or denied quality or reliable service; (ii) such breaches cause inconvenience,
anxiety, frustration, and deprivation of the benefits of the Agreement to individual members of the
general public for whose benefit this Agreement exists, in subjective ways and in varying degrees
of intensity which are incapable of measurement in precise monetary terms; (iii) that the services
that are the subject of this Agreement might be available at substantially lower costs than
alternative services and the monetary loss resulting from denial of services or denial of quality or
reliable services is impossible to calculate in precise monetary terms; and (iv) the termination of
this Agreement for such specific breaches, and other remedies are, at best, a means of future
correction and not remedies which make the public whole for past breaches.
18.7.2 Service Performance Standards, Liquidated Damages for Failure to Meet
Standards
The parties further acknowledge that consistent, reliable Solid Waste Handling Service is
of utmost importance to City and that City has considered and relied on Contractor's
representations as to its quality of service commitment in entering this Agreement with it. The
parties further recognize that some quantified standards of performance are necessary and
appropriate to ensure consistent and reliable service and performance. The parties further
recognize that if Contractor fails to achieve the performance standards, or fails to submit required
documents in a timely manner, City and its residents will suffer damages and that it is and will be
impractical and extremely difficult to ascertain and determine the exact amount of damages which
City will suffer. Therefore, without prejudice to City's right to treat such breaches as an event of
default, the parties agree that the following liquidated damage amounts represent a reasonable
estimate of the amount of such damages for such specific breaches, considering all of the
circumstances existing on the date of this Agreement, including the relationship of the sums to the
range of harm to City that reasonably could be anticipated and the anticipation that proof of actual
damages would be costly or impractical. In placing their initials at the places provided, each party
specifically confirms the accuracy of the statements made above and the fact that each party has
had ample opportunity to consult with legal counsel and obtain an explanation of the liquidated
damage provisions at the time that the Agreement was made.
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Contractor
Initial Here
City
Initial Here
16. /J Ualculatlons for Liquidated Damages
Contractor agrees to pay (as liquidated damages and not as a penalty) the amounts set forth
below for each type of action warranting such damages:
18.7.3.1 Collection Reliabilitv
(A) For failure to commence providing Solid Waste Handling Services to a new
Customer account within seven (7) days after order: $50,00.
(B) For U I L11-c to provide Solid Waste Handling Service to City within three (3)
days after order: $75.00: provided, however, that during the first year of the Term,
Contractor shall only be required to make such payment after the fifth (51h) such failure in
such first calendar year;
(C) For failure to commence Construction and Demolition (C&D) Waste
service to a new Customer account within three (3) business days after order: $100,00;
provided, however, that during the first year of the Term, Contractor shall only be required
to make such payment after the fifth (5111) such failure in such first calendar year;
(D) For failure to Collect Solid Waste from any established Customer on the
scheduled Collection day and not Collected within the period described in this Agreement
which exceed five (5) such failures annually: $25.00 less any amounts credited back to
Customer.
(E) For each ljailure to Collect Solid Waste, which has been properly set out for
Collection, from the same Customer on two (2) consecutive scheduled pickup days:
$100.00.
18.7.3.2 Collection Quality
(A) For failuz,,e to properly return empty Containers to avoid pedestrian or
vehicular traffic impediments or to place Containers upright with lids secured which
exceeds ten (10) such occurrences annually: $25.00.
(B) For each occurrence of Collecting Solid Waste during unauthorized hours
which exceeds five (5) such occurrences annually: $500,00.
(C) For each occurrence of damage to private propbrty in an amount in excess
of $1,000 that is not remedied by Contractor to the reasonable satisfaction of the Customer,
which exceeds five (5) s6ch occurrences annually: $100.00.
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18.7.3.3 Customer Responsiveness
(A) For failure to initially respond to a Customer complaint within one (1)
business day, which exceeds five (5) such occurrences annually: $125.00.
(B) For each failure to offer to resolve in good faith and in a reasonable manner
Customer complaints to City as required herein, which exceeds five (5) such occurrences
annually: $200.00.
(C) For each failure to remove graffiti from Containers or to replace with
Containers bearing no graffiti, within three (3) business days of a request from City:
$150.00.
18.7.3.4 Timeliness of Submissions to City
(A) Any report shall be considered late until such time as a correct and complete
report is received by City. For each failure to submit a report required under this
Agreement within the time required by this Agreement, the liquidated damage amount shall
be:
(1) Quarterly Reports: $500.00.
(2) Annual Reports: $1,000.00.
18.7.3.5 Cooperation During Transition With Subsequent Solid Waste
Enterprise
(A) For each day routing information, including billing information and other
non-proprietary or non -trade secret operating records needed to service premises, is
requested by City or any subsequent solid waste enterprise in accordance with Section 29
and is received after City -established due dates, both for preparation of a request for
proposals and for any subsequent solid waste enterprise's implementation of service:
$1,000.00 per day, not to exceed $5,000.00.
(B) For each day delivery of keys, security codes, remote controls in
Contractor's possession and used to access garages, gates and bin enclosures, or other
means of access to Solid Waste Containers is delayed beyond one (1) day prior to new
solid waste enterprise servicing Customers with access issues: $1,000.00 per day, not to
exceed $2,000.00.
18.7.4 Process for Assessment of L. gUldated Damages
(A) City may determine the occurrence of events giving rise to liquidated
damages through the observation of its own employees or representative or through an
investigation of Customer complaints. It is the desire of the parties to work together to
avoid the imposition of liquidated damages and accordingly City will endeavor to timely
communicate to Contractor any information that it receives which might give rise the
imposition of liquidated damages in order to facilitate Contractor's ability to correct any
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deficiency, or prevent the recurrence of any conduct for which liquidated damages might
eventually be imposed.
(B) Prior to assessing liquidated damages, City shall give Contractor notice of
its intention to do so. The notice will include a brief description of the incident(s)/non-
performance. Contractor may review (and make copies at its own expense) all information
in the possession of City relating to incident(s)/non-performance. Contractor may, within
ten (10) days after receiving the notice, request a meeting with the City Manager.
Contractor may present evidence in writing and through testimony of its employees and
others relevant to the incident(s)/non-performance. The City Manager will provide
Contractor with a written explanation of his or her determination on each incident(s)/non-
performance prior to authorizing the assessment of liquidated damages. The decision of
City Manager shall be final subject to Section 19.
(C) In addition to any notice provided by City pursuant to paragraph B above,
prior to the first assessment of liquidated damages for any specific type of failure (e.g., a
failure to provide Solid Waste Handling Service to City within three (3) days after order as
set forth in Section 18.7.3.1(B) above), City shall give Contractor a written notice of the
failure and a reasonable opportunity to cure of not less than two (2) business days after the
date of City's notice.
18.7.5 Timing of Payment
Contractor shall pay any liquidated damages assessed by City within ten (10) days after
they are assessed; provided, however, that if (a) the amount of liquidated damages assessed by
City exceeds Ten Thousand Dollars ($10,000), and (b) following such assessment Contractor
requests an administrative hearing pursuant to the terms of Section 19, then Contractor shall not
be required to pay such liquidated damages until such time as the hearing officer has provided an
advisory ruling, and provided further, that if such advisory ruling is that City's assessment of
liquidated damages was improper, Contractor shall be relieved from making such payment. If they
are not paid within the ten (10) day period, City may proceed against any security required by this
Agreement to obtain payment, and/or find Contractor in default and exercise its right to terminate
this Agreement as set forth herein.
SECTION 19.
CONTRACTOR'S REMEDIES; ADMINISTRATIVE HEARING
19.1 Administrative Hearing
Should Contractor contend that City is in breach of any aspect of this Agreement, or wishes
to contest a determination made by the City Manager made hereunder, it shall give notice to the
City Manager requesting an administrative hearing on the allegation. The hearing shall occur as
soon as reasonably possible, or on such date as mutually agreed by the parties, and shall be held
before an impartial hearing officer to be determined by the City Manager. The hearing officer
shall make an advisory ruling on Contractor's allegations, and suggest a remedy if a breach by
City is determined to exist. The hearing officer's ruling and recommendations shall become final
and binding if the parties so agree in writing within thirty (30) days of the date notice of the
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decision is given to both parties. Otherwise, the hearing officer's ruling shall have no further force
or effect.
19.2 Other Remedies: Claims
Contractor shall be entitled to all available remedies in law or equity for City's breach of
this Agreement; provided, however, Contractor shall not file or otherwise commence any action
against City, in law or equity, in any court, until after an administrative hearing as set forth above
has been completed, and the above noted thirty (30) day period to accept the hearing officer's
decision has passed, or either City or Contractor has given timely written notice to the other that it
will not accept the hearing officer's decision. The applicable statute of limitations for any claim
by Contractor in law or equity for City's breach of this Agreement shall be tolled until after an
administrative hearing as set forth above has been completed, and the above noted thirty (30) day
period to accept the hearing officer's decision has passed, or either City or Contractor has given
timely written notice to the other that it will not accept the hearing officer's decision.
19.3 Actions liar Damages
As a prerequisite to the filing and maintenance of any action for damages by Contractor
against City arising out of this Agreement, Contractor shall present a claim to City where required
by Government Code Section 910 et seq. The applicable time period to make any claim shall be
tolled until after an administrative hearing as set forth above has been completed, and the above
noted thirty (30) day period to accept the hearing officer's decision has passed, or either City or
Contractor has given timely written notice to the other that it will not accept the hearing officer's
decision. By including this provision City is not waiving any defenses and is not deemed to
acknowledge or otherwise agree that an action for damages is an appropriate remedy hereunder.
SECTION 20.
CITY'S ADDITIONAL REMEDIES
In addition to any other remedies set forth herein, City shall be entitled to any or all of the
following rights and remedies in the event of a breach of this Agreement by Contractor:
(A) The right to use Contractor's equipment for the purpose of Collecting,
transporting, and/or disposing of Solid Waste, including Recyclable Material, for a period
not to exceed six (6) months. In the case of equipment not owned by Contractor, Contractor
shall assign to City, to the extent Contractor is permitted to do so under the instruments
pursuant to which Contractor possesses such equipment, the right to use and possess the
equipment. If City exercises its rights under this Section, City shall pay to Contractor the
reasonable rental value of the equipment for the period of City's possession thereof
(although payment may, if appropriate, occur in the form of a setoff against damages
otherwise owed by Contractor pursuant to the terms hereof);
(B) The right to license others to perform the services otherwise to be performed
by Contractor hereunder, or to perform such services itself; and
(C) The right to obtain damages and/or injunctive relief. Both parties recognize
and agree that in the event of a breach of this Agreement by Contractor, City may suffer
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irreparable injury and incalculable damages sufficient to support injunctive relief, to
specifically enforce the provisions of this Agreement, and to enjoin the breach hereof.
SECTION 21.
RIGHTS OF CITY TO PERFORM DURING EMERGENCY
21.1 Provision of Service
Should Contractor, for any reason whatsoever, refuse or be unable to provide Solid Waste
Handling Services for a period of more than forty-eight (48) hours, and if as a result thereof, Solid
Waste should accumulate in City to such an extent or in such a manner that the City Manager finds
that such accumulation endangers or menaces the public health, safety, or welfare, City shall have
the right, upon twelve (12) hours prior written notice to Contractor, during the period of such
emergency, to temporarily take possession of any or all equipment and facilities of Contractor
previously used in providing Collection, transportation, and disposal of Solid Waste and provide,
through its own forces or otherwise, Solid Waste Handling Services which Contractor otherwise
would be obligated to provide pursuant to this Agreement. Contractor agrees that in such event it
shall fully cooperate with City to affect such a transfer of possession for City's use.
21.2 Possession of Equipment
Contractor agrees, that in the event of circumstances described in Section 21.1 above, City
may take temporary possession of and use all of said equipment and facilities without paying
Contractor any rental or other charge. Upon Contractor giving City notice that it is able to resume
its normal responsibilities under this Agreement City shall promptly relinquish and return
possession of all of the above mentioned property to Contractor.
21.3 Exclusions from Right to Possession of Equipment without Compensation
Specifically excluded from the circumstances in which City may possess and utilize
Contractor's equipment without compensation are circumstances in which Contractor fails or
refuses to provide Solid Waste Handling Services hereunder for any reason which is not a force
majeure event pursuant to Section 30.1 of this Agreement. In such circumstances City's right to
utilize and possess Contractor's equipment shall be subject to the provisions of the above Section
20.
SECTION 22.
PRIVACY
Contractor shall strictly observe and protect the privacy rights of Customers. Information
identifying individual Customers or the composition or contents of a Customer's Solid Waste
stream, or any of the billing information pertaining to any Customers, shall not be revealed to any
person, governmental unit, private agency, or company, unless upon the authority of a court of
law, by statute, ordinance, or regulation of a governmental agency having jurisdiction, or upon
valid authorization of the Customer. This provision shall not be construed to preclude Contractor
from preparing, participating in, or assisting in the preparation of waste characterization studies or
waste audits which may be required by AB 939 or this Agreement. Contractor shall not market or
distribute, outside the normal course of its business, mailing lists with the names and addresses of
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Customers. The rights afforded Customers pursuant to this Section shall be in addition to any
other privacy right afforded Customers pursuant to federal or state law, including, without
limitation, the California Consumer Privacy Act.
SECTION 23.
REPORTS AND ADVERSE INFORMATION
The parties acknowledge that City will require reporting at various intervals by which
information important to City can be complied and analyzed. Throughout the Term the parties
agree to work together to address City's needs with respect to the information to be contained in
reports prepared by Contractor. The following is intended as a starting point in order to have
established an objective baseline for reporting, but the frequency and content of the reports called
out below may be changed by agreement of the parties; provided any such change is approved by
the City Manager in writing. Quarterly reports shall be submitted on or before the last day of the
calendar month following the end of each calendar quarter. Notwithstanding the foregoing or
anything in this Section 23, Contractor shall prepare and submit to City all reports required by the
Applicable Laws, within the timeframes required. The requirements of this Section 23 shall be
subject to the requirements of the California Consumer Privacy Act and its implementing
regulations, as may be amended.
23.1 Quarters Reports
At a minimum, Contractor shall report the following to City on a quarterly basis: Solid
Waste Collected by Contractor for each quarter, sorted by type of Solid Waste in tons broken down
at a level acceptable to City (which at a minimum shall include: refuse, Organic Waste, Recyclable
Materials, e-waste and universal waste item counts, as well as by Customer type (i.e., single family,
multi -family, commercial, roll -off, Curbside, etc.); the facilities where all Solid Waste Collected
was processed or disposed; a list of all missed pick-ups; a list of the records related to non -
collection notices; warning notices issued for contaminated Recyclable Materials, and Organic
Waste Containers; and a narrative summary of problems encountered (including, without
limitation, misplaced or stolen Containers, personnel complaints, litter/spill complaints, property
damage claims, and scavenging) and actions taken with recommendations for City, as appropriate.
Contractor shall also provide a detailed list of all Bulky Item Collections requests, including, at a
minimum, Customer name, Customer address, Customer telephone number, and date(s) of service,
the complaint summary for the quarter summarized by nature of complaints; copies of promotional
and public education materials sent during the quarter; description of Contractor outreach activities
conducted the previous quarter; report of the number of Customers participating in Recycling
Collection services, a summary of the problems or barriers to implementation of services for the
quarter; a narrative description of problems encountered and actions taken with respect to
scavenging, an update regarding usage of Battery Tracker containers and the amount spent to date
to provide this service, and such other information or reports that the City may reasonably request
or require. Contractor shall, upon demand by City, provide true and accurate copies of landfill
tipping receipts, records showing delivery at processing or reuse facilities, and similar such
documents in order to enable City to verify Contractor's quarterly reports.
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23.2 Annual Reports
Within 30 days of the end of each calendar year during the Term of this Agreement and
within thirty (30) days after the end of the Term, Contractor shall submit a written annual report,
at its sole expense, in a form approved by City, which includes, but is not limited to, the following
information:
(A) A summary of the previous year's activities including, but not limited to,
services begun or discontinued during the reporting year, and the number of Customers
broken down on a quarterly basis, including the number of Customers in each class of
service;
(B) A summary of the total tons of Solid Waste Collected in City in the
preceding year as well as a summary of the total tonnage diverted from the State's landfill
systems during that time frame, including the diversion rate for each waste category and
Customer type;
(C) A summary of (i) any unusual changes in disposal quantities and potential
reasons for this change, and (ii) problems in program operations and the manner in which
such problems were addressed;
(D) Information and reports required by City to meet its reporting obligations
imposed by AB 939 and AB 341, and the regulations promulgated thereunder, in a form
and content approved by the City Manager, and any recommended changes;
(E) Equipment inventory including a complete inventory of Collection
equipment utilized and assigned to the City;
(F) Future programs including planned/anticipated future programs and
facilities;
(G) Summary of litigation activity, including criminal or civil litigation that
may have a material effect on the Contractor's ability to perform its obligations under this
Agreement;
(H) A revenue statement, certified by the chief financial officer of Contractor,
setting forth Franchise Fees paid and the basis for the calculation thereof, including
specifically a breakdown of sources of revenue included in Gross Receipts, and the amount
of revenue derived from each such source comprising Gross Receipts;
(I) A revenue statement pertaining to the delinquency tax roll receipts and both
Parties' net revenue receipts;
(J) A list of Contractor's officers and the members of its Board of Directors, or
as applicable a list identifying all Persons holding a membership interest in Contractor;
(K) A list of stockholders or other equity investors holding five percent (5%) or
more of the interest in Contractor;
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(L) A list of each service address or other identifying location associated with
each Customer's or Responsible Customer's account, the total number of Carts at each
such address or other identifying location, types of services being Billed;
(M) Contractor shall conduct a Waste Characterization Study once every
twenty-four (24) months (or the frequency mandated by SB 1383 regulations, whichever
is less frequent). The study shall include a representative sampling of the Single Family
Dwelling Curbside Recyclable Materials generated within the City and shall be conducted
by a processing center acceptable by both City and Contractor. At a minimum, the report
shall include the following information:
load
(1) Weight of each Recyclable Material
(2) Percentage of each Recyclable Material as a percentage of the total
(3) Total weight sampled
(4) Listing of each Recyclable Material sampled
(N) Contractor shall provide the following to City, on an annual basis, in a
format approved by City:
(1) The total number of Commercial Premises and Multi -Family
Dwelling Customers serviced by Contractor that meet the thresholds of AB 1826.
(2) The number of AB 1826 Customers that:
(i) Subscribe to Contractor's Organic Waste recycling
service;
(ii) Recycle Organic Waste via an in-house program;
(iii) Donate edible food to charitable organizations;
(iv) Use a third -party vendor for Organic Waste
recycling; and,
(v) Are without a known Organic Waste Recycling
program.
(3) A listing of all contacts with, and copies of all surveys and onsite
waste assessments for those Customers that meet the thresholds of AB 1826, but refuse
Organic Waste recycling service.
(4) Contact information for all Commercial Premises and Multi -Family
Dwelling Customers (as identified in Contractor's data base) that do not have an Organic
Waste recycling program.
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(5) Detailed support documentation for the forgoing as may be
reasonably required by City.
23.3 format ol' Reports
Each quarterly and annual report shall be submitted to City, addressed to the City Manager
or his or her designee. Where reasonable and practicable, records related to performance of this
Agreement shall be maintained by Contractor in forms and by methods that facilitate flexible use
of data contained in them to structure reports, as needed. The format of each report shall be
approved by City. Contractor agrees to submit all reports to e-mail addresses designated by City
in an electronic format approved by the City, compatible with City's software/computers at no
additional charge.
23.4 Adverse Information
(A) Contractor shall provide City two copies of all reports and other material
adversely affecting this Agreement submitted by Contractor to the United States
Environmental Protection Agency, CalRecycle, the California Regional Water Quality
Control Board, and any other federal, state, regional, or local regulatory agency. Copies
shall be submitted to City simultaneously with Contractor's filing of such matters with said
agencies. Contractor's routine correspondence to said agencies need not be automatically
submitted to City, but shall be made available to City upon written request.
(B) Contractor shall submit to City copies of all non -privileged or non -
confidential pleadings, applications, notifications, communications, and documents of any
kind submitted by Contractor to, as well as copies of all decisions, correspondence, and
actions by, any federal, state, and local courts, regulatory agencies, and other government
bodies relating in any manner to Contractor's performance of services pursuant to this
Agreement. To the degree authorized by law, any confidential data exempt from public
disclosure shall be retained in confidence by City and its authorized agents and shall not
be made available for public inspection.
(C) Contractor shall submit to City such other information or reports in such
forms and at such times as City may reasonably request or require.
(D) All reports and records required under this or any other Section hereof shall
be furnished at the sole expense of Contractor.
23.5 Disaster Plan
Within ninety (90) days of the Effective Date, Contractor shall prepare a draft disaster
debris cleanup implementation plan that sets forth procedures for collection of debris following a
major disaster such as an earthquake, mudslide, storm, flood, fire, terrorist attack, riot, civil
disturbance or other similar event. The disaster plan shall address priorities for cleanup at critical
facilities, procedures for reimbursement for costs, describe communication plans, list key contact
persons, and provide maps showing proposed sites for stockpiling of disaster debris that cannot be
transported to the landfill. Contractor shall coordinate the plan with City's emergency service
teams and private parties, as necessary. The draft plan shall be presented to the City Manager for
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consideration and approval. The final plan shall be distributed to those employees of Contractor
and City and private parties who would have a role in implementing such plan in the event of a
disaster.
In addition to the disaster debris cleanup implementation plan, Contractor shall: (1) assist
City in the event of a major disaster by providing Collection Vehicles and drivers normally
assigned to City at rates which do not exceed the maximum rates set forth in Exhibit A; and (2) ,
upon request and at no additional charge, provide to City at City Hall or other locations designated
by the City Manager, up to ten (10) Bins and/or Rolloff Boxes, with the quantity and size to be
designated by City, for use as emergency containers to store emergency materials and supplies.
23.6 Failure to Report
The refusal of Contractor to file any of the reports required, or the inclusion of any
materially false or misleading statement or representation made knowingly by Contractor in such
report shall be deemed a material breach of the Agreement, and shall subject Contractor to all
remedies, legal or equitable, which are available to City under this Agreement or otherwise.
SECTION 24.
COMPENSATION
24.1 Contractor Rates
Contractor shall provide services to Customers pursuant to this Agreement at rates it sets,
charges to, and collects from Customers, which rates shall not exceed those set forth in Exhibit A,
which sets out the maximum rates that may be charged by Contractor, as such maximum rates may
be adjusted from time to time pursuant to the terms hereof. The maximum rates set forth in Exhibit
A are inclusive of all services to be provided, including transportation, disposal, and Container
costs, and no other charges shall be imposed by Contractor for such services.
24.2 Resolution of Disputes Regarding Rate Adjustments
Any dispute regarding an adjustment to the maximum rates Contractor may charge, or the
computation thereof, shall be decided by the City Manager, subject to Contractor's right to request
an administrative hearing pursuant to Section 19 of this Agreement. The rates in effect at the time
such dispute is submitted to the City Manager shall remain in effect pending resolution of such
dispute. The effective date of the adjusted maximum rate following the resolution of any such
dispute, whether retroactive or prospective, shall be determined by the City Manager, subject to
Contractor's right to request an administrative hearing pursuant to Section 19 of this Agreement.
24.3 Annual Consumer Price Index Adjustments
Commencing on July 1, 2020, the maximum rates as set forth in Exhibit A shall be adjusted,
and such rates shall be adjusted annually thereafter on each subsequent July 1st during the Term
hereof (the "Adjustment Dates"), as follows.
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24.3.1 Service Component.
The Service Component comprises eighty percent (80%) of the maximum rates set forth in
f:xhihit A. The Service Component will be adjusted by the percentage increase (if any) in the
Consumer Price Index CUSROOOOSEHGO2 CPI-U Garbage and Trash Collection, US City
Average, not seasonally adjusted, as published by the United States Department of Labor, Bureau
of Labor Statistics, for the January to December period immediately preceding the Adjustment
Date.
24.3.2 Disposal/Green Waste Processing, Component.
The Disposal/Green Waste Component comprises twenty percent (20%) of the maximum
rates set forth in Exhibit A. The Disposal/Green Waste Component will be adjusted by the greater
of (i) the percentage increase (if any) in the Consumer Price Index CUSROOOOSEHGO2 CPI-U
Garbage and Trash Collection, US City Average, not seasonally adjusted, as published by the
United States Department of Labor, Bureau of Labor Statistics, for the annual January to December
period immediately preceding the Adjustment Date, and (ii) the percentage increase (if any) in the
tipping fees or other charges established by the Riverside County Department of Waste Resources
for disposal of Solid Waste generated within Riverside County at landfills comprising the County
system (Badlands Landfill, Lamb Canyon Landfill, El Sobrante Landfill) for the January to
December period immediately preceding the Adjustment Date. Notwithstanding anything to the
contrary in this Agreement, the Disposal/Green Waste Component shall be utilized only for
purposes of calculating rate increases, and shall not be utilized in calculating Gross Receipts and/or
in the Franchise Fee to be paid to City. The Franchise Fee shall be determined pursuant to the
provisions of Section 11.2 of this Agreement, utilizing the definition of Gross Receipts set forth in
Section 2.34 of this Agreement.
24.3.3 City Manager Approval of Rate Increases.
No later than March 1 st of any year during the Term in which Contractor desires to increase
rates in accordance with the above, Contractor shall provide a written request therefor to the City
Manager. The City Manager shall approve such a request unless it is determined, based upon
substantial evidence, that the requested adjustment to the maximum rates does not meet the
requirements as set forth herein. Upon the City Manager's approval to a requested adjustment to
the maximum rates, the maximum rate sheet in Exhibit A shall be replaced with an updated
maximum rate sheet.
24.4 Limitations to Annual Adjustments
Notwithstanding anything to the contrary in Section 24.3 above, the portion of the
maximum rate comprised by the Service Component may not be increased in any given year by
more than four percent (4%), nor decreased (e.g., reduced more than zero percent (0%)); excepting
increases associated with "discretionary adjustments" approved by the City Council pursuant to
Section 24.6. In the event the formula set forth in Section 24.3 would have allowed for a greater
than four percent (4%) increase or a decrease in any given year, but such increase or decrease does
not occur as a result of this Section, the unused percentage increase or decrease otherwise permitted
by Section 24.3 may be carried over until such time as it may be applied without violating the
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provisions of this Section (Hence, by way of example only, if the formula in Section 24.3 would
provide for an increase of five percent (5%) in one year, the maximum rate may only be increased
by four percent (4%) for the corresponding year due to the limitations in this Section 24.4. If, in
the next year, the formula in Section 24.3 would provide for an increase of one percent (1%), the
unapplied one percent (1%) increase from the prior year may be applied to the formula in Section
24.3 for such next year, such that the total increase in the maximum rates for the two year period
in question would be six percent (6%). Alternatively, if the formula in Section 24.3 would provide
for a decrease of two percent (2%) in one year, the maximum rate will not be decreased for the
corresponding year. If, in the next year, the formula in Section 24.3 would provide for an increase
of three percent (3%), the unapplied two percent (2%) decrease from the prior year may be applied
to the formula in Section 24.3 for such next year such that the increase in the maximum rates for
the next year is one percent (1%)).
24.5 Contractor Responsibility to Calculate Rate Adjustments
It is anticipated that to obtain City Manager's approval of Contractor's requested rate
increase, Contractor shall provide all necessary information to substantiate the calculation. City
will make an effort to verify information provided by Contractor, but ultimately Contractor bears
the burden of ensuring the submitted calculation is correct and supported by all necessary
documentation. Contractor agrees and acknowledges that City is entitled to rely, in good faith, on
information submitted by Contractor, including mathematical calculations, CPI data, and other
documentation, to justify Contractor's requested rate increase. In the event that there are errors in
Contractor's requested rate increase request, including, but not limited to, an inaccurate rate
adjustment request, inaccurate application of the rate increase formula described above, or usage
of inaccurate data, Contractor acknowledges and agrees that City is entitled to seek recovery of
damages on behalf of the public, or impose future rate reductions, sufficient to compensate for the
errors.
24.6 Extraordinarydjustments
24.6.1 General
In addition to the annual adjustment described in Section 24.3, Contractor shall also be
entitled to adjust the maximum rates set forth in Exhibit A to address extraordinary changes in
costs for providing the services required under this Agreement. Extraordinary adjustments to the
maximum rates set forth in Exhibit A may be requested no more than once per year, and if
approved, will be implemented effective as of the annual July 1 adjustment to the maximum rates
set forth in Exhibit A, except as provided otherwise herein. Extraordinary adjustments may be
requested based on any one or more of the following causes:
(A) Material changes resulting from a force majeure event as defined in Section 30.1 of
this Agreement;
(B) Fees or taxes imposed specifically on Solid Waste Handling Services by any
governmental agency having jurisdiction;
(C) Any change in foreign, federal, state or local laws or regulations that are effective
after the Effective Date;
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(D) Any extraordinary increase in costs or decrease in revenues for disposal, processing
or marketing of Solid Waste, Recyclable Materials, Green Waste, or Organic Waste;
(E) An extraordinary increase in the cost of fuel used by Collection Vehicles; or
(F) Any other extraordinary circumstances or causes or reasons that are not within the
reasonable control of Contractor.
24.6.2 Contractor Requests for an Extraordinary Adjustment
If Contractor requests an adjustment to the maximum rates set forth in Exhibit A due to the
extraordinary circumstances set forth above, Contractor shall prepare a request setting forth its
calculation of the increased extraordinary costs and accompanying requested adjustment to the
maximum rates. Contractor shall provide City with such information as it deems necessary in its
reasonable judgment to evaluate any request for an extraordinary rate adjustment, and failure by
Contractor to do so shall be a sufficient reason for City to deny such a request. The City shall take
reasonable steps, consistent with applicable law, to protect the confidential or proprietary nature
of any data or information supplied by Contractor. The City shall act within ninety (90) days of
receipt of Contractor's request and make the final determination as to whether City, in its
reasonable judgment, approves Contractor's request. In connection with a request for an
extraordinary adjustment on the basis of subsections (A), (E), or (F) above, Contractor shall
provide City all financial information as requested by City and which it deems necessary in its
reasonable judgment to evaluate whether the adjustment will result in the Parties remaining in the
same relative economic position as they were in as of the Effective Date, which information may
include items such as Contractor's total revenues and total cost of services. Any delay in providing
information requested by City pursuant to the above shall result in a corresponding extension to
the above noted ninety (90) day timeline. Notwithstanding the foregoing, if Contractor's request
for an extraordinary adjustment is on the basis of subsection (B), City's shall use its reasonable
judgment to evaluate the request and, if approved, the increase shall occur using a method and
timeframe that will enable all fees or taxes imposed upon Contractor to be passed on to Customers.
Upon request, the parties agree to periodically review any approved extraordinary adjustment from
time to time to determine if the circumstances underlying Contractor's request for the adjustment
continue to exist, and to revise the amount of the adjustment accordingly.
24.6.3 City Denial of Contractor Request for an Extraordinary Adjustment
In the event that City is unable by operation of Applicable Law to approve or implement
an adjustment to the maximum rates set forth in Exhibit A under this Section 24, or some or all of
the rates are disallowed by operation of Applicable Law, City shall deny such request. In the event
that City denies Contractor's request for an adjustment to the maximum rates set forth in Exhibit A
based on City's review of the financial information submitted by Contractor pursuant to
Section 24.6.2, Contractor may, within thirty (30) days after receipt of City's denial, request in
writing that the Parties negotiate in good faith regarding Contractor's request for an adjustment to
the maximum rates set forth in Exhibit A. which may include, without limitation, reductions in
programs, services, or fees and charges, and rebates. If the Parties have not reached agreement
within ninety (90) days following the date City receives Contractor's written request for
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negotiation, either party may terminate this Agreement upon written notice no earlier than one
(1) year after written notice to the other.
24.7 Grants
From time to time, federal, state or local agencies including the City may provide to
Contractor grants to assist in financing qualified programs provided by Contractor in the City
(including, without limitation, grants for diversion programs and related equipment, alternative
fuel vehicles and equipment, and Household Hazardous Waste Collection and Disposal).
Contractor shall notify City upon receipt of any such grant funds that may be used to fund services
provided pursuant to the terms of this Agreement. With the exception of grants already received
by Contractor as of the Effective Date, and grants for Collection Vehicles and for Organics
processing facilities, any funds received through grants for services in the City are intended to
benefit City and its residents and businesses, and in essence are held by Contractor in trust on
behalf of City. Accordingly, Contractor agrees that the total amount of compensation it receives
from Customers hereunder, may be reduced by the amount of any such grant, unless the grant is
used to pay for services in City. The City Council shall determine whether the reduction in
Contractor's compensation shall be: (1) passed through to Customers designated by City as a
reduction to maximum rates; (2) as an offset to the next increase to maximum rates requested by
Contractor; (3) paid to City for use as City directs; or (4) applied in any combination of (1) through
(3).
SECTION 25.
IDENTIFICATION OF CONTRACTOR
Contractor has agreed to use the names "Waste Management of the Inland Empire" or
"Waste Management" to identify itself to the public as the specific organization that shall provide
all services under this Agreement. Unless otherwise approved in writing by City, this name shall
be used for all correspondence, Billing statements, directory listings, references, signs, and vehicle
and Container identification.
SECTION 26.
TRANSPORTATION OF SOLID WASTE
Contractor shall transport all Solid Waste, Recyclable Materials, and Organic Waste
Collected in the City to a properly permitted transfer station, materials recovery facility, Organic
Waste processing facility, transformation facility, processing facility or disposal site selected by
Contractor. Contractor shall maintain complete, accurate, and up-to-date records of the quantities
of materials transported to the transfer station, materials recovery facility, transformation facility,
processing facility, or disposal site.
SECTION 27.
INDEMNIFICATION
27.1 General
(A) Contractor hereby agrees to and shall indemnify and hold harmless the
Indemnified Parties from and against any and all loss, liability, penalty, forfeiture, claim,
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demand, action, proceeding or suit in law or equity of any and every kind and description
(including, but not limited to, injury to and death of any Person and damage to property, or
for contribution or indemnity claimed by third parties) arising out of, resulting from, and/or
in any way connected with Contractor's performance pursuant to this Agreement including:
(1) the negligence or willful misconduct of Contractor, its officers, employees, agents,
and/or subcontractors in performing services under this Agreement; (2) the failure of
Contractor, its officers, employees, agents, and/or subcontractors to comply in all respects
with the provisions of this Agreement, all Applicable Laws (including, without limitation,
the Environmental Laws), ordinances and regulations, and/or applicable permits and
licenses; and (3) the acts of Contractor, its officers, employees, agents, and/or
subcontractors in performing services under this Agreement for which strict liability is
imposed by law (including, without limitation, the Environmental Laws). The foregoing
indemnity and hold harmless provisions shall apply regardless of whether such loss,
liability, penalty, forfeiture, claim, demand, action, proceeding, suit, injury, death or
damage is also caused in part by any of the Indemnified Parties' negligence, but shall not
extend to matters resulting from the Indemnified Parties' sole negligence, or willful
misconduct. Contractor further agrees to and shall, upon demand of City, at Contractor's
sole cost and expense, defend (with attorneys acceptable to City) City, its elected and
appointed boards and commissions, officers, employees, and agents against any claims,
actions, suits in law or equity or other proceedings, whether judicial, quasi-judicial or
administrative in nature, arising or resulting from any of the aforementioned events, and to
reimburse City for any and all reasonable costs and expenses City incurs in providing any
such defense, either before, during or after the time Contractor elects to provide such
defense, including any and all costs incurred in overseeing any defense to be provided
herein by Contractor.
(B) Contractor, upon demand of City, made by and through the City Attorney,
shall protect City and appear in and defend City and its elected officials, officers,
employees and agents, in any claims or actions by third parties, whether judicial,
administrative or otherwise, including, but not limited to disputes and litigation over the
definitions of "Solid Waste" or "Recyclable Material," the scope of the rights granted
herein, conflicts between the rights granted herein and rights asserted by other Persons, or
the limits of City's authority with respect to the grant of licenses, or agreements, exclusive
or otherwise, asserting rights under the Dormant Commerce Clause or any other federal or
state laws to provide Collection services in the City. This indemnity shall not extend to
claims arising out of the gross negligence or willful misconduct of the City.
(C) The provisions of this Section shall not terminate or expire, shall be given
the broadest possible interpretation, and shall survive the expiration or earlier termination
of this Agreement.
27.2 Hazardous Substances Indemnification
(A) Without regard to any insurance coverage or requirements, and without
limiting the above general indemnification obligation in any way, Contractor specifically
agrees to and shall, to the maximum extent permitted by law, defend (with counsel
acceptable to City) reimburse, indemnify, and hold the Indemnified Parties harmless from
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and against any and all claims, actions, liabilities, damages, demands, judgments, losses,
costs, liens, expenses, suits, actions, attorneys' fees, consultant fees, penalties and any and
all other losses, damages, fees and expenses of whatever kind or nature ("Claims")
(including but not limited to response costs, investigative costs, assessment costs,
monitoring costs, treatment costs, cleanup costs, removal costs, remediation costs, and
similar costs, damages and expenses) that arise out of or are alleged to arise out of or in
any way relate to any action, inaction or omission of Contractor that:
(1) results in any demand, claim, notice, order, or lawsuit, asserting that
any Indemnified Party is liable, responsible or in any way obligated to investigate, assess,
monitor, study, test, treat, remove, remediate, or otherwise cleanup, any Hazardous Waste
or Hazardous Substance; or
(2) relates to material Collected, transported, recycled, processed,
treated or disposed of by Contractor.
(B) Contractor's obligations pursuant to this Section shall apply, without
limitation, to:
(1) any Claims brought pursuant to or based on the provisions of the
Environmental Laws, including without limitation the Comprehensive Environmental
Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq., the
Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901 et seq., the
Carpenter -Presley -Tanner Hazardous Substances Account Act (California Health & Safety
Code Sections 25300 et seg.), the California Hazardous Waste Control Laws (California
Health and Safety Code Sections 25100 et seq.), the California Porter -Cologne Act
(California Water Code Section 13000 et seq.), and any and all amendments and
regulations thereto, and any other federal, state, regional or local environmental statutory
or regulatory provision;
(2) any Claims based on or arising out of or alleged to be arising out of
the ownership, use, lease, sale, design, construction, maintenance or operation by
Contractor of any facility;
(3) any Claims based on or arising out of or alleged to be arising out of
the marketing, sale, distribution, storage, transportation, disposal, processing or use of any
materials recovered by Contractor; and
(4) any Claims based on or arising out of or alleged to be arising out of
any breach of any express or implied warranty, representation or covenant arising out of or
in connection with this Agreement.
(C) The foregoing indemnity and defense obligations shall apply irrespective of
the negligence or willful misconduct of Contractor or any Affiliate of Contractor.
(D) The provisions of this Section shall not terminate or expire, shall be given
the broadest possible interpretation, and shall survive the expiration or earlier termination
of this Agreement.
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(E) The foregoing indemnification shall not apply with respect to any Claims to
the extent arising from the delivery of Exempt Waste, Hazardous Waste, or Hazardous
Substances by City to Contractor or the gross negligence or willful misconduct of.any of
the Indemnified Parties.
SECTION 28.
CONTRACTOR'S BOOKS AND RECORDS; AUDITS
28.1 Maintenance and Inspection of Records
Contractor shall maintain all records relating to the services provided hereunder, including
but not limited to Customer lists, billing records, accounts payable records, maps, AB 939
compliance records, records reflecting the number of refuse, recycling and Organic Waste routes
and route hours by service category (such as residential, multi -family, commercial, roll -off, and
special services), records demonstrating facilities, equipment and personnel used to perform
services, records reflecting the number of refuse, recycling and Organic Waste Containers in
service by frequency of Collection for each customer group (such as single family, multi -family,
commercial, roll -off); records reflecting the number of roll -off box pulls, and such other
documents and materials which reasonably relate to Contractor's compliance with the provisions
of this Agreement (the "Records"), for the full Term of this Agreement, and an additional period
thereafter of not less than three (3) years, or any longer period required by law. City shall have
the right, upon five (5) business days advance notice, to inspect the Records. Such Records shall
be made available to City at Contractor's regular place of business, but in no event outside the
County of Riverside. Notwithstanding the foregoing, Contractor shall not be required to maintain
or disclose any information in contravention of the California Consumer Privacy Act and its
implementing regulations, as may be amended.
28.2 CERCLA Defense Records
City views the ability to defend against the Comprehensive Environmental Response,
Compensation and Liability Act and related litigation as a matter of great importance. For this
reason, City regards the ability to prove where Solid Waste Collected in the City was taken for
Disposal, as well as where it was not taken, to be matters of concern. Contractor shall maintain
data retention and preservation systems which can establish where Solid Waste Collected in the
City was landfilled (and therefore establish where it was not landfilled) for not less than five (5)
years following the termination of this Agreement, and agrees to notify City's City Manager, City
Clerk and City Attorney before destroying such records thereafter. At any time, including after
the expiration of the Term hereof, Contractor shall provide copies of such records to City upon
request. The requirements of this Section shall survive the expiration of the Term of this
Agreement.
28.3 Ongoing Compliance Review
City intends review Contractor's performance on an ongoing basis to ensure compliance
with the terms and provisions of this Agreement, and it is City's intent that a designated portion
of the Administrative Cost Reimbursement, as more fully described in Section 11.3, will be used
to fund City's costs associated with ensuring Contractor's ongoing compliance. At a minimum,
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City intends to have internal staff or outside consultants review Contractor's performance to ensure
ongoing compliance with the terms hereof, including, but not limited to, the payment of required
fees, performance of the services stated herein, implementation of programs required under the
Agreement, Contractor's maintenance and upkeep of records, and compliance with all Applicable
Laws. Contractor shall provide any and all information reasonably requested by City in connection
with its efforts to ensure compliance with the terms hereof, regardless of whether such information
is specifically otherwise called out herein as an item that Contractor is required to maintain and
provide to City. Notwithstanding the foregoing, Contractor shall not be required to maintain or
disclose any information in contravention of the California Consumer Privacy Act and its
implementing regulations, as may be amended.
28.4 Confidentiality of Contractor's Records
City acknowledges certain records and reports of Contractor submitted to or reviewed by
City pursuant to this Agreement may be proprietary and confidential. Contractor shall mark as
"Confidential" all documents that Contractor asserts are proprietary and confidential. City will
exercise reasonable efforts to maintain the confidentiality of all proprietary and confidential
information provided by Contractor. To the extent the City does not agree that a document marked
as "Confidential" is exempt from disclosure under the Public Records Act, City will provide
Contractor notice of public records requests for such documents Contractor has identified as
"Confidential" and will hold the release of such documents for a reasonable period of time (to the
extent permitted by the Public Records Act) to allow Contractor to seek a protective order from a
court of competent jurisdiction.
28.5 Audits
28.5.1 Examination of Services
From time to time, anticipated to occur as a result of reports and other submittals required
by this Agreement, City may request Contractor to make available any or all of its records related
to performance hereunder available to an independent auditor or examiner, to be selected by the
City, for auditing and examination purposes (a "Discretionary Audit"), for the purpose of verifying
performance of Contractor's obligations hereunder. The first Discretionary Audit shall be
performed in 2021 and shall be based on the Contractor's reports and records described in Section
28.1 of this Agreement through calendar year 2020. The scope of the Discretionary Audit and
auditor or examiner will be determined by City and the scope may include compliance with the
terms of this Agreement, Customer service levels and Billing, fee payments, Gross Receipts,
tonnage, and verification of diversion rates. Except as otherwise provided herein, City shall bear
the cost of any Discretionary Audit. Should any Discretionary Audit reveal an underpayment of
any Franchise Fee required pursuant to this Agreement, the amount of such underpayment shall
become due and payable to City not later than fifteen (15) days after written notice of such
underpayment is sent to Contractor by City, complete with any additional late charges as set forth
in Section 12. Should any Discretionary Audit reveal an overpayment of any Franchise Fee
required pursuant to this Agreement, the amount of such overpayment shall act as a credit against
Contractor's next Franchise Fee payment. If a Discretionary Audit reveals inaccuracies or
inconsistencies in more than five percent (5%) of all Customer accounts, either with Contractor's
operations or billing systems, or an underpayment of Franchise Fees of more than three percent
882/031858-0003
14191707.11 a02/25/20 -75-
(3%), Contractor shall bear the entire cost of such Discretionary Audit. Notwithstanding the
foregoing, Contractor shall not be required to maintain and/or disclose any information in
contravention of the California Consumer Privacy Act or its implementing regulations, as may be
amended.
28.5.2 Route Audit
Contractor shall complete an audit at its expense of its Collection routes for all Customers
at Single Family Premises, Multi -Family Premises, and Commercial Premises at such times as
may be requested by City; provided, however, that while City may request that such an audit occur
at any time, it may not request such audits at Contractor's expense more than seven (7) times
during the Term. The timing of such audits is at the City's discretion and may be required to be
timed with the issuance of a request for proposals for a new agreement. The route audit, at
minimum, shall consist of an independent physical observation by Person(s) other than the route
driver or route supervisor of each Customer in the City. The route audit shall include, as a
minimum, the following information for each account:
• Route Number;
• Truck Number;
• Account Name;
• Account Number;
• Account service address;
• Service Level per Billing System (quantity, size, frequency);
• Service Level per Routing System;
• Observed Containers (quantity, type and size);
• Bin condition;
• Proper signage; and
• Graffiti.
Within thirty (30) days after the completion of the route audit, Contractor shall submit to City a
report summarizing the results thereof which shall include:
• Identification of the routes;
• Truck numbers;
• Number of accounts, by route and in total;
882/031858-0003
14191707.11 a02/25/20 -76-
• Number of Containers (broken down by type) per service address, per route and total
number of Containers;
• Types of exceptions observed;
• Number of exceptions by type;
• Total quarterly Billing, pre -audit;
• Total quarterly Billing, post -audit (subsequent to corrections of identified exceptions);
• Percentage of the number of accounts with errors to the total number of accounts
served; and
• Percentage of the "net" change in quarterly Billing as a result of the audit to the total
pre -audit quarterly Billing.
The report shall include a description of the procedures followed to complete the audit, and shall
include the names and titles of those supervising the route audits and the name and titles of those
performing the observations. Additionally, the report shall include a description of the pre -audit
training of the route auditors, particularly if temporary personnel are used. The report shall also
include a description of the changes and Contractor's plans to resolve any exceptions. The route
audit data and results of the audit shall be available for review by the City or its representative.
SECTION 29.
TRANSITION OBLIGATIONS
At the end of the Term, or in the event this Agreement is terminated for cause prior to the
end of the Term, Contractor shall cooperate fully with City and any subsequent solid waste
enterprise it designates to assure a smooth transition of services. Contractor's cooperation shall
include, but not be limited to, providing route lists, billing information and other operating records
needed to service all premises covered by this Agreement. The failure to cooperate with City
following termination shall be presumed to be grounds for specific performance of this covenant
and/or other equitable relief necessary to enforce this covenant.
Contractor shall undertake good faith efforts to provide any new solid waste enterprise with
all keys, security codes and remote controls used to access garages, gates and bin enclosures.
Contractor shall be responsible for coordinating transfer immediately after its final collection
activities, so as to not disrupt services, including coordinating with the new solid waste enterprise
on the removal of Contractor's Containers and the delivery of the new solid waste enterprise's
Containers. Contractor shall provide City with detailed route sheets containing service names and
addresses, billing names and addresses, quarterly rate and service levels (number and size of
Containers and pickup days) at least ninety (90) days prior to the transition date, provide an
updated list two weeks before the transition, and a final updated list with any changes the day
before the transition. Contractor shall provide means of access to the new solid waste enterprise
at least one full business day prior to its first day of collection, and within sufficient time so as to
not impede in any way the new solid waste enterprise from easily servicing all Containers.
882/031858-0003
14191707.11 a02/25/20 -77-
SECTION 30.
GENERAL PROVISIONS
30.1 Force Majeure
Contractor shall not be in default under this Agreement in the event that its ability to
provide Solid Waste Handling Services or Temporary Services, in compliance with its obligation
to do so hereunder, is temporarily interrupted or discontinued for any of the following reasons:
riots, wars, sabotage, civil disturbances, insurrections, strikes or other labor disturbances lasting
five (5) days or less, explosion, natural disasters such as floods, earthquakes, landslides, and fires,
or "other catastrophic events" which are beyond the reasonable control of Contractor. The term
"other catastrophic events" does not include: (i) the financial inability of Contractor to perform;
(ii) failure of Contractor to obtain any necessary permits or licenses from other governmental
agencies, unless such failure is due to the governmental agencies' failure to diligently process
Contractor's application; (iii) the failure to obtain the right, or the loss of the right, to use the
facilities of any public utility where such failure is due in substantial part to the acts or omissions
of Contractor; or (iv) strikes or other labor disturbances lasting longer than five (5) days, unless a
plan to provide Solid Waste Handling Services that is reasonably satisfactory to City is put in
place.
30.2 Independent Contractor
Contractor is an independent contractor and not an officer, agent, servant, or employee of
City. Contractor is solely responsible for the acts and omissions of its officers, agents, employees,
and subcontractors, if any. Nothing in this Agreement shall be construed as creating a partnership
or joint venture between City and Contractor. Neither Contractor nor its officers, employees,
agents, or subcontractors shall obtain any rights to retirement or other benefits which accrue to
City employees.
30.3 Property Damage
Any physical damage caused by the negligent or willful acts or omissions of employees,
agents, or subcontractors of Contractor to private or public property shall be promptly repaired or
replaced at Contractor's expense.
30.4 Right of Entry
Contractor shall not have the right, until Contractor receives permission from the property
owner, to enter or drive on any private street, court, place, easement, or other private property for
the purpose of providing Temporary Services and/or Solid Waste Handling Services pursuant to
this Agreement.
30.5 Law to Govern, Venue
The laws 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 Riverside and
venue in federal trial courts shall lie exclusively in the District of California in which City is
located.
882/031858-0003
14191707.11 a02/25/20 -78-
30.6 Amendment
This Agreement is intended to carry out City's obligations to comply with the provisions
of AB 939 and AB 341, as implemented by regulations of CalRecycle, as they from time to time
may be amended. In the event that, after the Effective Date of this Agreement, AB 939 or AB 341
is amended, or other state or federal laws or regulations are enacted and prevent or preclude
compliance with one or more provisions of this Agreement, such provisions shall be modified or
suspended as may be necessary to comply with such state or federal laws or regulations. Except
as otherwise expressly stated herein, no other amendment of this Agreement shall be valid unless
it is in writing and duly executed by the parties.
30.7 Notices
All notices required or permitted to be given under this franchise shall be in writing and
shall be personally delivered or sent by United States certified mail, postage prepaid, return receipt
requested, and addressed as follows:
To City: City of Menifee
Attn: City Manager
29844 Haun Road
Menifee, CA 92586
With a copy to: Rutan & Tucker, LLP
Attn: Jeffrey Melching
611 Anton Boulevard, Ste 1400
Costa Mesa, CA 92626
To Contractor: Waste Management of Inland Empire
Attn: Director of Operations
9081 Tujunga Avenue
Sun Valley, CA 91352
Copy to: Waste Management — Southern California Market Area
Attn: Legal Counsel
9081 Tujunga Avenue
Sun Valley, CA 91352
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 given on the date served if served
personally between the hours of 8:00 a.m. to 5:00 p.m. on any regular business day for City's
business offices. If mailed, notice shall be deemed given three (3) business days from the date
such notice is deposited in the United States mail in the manner proscribed above.
882/031858-0003
14191707.11 a02/25/20 -79-
30.8 Guarantee of Contractor's Performance
Pursuant to a guarantee in substantially the form attached as Exhibit D, Waste
Management, Inc. ("Guarantor") has agreed to guarantee Contractor's performance of its
obligations pursuant to this Agreement, and Contractor shall insure that Guarantor shall provide a
fully executed copy of the Guarantee required by this provision concurrently with Contractor's
delivery of this Agreement to City.
30.9 Savings Clause
If any provision of this Agreement is for any reason 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.
30.10 Exhibits Incorporated
Exhibit A, Exhibit B, Exhibit C, Exhibit D, and Exhibit E are attached to and incorporated
in this Agreement by reference.
30.11 Joint Drafting
This Agreement shall be interpreted as if it were drafted jointly by the parties to the
Agreement.
30.12 Attorneys' Fees and Litigation Costs
In the event either party brings any action or proceeding to enforce or interpret the terms
or provisions of this Agreement, the prevailing party in any such action or proceeding shall be
entitled to recover its reasonable attorneys' fees and other litigation costs and expenses, including
without limitation expert witness fees, consultant fees and costs. Without limiting its scope in any
way, this provision is expressly intended to, and shall, apply to fees and costs incurred in any
appeal.
30.13 City's Authorized Agent
Notwithstanding anything contained herein to the contrary, and excepting amendments
hereto and such actions set forth herein specifically calling for City Council action or approval,
the City Manager is designated as the City's authorized agent to take any action with regard to any
matter, or enforce any right, set forth herein requiring action by the City.
30.14 Integratedgreement
This Agreement contains the entire integrated agreement and understanding concerning the
subject matter herein and supersedes and replaces any prior negotiations, promises, proposals, and
agreements between the Parties, whether written or oral. The Parties acknowledges this document
has been executed with the consent and upon the advice of counsel. Each of the Parties
acknowledges that no party or agent or attorney of any other party has made any promise,
882/031858-0003
14191707.11 a02/25/20 '80'
representation, or warranty, express or implied, not contained in this Agreement, to induce the
other party to execute this instrument.
30.15 Section Headings
The section headings in this Agreement are for convenience of reference only and are not
intended to be used in the construction of this Agreement nor to alter or affect any of its provisions.
30.16 Compliance with Law
In providing the services required under this Agreement, City and Contractor shall at all
times, at its sole cost, comply with all Applicable Laws, including the laws and regulations of the
United States, the State of California, the provisions of the Municipal Code, and any federal, state,
regional or local administrative and regulatory agencies, now in force and as they may be enacted,
issued or amended.
30.17 No Third Party Beneficiaries
Except as otherwise provided for in this Agreement, nothing in this Agreement, whether
expressed or implied, is intended to confer any rights on any persons other than the parties to the
Agreement and their representatives, successors, and permitted assigns.
[SIGNATURES ON FOLLOWING PAGE]
882/031858-0003
1419170711 1 a02/25/20 -81-
Dated: `? /,; 0 la D
APPROVED AS TO FORM:
By:
effr T. Melching, City A rney
Dated: ��Lti �� , 7,�,�,D
Dated:
"City"
CITY OF MENIFEE, a California municipal
corporation
Armando Villa, Citv Manasaer
ARMANDO G. VILLA
CITY MANAGER
CITY OF MENIFEE
"Contractor"
USA WASTE OF CALIFORNIA, INC., a
Delaware corporation, dba WASTE
MA ' GEMEN F T E I LAND
EM$
,�'
By:
Pete Demolder, Vice President and Asst.
Secretary
Doug Corcoran, Vice President
se2/038s8-0003
14191707,11 a02JUM -82-
"City"
CITY OF MENIFEE, a California municipal
corporation
Dated: 13N,:
ATTEST:
WE
Sarah Manwaring, City Clerk
APPROVED AS TO FORM:
LOW
Jeffrey T. Melching, City Attorney
Bill Zimmerman, Mayor
"Contractor"
USA WASTE OF CALIFORNIA, INC., a
Delaware corporation, dba WASTE
MANAGEMENT OF THE INLAND
EMPIRE
Dated: By:
Pete Demolder, Vice President and Asst.
Secretary _
U
Dated: 0
(By:
oug rco an, Vice President
882/031858-0003
14191707.11 a02/26/20 -82-
EXHIBIT A
MAXIMUM RATE SCHEDULE FOR SOLID WASTE HANDLING SERVICES
EXHIBIT A
882/031858-0003
14191707.11 a02/25/20 - I -
Attarhm ent 1
City of Menlfee
Solid %M ste and Recycling Rates
Effect live July 1, 2019
It"Is lW%,M,.
Service Description
p
Container$12,
Service Frequency
quency
1y1011/19 4y1019110
Caiggt Rate tlal9 Ad ttmtnt
ry1019(20
Inspined pate
Billing Frequency
Residential- weeklylraah reeycWt, green wasteservide
96111
Ix weekly
S 26.60 $
081
2741
permonth
Residential- weekly trash, recycling service
96 Gallon
lx weekly
S 23.73 $
0.72
f 2445
permonth
Senior -weekly trash, recycling green wasteservice
64 Gallon
Ix weekly
S 24 21 $
0.74
S 24 95
permonth
Sir-- weekly trash, recycling service
64 Gallon
lx weekly
$ 21.60 $
0.66
S 2226
permonth
tow Volumeweeklytrash, recycling green waste service
64 Gallon
lx weekly
S 24.21 $
1,71
S 24.95
permonth
1o.Volume- weekly tra sh, recycling service
6a Gallen
lx weekly
S 21.60 S
0.66
S 22.2E
➢ermonlh
AdsWsanal Contai n er - Trash
$ 7.17 "
0.22
f 7.39
permonth
rylrRlcoal Container- Racy cli ng I beyond 2 containers)
$ 2.99 $
0.09
S 3.08
permonth
IM, coal Container• Green Waste
5.87 $
0.18
S 6.05
permonth
Cwbb4tNAlHan. Collection (beyond 2 annual pickups)
$ 2298
0.70
f 23,68
peritem
funindef•Will Collection
3486
1.0E
$ 35.92
peritem
free Mth Bag Collection
$ 430 $
0.13
S 4.43
perbog
Carl Exchange (beyond l per year)
$ 1839 $
0.56
S 10.95
peroccwrence
Cal Replalement- Lost/Stolen
$ 126.41 $
9.86
S 130.27
peroccwrence
Civeragf Fee
53 77
1.64
S 55 41
per hrn. perplckup
Has -fee
29.04 $
0.B9
S 29.93
Haul Or Call (HOC) Fee
f 20.47 $
0.97
S 29.34
Account Set Up Fee
$ 15,00 S
0.AB
'S 16.36
perotturrene
Ac count R each va a on Fee - Bad Debt
$ 2298 $
070
f 2360
peroccwrence
Ac count Ca rt Redeli very F ee - Bad Debt
S 22.98 $
070
f 23.68
peroccurence
Delinquent Aceunts -WM Penalty Fee
10%
{OX
one nme
Delinquent Acwunts -WM Interest Fee
18°/
ItX
one fime
WM Ta, Roll Fee
12.41 "
4.99
3340
rinf nme
r Service, Description
Container Sire Service Frequency
F►201t/10
Culranl calf 1
Comm""'lal/MIl, Family -Trash Service
1.$/2 yad Bin
Ir vrffl ty
$ 10043 $
Commercial/Multi Family -Trash Service
1.5/2 Yard Bin
2xweekly
$ 200.86 $
CommerclallMul[I Family - Trash Servi ce
1.5/1 Yard Bln
3K weekly
f 30129 $
Commercial/Multi Family -Trash Servi ce
1.5/2 Yard Bin
9x weekly
S 401.71 $
CrlmmarclalO,ti/, Family -Trash Servi ce
1.5J2 Ya rd Bin
Sx weekly
$ 502.17 f
COmmtrcW/Atugi Fam fly - Trash Service
1.5/2 Yard Bin
6x weekly
$ 602.59 $
fmrimseclal/Msll Family -Trash 6ei vice
3Yard Bin
lx weekly
S III S
C9anmwasift ,Farndy-Trash Service
3Yard It
2K we
III
$ 2T7.37 $
COmmeat""i Family -Trash Service
3Yard Bin
3K weekly
$ 416.06 f
Cpnmasicel/MId, Family -Trash Service
3Yard Bin
4x weekly
$ 554.75 f
CanmfacidJM can Family Trash Service
3Yard Bln
5, weekly
f 693.43 $
commerUaiiiii Family - Trash Servi ce
3Yard Bin
6K weekly
f 932.12 f
Commeresal/MuIll Family -Trash Service
41ard BI
lK weekly
m
fomarc,allMuq, Family -Trash Service
gYard Bin
2xweekly
$ 369.85 f
CoanmrcllW11,FamilY-Trash Service
4Yard Bin
3K weekly
$ 554.75 f
COmmOttlaiVult Family -Trash Service
4Yard Bin
4x weekly
$ 739.66 f
COminrtlal/1.atd:Familq-Trash Service
4Yard Bin
5x weekly
$ 924.57 $
ommarclAiAiultl Family -Trash Service
4Yard Bin
6x weekly
f 1,109.47 $
Cemmr< 1a1/1.tuti Farm ly-Tr ash Servi ce
6Yard Bin
lx weekly
$ 151,15 $
Commerciel/Multi Family -Trash Servi ce
6Yard Bin
2,,weekly
$ 512'90
Commercial/Mul[I Family -Trash 6ern ce
6Yard Bin
3K weekly
$ 769A4
Commercial/M ulh Family - Trash Service
6Yard Bin
4. weekly
S 1,025.77 $
Commercial/Multi Famlly-Trash Service
6Yard Bin
5x weekly
$ 1,282.21 $
Commercial/Mul[I Famll Y -Trash Service
6Yard Bin
6K weekly
$ 1,538.64 $
Commerclal/MuItl FamllY-Recycling servlre
1.5/2 Yard Bin
1r. weekly
71.72 $
Commercial/M ultl Family -Recycling service
15/2 Yard Bin
2K weekly
f 140.52 $
Commerclal/Mulh Family- Recycling5ervlce
1.5/2 Yard Bin
3x weekly
N/A
Commercial/1Aul[i Family -Recycling S ervice
1.5/2 Yard Bin
4. weekly
N/A
Commercial/M ulti Fam fly-R ecycli ng Service
1.5/2 Yard Bin
Sx weekly
N/A
Commercial/Multi Family- Recycling Service
3Yard Bin
1K weekly
f 83.17 S
COmmerClal/Mulh Family-Hecycling Servile
3Yard Bin
2xweekly
f 163.47 S
C-mmerclal/MUlu Family-RecycIing SerYlce
3Yard Bin
3x weekly
N/A.
Commercial/Multi Family-Recycmg Service
3Yard Bin
4K weekly
N/A
C91nm9K4 .1, camlly - Recycling Service
3 Vard Bln
5K weekly
N/A
CMnincy[.iY/1A,Ai Family -Recycling Service
guard Bln
lx weekly
f 101.81
CommccNd//.tWll Family -Recycling Service
4Vard Bin
2xweekly
i 199.32 $
Carnmr<uilrMy0l Family-Recyclmg Service
4Yard Bin
3x weekly
N/A
ClimmrClal/MYtl Family- Recycling Service
4Yard Bin
4K weekly
N/A
Claim 'a1/1 A Family- Recyclmg Service
4Yard Bin
5K weekly
N/A
CammHclakil ll Family -Recycling Service
6Yard Bin
lx weekly
f 107.53 1(
COmIm HCIaJ/lAugi Family- Recycling 8ervlce
6Yard Bin
2xweekly
j 212.35 f
Cummeresal/M ultl Family-Recychng Service
6Yard Bin
3K weekly
N/A
m rnare,a JI&A Famlly - Recycling Service
6 Yard Bin
4x weekly
N/A
Cum. -al AluN,Family-Recycling Service
6Yard Bin
5K weekly
N/A
EXHIBIT A
882/031858-0003
14191707,11 a02/25/20 -2-
Do nU Pnn
bare- %
3 05%
305%
3 05%
3 05%
3 05%
3 05°.6
3 05%
305%
3 054f
305%
3 OS%
305%
305%
305%
3 0546
3 0595
305%
305%
305%
305%
0 00%
0 00%
3 05%
I"
$ 11149
permonth
30586
613
j 20699
permonth
305%
919
$ 31040
permonth
305%
12.25
S 41390
permonth
305%
11,12
< 51749
permonth
3054E
18.38
$ 620.97
pe/month
305%
1,21
$ 142. 11
permonth
305%
8.46
f 2BS,B3
permonth
305%
12.69
S 42675
permonth
305%
16.92
S 571.67
➢ermonlh
30590
21.15
$ 714.58
permonth
305%
25.38
$ 857.50
permonth
305%
5.64
$ 190.54
permonth
305%
11.2B
$ Sol 11
permonth
305%
16.92
$ 571.67
permonth
305%
22.56
S 762.22
permonth
3.05%
28 20
S 952 77
per MP
30596
33.84
$ 1,143.31
permonth
30596
7.92
$ 26427
permonth
3.05%
1564
S 52254
permonth
305%
23.46
$ 792.00
permonth
305%
31.29
S 1,057.06
permonth
305%
39.11
f 1,321.32
permonth
305%
46.93
S 1,595.57
permonth
305%
2.19
f 7391
permonth
305%
4.29
$ 144 11
permonth
305%
N/A
S 21571
pe/month (2)
WALUE1
N/A
j 20661
per month(2)
N/A
S 357.51
per monlh(2)
2.54
$ 8571
permonth
305%
4.99
S 16846
permonth
30540
N/A
S 251.21
permonth (2)
N/A
S 93396
permonth (2)
N/A
S 41111
permonth(2,
3.11
S 10491
permonth
305%
E.OB
$ 20539
permonth
905%
N/A
f 305.99
permonth(2)
N/A
S 406,36
per manth(2)
N/A
S 511,11
per 11n11(2)
3.20
S 11081
pNmonih
30591,
6.AB
f 218. 02
permonth
305%
N/AI$ 126.B5 I Oft call (2)
NJA S 434 B7 Oft month 12)
N/A S 54289 pfrmonth(2)
Commex,610.1lulll Family -Manure Service
2Yard Bin
lx weekly
146.09 $
9.45
5 150.46
permonth
305%
':OM.--.:/MWI Family - Manure Service
3Yard Bin
lx weekly
109 02 f
5.79
E 195.61
permonth
305%
COMMMtoili Family - Compactor Service
2Yard Bin
1x weekly
£
167.37 5
5to
£ 172.47
permonlh
305%
GmmM[Nt1.lWl Family -Compactor Service
2Yard Bin
2x weekly
$
307.96 S
9.39
$ 317.25
permonlh
305%
COMMMtiA&UNl Family - Compactor Service
2Yard Bin
3x weekly
IS
448.34 1
1367
1 462.01
permonlh
305%
Commart.al/NWI Family - Compactor Service
2Yard Bin
4x welly
$
1B181 $
1796
$ 606.77
permonlh
305%
COmmx[W(UWI Family-Com pactor Service
2Yard Bin
Sx welly
5
729.26 1
2224
5 751.50
per month
305%
CommoniN(MWIFamlly-Compactor Service
2Yard Bin
6xweely
1
86975 S
2653
S 696.20
permonlh
905%
COmmerWAAWr Famlly- Compactor Service
3Yard Bin
Ix wedgy
S
22562
600
5 232.50
permonth
305%
GO—w: Alr1.W0. will,- Compactor Service
3Yard Bin
2x welly
S
424.42 f
1294
S 437.36
permonlh
305%
Commw[iN(MW1Famlly-Compactor Service
3Verd Bin
3x weekly
S
6231E S
1901
$ 642.19
permonth
3C15%
(OrrlmMcNtAtWl Famlly-Compactor Service
3Yard Bin
4x weekly
1
02109 f
15.07
5 646.96
permonth
305%
COmm.C,a,AIWI Family - Compactor Service
3Yard Bin
5x weekly
f
1,02064 E
3113
S 1,05177
permonth
305%
COMManN/A1WI Family -Compactor Service
3Yard Bin
6x weekly
1
1,219.44 5
37-19
5 1,256.63
permonlh
305%
CryMMW:Nlltulll Famlly-Organ c55ervice
64 Gallon
lx welly
5
3715 S
113
S 39 20
permonth
305%
C-im, ".1 Family -Organics Service
64 Gallon
2x welly
f
7430 S
2.27
E 76.57
permonlh
305%
C_.:l,NpAWl Famlly-Ofgancs Service
64 Gallon
3x weekly
$
111.45
3.40
S 114.95
permonth
305%
COmmm, N/IAIAI Famlly-0 gar(cf Service
64 Gallon
A. weekly
f
148 61 S
4 53
f 15314
permonth
305%
1-M-LN/aAWl Family -Organics service
64 Gallon
5x weekly
f
18575 S
567
E 19142
permonth
305%
COmmMc�6iiamlly-Organics Service
64 Gallon
6x weekly
f
222.89 S
6.80
£ 229.69
permonth
305%
GM,"'N/1,1W1 Famllycs -OrganiService
2Yard Bin
lx weekly
f
190.48 5
6.05
S 2M53
permonth
305%
C.O"o'"""l/MuW Family -0rgant55eYvlce
2Yard Bln
21 weekly
f
39645 1
12.19
f 408.54
permonth
305%
Commercial/Muki Family -Organit55eYYl[e
2Yard Bln
3N weekly
<
59441 1
1813
f 61154
permonlh
305%
Commerclal/Mukl Famlly- Organics Service
2Yard Bln
Ox welly
$
79233 f
241]
f 81650
permonth
305%
Commercial/Mukl Famlly-OrganiaService
2Vard Bln
Sx wed:ly
f
990�27 $
30.20
f 1,020.97
permonth
305%
COmmercial/Mukl Famlly-OrganiaServlce
2Yard Bin
6x weekly
$
1,10020 f
36�24
1 1,22444
permonth
305%
T,1MWr My Roll Oil COntalner-Trash Service(max4 tons)
$
42497 $
1296
5 437.99
305%
Tampa My Roll Off Container- C&D Waste Servlce(max 4 tons)
f
601-00 S
11133
S 619.33
111
305%
ImlpnnW mn Service
3Verd Bin
S
1169B {
3,57
f 120,55
per sleek
305%
Ianpd My Bi n Servl ce- Weekly Rental Extension
3Yard Bin
$
2109 S
O.B9
f 2993
per week
30.5%
Permanentfloll Off Contamef-Haul
S
253.12 f
772
S 26084
305%
VOMMii Roll Off Container - Disposal
$
4296 {
131
5 4427
perton
305%
CO.Ii - Haul
$
361.82 1
11.04
$ 37186
305%
CompMo, - Disposal
$
4296 S
131
1 4427
perton
305%
(wdovarsAtM4tN Recycle Load- Haul
f
253.12 1
772
5 211,01
111
305%
�ardhoarCLN101la Recycle Loeof-Disposal
f
f
f
1Jl
COrrnldA1Wu11 Il LOW - Haul
T
253.12 1
7.72
1 260.04
(1)
305%
CnvuretWAWcM Ill tMd- DlipDaa l
$
139.40 f
425
1 14365
pWboo(1)
305%
G., Watte Roi toad - Haul
5
253.12 S
7.72
1 260.04
111
305%
11 W"it yi LOW - Disposal
3711
113
$ 30.24
13)
305%
'_Recycle Loa d - Haul
f
40658 5
12.40
f 41098
111
305%
Taan Recycle Load -Disposal
S
07.12 1
2.66
1 89.78
111
305%
WOOD IntlI&l d-Hal
$
253.12 5
7.72
f 160, 84
(u
905%
WOO=ReCyCli Disposal
f
37,11 5
1.13
f 30.24
111
305%
0aPd C&D Recycle Loatl-Haul
$
253.12 $
772
S 260.84
(1)
305%
SRrq C&O Recycle Load -Disposal
f
0697 5
2.65
1 89.62
(Il
305%
Add:*" Pick Up-Trash(Scheduled on Regular Service Day)
5442 $
1.66
1 56.08
ao5%
Addi Pick Up -Trash( Not Scheduled on Regular Service Day)
9393
206
S 9679
Per bin, perpkk up
305%
AdO1w-Pick Up Compactor
f
9393 f
296
f 96.79
305%
Adch=: Pick Up -Temporary Bins
3Yard Bin
f
116.99 S
3-57
1 120.55
905%
Addlt""'l Pill Up - Recycling
7112 S
219
5 73.91
305%
Bulky items
3950 T
120
1 40.70
per Item
305%
iArcouni Set Up Fee
$
3310 1
1 Ol
5 34.11
305%
Roll Off Delivery Fee
5
9322 S
2.64
f 96.06
305%
Monthly Inactivity Fee
S
231.05 1
7.05
f 238.10
305%
Relocate/yrlp Fee
S
93, 22 5
2.84
5 96.06
ao5%
Locking Lids Fee
1
10 97 S
05B
1 19.55
per month
305%
Lock Fee
S
99.50 S
120
f 40.70
305%
Zplacement
placement Key Fee
$
7.31 1
022
S 7.53
305%
Illeplacement-Lost/Stolen
S
739.21 1
2111
5 761,11
305%
OYt Replacement -Damaged
$
8725 S
266
S B9.91
305%
f(W Service
f
7902 1
2.41
5 B1.43
per month, perbm
305%
1101116111 Contamination Fee(up to 4 tons)
1
72618 S
2215
$ 749.33
905%
ROW Contamination Fee( beyond 4 tons)
f
4296 1
1.31
S 44.27
perton
305%
want.: q( Fee
10000
peroccurrence
M osvrft ReectlYatIon Fee - Bad Debt
f
2369 1
072
1 24.41
305%
AC[OWICRedelveryFee-Bad Debt
5
11649 f
361
S 122.10
305%
CSR Payment Assistance Fee
$
670 f
0.27
{ 8.97
305%
101 Payment Fee
S
544 f
0.17
E 5.61
305%
Nlh Out Fee-20.50 Feet
f
1121 $
0.39
5 11,51
perday,perconlower
305%
Pi Ou[ Fee - 51-71 Feet
5
14 42 $
0 4-0
5 14.86
per day, per contalner
3 05%
Rullh Outf::76-100 Feet
5
1603 5
an
1 IGS1
Oer alv.-[OAroarei
305%
(1) Contaminated loads wit be taken to the landfill end charged disposal rates and a commera al mntarniri lee wll I be assessed
(2) Previous rate sheets did not include rates beyond 2x weekly service
EXHIBIT A
882/031858-0003
14191707.11 a02/25/20 -3-
EXHIBIT R
CONTAINER/BIN SPECIFICATIONS
• All Containers utilized by Contractor shall meet the standards of the industry and shall perform
to the reasonable satisfaction of the City Manager in order to be utilized in City. Container
sizes specified within this Agreement may vary by manufacturer type and specifications up to
10% more or less in volume than that identified.
Each Refuse and Recycling Bin and Cart utilized by Contractor shall be labeled in English,
Spanish and with graphics so as to: (1) explain/depict the items for which it is designated to
Collect, and (2) identify the name of Contractor and Contractor's phone number for service
related issues, including complaints. In addition, each such Bin and Cart shall include
information, in a format acceptable to City (such as hot stamping or stickers), regarding
Contractor's Bulky Item service, and a phone number that Customers can call to access such
service. All such labeling shall be approved by the City Manager prior to use by Contractor.
The body of Recycling Bins and the body and lids of Recycling Carts shall each be a uniform
color reasonably approved by the City Manager. Any alternative color schemes for Recycling
Bins and Carts, color schemes for the lids of Recycling Bins, and color schemes for Refuse
and Organics Bins and Carts shall be subject to the prior reasonable approval of the City
Manager.
• Unless otherwise specified in the Agreement, any Cart distributed by Contractor in City after
the Effective Date shall be newly manufactured and have never previously been used for the
Collection of Solid Waste; excepting that Carts which have been refurbished such that they are
"like new" may be used so long as their condition is satisfactory as determined by the City
Manager.
• Contractor shall keep current, and provide to City at the times set forth in this Agreement, a
list of each address to which a Bin or Cart has been distributed.
• All Bins and Carts shall be equipped with industry -standard lids. Replacement of Bin lids with
any other lid type shall be made at no cost to the City or Customer and completed within sixty
(60) days of request. All Bins shall be equipped with low -profile casters not to exceed three
(3) inches in height. Upon request of any Customer, Contractor shall provide Bins with lids
that close securely and which are capable of being locked at rates that do not exceed those set
forth in Exhibit A.
EXHIBIT B
882/031858-0003
14191707,11 a02/25/20 - I -
EXHIBIT C
RECYCLABLES SPECIFICATIONS
FOR MATERIALS PLACED INTO RECYCLABLE MATERIALS CONTAINERS
RECYCLABLES must be dry, loose (not bagged), non -shredded, empty, and shall include
the following:
Aluminum cans
Newspaper
PET bottles with the symbol #1 —
Mail
with screw tops only
HDPE plastic bottles with the
Uncoated paperboard (ex. cereal
symbol #2 (milk, water bottles detergent,
boxes; food and snack boxes)
and shampoo bottles, etc.
PP plastic bottles and tubs with
Uncoated printing, writing and
symbol # 5 - emptv
office paper
Steel and tin cans
Old corrugated
containers/cardboard uncoated
Glass food and beverage containers
Magazines, glossy inserts and
— brown, clear, or green — empty*
pamphlets
Non-Recyclables include, but are not limited to the following:
Plastic bags and bagged materials
Microwavable trays
(even if containing Recyclables)
Porcelain and ceramics
Mirrors, window or auto glass
Light bulbs
Coated cardboard
Soiled paper, including paper plates,
Plastics not listed above including
cups and pizza boxes
but not limited to those with symbols #3*,
#4*, #6*, #7* and unnumbered plastics,
including utensils
Expanded polystyrene
Coat hangers
Glass and metal cookware/bakeware
Household appliances and
electronics
EXHIBIT C
882/031858-0003
14191707.11 a02/25/20 " 1-
Hoses, cords, wires
Yard waste, construction debris, and
wood
Flexible plastic or film packaging
Needles, syringes, IV bags or other
and multi -laminated materials
medical supplies
Food waste and liquids, containers
Textiles, cloth, or any fabric
containing such items
(bedding, pillows, sheets, etc.)
Exempt Waste or containers which
Napkins, paper towels, tissue, paper
contained Exempt Waste
plates, and paper cups
Any paper Recyclable materials or
Propane tanks, batteries
pieces of paper Recyclables less than 4" in
size in any dimension
Cartons*
Aseptic Containers*
* These materials may be deemed Recyclables upon written consent of Contractor,
which may be withdrawn upon notice to City if there is no commercially viable market.
DELIVERY SPECIFICATIONS FOR RECYCLABLES:
Containered materials may not have any more than 10% Non-Recyclables or any
Exempt Waste. Carts or Bins with more than 10% Non-Recyclables may be delivered to the
designated transfer or disposal facility for disposal. Contractor may reject in whole or in part,
or may process, in its sole discretion, Recyclables Containers not meeting the specifications,
including wet materials, and Contractor may charge Customer the Extra Pickup/Contamination
fee as set forth in Exhibit A for additional handling, processing, transporting and/or disposing
of contaminated Recyclables Containers.
Contractor will exercise commercially reasonable efforts to ensure that Recyclable
Materials are processed to remove contaminants and, to the extent possible, are marketed for
sale to an end user. Notwithstanding the foregoing, however, Contractor makes no
representation, and specifically disclaims any and all warranties, either expressed or implied,
as to the availability or adequacy of a market or markets for such processed materials, whether
foreign or domestic. Where Contractor is unable to identify a market for one or more
Recyclable Materials despite the exercise of commercially reasonable efforts to process and
market the material, and determines, in the interest of safeguarding public health, to dispose of
the Recyclable Material(s), Contractor may make a request to the City Manager to dispose of
the processed materials, which request shall not be denied unreasonably. Notwithstanding the
above, the granting of Contractor's request shall not relieve Contractor of its obligations under
Section 8.6.5.
EXHIBIT C
882/031858-0003
14191707.11 a02/25/20 -2-
The listing of Recyclable Materials to be collected may be modified in accordance with
Section 2.46.
EXHIBIT C
882/031858-0003
14191707.11 a02/25/20 -3-
EXHIBIT D
CORPORATE GUARANTEE
THIS GUARANTEE (the "Guarantee") is given as of April 1, 2020, and is made with
reference to the following facts and circumstances:
A. USA Waste of California, Inc., dba Waste Management of the Inland Empire, a
Delaware corporation ("Contractor") is an indirect wholly owned subsidiary of Waste
Management, Inc., a Delaware corporation ("Guarantor").
B. Contractor desires to enter into a franchise agreement with the City of Menifee
("City") with an Effective Date of April 1, 2020 entitled "Amended and Restated Franchise
Agreement Between City of Menifee and USA Waste of California, Inc., dba Waste Management
of the Inland Empire, for Solid Waste Handling Services" (the "Agreement").
C. It is a requirement of the Agreement that Guarantor guarantee Contractor's
performance of the Agreement, including any ongoing obligations in the "Original Agreement"
(as that term is defined in the Agreement).
D. Guarantor is providing this Guarantee to induce the City to enter into the Agreement
and acknowledges that it will benefit from Contractor entering into the Agreement because the
Agreement will increase Contractor's gross income which is beneficial to Guarantor due to other
financial transactions it conducts with Contractor.
NOW, THEREFORE, in consideration of the foregoing, Guarantor agrees as follows:
1. Guarantee of the Franchise. Guarantor hereby irrevocably and unconditionally
guarantees to the City the complete and timely payment, performance, satisfaction and observation
by Contractor of each and every term and condition of the Agreement which Contractor is required
to pay, perform, satisfy or observe. In the event that Contractor fails to pay, perform, satisfy or
observe any of the terms and conditions of the Agreement, Guarantor will promptly and fully pay,
perform, satisfy or observe them in the place of Contractor (including by causing the services
required of Contractor to be performed by a solid waste enterprise acceptable to City). Guarantor
hereby guarantees payment to the City of any damages, costs or expenses which might become
recoverable by the City frorn Contractor due to its breach of the Agreement. Included in the
forgoing Guarantee, is a guarantee by Guarantor of any ongoing obligations of Contractor under
the Original Agreement. Guarantor further agrees to indemnify City against any losses City may
sustain and expenses it may incur as a result of the enforcement or attempted enforcement by City
of any of its rights and remedies under the Agreement, in the event of a default by Contractor
thereunder, and/or as a result of the enforcement or attempted enforcement by City of any of its
rights against Guarantor hereunder.
2. Guaranto-'s 0"b11,.,atlons Are Absolute. The obligations of the Guarantor hereunder
are direct, immediate, absolute, continuing, unconditional and unlimited, and, with respect to any
payment obligation of Contractor under the Agreement, shall constitute a guarantee of payment
and not of collection. In any action brought against the Guarantor to enforce, or for damages for
breach of, its obligations hereunder, the Guarantor shall be entitled to all defenses, if any, that
EXHIBIT D
8821031858.0003
14191707.11 a02125/20 ` 1
would be available to Contractor in an action to enforce, or for damages for breach of the
Agreement (other than discharge of, or stay of proceedings to enforce, obligations under the
Agreement under bankruptcy law).
3. Waivers. Except as provided herein the Guarantor shall have no right to terminate
this Guarantee or to be released, relieved, exonerated or discharged from its obligations under it
for any reason whatsoever, including, without limitation: (1) the insolvency, bankruptcy,
reorganization or cessation of existence of Contractor; (2) the actual or purported rejection by a
trustee in bankruptcy of the Agreement, or any limitation on any claim in bankruptcy resulting
from the actual or purported termination of the Agreement; (3) any waiver with respect to any of
the obligations of the Agreement guaranteed hereunder or the impairment or suspension of any of
the City's rights or remedies against Contractor; or (4) any merger or consolidation of Contractor
with any other corporation, or any sale, lease or transfer of any or all the assets of Contractor.
Without limiting the generality of the foregoing, Guarantor hereby waives the rights and benefits
under California Civil Code Section 2819.
The Guarantor hereby waives any and all benefits and defenses under California Civil Code
sections 2845, 2846, 2849, and 2850, including without limitation, the right to require the City to
(a) proceed against Contractor, (b) proceed against or exhaust any security or collateral the City
may hold now or hereafter hold, or (c) pursue any other right or remedy for Guarantor's benefit,
and agrees that the City may proceed against Guarantor for the obligations guaranteed herein
without taking any action against Contractor or any other guarantor or pledgor and without
proceeding against or exhausting any security or collateral the City may hold now or hereafter
hold. City may unqualifiedly exercise in its sole discretion any or all rights and remedies available
to it against Contractor or any other guarantor or pledgor without impairing the City's rights and
remedies in enforcing this Guarantee.
The Guarantor hereby expressly waives diligence, presentment, demand for payment or
performance, protest and all notices whatsoever, including, but not limited to, notices of non-
payment or non-performance, notices of protest, notices of any breach or default, and notices of
acceptance of this Guarantee. If all or any portion of the obligations guaranteed hereunder are paid
or performed, Guarantor's obligations hereunder shall continue and remain in full force and effect
in the event that all or any part of such payment or performance is avoided or recovered directly
or indirectly from the City as a preference, fraudulent transfer or otherwise, irrespective of (a) any
notice of revocation given by Guarantor or Contractor prior to such avoidance or recovery, and
(b) payment in full of any obligations then outstanding.
4. Term. This Guarantee is not limited to any period of time, but shall continue in full
force and effect until all of the terms and conditions of the Agreement have been fully performed
or otherwise discharged and Guarantor shall remain fully responsible under this Guarantee without
regard to the acceptance by the City of any performance bond or other collateral to assure the
performance of Contractor's obligations under the Agreement. Guarantor shall not be released of
its obligations hereunder as long as there is any claim by the City against Contractor arising out of
the Agreement based on Contractor's failure to perform which has not been settled or discharged.
5. No Waivers. No delay on the part of the City in exercising any rights under this
Guarantee or failure to exercise such rights shall operate as a waiver of such rights. No notice to
EXHIBIT D
882/031858.0003
14191707.11 a02/25/20 -2-
or demand on Guarantor shall be a waiver of any obligation of Guarantor or right of the City to
take other or further action without notice or demand. No modification or waiver of any of the
provisions of this Guarantee shall be effective unless it is in writing and signed by the City and by
Guarantor, nor shall any waiver be effective except in the specific instance or matter for which it
is given.
6. Attornev's Fees. In addition to the amounts guaranteed under this Guarantee,
Guarantor agrees, in the event of Contractor's breach of its obligations, to pay reasonable
attorney's fees and all other reasonable costs and expenses incurred by the City in enforcing this
Guarantee, or in any action or proceeding arising out of or relating to this Guarantee, including
any action instituted to determine the respective rights and obligations of the parties hereunder.
7. Governing Law: Jurisdiction. This Guarantee is and shall be deemed to be a
contract entered into in, and pursuant to the laws of, the State of California and shall be governed
and construed in accordance with the laws of California without regard to its conflicts of laws,
rules for all purposes including, but not limited to, matters of construction, validity and
performance. Guarantor agrees that any action brought by the City to enforce this Guarantee may
be brought in any court of the State of California and Guarantor consents to personal jurisdiction
over it by those courts solely forthe purpose of any action brought by City to enforce this Guaranty.
8. Scvcrabil ik. If any portion of this Guarantee is held to be invalid or unenforceable,
such invalidity will have no effect upon the remaining portions of this Guarantee, which shall be
severable and continue in full force and effect.
9. Binding On Successors. This Guarantee shall inure to the benefit of the City and
its successors and shall be binding upon Guarantor and its successors, including transferee(s) of
substantially all of its assets and its shareholder(s) in the event of its dissolution or insolvency.
I0. Authority. Guarantor represents and warrants that it has the corporate power and
authority to give this Guarantee, that its execution of this Guarantee has been authorized by all
necessary action under its Article of Incorporation and By -Laws, and that the person signing this
Guarantee on its behalf has the authority to do so.
11. Prohibition Against Assignment. Guarantor may not assign its obligations herein
without the City's prior written consent.
12. Notices. Notice shall be given in writing, deposited in the U.S. mail, registered or
certified, first class postage prepaid, addressed as follows:
To the City: City Manager
City of Menifee
29844 Haun Road
Menifee, CA 92586
To the Guarantor: Waste Management, Inc.
Attn: General Counsel
1001 Fannin Street, Suite 4000
Houston, Texas 77002
EXHIBIT D
98210; i asM003
14191707.11 a02/25/20 -3-
Guarantor:
Waste Management, Inc.
By:
Name:
Title: ar,
By:
Name:
Title: A"C- ij� T(fA&Arcy
(Corporate Seal)
EXHIBIT D
182/0.11858.0003
14191707 11 42/25/20 -4-
EXHIBIT E
CURRENT CITY -SPONSORED COMMUNITY EVENTS
1. February 2020 — Centennial Park Grand Opening
a. Date, location and time TBD
2. March 2020 — Multicultural Festival
a. Date, location and time TBD
3. Saturday April 4th - Music and Arts Festival
a. San Jacinto College 14:OOpm to 10:00pm
4. Saturday April 1 l th —Spring Fest
a. Location TBD— 10:00 am to 1:00 pm
5. Friday April 17th — Jr. HR Derby and Pitch, Hit and Run
a. Audie Murphy Sports Park— 4:00 pm to 7:00 pm
6. Saturday April 25th — Menifee Better Together
a. Sun City Civic Association 18:OOam — 2:OOpm
b. Quail Valley Kabian Parkj 8:OOam — 2:OOpm
7. Monday May 1 Ith —Senior Fest
a. Kay Ceniceros Senior Center 19:OOam — 1:OOpm
8. Monday May 25th — Memorial Day Ceremony
a. Wheatfield Park 110:00am — 12:OOpm
9. Friday June 19th — Menifee Moonlight Markets (Movie, Concert and Vendors)
a. Central Park 15:00pm — 10:00pm (movie at dusk)
10. Saturday June 27th — Independence Day Celebration
a. Wheatfield Park 14:OOpm — 9:OOpm
11. Friday July 1 Oth — Menifee Moonlight Markets (Movie, Concert and Vendors)
a. Central Park 15:OOpm — 10:00pm (movie at dusk)
12. Saturday — Sunday July 18th — 19th — Family Camp Out
a. La Ladera Park 13:OOpm — 12:OOpm
13. Friday July 17th — Menifee Moonlight Markets (Movie, Concert and Vendors)
a. Central Park 15:00pm — 10:00pm (movie at dusk)
14. Friday July 24th — Menifee Moonlight Markets (Movie, Concert and Vendors)
a. Central Park 15:00pm — 10:00pm (movie at dusk)
15. Friday July 31 st — Menifee Moonlight Markets (Movie, Concert and Vendors)
a. Central Park 15:00pm — 10:00pm (movie at dusk)
16. Friday August 7th — Menifee Moonlight Markets (Movie, Concert and Vendors)
a. Central Park 15:OOpm — 10:00pm (movie at dusk)
EXHIBIT E
882/031858-0003
14191707.11 a02/25/20 -1-
17. Saturday August 2020 — Neil Winter Football Camp
a. Centennial Sports Park I TBD
18. August 2020 — Lazy Creek Park Grand Opening
a. Date, location and time TBD
19. Friday September 11 th — Remembrance Ceremony
a. Central Park — 6pm to 8 pm
20. September - State of the City
a. Menifee Lakes Country Club I TBD
21. September 19th — Menifee Motor Madness
a. Mt. San Jacinto College 19:00am-2:00pm
22. Audie Murphy Days Friday October 23rd — Sunday October 25th
a. Friday October 23rd — Time Capsule Ceremony / Moonlight Market Location TBD
23. Saturday October 24th — Fall Festival
a. Mt. San Jacinto College 14:00pm-9:00pm
24. Sunday October 25th — Soapbox Derby
a. Wheatfield Park
25. Sunday November 1 st — Dia De Los Muertos Showcase
a. Central Park 13pm — 7pm
26. Wednesday November 1 Ith — Veteran's Day Ceremony
a. Wheatfield Park 110:00am — 12:00pm
27. Saturday December 5th — Christmas Tree Lighting Ceremony + Holiday Bazaar
a. Mt. San Jacinto College 14:00pm — 8:00pm
28. Saturday December 12th — Breakfast with Santa
a. Kay Ceniceros Senior Center— 8:00am — 1:00pm
29. Wednesday December 16th to Tuesday December 22nd (no weekend) — Santa on Wheels
a. Various homes — 5 PM to 8 PM
EXHIBIT E
882/031858-0003
14191707.11 a02/25/20 -2-