HomeMy WebLinkAbout7.1(Attachment #13)
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RESOLUTION NO. - 04
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN
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A RESOLUTION OF THE CITY OF DUBLIN
AUTHORIZING THE EXECUTION OF A SOLID WASTE DISPOSAL SERVICES
AGREEMENT WITH (INSERT NAME).
WHEREAS, solid waste disposal services are currently provided to the City of Dublin under an
agreement with Waste Management of Alàrneda County; and
WHEREAS, the term ofthe current agreement expires June 30, 2005.
WHEREAS, on July 20,2004, the City Council directed staff to release a Request for Proposals
for solid waste collection, disposal and recycling services; and
WHEREAS, the City Council has elected to award separate solid waste collection and disposal
agreements; and
WHEREAS; the City Council has determined through a competitive procurement process for
Disposal Services that Contractor, by demonstrated experience, reputation and capacity, is qualified to
perform such services on the basis set forth in the Disposal Services Agreement; and
NOW, THEREFORE, BE IT RESOLVED that the City Council ofthe City of Dublin does
hereby award the Disposal Services Agreement to (Insert Name); and
BE IT FURTHER RESOLVED that the City Manager is authorized to execute the Disposal
Services Agreement, in substantially the form attached as Exhibit 1.
PASSED, APPROVED AND ADOPTED this 2nd day of November, 2004.
AYES:
NOES:
ABSENT:
ABSTAIN:
Mayor
ATTEST:
City Clerk
ATTACHMENT 13
Disposal Service Agreement
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7 DISPOSAL SERVICE AGREEMENT
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18 Executed Between the
19 City of Dublin and
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22 (Contractor)
23 This day of
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Disposal Service Agreement
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Disposal Service Agreement
TABLE OF CONTENTS
Disposal Service Agreement
COVER .................................................................................................. 6-3
TABLE OF CONTENTS.................................................................................... 6-5
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Article 1.
Article 2.
Article 3.
Article 4.
Article 5.
Article 6.
Article 7.
Article 8.
Article 9.
Article 10.
Article 11.
Article 12.
Article 13.
Article 14.
Article 15.
Article 16.
Article 17.
Article 18.
Article 19.
Article 20.
Article 21 .
Article 22.
Article 23.
Article 24.
Article 25.
Article 26.
Article 27.
Article 28.
Article 29.
Article 30.
Exhibit 1
Exhibit 2
Exhibit 3
Exhibit 4
Exhibit 5
Definitions.................................................................................. 6-7
Term of Agreement....................... ......... ..... .............. .......... ..... 6-1 0
Obligations of City................................................................... 6-11
Obligations of Contractor......................................................... 6-11
Disposal Rates........................................................................ 6-24
Performance Bond................................................................... 6-27
Insurance.......... ....................................................................... 6-27
Indemnification........................................................................ 6-30
Force Majeure......................................................................... 6-33
Default of Agreement............................................................... 6-34
Legal Representation............................................................... 6-36
Financial Interest ..................................................................... 6-36
Independent Contractor........................................................... 6-37
Laws to Govern ....................................................................... 6-37
Consent to Jurisdiction............................................................ 6-37
Assignment.............................................................................. 6-37
Compliance with Laws............................................................. 6-38
Waiver..................................................................................... 6-38
Prohibition Against Gifts ........................................... ...............6-39
Poi nt of Contact..................................... .... ........................... ...6-39
Notices.................................................................................... 6-39
Nondiscrimination.................................................................... 6-40
Contractor's Records............................................................... 6-40
Quality of Performance of Contractor....................................... 6-40
Severability.......... ................................. ...................................6-42
Right to Require Performance .................................................6-43
All Prior Agreements Superseded............................................ 6-43
Headings............. .......................................................... ..........6-43
Exh ¡bits.................................................................................... 6-43
Effective Date.......................................................................... 6-43
Disposal Rate Per Ton............... ..............................................6-45
Performance Bond................................................................... 6-47
Guaranty Agreement.................. ...................... .......................6-48
Resource Recovery Programs..... ............................................6-53
Approved Subcontractors............ ............................................6-54
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Disposal Service Agreement
65 CITY OF DUBLIN
66 This Disposal Service Agreement (Agreement) is entered into this ?? day
67 of ??, 2005, by and between the CITY of Dublin, a municipal corporation of the
68 State of California, hereinafter referred to as "CITY" and (Company), a California
69 ?? corporation, hereinafter referred to as "CONTRACTOR".
70 (Proposers should note that this Agreement will be modified
71 depending on whether or not the successful proposer includes transfer
72 operations as part of its proposal.)
73 RECITALS
74 WHEREAS; the CITY enters this Agreement with CONTRACTOR, under which
75 CONTRACTOR receives Solid Waste generated within the CITY of Dublin for
76 Disposal at the Disposal Facility.
77 WHEREAS; the City Council determines, pursuant to its police powers, that
78 obtaining a long-term commitment for Disposal of Solid Waste generated in the
79 CITY is in the best interests of the health, safety and well being of the citizens of
80 the CITY.
81 WHEREAS; the State of California, through enactment of the California
82 Integrated Waste Management Act of 1989 (California Public Resources Code
83 Section 40000, et. seq.) also recognizes the important health and safety
84 consideration to long-term planning for local government's adequate Disposal
85 needs. The Califomia Integrated Waste Management Act of 1989 declares that
86 the responsibility for management of Solid Waste is a shared responsibility
87 between the State and local governments. The State requires local governments
88 to make adequate provision for at least fifteen (15) years of Solid Waste Disposal
89 capacity to preserve the health, safety and well-being of the public. The
90 California Integrated Waste Management Act of 1989 also authorizes local
91 governments to enter into exclusive franchise contracts to provide Solid Waste
92 handling services for the health, safety and well being of its citizens (California
93 Public Resources Code Section 40059).
94 WHEREAS; this Agreement also advances the objectives of the federal
95 government to encourage environmentally sound solid waste management
96 (Resource Conservation and Recovery Act of 1976 (RCRA), 42, U.S.C. Section
97 6941 et. seq.).
98 WHEREAS; the Disposal Facility is intended to be the principal Disposal Facility
99 for Solid Waste generated in the CITY.
100 WHEREAS; the CONTRACTOR guarantees permitted capacity at the Disposal
101 Facility for up to ten (10) years for Disposal of Solid Waste generated in the
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102 CITY.
103 WHEREAS; the City Council determines that in order to provide adequate
104 Disposal capacity, it is in the best interests of the CITY to secure a commitment
105 from CONTRACTOR for the right to a portion of the Disposal Facility's current
106 Disposal capacity on the terms and sUbject to the conditions set out in this
107 Agreement. The intent of this provision is, in part, for the CITY to contribute to
108 preventing the substantial environmental, aesthetic, health, and safety problems
109 that may be created from increasing volumes of Solid Waste in this country.
110 WHEREAS, the CITY reviewed the CONTRACTOR's proposal to provide
111 Disposal Services.
112 WHEREAS, the CITY has entered into a Collection Service Agreement with
113 (insert Company name) to provide Collection Services within the CITY.
114 WHEREAS; the CONTRACTOR receives Disposal fees from the CITY's
115 Collection Contractor for the acceptance of Solid Waste at the Disposal Facility,
116 for the Disposal of Solid Waste at the Disposal Facility.
117 WHEREAS, the CITY determined that the CONTRACTOR has proposed to
118 provide Disposal Services at the Disposal Facility in a manner and on terms
119 which are in the best interest of the CITY and its residents and businesses,
120 taking into account the qualifications and experience of the CONTRACTOR, and
121 the fees for providing such services.
122 WHEREAS, the CITY wishes to engage the CONTRACTOR to provide the
123 services specified within this Agreement, in accordance with the terms and
124 conditions of this Agreement.
125 WHEREAS, the City Council of CITY declares its intention of maintaining
126 reasonable rates for the Disposal of Solid Waste and other services.
127 Now therefore, in consideration of the mutual promises, covenants, and
128 conditions contained in this Agreement and for other good and valuable
129 consideration, the CITY and CONTRACTOR agree as follows.
130 ARTICLE 1. Definitions
131 For the purpose of this Disposal Service Agreement, hereinafter referred to as
132 "Agreement", the definitions contained in this Article shall apply unless otherwise
133 specifically stated. If a word or phrase is not defined in this Article, the definition
134 of such word or phrase as contained in Chapter 5.32 of the Dublin Municipal
135 Code shall control. When not inconsistent with the context, words used in the
136 present tense include the future, words in the plural include the singular, and
137 words in the singular include the plural. Use of the masculine gender shall
138 include the feminine gender.
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Disposal Service Agreement
139 1.01 Aqreement. The written document and all amendments thereto,
140 between the CITY and the CONTRACTOR, governing the provision of Disposal
141 Services as provided herein.
142 1.02 Aqreement Year. Each twelve (12) month period from July 1st to
143 June 30th, beginning July 1,2005.
144 1.03 Alternative Dailv Cover (ADC). Disposal Facility cover material,
145 other than Organic Waste and at least six (6) inches of earthen material, placed
146 on the surface of the active face of the refuse fill area at the end of each
147 operating day to control vectors, fires, odor, blowing litter, and scavenging as
148 defined in Section 20164 of the California Code of Regulations.
149 1.04 CITY. The City of Dublin, California.
150 1.05 Citv Representative. That person, or their designee, designated
151 by the CITY and the CONTRACTOR, governing the provision of Disposal
152 Services as provided herein.
153 1.06 Collection Contractor. The entity that has obtained from the CITY
154 an Agreement to provide Collection Services.
155 1.07 Construction and Demolition Debris. Used or discarded materials
156 removed from the premises during construction or renovation of a structure
157 resulting from construction, remodeling, repair or demolition operations on any
158 pavement, house, commercial building, or other structure and such other
159 materials as may be removed during the normal cleanup process of such
160 construction, remodeling, repair, or demolition operations.
161 1.08 CONTRACTOR. The entity that has obtained from the CITY an
162 Agreement to provide 'Disposal Services.
163 1.09 Disposal. The final disposition and management of Solid Waste as
164 provided hereunder at the Disposal Facility. Disposal does not include the use of
165 Organic Waste as alternative daily cover (ADC) so long as CITY and State
166 regulations consider ADC use of Organic Waste as Diversion under the Act.
167 1.10 Disposal Facility. The (enter Disposal Site name) owned by (enter
168 owner name) located in (enter facilitv location) or such place or places approved
169 by the CITY for the disposal, or processing as appropriate, of Solid Waste and
170 other materials as appropriate.
171 1.11 Divert (or Diversion ). To prevent Recyclable Materials and other
172 materials from Disposal at the Disposal Facility or transformation facilities
173 (including facilities using incineration, pyrolysis, distillation, gasification or
174 biological conversion methods) through source reduction, reuse, Recycling and
175 composting, as provided in Section 41780 of the California Integrated Waste
176 Management Act of 1989, as such California Integrated Waste Management Act
177 may be hereafter amended or superseded.
178 1.12 Guarantor. (Insert the name of the Guarantor).
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Disposal Service Agreement
179 1.13 Guaranty Agreement. The agreement contained in Exhibit 3, which
180 is attached to and included in this Agreement, that is executed by the Guarantor
181 guaranteeing the timely and full performance of CONTRACTOR's obligations.
182 1.14 Hazardous Waste. Any material which is defined as a hazardous
183 waste unde~ California or United States law or any regulations promulgated
184 pursuant to such law, as such law or regulations may be amended from time to
185 time.
186 1.15 Household Hazardous Waste. Any Hazardous Waste generated
187 at a residential premises.
188 1.16 Laroe Items. Those materials including; furniture, carpets,
189 mattresses, white goods, brown goods, clothing, tires without rims, large green
190 waste, or some combination of such items in a container the dimensions of which
191 container does not exceed four feet by four feet by two feet (4'x4'x2') and
192 weighing no more than sixty (60) pounds, which are collected by the Collection
193 Contractor through the provision of collection services.
194 1.17 Orqanic Waste. Green waste, food scraps and trimmings from
195 food preparation, including but not limited to; fruit and vegetable waste, grain
196 waste, dairy waste, meat and fish waste, and such items as non-recyclable or
197 contaminated paper such as pizza boxes, take-out food cartons (cardboard),
198 paper towels, waxed cardboard, wooden packaging such as crates and untreated
199 and unpainted wallboard, etc. that are separated at the source of generation for
200 inclusion in the CITY's organic collection programs.
201 1.18 Post-Closure. All activities and related costs during the Post-
202 Closure period of the Disposal Facility or portions of the Disposal Facility in
203 accordance with applicable laws and permits.
204 1.19 Recovered Material. Recyclable Materials recovered at the
205 Disposal Facility from Solid Waste.
206 1.20 Recyclable Materials. Those materials which are capable of being
207 recycled and which would otherwise be processed or disposed of as Solid Waste.
208 Recyclable Materials include those materials defined by the CITY, including
209 newsprint (including inserts); mixed paper (including magazines, catalogs,
210 envelopes, junk mail, corrugated cardboard, brown bags and paper, paperboard,
211 paper egg cartons, office ledger paper, and telephone books); glass containers;
212 aluminum beverage containers; small scrap and cast aluminum (not exceeding
213 forty (40) pounds in weight nor two (2) feet in any dimension for any single item);
214 steel including "tin" cans, aerosol cans (empty, non-toxic products) and small
215 scrap (not exceeding forty (40) pounds in weight nor two (2) feet in any
216 dimension for any single item); bimetal containers; plastic bottles (#1-7); and
217 aluminum foil and pans; and those materials added by the Collection Contractor.
218 1.21 Roll-Off Container. A metal container that is normally loaded onto
219 a motor vehicle and transported to an appropriate facility.
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Disposal Service Agreement
220 1.22 Solid Waste. Garbage and Rubbish Collected by the Collection
221 Contractor under the terms of the Collection Service Agreement with the CITY.
222 1.23 Ton (or Tonnaqe). A unit of measure for weight equivalent to two
223 thousand (2,000) standard pounds where each pound contains sixteen (16)
224 ounces.
225 1.24 Transformation Facility. A permitted facility used for the
226 incineration, pyrolysis, distillation, gasification, or biological conversion other than
227 composting of Solid Waste.
228 1.25 Un-permitted Materials. Materials that the Disposal Facility may
229 not receive under its permits.
230 1.26 Work Dav. Any day, Monday through Saturday that is not a
231 holiday as set forth in Section 4.06.2 of this Agreement.
232 ARTICLE 2. Term of Agreement
233 . 2.01 Initial Term. The initial term of this Agreement shall be for a ten
234 (10) year term beginning on July 1,2005 and terminating on June 30, 2015.
235 2.02 Extension of Term. On or about February 1, 2014, the CITY
236 may offer the CONTRACTOR in writing an extension of this Agreement for a total
237 of not more than ten (10) years. CONTRACTOR shall provide written notice to
238 CITY as to whether CONTRACTOR accepts or rejects CITY'S offer within twenty
239 (20) Work Days of the date of the otter. If CONTRACTOR fails to provide such
240 notice to CITY within said twenty (20) Work Days, CITY'S otter shall be deemed
241 withdrawn and CITY shall have no obligation to extend the term of this
242 Agreement beyond June 30, 2015. If the term of this Agreement is extended, the
243 compensation provisions of Article 5 shall be subject to negotiation.
244 2.03 Nothing in this Agreement shall be construed to provide a
245 unilateral right in either CONTRACTOR or CITY for an extension of the term.
246 (Proposers should note that if the City elects to select a twenty (20) year
247 term, Sections 2.01 and 2.02 above and other sections of this Agreement
248 referring to capacity requirements will be amended accordingly.)
249 ARTICLE 3. Obligations of City
250 3.01 General. The CITY and the CONTRACTOR acknowledge that the
251 CITY will not physically deliver Solid Waste to the Disposal Facility; instead, the
252 Collection Contractor will carry out such deliveries. The parties further
253 acknowledge that the Collection Contractor will pay the Disposal fees for Solid
254 Waste it delivers to the Disposal Facility. The CITY contractually controls the
255 delivery of Solid Waste Collected in the CITY by the Collection Contractor and
256 shall direct Collection Contractor to deliver such Solid Waste to the Disposal
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257 Facility). The CONTRACTOR acknowledges that the CITY has no ability to
258 direct individuals who self haul to use the Disposal
259 Facility and does not contractually control the Collection Contractor's residue
260 from its Recyclable Materials and Organic Waste processing activities. Solid
261 Waste shall not be delivered by the CITY to the Disposal Facility, except in an
262 emergency.
263 3.02. Hazardous Material Programs. CITY shall contractually require its
264 Collection Contractor to develop and implement a load inspection program to
265 detect and discover Hazardous Material and Household Hazardous Waste and
266 shall prohibit Collection Contractor from knowingly delivering such material to the
267 Disposal Facility. CITY shall encourage its residents to participate in the
268 Alameda County Household Hazardous Waste Program that provides residents
269 with a place for safe Recycling, treatment, and/or disposition of Household
270 Hazardous Waste. The parties recognize, however, that CITY cannot assure
271 CONTRACTOR that such programs will prevent any amount of Hazardous Waste
272 or Household Hazardous Waste from being delivered to the Disposal Facility.
273 3.03. No Limit on Waste Prevention. CITY, Collection Contractor, or other
274 CITY agents will continue to develop and participate in waste prevention
275 activities, including source reduction and resource recovery activities, which may
276 reduce the amount of Solid Waste delivered to the Disposal Facility. Nothing in
277 this Agreement shall restrict CITY, Collection Contractor, or other CITY agents
278 from any such activities.
279 ARTICLE 4. Obligations of Contractor
280 4.01 General. During the term of this Agreement, CONTRACTOR shall
281 receive, accept and safely and lawfully Dispose of all Solid Waste generated in
282 CITY and delivered to the Disposal Facility by the Collection Contractor.
283' CONTRACTOR shall perform its obligations with respect to Disposal Services
284 hereunder in accordance with sound management and operations practice,
285 regulatory and permit requirements, applicable law, the provisions hereof, and
286 covenants, conditions, and restrictions pertaining to the Disposal of Solid Waste.
287 4.02 Facilitv Permits.
288 4.02.1 Existing Permits. CONTRACTOR shall obtain, at its own
289 expense, all permits and licenses required by law or ordinance and maintain
290 same in full force and effect throughout the term of this Agreement.
291 CONTRACTOR shall provide proof of such permits, licenses or approvals and
292 shall demonstrate compliance with the terms and conditions of such permits,
293 licenses and approvals upon the request of the City Representative.
294 CONTRACTOR shall keep the CITY fully informed, in a timely manner, of its
295 progress in securing permits, or renewals of permits, which occur during the term
296 of this Agreement as they pertain to the Disposal operations at the Disposal
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297 Facility operations in accordance with this Agreement and the costs related
298 thereto.
299 CONTRACTOR shall provide the CITY with copies of any applications that the
300 CONTRACTOR submits to any regulatory body in connection with the issuance
301 of new permits, or the extension, revision or modification of existing permits with
302 respect to the Disposal Facility. CONTRACTOR shall provide such copies to the
303 CITY at the same time the CONTRACTOR submits the applications to the
304 regulatory body.
305 4.02.2 Additional Disposal Facilitv Permits. To assist the CITY in
306 complying with the California Integrated Waste Management Act of 1989,
307 CONTRACTOR shall endeavor to secure additional permits necessary to make
308 available, at all times, ten (10) years of Disposal capacity at the Disposal Facility
309 for Solid Waste generated in CITY in accordance with Section 4.13 of this
310 Agreement, and sound Disposal Facility engineering and operating practices.
311 Should CONTRACTOR reasonably conclude that it is no longer feasible to make
312 available ten (10) years of Disposal capacity, beyond June 30, 2015, and
313 maintain competitive Disposal rates, CONTRACTOR shall notify the CITY of its
314 determination and provide all studies, information and data which support
315 CONTRACTOR's conclusion to the CITY. CITY shall review such support and,
316 CONTRACTOR shall promptly meet with the CITY to review the same and,
317 thereupon, CONTRACTOR shall be relieved of its obligation in this regard.
318 Nothing in this Agreement requires the CITY to issue a permit for, or take
319 any other land use action related to CONTRACTOR's Facility. The CITY retains
320 its right and duty to act on any permit applications or environmental review
321 documents submitted to it in connection with such expansion as it considers
322 appropriate under Applicable Laws and policies, independent of this Agreement.
323 4.02.3 CONTRACTOR Compliance with Permits. CONTRACTOR
324 shall comply with all permits, terms, and conditions of such permits as they may
325 be amended or superseded (including any mitigation measures) related to the
326 operation and maintenance of the Disposal Facility. CONTRACTOR shall be
327 solely responsible for paying any fines or penalties imposed by governmental
328 agencies for CONTRACTOR's noncompliance with permit terms or
329 CONTRACTOR's failure to obtain necessary permits for the Disposal Facility.
330 4.03 Disposal Facilitv Operations. CONTRACTOR, at its cost and
331 expense, shall at all times operate the Disposal Facility in the manner required by
332 applicable law and permits. CONTRACTOR's responsibilities for the Disposal
333 Facility shall include, but are not limited to, the following:
334 4.03.1 Operation, management, and maintenance of the refuse fill
335 areas including, but not limited, to the receipt, placement, burying, and
336 compaction of Solid Waste in the refuse fill areas; stockpiling, placement and
337 compaction (if necessary) of daily cover, intermediate cover, and final cover;
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338 management of fill operations with regard to fill sequencing, side slopes
339 configuration, and working face location and configuration;
340 4.03.2 Provision, operation, and maintenance of all equipment,
341 rolling stock, and supplies necessary for operations, Closure, Post-Closure, and
342 environmental monitoring;
343 4.03.3 Operation, maintenance, and management of leachate and
344 Disposal Facility gas management systems, groundwater monitoring and
345 management systems, storm water drainage and control systems, treatment
346 facilities, buildings, on-site roadways, utilities, and any other required facility
347 elements.
348 4.04 Davs and Hours of Operation. CONTRACTOR shall operate the
349 Disposal Facility for the receipt of Solid Waste in accordance with the days and
350 hours of operation as set forth in all permits. Ata minimum, CONTRACTOR shall
351 accept Solid Waste delivered by the Collection Contractor Monday through
352 Friday from 6:00 a.m. to 5:00 p.m. and Saturday from 6:00 a.m. to 4:30 p.m.
353 CONTRACTOR may not reduce the hours or total number of hours for
354 acceptance of Solid Waste delivered by the Collection Contractor required by the
355 Agreement without the concurrence of the CITY and Collection Contractor except
356 such changes required by a change in a Disposal Facility permit.
357 4.04.1 Emeroencv Services. In the event of a tornado, major
358 storm, earthquake, fire, natural disaster, or other such event, the City
359 Representative may require the CONTRACTOR to extend the hours of operation
360 in order to accept materials from the CITY'S Collection Contractor. However, the
361 CONTRACTOR shall not be required to extend the hours of operation to the
362 extend that such extension would cause CONTRACTOR to violate its permit(s).
363 4.04.2 Holidavs. CONTRACTOR shall not be required to accept
364 Solid Waste from the Collection Contractor on Thanksgiving Day, Christmas Day
365 and New Years Day.
366 4.05 Traffic Control and Direction. CONTRACTOR shall be responsible
367 for the construction and maintenance of all roads required at the Facility for
368 purposes of transporting Solid Waste to the actual point of unloading by
369 Collection Contractor. CONTRACTOR shall provide necessary signs and
370 personnel to assist drivers to proper unloading areas. The CONTRACTOR shall
371 provide and maintain signs for the convenience of vehicles using the Disposal
372 Facility and to facilitate safe and efficient traffic flow at the Disposal Facility.
373 4.06 CONTRACTOR shall operate the Disposal Facility so that all
374 Collection Contractor collection vehicles are processed, unloaded, and exited
375 from the facility no more than twenty (20) minutes after arriving at the scale
376 house and mounting the scale to weigh-in.
377 4.07 Scale Operation
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378 4.07.1 Weiahina Standards and Procedures. The scale house(s)
379 at the facility's entrance shall serve as the location for weighing vehicles and
380 charging Disposal fees as provided herein. CONTRACTOR scale house
381 personnel shall be responsible for inspecting the Solid Waste delivered to the
382 Disposal Facility. The Collection Contractor vehicles shall be charged Disposal
383 fees based on the Tonnage of Solid Waste accepted by the Disposal Facility and
384 the applicable disposal rates as set forth in Exhibit 1 which is attached to and
385 included in this Agreement. CONTRACTOR shall weigh and record inbound
386 weights of all Collection Contractor vehicles when the vehicles arrive at the
387 Disposal Facility. In addition, CONTRACTOR shall weigh and record outbound
388 weights of such vehicles for which CONTRACTOR does not maintain tare weight
389 information. CONTRACTOR shall provide each driver a receipt showing the
390 date, time, and quantity of Solid Waste delivered to the Disposal Facility and the
391 Disposal fee charged for such material. The scale house computer system shall
392 compile information into various reports in which a typical transaction includes
393 documentation of the Disposal fee charged, weight of vehicle, vehicle
394 identification number, customer account, material type, route number, vehicle
395 type, and origin of Solid Waste. In addition, each transaction shall include
396 documentation noting if the vehicle was directed to material recovery operations
397 at the Disposal Facility.
398 4.07.2 Maintenance and Operation. CONTRACTOR shall
399 maintain, in accordance with applicable law, at least two State certified motor
400 vehicle scales at the Disposal Facility. All scales shall be linked to a centralized
401 computer recording and billing system which shall be compatible with
402 CONTRACTOR's systems and account for tracking all incoming and outgoing
403 materials. CONTRACTOR shall operate such scales during facility receiving
404 hours, established in Section 4.06, provided that CONTRACTOR shall provide
405 CITY with access to weighing information at all times and copies thereof on the
406 next Working Day on which the scale house is open.
407 4.07.3 Vehicle Tare Weiqhts. Between the time this Agreement is
408 executed and July 1, 2005, CONTRACTOR shall weigh and determine the
409 unloaded ("tare") weight of each Collection Contractor vehicle to be used to
410 deliver Solid Waste to the Disposal Facility. Before July 1, 2005, CONTRACTOR
411 shall provide the CITY and Collection Contractor with a report listing vehicle tare
412 weight information, which shall include, at a minimum, hauler name, tare weight,
413 vehicle identification number, and date tare weight was determined.
414 CONTRACTOR shall, at least every two (2) years, reweigh and revise tare
415 weights for all Collection Contractor vehicles used to deliver Solid Waste to the
416 Disposal Facility.
417 4.07.3.1 When new vehicles are placed into service and
418 immediately after any significant repairs to vehicles by the Collection Contractor,.
419 the CONTRACTOR shall promptly weigh such vehicles and determine the tare
420 weight of each vehicle. Within ten (10) Work Days of weighing, CONTRACTOR
421 shall provide the CITY and Collection Contractor with a report listing vehicle tare
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422 weight information. CONTRACTOR, CITY, and Collection Contractor shall have
423 the right to request re-weighing of vehicles up to two (2) times per year, unless
424 there is reasonable suspicion or evidence that tare weights are not accurate, in
425 which case, tare weights may be updated more frequently to ensure accuracy.
426 4.07.4 Substitute Scales. To the extent practicable, if either scale
427 is inoperable, being tested or otherwise unavailable, all vehicles shall be weighed
428 on the remaining operating scale. To the extent that both the scales are
429 inoperable, being tested, or otherwise unavailable, CONTRACTOR shall
430 substitute portable scales until the permanent scales are replaced or repaired.
431 CONTRACTOR shall arrange for any inoperable scale to be repaired- as soon as
432 possible and, in any event, within three (3) Work Days of the failure of the
433 permanent scale. CONTRACTOR shall arrange to immediately obtain a
434 temporary substitute scale(s) should the repair of the permanent scale require
435 more than twelve (12) hours.
436 4.07.5 Estimates. Pending substitution of portable scales or
437 during power outages, CONTRACTOR shall estimate the Tonnage of Solid
438 Waste delivered to the Disposal Facility by utilizing the arithmetic average of that
439 vehicle's recorded Tons of Solid Waste delivered on its preceding three (3)
440 deliveries, on the same day of the week, to the Disposal Facility, with the
441 exception that the Tonnage estimated in Roll-off Containers shall be made by
442 multiplying the estimated number of cubic yards of Solid Waste delivered per
443 Roll-off Container by 0.25 Tons per cubic yard for mixed Solid Waste and 1.0
444 Tons per cubic yard for loads of dirt, rubble, or rock material.
445 4.07.5.1 All information required by Sections 4.09.1 and
446 4.09.7 shall continue to be recorded for each delivery of Solid Waste to the
447 Disposal Facility during any period the scales are out of service.
448 4.07.6 4.11.6 Testina. CONTRACTOR shall test and calibrate all
449 scales in accordance with applicable law, but at least every twelve (12) months.
450 Upon CITY request, CONTRACTOR shall provide the CITY with copies of test
451 results. CONTRACTOR shall further test and calibrate any or all scales upon
452 written request therefore by the CITY, within three (3) Work Days of such request.
453 If such test results indicate that the scale or scales complied with Applicable Law,
454 the CITY shall reimburse CONTRACTOR the direct costs of such tests. If such
455 test results indicate that the scale or scales did not comply with applicable law,
456 CONTRACTOR shall bear the costs thereof and CONTRACTOR shall at its own
457 cost adjust and correct, consistent with the results of such test, all weight
458 measurements recorded and Disposal fees calculated, charged and paid, as the
459 case may be, from the date of such request.
460 4.07.7 Records. CONTRACTOR shall maintain scale records that
461 provide information such as, but not limited to, date of receipt, inbound and
462 outbound time, inbound and outbound weights of vehicles, vehicle identification
463 number, jurisdiction of origin of materials received, type of material, hauler
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464 identification and/or classification, type, weight, destination of material (Le., to
465 material recovery operations), and destination of outbound materials.
466 4.08 Personnel. The CONTRACTOR shall engage and train qualified
467 and competent employees, including managerial, supervisory, clerical,
468 maintenance, and operating personnel, in numbers necessary and sufficient for
469 operation of the Disposal Facility and to perform CONTRACTOR's obligations
470 hereunder.
471 4.09 Ownership of Materials. Once Solid Waste is delivered to the
472 Disposal Facility by Collection Contractor, ownership and possession of such
473 material shall transfer directly from the Collection Contractor to CONTRACTOR.
474 CONTRACTOR is hereby granted the right to retain, Recycle, process, Dispose
475 of and otherwise use such materials, or any part thereof, in any lawful fashion or
476 for any lawful purpose desired by CONTRACTOR and such right shall include
477 CONTRACTOR's right to retain any benefit resulting from its right to retain,
478 Recycle, process, Dispose of, or reuse the Solid Waste.
479 4.10 Rejection of Un-permitted Material
480 4.10.1 Inspection. CONTRACTOR shall use standard industry
481 practices to endeavor to detect and discover Un-permitted Material and shall not
482 knowingly accept Un-permitted Material at the Disposal Facility. CONTRACTOR
483 shall comply with the inspection procedures contained in its permit requirements.
484 CONTRACTOR shall promptly modify such procedure to reflect any changes in
485 permits or applicable law.
486 4.10.2 Un-permitted Materials Handlinq and Costs.
487 CONTRACTOR shall arrange for or provide transportation and delivery to an
488 appropriately permitted facility of all Un-permitted Materials that are encountered
489 and which cannot be accepted at the Disposal Facility. CONTRACTOR is solely
490 responsible for handling and arranging transport and disposition of any Un-
491 permitted Material that is contained in or with Solid Waste accepted by the
492 CONTRACTOR, and for all related costs.
493 4.10.3 Remedies for Rejected Materials. If CONTRACTOR
494 rejects material delivered to the Disposal Facility by Collection Contractor,
495 because it contains Un-permitted Material including Hazardous Materials,
496 CONTRACTOR shall direct Collection Contractor to remove and dispose of it in a
497 safe and lawful manner, at the sole expense of the Collection Contractor. In the
498 event that Un-permitted Material is delivered to the Disposal Facility.
499 CONTRACTOR shall be entitled to pursue whatever remedies, if any, it may have
500 against Collection Contractor's bringing such Un-permitted Material to the
501 Facilities, provided that in no case shall the CITY be considered to have brought
502 such Un-permitted Material to the Facilities. In the event the Collection
503 Contractor delivers Un-permitted Materials on a frequent or continuous basis and
504 the Collection Contractor refuses to provide for the proper handling and
505 disposition of such Un-permitted Material, the CONTRACTOR shall provide
Page 14 City of Dublin
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506 written Notice to the CITY of such refusal by Collection Contractor. Nothing
507 herein shall excuse the CONTRACTOR from the responsibility of handling such
508 Un-permitted Materials in a lawful manner and to arrange for the proper
509 disposition of such materials.
510 4.10.4 Notification. In the event CONTRACTOR rejects delivered
511 materials CONTRACTOR shall immediately notify the CITY verbally and then
512 follow such verbal notification with written notice. The written notice will identify:
513 the date and time of occurrence; material type; material weight or volume;
514 characterization of material; and the CONTRACTOR's reason for rejection of the
515 delivered material.
516 4.13 Reservation of Disposal Capacity. CONTRACTOR shall guarantee
517 its ability to accept and Dispose of all Solid Waste delivered to the Disposal
518 Facility by the Collection Contractor for ten (10) years from July 1, 2005.
519 CONTRACTOR shall be responsible for reasonably estimating the quantity of
520 capacity that it shall be required to provide to Dispose of all Solid Waste
521 generated in the CITY over the term of the Agreement. The CITY makes no
522 representations, and is under no obligation, regarding the quantity or composition
523 of the Solid Waste delivered to the Disposal Facility by the Collection Contractor.
524 4.11 Alternate Disposal Facilitv
525 4.11.1 If CONTRACTOR becomes unable to accept Solid Waste
526 generated in CITY at the Disposal Facility because it did not use reasonable
527 business efforts in resisting changes, alterations and amendments to permits, or
528 due to reasons within its control and which could have been avoided by the
529 exercise of due care, then CONTRACTOR shall (i) accept and Dispose of such
530 Solid Waste at a transfer station or other Disposal Facility owned by it (or by
531 another company which is owned and controlled, directly or indirectly, by
532 CONTRACTOR), at the then-current Disposal Rates in effect under this
533 Agreement, and shall pay any additional transportation costs incurred by
534 Collection Contractor in delivering the Solid Waste to the transfer station or any
535 additional costs incurred by CONTRACTOR in transferring and transporting Solid
536 Waste to the other disposal facility, or (ii) shall arrange for all Solid Waste to be
537 Disposed of at a transfer station or other disposal facility not owned by it or an
538 affiliated company, in which case CONTRACTOR shall pay any difference in the
539 fees charged at such transfer station or disposal facility plus any additional
540 transportation costs incurred in delivering Solid Waste to the transfer station or
541 disposal facility, and the then-current Disposal Rates in effect under this
542 Agreement.
543 4.11.2 If CONTRACTOR, despite using reasonable business
544 efforts to resist changes, alterations and amendments to permits under Section
545 4.02, becomes unable to accept and Dispose of Solid Waste generated in CITY
546 at the Disposal Facility, or if CONTRACTOR becomes unable to accept and
547 Dispose of Solid Waste at the Disposal Facility as the result of causes which are
548 beyond its control including, but not limited to, an "act of nature" (including, but
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549 not limited to, flood, earthquake, or other catastrophic events), war, insurrection,
550 riot, or other similar causes which are not the fault of the CONTRACTOR and
551 which could not have been prevented by the exercise of due care, then
552 CONTRACTOR shall, to the extent it is legally able to do so, offer to accept and
553 Dispose of Solid Waste at another disposal facility or a transfer station owned by
554 it (or by another company which is owned and controlled, directly or indirectly, by
555 CONTRACTOR), at the then-current Disposal Rates in effect under this
556 Agreement. CONTRACTOR has no obligation, however, to pay for additional
557 transportation costs incurred by the Collection Contractor. CITY has no
558 obligation to accept such offer and, if CITY rejects such an offer, CITY may
559 terminate this Agreement by giving written notice in the manner as set forth in
560 Section 21 of this Agreement. Such termination shall be effective thirty (30)
561 calendar days after CITY has given notice.
562 4.12 Monthly Report. Beginning on July 1, 2005, and monthly during
563 the term of this Agreement, CONTRACTOR shall provide a monthly report by the
564 end of the month following the reporting month. Therefore, the first report will be
565 due no later than August 31, 2005 for the reporting month of July 2005. The
566 report shall include the total Tonnage of Solid Waste generated in the CITY that
567 was Diverted, Transferred, and Disposed at the Disposal Facility and shall also
568 list the Tonnage information separately for each of the following categories:
569 Collection Contractor residential Solid Waste, Collection Contractor commercial
570 Solid Waste, Large Items from Collection Contractor Large Item Collection
571 program, other hauling companies (listed separately) hauling materials generated
572 in the CITY delivered in Drop Boxes or small vehicles as required by Section 4.23
573 of this Agreement and self-hauled Solid Waste. In addition, the monthly report
574 shall include the following
575 4.12.1 Tonnage information by material type for material accepted
576 at the Disposal Facility.
577 4.12.2 Number and nature of rejected loads during the month;
578 4.12.3 Number and nature of occurrences in which
579 CONTRACTOR identified Hazardous Waste inadvertently accepted; and,
580 4.12.4 Number and nature of any notice of violations.
581 4.13 Annual Report of Disposal Facility Activitv. Beginning September
582 1, 2006 and annually thereafter during the term of this Agreement,
583 CONTRACTOR shall submit an annual report of Disposal Facility activity to the
584 CITY. This report shall contain all items required by this Section which, at a
585 minimum, include the following: an analysis of the changes to the airspace of the
586 Disposal Facility since the previous report; an analysis of the remaining capacity
587 of the Disposal Facility; a projection of the remaining life of the Disposal Facility;
588 and, a list of parties that CONTRACTOR has guaranteed capacity to through
589 written agreements, the annual estimated Tonnage to be Disposed by each party,
590 and the term of the CONTRACTOR's capacity commitment. In the event
Page 16 City of Dublin
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591 CONTRACTOR has agreements with private companies, the name of the party
592 may be withheld from the list; however, the annual tonnage estimate and term of
593 the commitment must be provided. Each analysis shall be based on data
594 generated by an aerial topographic survey of the Disposal Facility. At a
595 minimum, the airspace and remaining capacity of the Disposal Facility shall be
596 expressed in the following or similar Terms: gross remaining airspace (cubic
597 yards and estimated Tons of remaining airspace that includes final cover, refuse,
598 daily cover and liner); effective remaining airspace (cubic yards and estimated
599 Tons of remaining airspace available for refuse and daily cover); and net
600 remaining airspace (cubic yards and estimated Tons of remaining airspace
601 available for refuse only). The annual report of Disposal Facility activity
602 submitted to the CITY shall contain the date of the aerial survey flight; the
603 methodology employed in the analyses; and the calculations performed to
604 determine the gross remaining airspace, the effective remaining airspace, and
605 net remaining airspace.
606 4.13.1 In addition, CONTRACTOR shall also describe any
607 advances in environmental mitigation measures, any advanced technologies
608 utilized in the course of business, and any pilot programs which test advanced
609 technologies; list any violations received during the previous year; and provide
610 proof that CONTRACTOR paid all governmental fees and taxes in accordance
611 with Sections 5.05 and 5.06.
612 4.13.2 The annual report shall include information on amounts of
613 Solid Waste delivered to the Disposal Facility and Disposed, Recycled or
614 Diverted and other information which the CITY may request in order to meet its
615 obligations under the California Waste Management Act of 1989.
616 4.14 Closure and Post-Closure of Disposal Facilitv. CONTRACTOR
617 shall safely manage the Disposal Facility in full regulatory compliance not only
618 during normal Disposal Facility operating period but also during the Disposal
619 Facility Closure and Post-Closure periods. CONTRACTOR acknowledges that it
620 is solely responsible for: (i) the appropriate Closure and Post-Closure activities of
621 the Disposal Facility; and, (ii) the establishment and funding of any reserve funds
622 required by applicable law for the purposes of providing funds for the payment of
623 costs of Closure of the Disposal Facility (or any cell within the Disposal Facility)
624 or Post-Closure activities relating to the Disposal Facility. Without limitation, in no
625 event shall the CITY or Collection Contractor be responsible for paying any
626 deficiencies in such required reserves. In addition, the CITY or Collection
627 Contractor shall have no responsibility to make any payments in the event that
628 actual Closure and Post-Closure costs relating to the Disposal Facility exceed
629 the amounts upon which the CONTRACTOR's Disposal rate was based on and
630 the amount reserved by the CONTRACTOR for such purposes.
631 4.15 RiQht to Enter Facilitv and Observe Operations. The CITY and its
632 designated representative(s) shall have the right to enter, observe and inspect
633 the Facility at any time during operations; conduct studies or surveys of the
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634 Facility; meet with the Facility manager(s) or their representatives at any time;
635 and meet with other employees upon request, which request shall not be
636 unreasonably denied by CONTRACTOR, provided that the CITY and its
637 representatives comply with CONTRACTOR's reasonable safety and security
638 rules and shall not interfere with the work of the CONTRACTOR or its
639 subcontractors. However, in the event the Facility manager is not on the
640 premises at the time the CITY or its designated representative(s) visit the
641 CONTRACTOR's facility, the CITY or its designated representative shall not be
642 able to inspect some or all areas of the facility and CONTRACTOR shall not be in
643 breach of this Agreement. In such case, the CITY shall give notice requesting
644 access to the site and CONTRACTOR shall arrange for CITY or its designated
645 representative(s) to conduct the on-site inspection within twenty-four (24) hours
646 of such notice. Upon CITY request, CONTRACTOR shall make personnel
647 available to accompany CITY employees on inspections. CONTRACTOR shall
648 ensure that its employees cooperate with the CITY and respond to the CITY's
649 reasonable inquiries.
650 4.16 Provision of Emerqency Services. CONTRACTOR shall provide
651 emergency services, at the CITY's request, in the event of major accidents,
652 disruptions, or natural calamities. CONTRACTOR shall be capable of providing
653 emergency services within twenty-four (24) hours of notification by the CITY, or
654 as soon thereafter as is reasonably practical, in light of the circumstances.
655 Emergency services, which exceed the CONTRACTOR's obligations under this
656 Agreement including, but not limited to, obligations related to facility receiving
657 hours, the types and quantities of permitted materials accepted at the Transfer
658 Station or Disposal Facility, the nature of Resource Recovery activities, and
659 Transfer requirements, shall be compensated through a modification to the scope
660 of services using procedures set forth herein.
661 4.17 Modifications to Scope of Service.
662 4.17.1 General. CITY may direct CONTRACTOR to perform
663 additional services (including, but not limited to, performance of additional
664 resource recovery activities) or modify the manner in which CONTRACTOR
665 performs existing services (including, but not limited to, the modifications to or
666 elimination of services). CONTRACTOR's Disposal Rates shall be increased or
667 decreased, as appropriate, to give effect to these adjustments.
668 4.17.2 Proposal for Modification of Services. Within sixty (60)
669 calendar days of CITY request for a proposal, CONTRACTOR shall present its
670 proposal to modify existing services. At a minimum, the proposal shall contain a
671 completed description of the following:
672 4.17.2.1 Methodology to be employed (changes to equipment,
673 manpower, staffing, etc.).
674 4.17.2.2 Equipment to be utilized (equipment number, types,
675 capacity, age, etc.)
Page 18 City of Dublin
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676 4.17.2.3 Labor requirements (changes in number of
677 employees by classification).
678 4.17.2.4 Provision for program publicity, education, and
679 marketing (if appropriate).
680 4.17.2.5 Estimate of the impact of the service modification
681 (increased Diversion tonnage, reduced costs, increased public service, etc.).
682 4.17.2.6 A cost proposal detailing the additional expenses or
683 savings.
684 4.17.3 CITY's Review. Within ninety (90) calendar days of
685 receiving the CONTRACTOR's proposal, the CITY shall review and comment on,
686 and approve or disapprove of the modification to the scope of services. The
687 CITY and CONTRACTOR may mutually agree to extend the time period for
688 review due to the complexity of the scope of service modification under
689 consideration, the time needed for the review or approval, or for other reasonable
690 reasons.
691 4.17.3.1 The CITY may request the assistance of an
692 independent third party to review the proposal. The reasonable costs of such
693 review shall be paid by the CONTRACTOR if the modification to the scope of
694 services is initiated by the CONTRACTOR or, by the CITY if the modification to
695 the scope of services is initiated by the CITY. CONTRACTOR's refusal to pay
696 the reasonable cost of review of a CONTRACTOR-initiated proposal shall be
697 grounds for CITY rejection of such proposal.
698 4.17.3.2 The CITY may request copies of, or access to, the
699 CONTRACTOR's operating and business records reasonably required to verify
700 the reasonableness and accuracy of the impacts associated with a modification
701 to the scope of services. CONTRACTOR shall fully cooperate with the CITY's
702 request and provide CITY and its agent(s) copies of or access to
703 CONTRACTOR's records.
704 4.17.4 Approval of Modification to Scope of Services. Upon CITY
705 approval or determination, CITY will issue a notice approving the modification to
706 the scope of service and documenting any change to the CONTRACTOR's
707 Disposal Rates, and approved change to CONTRACTOR's obligations
708 hereunder. The parties shall prepare a written amendment to the Agreement
709 documenting any and all changes resulting from the modification to the scope of
710 services. No adjustment in CONTRACTOR's Disposal rate, change in
711 CONTRACTOR's obligations, or change in scope of services shall become
712 effective absent such CITY approval or determination.
713 4.18 Diversion Activities. CONTRACTOR shall use reasonable efforts
714 to operate the Disposal Facility to segregate Recyclable Materials.
715 CONTRACTOR shall document the quantity of Recyclable Materials removed
716 from the Solid Waste delivered by the Collection Contractor for recycling and the
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717 quantity of such material Diverted from Disposal. CONTRACTOR shall calculate
718 the quantity of Recyclable Materials Diverted from Disposal on a monthly basis
719 using a methodology acceptable to the CITY and shall report thereon in
720 accordance with reporting requirements in Sections 4.14 and 4.15.
721 CONTRACTOR shall provide resource recovery programs as set forth in Exhibit
722 4 which is attached to and included in this Agreement to divert Recyclable
723 Materials from Disposal.
724 4.19 Recovered Materials Revenues. CONTRACTOR ·shall retain all
725 revenues generated from the sale of Recovered Materials.
726 4.20 Other Services. CONTRACTOR shall provide additional services
727 not otherwise contemplated under this Agreement at a price to be mutually
728 agreed upon between the City Representative and the CONTRACTOR. In the
729 event the CONTRACTOR and the City Representative cannot agree on terms,
730 conditions and price of such service or program City shall have the right to
731 procure the service of other vendors or contractors to provide the requested
732 service or program at a location other than the CONTRACTOR's Disposal
733 Facility.
734 4.21 Non-Permitted Companies. CONTRACTOR recognizes that
735 Construction and Demolition Debris generated in the CITY may only be Collected
736 by a company that has obtained a non-exclusive Construction and Demolition
737 Debris franchise from the CITY. CONTRACTOR shall record loads containing
738 Construction and Demolition Debris identified by the company delivering the
739 materials as being generated in the CITY. As part of the monthly report required
740 in Section 4.14 above, CONTRACTOR shall provide a listing of all Construction
741 and Demolition Debris loads, including the weights of each load and name of
742 company delivering each load. CONTRACTOR shall also post, on a sign in clear
743 view of all customers, the CITY's requirement that a non-exclusive franchise is
744 required for companies delivering Construction and Demolition Debris generated
745 in the CITY in Drop Boxes to the Disposal Facility. For cash customers hauling
746 Construction and Demolition Debris, CONTRACTOR shall provide a monthly
747 report identifying the Tonnage and delivery date of each load.
748 ARTICLE 5. Disposal Rates
749 5.01 Disposal Rate Elements. The Disposal rate shall be comprised of
750 two (2) elements: 1) a Disposal element, and 2) a Disposal government fee
751 element.
752 5.02 Adiustments to the Disposal Element. Except as provided in this
753 Section, the Disposal element shall not be adjusted over the term of this
754 Agreement. In the event of an adjustment to the Disposal element in accordance
755 with this Section, CONTRACTOR shall provide CITY or its agent access to the
756 Transfer Station and Disposal Facility and its financial and operations records in
757 accordance with Sections 4.21 and 8.14. The CITY will adjust the Disposal
Page 20 City of Dublin
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Disposal Service Agreeffient
758 element based on the results of the review conducted by the CITY or its agent.
759 The adjustment (whether an increase or decrease in the otherwise applicable
760 Disposal element) will be entirely prospective in effect and operation.
761 5.02.1 Requlatorv Costs. The Disposal element established
762 under Section 5.01 includes all costs associated with complying with all federal
763 and State statutes, and City and County ordinances concerning public health,
764 safety and environmental issues and all laws, regulations, rules, orders,
765 judgments, degrees, permits, approvals, or other requirement of any
766 governmental agency having jurisdiction over the disposition of Solid Waste,
767 Recyclable Materials or Organic Waste that are in force on the effective date of
768 this Agreement including any current provisions which become effective on or
769 which require compliance by a date after the effective date of this Agreement.
770 5.02.2 ChanQes in ReQulatorv Costs. If CONTRACTOR or CITY
771 believes that complying with laws or governmental regulations enacted after the
772 effective date of this Agreement will increase or decrease the costs of operating
773 the facility, then CONTRACTOR or CITY may request an adjustment to the
774 Disposal element by submitting to the other party its proposed method for
775 complying with the new or modified regulations, the estimated cost of
776 compliance, and the associated per-Ton adjustment necessary to the Disposal
777 element. As part of this process, CONTRACTOR shall provide CITY with access
778 to its operational and financial records in accordance with the requirements of
779 Article 23.
780 5.02.3 CONTRACTOR shall then the proposed method of
781 compliance to the appropriate regulatory agency(ies). If the agency(ies)
782 approves that method without conditions, the Disposal element may be adjusted.
783 5.02.4 If the requesting agency(ies) do not approve the
784 methodology, CONTRACTOR will implement the method of compliance which is
785 approved by the regulatory agency(ies) and resubmit its estimate of cost impacts
786 to Facility operations and proposed Disposal element adjustment for CITY's
787 review and written approval. CITY and CONTRACTOR shall meet and confer in
788 good faith to reach agreement on the cost of compliance and the corresponding
789 adjustment to the Disposal element.
790 5.03 Government Fees. The Disposal rate includes the following
791 government fee elements: (to be completed after Contractor selection)
792
793
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Agenc::y
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F on
(a) California Integrated Waste Management Board (AB1220) Fee
$
(b) Local Enforcement Agency (ACSWMD) Fee
$
(c) Business License (County) Fee
$
(d) Alameda County "Measure D" Fee
$
(e) Alameda County Waste Management Authority Facilities Fee
$
(f) Alameda County Waste Management Authority Household
Hazardous Waste Fee
$
(h) County Planning Fee
$
$
$
(g) Conditional Use Permit Fee
(i) Other Fee
Total Government Fee Elements
$
794 5.03.1 ChanQes in Government Fee Elements. When
795 government fees are adjusted or new government fees are imposed by
796 regulating agency(ies), the CITY and CONTRACTOR shall meet and agree upon
797 the calculated adjustment to the Disposal rate and the date on which adjusted
798 Disposal rate shall become effective.
799 5.04 Payment of Governmental Fees. CONTRACTOR shall pay, when
800 and as due, any and all governmental fees to the appropriate federal, State,
801 regional, or local governmental entities which levied the fees, and shall provide
802 CITY with proof of such payments promptly upon request.
803 5.05 Payment of Taxes. CONTRACTOR shall pay, when and as due,
804 any and all governmental assessments, or taxes incurred as a result of
805 CONTRACTOR's provision of services under this Agreement, including estimated
806 taxes, and shall provide CITY with proof of such payments promptly upon
807 request.
Page 22 City of Dublin
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Disposal Service AgreemeJr'
808 5.06 ACWMA Fees. Regardless of the location of the Facility, the
809 CONTRACTOR shall be required by the CITY to include the following
810 governmental fees in the Disposal government fee element: Alameda County
811 "Measure D" fee, the Alameda County Waste Management Authority (ACWMA)
812 facilities fee, and ACWMA Household Hazardous Waste fee in per-Ton amounts
813 equal to the per-Ton amounts levied on Solid Waste Tonnage Disposed of in
814 Alameda County. CONTRACTOR shall remit such fees to the appropriate parties
815 as if the Facility was located in unincorporated areas of Alameda County.
816 ARTICLE 6. Performance Bond
817 6.01 Performance Bond. Within ten (10) calendar days from the date
818 the City Council approves this Agreement, the CONTRACTOR shall furnish to the
819 CITY, and keep current, a Performance Bond in a form as set forth in Exhibit 2
820 which is included in and attached to this Agreement, for the faithful performance
821 of this Agreement and all obligations arising hereunder in an amount of one
822 million dollars ($1,000,000).
823 6.01.1 Suretv Companv. The performance bond shall be executed
824 by a surety company licensed to do business in the State of California; having an
825 "A_" or better rating by A. M. Best or Standard and Poors; and included on the list
826 of surety companies approved by the Treasurer of the United States.
827 6.01.2 Letter of Credit. As an alternative to the performance bond
828 required by this Section 6.01, at CITY's option, CONTRACTOR may deposit with
829 CITY an irrevocable letter of credit in an amount as set forth in Section 6.01. If
830 allowed, the letter of credit must be issued by an FDIC insured banking institution
831 chartered to business in the state of California, in the CITY's name, and be
832 callable at the discretion of the CITY. Nothing in this Section shall, in any way,
833 obligate the CITY to accept a letter of credit in lieu of the performance bond.
834 6.02 Corporate Guarantee. In addition to the performance assurance
835 required in Section 6.01, CONTRACTOR is required to obtain Guaranty, and
836 Guarantor has agreed to guarantee CONTRACTOR'S performance of this
837 agreement, including CONTRACTOR'S indemnification obligations hereunder
838 pursuant to a Guaranty Agreement in substantially the form attached as Exhibit 3.
839 The Guaranty Agreement is being provided concurrently with CONTRACTOR'S
840 execution of this Agreement.
841 ARTICLE 7. Insurance
842 7.01 Insurance Policies. CONTRACTOR shall secure and maintain
843 throughout the term of this Agreement insurance against claims for injuries to
844 persons or damages to property which may arise from or in connection with
845 CONTRACTOR'S performance of work or services under this Agreement.
846 CONTRACTOR'S performance of work or services shall include performance by
847 CONTRACTOR'S employees, agents, representatives and subcontractors.
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848 7.01.1 Minimum Scope of Insurance. Insurance coverage shall
849 be at least this broad:
850 7.01.1.1 Insurance Services Office Form No. GL 0002 (Ed.
851 1/96) covering Comprehensive General Liability and Insurance Services Office
852 Form No. GL 0404 covering Broad Form Comprehensive General Liability; or
853 Insurance Services Office Commercial General Liability coverage ("occurrence"
854 form CG 0001), including X, C, U where applicable.
855 7.01.1.2 Insurance Services Office Form NO.CA 0001 (Ed.
856 12/93) covering Automobile Liability, code 1 "any auto", or code 2 "owned autos"
857 and endorsement CA 0025. Coverage shall also include code 8, "hired autos"
858 and code 9 "non-owned autos".
859 7.01.2 Workers' Compensation insurance as required by the
860 California Labor Code and Employers Liability Insurance.
861 7.01.3 Hazardous Waste and Environmental Impairment Liability
862 Insurance.
863 7.02 Minimum Limits of Insurance. CONTRACTOR shall maintain
864 insurance limits no less than:
865 7.02.1 Comprehensive General Liability: $10,000,000 combined
866 single limit per occurrence for bodily injury, personal injury and property damage.
867 If Commercial General Liability insurance with a general aggregate limit is used,
868 either the general aggregate limit shall apply separately to this Agreement or the
869 general aggregate limit shall be $5,000,000.
870 7.02.2 Automobile Liability: $10,000,000 combined single limit per
871 accident for bodily injury and property damage.
872 7.02.3 Workers' Compensation and Employers Liability: Workers'
873 Compensation limits as required by the California Labor Code and Employers
874 Liability limits of $1 ,000,000 per accident.
875 7.02.4 Hazardous Waste and Environmental Impairment Liability:
876 $10,000,000 per occurrence.
877 7.03 Deductibles and Self-Insured Retention. Any deductibles or self-
878 insured retention must be declared to, and approved by, CITY'S Risk Manager.
879 At the option of CITY, either: the insurer shall reduce or eliminate such
880 deductibles or self-insured retention as respects CITY, its officers, employees,
881 agents and contractors; or CONTRACTOR shall procure a bond guaranteeing
882 payment of losses and related investigations, claim administration and defense
883 expenses in an amount specified by CITY'S Risk Manager.
884 7.04 Endorsements. The policies are to contain, or be endorsed to
885 contain, the following provisions:
886 7.04.1 General Liabilitv and Automobile Liabilitv CoveraQe.
Page 24 City of Dublin
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887 7.04.1.1 The CITY, its officers, employees, agents and
888 contractors are to be covered as additional insureds as respects: Liability arising
889 out of activities performed by, or on behalf of, CONTRACTOR; products and
890 completed operations of CONTRACTOR; premises owned, leased or used by
891 CONTRACTOR; and automobiles owned, leased, hired or borrowed by
892 CONTRACTOR. The coverage shall contain no special limitations on the scope
893 of protection afforded to CITY, its officers, employees, agents and contractors.
894 The Automobile liability is endorsed to contain MCA 90 coverage.
895 7.04.1.2 CONTRACTOR'S insurance coverage shall be
896 primary insurance as respects CITY, its officers, employees, agents and
897 contractors. Any insurance, or self-insurance maintained by CITY, its officers,
898 employees, agents or contractors shall be in excess of CONTRACTOR'S
899 insurance and shall not contribute with it.
900 7.04.1.3 Any failure to comply with reporting provisions of
901 the policies shall not affect coverage provided to CITY, its officers, employees,
902 agents, contractors or Collection Contractor.
903 7.04.1.4 Coverage shall state that CONTRACTOR'S
904 insurance shall apply separately to each insured against whom claim is made or
905 suit is brought, except with respect to the limits of the insurer's liability.
906 7.04.2 All Coverage. Each insurance policy required by this
907 Agreement shall be endorsed to state that coverage shall not be suspended,
908 voided, canceled, or reduced in limits except after thirty (30) calendar days prior
909 written notice has been given to CITY.
910 7.05 Acceptability of Insurers. Insurance is to be placed with insurers
911 acceptable to CITY'S Risk Manager.
912 7.06 Verification of Coverage. CONTRACTOR shall furnish CITY with
913 certificates of insurance and with original endorsements affecting coverage
914 required by this Agreement. The certificates and endorsement for each
915 insurance policy are to be signed by a person authorized by that insurer to bind
916 coverage on its behalf. CONTRACTOR shall furnish CITY with a new certificate
917 of insurance and endorsements on each renewal of coverage or change of
918 insurers.
919 Proof of insurance shall be mailed to the following address or any
920 subsequent address as may be directed in writing by the CITY'S Risk Manager:
Page 25
Disposal Service Agreement
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921 CITY OF DUBLIN
922 Risk Management
923 100 Civic Plaza
924 Dublin, CA 94568
925 7.07 Subcontractors. CONTRACTOR shall include all subcontractors
926 as insureds under its policies or shall obtain separate certificates and
927 endorsements for each subcontractor.
928 7.08 Modification of Insurance Requirements. The insurance
929 requirements provided in this Agreement may be modified or waived by CITY'S
930 Risk Manager, in writing, upon the request of CONTRACTOR if the CITY'S Risk
931 Manager determines such modification or waiver is in the best interest of CITY
932 considering all relevant factors, including exposure to CITY.
933 7.09 Riahts of SubroQation. All required insurance pOlicies shall
934 preclude any underwriter's rights of recovery or subrogation against CITY with
935 the express intention of the parties being that the required insurance coverage
936 protects both parties as the primary coverage for any and all losses covered by
937 the above-described insurance. CONTRACTOR shall ensure that any
938 companies issuing insurance to cover the requirements contained in this
939 Agreement agree that they shall have no recourse against CITY for payment or
940 assessments in any form on any policy of insurance. The clauses 'Other
941 Insurance Provisions' and 'Insured Duties in the Event of an Occurrence, Claim
942 or Suit' as it appears in any policy of insurance in which CITY is named as an
943 additional insured shall not apply to CITY.
944 ARTICLE 8. Indemnification
945 8.01 Indemnification. CONTRACTOR shall indemnify and hold
946 harmless CITY, CITY'S contractors, Collection Contractor, and the public officials,
947 officers, directors, employees, agents and other contractors of each of them, from
948 and against any and all claims, costs, losses and damages (including but not
949 limited to all fees and charges of engineers, architects, attorneys and other
950 professionals as well as all Court or other dispute resolution costs), liabilities,
951 expenditures or causes of action of any kind (including negligent, reckless, willful
952 or intentional acts or omissions of the CONTRACTOR, any subcontractor, any
953 supplier, any person or organization directly or indirectly employed by any of
954 them to perform or furnish any services or anyone for whose acts any of them
955 may be liable), arising from, relative to or caused by the performance of the
956 services. This indernnity includes but is not limited to claims attributable to bodily
957 injury, sickness, disease or death and to injury or destruction of tangible property.
958 CONTRACTOR agrees, at CONTRACTOR'S expense, after written notice from
959 the CITY, to defend any action against the CITY that falls within the scope of this
960 indemnity, or the CITY, at the CITY'S option, may elect not to tender such
961 defense and may elect instead to secure its own attorneys to defend any such
Page 26 City of Dublin
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962 action and the reasonable costs and expenses of such attorneys incurred in
963 defending such action shall be payable by CONTRACTOR. Additionally, if
964 CONTRACTOR, after receipt of written notice from the CITY, fails to make any
965 payment due under this Agreement to the CITY, CONTRACTOR shall pay any
966 reasonable attorneys' fees or costs incurred by the CITY in securing any such
967 payment from CONTRACTOR. Payment of any amount due pursuant to the
968 foregoing indemnity shall, after receipt of written notice by CONTRACTOR from
969 the CITY that such amount is due, be made by CONTRACTOR prior to the CITY
970 being required to pay same, or in the alternative, the CITY, at the CITY'S option,
971 may make payment of an amount so due and CONTRACTOR shall promptly
972 reimburse the CITY for same, together with interest thereon at the rate of 12%
973 per annum simple interest from the date of receipt by CONTRACTOR of written
974 notice from the CITY that such payment is due.
975 8.01.1 This provision is in addition to all other provisions in this
976 Agreement and is intended to survive the end of the term of this Agreement.
977 CONTRACTOR'S Guaranty Agreement shall extend to the indemnification
978 obligation hereunder.
979 8.02 Hazardous Material Indemnification. CONTRACTOR shall
980 indemnify, defend with counsel acceptable to the CITY, and hold harmless, at
981 CONTRACTOR'S sole cost and expense, the CITY, its City Council, officers,
982 officials, employees, volunteers and agents, and the Collection Contractor
983 (collectively, "indemnitees") from and against any and all claims, damages,
984 injuries, costs (including and without limit any and all response, remediation and
985 removal costs), losses, demands, debts, liens, liabilities, causes of action, suits,
986 legal or administrative proceedings, interest, fines, charges, penalties, and
987 expenses (including reasonable attorneys' and expert witness fees, expenditures
988 for investigation and remediation) and costs of any kind whatsoever, paid,
989 imposed upon, incurred, or suffered by or asserted against any of the
990 indemnitees by reason of, or arising from, the presence, Disposal, escape,
991 migration, leakage spillage, discharge, emission, release, handling or
992 transportation of Hazardous Materials to, in, on, at, or under the Facility
993 (collectively, "environmental events"), any personal injury, death, or property
994 damage, arising out of or related to any of the environmental events; any lawsuit
995 brought or threatened, settlement reached, or government hearing, investigation,
996 inquiry, proceeding, or order relating to any Hazardous Materials or any of the
997 environmental events.
998 8.02.1 Such indemnification shall apply to all events arising from
999 or attributable to the acts or omissions of CONTRACTOR, its officers, directors,
1000 employees, whether or not negligent or otherwise culpable, in connection with or
1001 related to CONTRACTOR'S performance of this Agreement, including without
1002 limit damages arising from or attributable to any operations, repair, clean-up or
1003 detoxification, or preparation and implementation of any removal, remedial,
1004 response, closure, post-closure or other plan (regardless of whether undertaken
1005 due to governmental action) concerning any Hazardous Materials at the Disposal
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1008
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1019
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1022
1023
1024
1025
1026
1027
1028
1029
1030
1031
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Disposal Service Agreement
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Facility. For the avoidance of doubt, the foregoing indemnity is intended to
operate as an agreement pursuant to §107(e) of the Comprehensive
environmental Response, Compensation and Liability Act, CERCLA, 42 U.S.C.
§9607(e) and California Health and Safety Code §25364, to defend, protect, hold
harmless, and indemnify CITY from liability thereunder.
8.02.2 This provision is in addition to all other provisions in this
Agreement and is intended to survive the end of the term of this Agreement.
CONTRACTOR'S Guaranty Agreement shall extend to the indemnification
obligation hereunder.
8.03 Environmental Indemnification. CONTRACTOR shall indemnify,
defend with counsel acceptable to the CITY, and hold harmless, at
CONTRACTOR'S sole cost and expense, the CITY, its City Council, officers,
officials, employees, volunteers and agents, and the Collection Contractor
(collectively, "indemnitees") from and against any and all claims, damages,
injuries, costs (including and without limit any and all response, remediation and
removal costs), losses, demands, debts, liens, liabilities, causes of action suits,
legal or administrative proceedings, interest, fines, charges, penalties, and
expenses (including reasonable attorneys' and expert witness fees, expenditures
for investigation and remediation) and costs of any kind whatsoever, paid,
imposed upon, incurred, or suffered by or asserted against any of the
indemnitees by any lawsuit brought or threatened, settlement reached, or
government hearing, investigation, inquiry, proceeding, or order relating to, or
arising from, directly or indirectly, CONTRACTOR'S alleged failure or actual
failure to comply with the environmental laws and regulations. This
indemnification will not extend to environmental claims to the extent they are
caused by the sole or joint or contributory negligence or intentional misconduct or
omission of the CITY, its officers, employees or agents, or the Collection
Company.
-.
8.03.1 This provision is in addition to all other provisions in this
Agreement and is intended to survive the end of the term of this Agreement.
CONTRACTOR'S Guaranty Agreement shall extend to the indemnification
obligation hereunder.
8.04 Consideration. It is specifically understood and agreed that the
consideration inuring to the CONTRACTOR for the execution of this Agreement
consists of the promises, payments, covenants, rights and responsibilities
contained in this Agreement.
8.05 Obliaation. The execution of this Agreement by the
CONTRACTOR shall obligate the CONTRACTOR to comply with the foregoing
indemnification provision; however, the collateral obligation of providing
insurance must also be complied with as set forth in Article 7 above.
8.06 Subcontractors. The CONTRACTOR shall require all
subcontractors to enter into a Agreement containing the provisions set forth in the
Page 28 City of Dublin
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Disposal Service Agreemel1t)
1048 preceding subsection in which Agreement the subcontractor fully indemnifies the
1049 CITY in accordance with this Agreement.
1050 8.07 Exception. Notwithstanding Sections 8.01, 8.02 and 8.03,
1051 CONTRACTOR'S obligation to indemnify, hold harmless and defend CITY, its
1052 officers, employees agents and contractors shall not extend to any loss, liability,
1053 penalty, plain, damage, action or suit arising or resulting from acts or omissions
1054 constituting willful misconduct on the part of the CITY its officers, employees,
1055 agents, contractors, and Collection Contractor.
1056 8.08 Damage by CONTRACTOR. If CONTRACTOR's employees or
1057 subcontractors cause any injury, damage or loss to CITY property, including but
1058 not limited to CITY streets or curbs, CONTRACTOR shall reimburse CITY for
1059 CITY'S cost of repairing such injury, damage or loss. Such reimbursement is not
1060 in derogation of any right of CITY to be indemnified by CONTRACTOR for any
1061 such injury, damage or loss. With the prior written approval of CITY,
1062 CONTRACTOR may repair the damage at CONTRACTORS sole cost and
1063 expense.
1064 ARTICLE 9. Force Majeure
1065 9.01 CONTRACTOR shall not be in default of its obligations under this
1066 Agreement in the event, and for so long as, it is impossible or extremely
1067 impracticable for it to perform its obligations due to an "act of nature" (including,
1068 but not limited to, flood, earthquake, or other catastrophic events), war,
1069 insurrection, riot, or other similar causes which are not the fault of, and beyond
1070 the reasonable control of, the party claiming excuse from performance. Labor
1071 unrest, including but not limited to, strike, work stoppage or slowdown, sick-out,
1072 picketing, or other concerted job action conducted by CONTRACTOR's
1073 employees or directed at CONTRACTOR is not an excuse from performance and
1074 CONTRACTOR shall be obligated to continue to accept and Dispose of Solid
1075 Waste, notwithstanding the occurrence of any or all of such events. To claim
1076 excuse under this Section CONTRACTOR must: (i) have taken reasonable
1077 precautions, if possible, to avoid being affected by the cause, including, in the
1078 case of impossibility of performance based on inability to obtain a governmental
1079 permit, compliance with the requirement of Section 4.02, and (ii) notify the CITY
1080 in writing within five working days after the occurrence of the event specifying the
1081 nature of the event, the expected length of time that the CONTRACTOR expects
1082 to be prevented from performing, and the steps which the CONTRACTOR
1083 intends to take to restore its ability to perform.
1084 9.02 The interruption or discontinuance of CONTRACTOR's ability to
1085 accept and Dispose of Solid Waste caused by one or more of the events
1086 described in this Section shall not constitute a default by CONTRACTOR under
1087 this Agreement. Notwithstanding the foregoing, however, if CONTRACTOR is
1088 excused from performing its obligations hereunder for any of the causes listed in
1089 this Section for a period of 30 calendar days or more, upon expiration of the thirty
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1090 (30) calendar days, the CITY shall have the right, in its sole discretion, to
1091 terminate this Agreement by giving 10 calendar days' notice except that such
1092 termination may be effective two Working Days after receiving notice by certified
1093 mail if such event(s) result in the CONTRACTOR's failure to accept and Dispose
1094 of Solid Waste.
1095 ARTICLE 10. Default of Agreement
1096 10.01 Termination. The CITY may cancel this Agreement, except as
1097 otherwise provided below in this Section, by giving the CONTRACTOR thirty (30)
1098 calendar days advance written notice, to be served as provided in Article 21,
1099 upon the happening of anyone of the following events:
1100 10.01.1 The CONTRACTOR shall take the benefit of any
1101 present or future insolvency statute, or shall make a general assignment for the
1102 benefit of creditors, or file a voluntary petition in bankruptcy (court) or a petition or
1103 answer seeking an arrangement for its reorganization or the readjustment of its
1104 indebtedness under the Federal bankruptcy laws or under any other law or
1105 statute of the United States or any state thereof, or consent to the appointment of
1106 a receiver, trustee or liquidator of all or substantially all of its property; or
1107 10.01.2 By order or decree of a Court, the CONTRACTOR
1108 shall be adjudged bankrupt or an order shall be made approving a petition filed
1109 by any of its creditors or by any of the stockholders of the CONTRACTOR,
1110 seeking its reorganization or the readjustment of its indebtedness under the
1111 Federal bankruptcy laws or under any law or statute of the United States or of
1112 any state thereof, provided that if any such judgment or order is stayed or
1113 vacated within sixty (60) calendar days after the entry thereof, any notice of
1114 default shall be and become null, void and of no effect; unless such stayed
1115 judgment or order is reinstated in which case, said default shall be deemed
1116 immediate; or
1117 10.01.2.1 By, or pursuant to, or under the authority of any
1118 legislative act, resolution or rule or any order or decree of any Court or
1119 governmental board, agency or officer having jurisdiction, a receiver, trustee or
1120 liquidator shall take possession or control of all or substantially all of the property
1121 of the CONTRACTOR, and such possession or control shall continue in effect for
1122 a period of sixty (60) calendar days; or
1123 10.01.3 The CONTRACTOR has defaulted, by failing or
1124 refusing to pay in a timely manner the administrative charges or other monies
1125 due the CITY and said default is not cured within thirty (30) calendar days of
1126 receipt of written notice by CITY to do so; or
1127 10.01.4 The CONTRACTOR has defaulted by allowing any
1128 final judgment for the payment of money to stand against it unsatisfied and said
1129 default is not cured within thirty (30) calendar days of receipt of written notice by
1130 CITY to do so; or
Page 30 City of Dublin
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Disposal Service Agreemê'nt
1131 10.01.5 In the event that the monies due the CITY under
1132 Section 10.01.3 above or an unsatisfied final judgment under Section 10.01.4
1133 above is the subject of a judicial proceeding, the CONTRACTOR shall not be in
1134 default if the sum of money is bonded. All bonds shall be in the form acceptable
1135 to the CITY Attorney; or
1136 10.01.6 The CONTRACTOR has defaulted, by failing or
1137 refusing to perform or observe the terms, conditions or covenants in this
1138 Agreement or any of the rules and regulations promulgated by the CITY pursuant
1139 thereto or has wrongfully failed or refused to comply with the instructions of the
1140 City Representative relative thereto and said default is not cured within thirty (30)
1141 calendar days of receipt of written notice by the CITY to do so, or if by reason of
1142 the nature of such default, the same cannot be remedied within thirty (30)
1143 calendar days following receipt by the CONTRACTOR of written demand from
1144 the CITY to do so, the CONTRACTOR fails to commence the remedy of such
1145 default within said thirty (30) calendar days following such written notice or
1146 having so commenced shall fail thereafter to continue with diligence the curing
1147 thereof (with the CONTRACTOR having the burden of proof to demonstrate (a)
1148 that the default cannot be cured within thirty (30) calendar days, and (b) that it is
1149 proceeding with diligence to cure said default, and such default will be cured
1150 within a reasonable period of time.
1151 10.01.7 CONTRACTOR fails to perform its obligations
1152 under this Agreement, and: (i) if the failure or refusal of CONTRACTOR to
1153 perform Disposal services required by this Agreement has created an imminent
1154 threat to public health and is not cured within 2 Working Days after receiving
1155 written notice from the CITY specifying the breach; or (ii) in the case of any other
1156 breach of the Agreement, the breach continues for more than 30 calendar days
1157 after receiving written notice from the CITY for the correction thereof, provided
1158 that where such breach cannot be cured within such 30-day period,
1159 CONTRACTOR shall not be in default of this Agreement if CONTRACTOR shall
1160 have commenced such action required to cure the particular breach within ten
1161 (10) calendar days after such notice, and it continues such performance diligently
1162 until completed. However, if CONTRACTOR has complied with its obligations to
1163 arrange and pay for Disposal of Solid Waste at an alternative Disposal facility as
1164 set forth in Section 4.13, it shall not be in default of this Agreement.
1165 10.02 Effective Date. In the event of the aforesaid events specified
1166 above, and except as otherwise provided in said subsections, termination shall
1167 be effective upon the date specified in the CITY'S written notice to the
1168 CONTRACTOR and upon said date this Agreement shall be deemed immediately
1169 terminated and upon such termination all liability of the CITY under this
1170 Agreement to the CONTRACTOR shall cease, and the CITY shall have the right
1171 to call the performance bond and shall be free to negotiate with other contractors
1172 for the operation of the herein specified services.
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1173 10.03 Rioht to Perform. If this Agreement is suspended and/or
1174 terminated due to CONTRACTOR default, CITY shall have the right to perform
1175 and complete, by contract or otherwise, the work herein or such part thereof as it
1176 may deem necessary and incur all expenses necessary for completion of the
1177 work, including, but not limited to, the costs of transportation to, and Disposal of
1178 Solid Waste at, and alternative disposal facility, but not including any right to
1179 operate the Disposal Facility. If such expenses (including, but not limited to, the
1180 costs of transportation to an alternative facility and the actual fees charged for
1181 Disposal) exceed the amounts which would have been paid to CONTRACTOR
1182 under this Agreement, if it had been fully performed by CONTRACTOR, then
1183 CONTRACTOR shall pay for the remaining term of this Agreement, the amount
1184 of such excess costs to the CITY within thirty (30) calendar days of
1185 CONTRACTOR'S receipt of a claim for reimbursement, and evidence of costs
1186 incurred, from the CITY.
1187 10.04 Immediate Termination. CITY may terminate this Agreement
1188 immediately upon written notice to CONTRACTOR in the event CONTRACTOR
1189 fails to provide and maintain the performance bond as required by this
1190 Agreement, CONTRACTOR fails to obtain or maintain insurance policies
1191 endorsements as required by this Agreement, CONTRACTOR fails to provide the
1192 proof of insurance as required by this Agreement, or CONTRACTOR offers or
1193 gives any gift prohibited by CITY Municipal Code.
1194 10.05 Termination Cumulative. CITY'S right to terminate this Agreement
1195 is cumulative to any other rights and remedies provided by law or by this
1196 Agreement.
1197 ARTICLE 11. Legal Representation
1198 11.01 Acknowledoement. It is acknowledged that each party was, or
1199 had the opportunity to be, represented by counsel in the preparation of and
1200 contributed equally to the terms and conditions of this Agreement and,
1201 accordingly, the rule that a Agreement shall be interpreted strictly against the
1202 party preparing the same shall not apply herein due to the joint contributions of
1203 both parties.
1204 ARTICLE 12. Financial Interest
1205 12.01 Representation. CONTRACTOR warrants and represents that no
1206 elected official, officer, agent or employee of the CITY has a financial interest,
1207 directly or indirectly, in this Agreement the compensation to be paid under it and,
1208 further, that no CITY employee who acts in the CITY as a "purchasing agent" as
1209 defined in the appropriate Section of California Statutes, nor any elected or
1210 appointed officer of the CITY, nor any spouse or child of such purchasing agent,
1211 employee or elected or appointed officer, is a partner, officer, director or
1212 proprietor of the CONTRACTOR and, further, that no such CITY employee,
Page 32 City of Dublin
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Disposal Service Agreement
1213 purchasing agent, CITY elected or appointed officer, or the spouse or child of any
1214 of them, alone or in combination, has a material interest in the CONTRACTOR.
1215 Material interest means direct or indirect ownership of more than five percent
1216 (5%) of the total assets or capital stock of the CONTRACTOR.
1217 ARTICLE 13., Independent Contractor
1218 13.01 In the performance of services pursuant to this Agreement,
1219 CONTRACTOR shall be an independent contractor and not an officer, agent,
1220 servant or employee of CITY. CONTRACTOR shall have exclusive control of the
1221 details of the services and work performed and over all persons performing such
1222 services and work. CONTRACTOR shall be solely responsible for the acts and
1223 omissions of its officers, agents, employees, contractors and subcontractors, if
1224 any. Neither CONTRACTOR nor its officers, employees, agents, contractors or
1225 subcontractors shall obtain any right to retirement benefits, Workers
1226 Compensation benefits, or any other benefits which accrued to CITY employees
1227 and CONTRACTOR expressly waives any claim it may have or acquire to such
1228 benefits.
1229 ARTICLE 14. Laws to Govern
1230 14.01 The law of the State of California shall govern the rights,
1231 obligations, duties and liabilities of CITY and CONTRACTOR under this
1232 Agreement and shall govern the interpretation of this Agreement.
1233 ARTICLE 15. Consent to Jurisdiction
1234 15.01 The parties agreed that any litigation between CITY and
1235 CONTRACTOR concerning or arising out of this Agreement shall be filed and
1236 maintained exclusively in the Municipal or Superior Courts of Alameda County,
1237 State of California, or in the United States District Court for the Northern District
1238 of California to the fullest extent permissible by law. Each party consents to
1239 service of process in any manner authorized by California law.
1240 ARTICLE 16. Assignment
1241 16.01 No assignment of this Agreement or any right occurring under this
1242 Agreement shall be made in whole or in part by the CONTRACTOR without the
1243 express written consent of the CITY. The CITY shall have full discretion to
1244 approve or deny, with or without cause, any proposed or actual assignment by
1245 the CONTRACTOR. Any assignment of this Agreement made by the
1246 CONTRACTOR without the express written consent of the CITY shall be null and
1247 void and shall be grounds for the CITY to declare a default of this Agreement and
1248 immediately terminate this Agreement by giving written notice to the
1249 CONTRACTOR, and upon the date of such notice this Agreement shall be
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1250 deemed immediately terminated, and upon such termination all liability of the
1251 CITY under this Agreement to the CONTRACTOR shall cease, and the CITY
1252 shall have the right to call the performance bond and shall be free to negotiate
1253 with other contractors, the CONTRACTOR, or any other person or company for
1254 the service which is the subject of this Agreement. In the event of any
1255 assignment, the assignee shall fully assume all the liabilities of the
1256 CONTRACTOR.
1257 16.02 The use of a subcontractor to perform services under this
1258 Agreement shall not constitute delegation of CONTRACTOR'S duties provided
1259 that CONTRACTOR has received prior written authorization from the City
1260 Representative to subcontract such services and the City Representative has
1261 approved a subcontractor who will perform such services. CONTRACTOR shall
1262 be responsible for directing the work of CONTRACTOR'S subcontractors and
1263 any compensation due or payable to CONTRACTOR'S subcontractor shall be
1264 the sole responsibility of CONTRACTOR. The City Representative shall have the
1265 right to require the removal of any approved subcontractor for reasonable cause.
1266 The subcontractors listed in Exhibit 6, which is attached to and incorporated in
1267 this Agreement, are hereby approved by the CITY.
1268 ARTICLE 17. Compliance with Laws
1269 17.01 In the performance of this Agreement, CONTRACTOR shall
1270 comply with all applicable laws, regulations, ordinances and codes of the federal,
1271 state and local governments, including without limitation the Dublin Municipal
1272 Code.
1273 17.02 CITY shall provide written notice to CONTRACTOR of any
1274 planned amendment to the Dublin Municipal Code that would substantially affect
1275 the performance of CONTRACTOR'S services pursuant to this Agreement. Such
1276 notice shall be provided at least thirty (30) calendar days prior to the City
1277 Council's approval of such an amendment.
1278 ARTICLE 18. Waiver
1279 18.01 Waiver by CITY or CONTRACTOR of any breach for violation of
1280 any term covenant or condition of this Agreement shall not be deemed to be a
1281 waiver of any other term, covenant or condition or any subsequent breach or
1282 violation of the same or of any other term, covenant or condition. The
1283 subsequent acceptance by CITY of any fee, tax, or any other monies which may
1284 become due from CONTRACTOR to CITY shall not be deemed to be a waiver by
1285 CITY of any breach for violation of any term, covenant or condition of this
1286 Agreement.
Page 34 City of Dublin
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1287 ARTICLE 19. Prohibition Against Gifts
1288 19.01 CONTRACTOR represents that CONTRACTOR is familiar with
1289 CITY'S prohibition against the acceptance of any gift by a CITY officer or
1290 designated employee. CONTRACTOR shall not offer any CITY officer or
1291 designated employee any gifts prohibited by the CITY.
1292 ARTICLE 20. Point of Contact
1293 20.01 The day-to-day dealings between the CONTRACTOR and the
1294 CITY shall be between the CONTRACTOR and the City Representative.
1295 ARTICLE 21. Notices
1296 21.01 Except as provided herein, whenever either party desires to give
1297 notice to the other, it must be given by written notice addressed to the party for
1298 whom it is intended, at the place last specified and to the place for giving of
1299 notice in compliance with the provisions of this paragraph. For the present, the
1300 parties designate the following as the respective persons and places for giving of
1301 notice:
1302 As to the CITY:
1303 Jason A. Behrmann
1304 Senior Administrative Analyst
1305 100 Civic Plaza
1306 Dublin, CA 94568
1307 Telephone: (925) 833-6650
1308 Fax: (925) 833-6651
1309 E-Mail iason.behrmann@cLdublin.ca.us
1310
1311
1312 As to the CONTRACTOR:
1313 To be completed.
1314 21.02 Notices shall be effective when received at the address as
1315 specified above. Changes in the respective address to which such notice is to be
1316 directed may be made by written notice. Facsimile transmission is acceptable
1317 notice, effective when received, however, facsimile transmissions received (Le.
1318 printed) after 4:30 p.m. or on weekends or holidays, will be deemed received on
1319 the next business day. The original of items that are transmitted by facsimile
1320 equipment must also be mailed as required herein.
Page 35
Disposal Service Agreement
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1321 ARTICLE 22. Nondiscrimination
1322 22.01 Nondiscrimination. In the performance of all work and services
1323 under this Agreement, CONTRACTOR shall not discriminate against any person
1324 on the basis of such person's race, sex, color, national origin, religion, marital
1325 status or sexual orientation. CONTRACTOR shall comply with all applicable
1326 local, state and federal laws and regulations regarding nondiscrimination,
1327 including those prohibiting discrimination in employment.
1328 ARTICLE 23. Contractor's Records
1329 23.01 CONTRACTOR shall maintain any and all letters, books of
1330 account, invoices, vouchers, canceled checks, and other records or documents
1331 evidencing or relating to charges for services or expenditures and disbursements
1332 charged to service recipients for a minimum period of three (3) years, or for any
1333 longer period required by law, from the date of final payment to CONTRACTOR
1334 pursuant to this Agreement.
1335 23.02 CONTRACTOR shall maintain all documents and records which
1336 demonstrate performance under this Agreement for a minimum period of three
1337 (3) years, or for any longer period required by law, from the date of termination or
1338 completion of this Agreement.
1339 23.03 Any records or documents required to be maintained pursuant to
1340 this Agreement shall be made available for inspection or audit, at any time during
1341 regular business hours, upon written request by the City Representative, the
1342 CITY Attorney, CITY Auditor, CITY Manager, or a designated representative of
1343 any of these officers. Copies of such documents shall be provided to CITY for
1344 inspection at the CITY offices when it is practical to do so. Otherwise, unless an
1345 alternative site is mutually agreed upon, the records shall be available at
1346 CONTRACTOR'S address indicated for receipt of notices in this Agreement.
1347 23.04 Where CITY has reason to believe that such records or
1348 documents may be lost or discarded due to the dissolution, disbandment or
1349 termination of CONTRACTOR'S business, CITY may, by written request or
1350 demand of any of the above named officers, require that custody of the records
1351 be given to CITY and that the records and documents be maintained in CITY
1352 Hall. Access to such records and documents shall be granted to any party
1353 authorized by CONTRACTOR, CONTRACTOR'S representatives, or
1354 CONTRACTOR'S successor-in-interest.
1355 ARTICLE 24. Quality of Performance of Contractor
1356 24.01 Determination of Damaqes. The CITY and CONTRACTOR agree,
1357 that as of the time of the execution of this Agreement, it is impractical, if not
1358 impossible, to reasonably ascertain the extent of damages which shall be
1359 incurred by CITY as a result of a breach by CONTRACTOR of its obligations
Page 36 City of Dublin
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Disposal Service Agreeme'nt
1360 under this Agreement. The factors relating to the impracticability of ascertaining
1361 damages include, but are not limited to, the fact that: (i) substantial damage
1362 results to the Collection Contractor or CITY who are denied services or denied
1363 quality or reliable service; (ii) such breaches cause inconvenience, anxiety,
1364 frustration, and deprivation of the benefits of the Agreement to the Collection
1365 Contractor or CITY for whose benefit this Agreement exists, in sUbjective ways
1366 and in varying degrees of intensity which are incapable of measurement in
1367 precise monetary terms; (iii) that exclusive services might be available at
1368 substantially lower costs than alternative services and the monetary loss resulting
1369 from denial of services or denial of quality or reliable services is impossible to
1370 calculate in precise monetary terms; and (iv) the termination of this Agreement
1371 for such breaches, and other remedies are, at best, a means of future correction
1372 and not remedies which make the Collection Contractor or CITY whole for past
1373 breaches.
1374 24.02 Liauidated Damages. The parties further acknowledge that
1375 consistent and reliable Disposal Service is of utmost importance to CITY and that
1376 CITY has considered and relied on CONTRACTOR'S representations as to its
1377 quality of service commitment in awarding the Agreement to it. The parties further
1378 recognize that some quantified standards of performance are necessary and
1379 appropriate to ensure consistent and reliable service and performance. The
1380 parties further recognize that if CONTRACTOR fails to achieve the performance
1381 standards, or fails to submit required documents in a timely manner, CITY,
1382 Collection Contractor and City's residents and businesses will suffer damages
1383 and that it is and will be impractical and extremely difficult to ascertain and
1384 determine the exact amount of damages. Therefore, without prejudice to CITY'S
1385 right to treat such non-performance as an event of default under Article 10, the
1386 parties agree that the liquidated damages amount defined in this Section
1387 represent reasonable estimates of the amount of such damages considering all
1388 of the circumstances existing on the effective date of this Agreement, including
1389 the relationship of the sums to the range of harm to CITY that reasonably could
1390 be anticipated and the anticipation that proof of actual damages would be costly
1391 or impractical. In placing their initials at the places provided, each party
1392 specifically confirms the accuracy of the statements made above and the fact that
1393 each party has had ample opportunity to consult with legal council and obtain an
1394 explanation of the liquidated damage provisions at the time that the Agreement
1395 was made.
1396
CITY Initial Here
CONTRACTOR Initial Here
1397 24.02.1 CONTRACTOR agrees to pay (as liquidated
1398 damages and not as penalty) the following amounts:
Page 37
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L1quidated Damages
.'.
Item Amount
a. Failure to turnaround Collection Contractor vehicles at the $100 per occurrence
Disposal Facility or transfer station within the 20 minute
limit
b. Failure to submit monthly report to the CITY within 30 $100 per calendar
days day in excess of 30
days
c. Failure to submit annual report by August 315t. $300 per calendar
day after
August 315t.
d. Failure to maintain minimum operation hours or days $100 per Work Day
1399 24.03 CITY may determine the occurrence of events giVing rise to
1400 liquidated damages through the observation of its own employees or
1401 representative or investigation of complaints by Collection Contractor.
1402 24.04 Notification. Prior to assessing liquidated damages, CITY shall
1403 give CONTRACTOR notice of its intention to do so. The notice will include a brief
1404 description of the incident(s) and non-performance. CITY may present evidence
1405 of non-performance in writing and through testimony of its employees and others
1406 relevant to the incident(s) and non-performance. CITY will provide
1407 CONTRACTOR with a written explanation of his or her determination on each
1408 incident(s) and non-performance prior to authorizing the assessment of liquidated
1409 damages. The decision of CITY shall be final and no further administrative
1410 remedies shall be available.
1411 24.05 Payment. CONTRACTOR shall pay any liquidated damages
1412 assessed by CITY within tem (10) Work Days after they are assessed. If they
1413 are not paid with the ten (10) day period, CITY may proceed against the
1414 performance bond required by this Agreement or order the termination of the
1415 franchise granted by this Agreement, or both.
1416 ARTICLE 25. Severability
1417 25.01 If any provision of this Agreement or the application of it to any
1418 person or situation shall to any extent be held invalid or unenforceable, the
1419 remainder of this Agreement and the application of such provisions to persons or
1420 situations other than those as to which it shall have been held invalid or
Page 38 City of Dublin
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Disposal Service Agreemenr
1421 unenforceable, shall not be affected, shall continue in full force and effect, and
1422 shall be enforced to the fullest extent permitted by law.
1423 ARTICLE 26. Right to Require Performance
1424 26.01 The failure of the CITY at any time to require performance by the
1425 CONTRACTOR of any provision hereof shall in no way affect the right of the
1426 CITY thereafter to enforce same. Nor shall waiver by the CITY of any breach of
1427 any provision hereof be taken or held to be a waiver of any succeeding breach of
1428 such provision or as a waiver of any provision itself.
1429 ARTICLE 27. All Prior Agreements Superseded
1430 27.01 This document incorporates and includes all prior negotiations,
1431 correspondence, conversations, agreements and understandings applicable to
1432 the matters contained in this Agreement and the parties agree that there are no
1433 commitments, agreements or understandings concerning the subject matter of
1434 this Agreement that are not contained in this document. Accordingly, it is agreed
1435 that no deviation from the terms of this Agreement shall be predicated upon any
1436 prior representations or agreements, whether oral or written.
1437 ARTICLE 28. Headings
1438 28.01 Headings in this document are for convenience of reference only
1439 and are not to be considered in any interpretation of this Agreement.
1440 ARTICLE 29. Exhibits
1441 29.01 Each Exhibit referred to in this Agreement forms an essential part
1442 of this Agreement. Each such Exhibit is a part of this Agreement and each is
1443 incorporated by this reference.
1444 ARTICLE 30. Effective Date
1445 30.01 This Agreement shall become effective at such time as it is
1446 properly executed by the CITY and the CONTRACTOR and the CONTRACTOR
1447 shall begin Services, as covered herein, as of July 1,2005.
Page 39
1448
1449
1450
1451
1452
1453
1454
1455
1456
1457
1458
1459
1460
1461
1462
1463
1464
1465
1466
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Disposal Service Agreement
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IN WITNESS WHEREOF, the CITY and the CONTRACTOR have executed this
Agreement on the respective date(s) below each signature.
CITY OF DUBLIN
A Municipal Corporation
CONTRACTOR
By:
By:
Name
Title:
Title: Chairman of the Board,
ATTEST:
President, Vice President
APPROVED AS TO FORM
City Attorney
By:
Name
By:
Title: Secretary, Assistant Secretary,
Financial Officer, Asst. Treasurer
Page 40 City of Dublin
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Disposal Service Agreement ;,,-,)
1471
1472
1473
1474
1475
1476
Exhibit 1
City of Dublin, CA
DISPOSAL RATE PER TON
Beginning Disposal Disposal Total
Date Of Element Government per Ton
Agreement ($/ton) Fee Disposal
Year Element Rate
July 1, 2005
July 1, 2006
July 1, 2007
July 1, 2008
July 1, 2009
July 1,2010
July 1, 2011
July 1, 2012
July 1, 2013
July 1, 2014
July 1, 2015
1477
1478
1479
1480 To
1481
be
completed
based
on
CONTRACTOR's
Proposal
Page 41
Disposal Service Agreement
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1483
1484
Page 42 City of Dublin
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Disposal Service Agreement 0
Exhibit 2
City of Dublin, CA .
Performance Bond
(To be inserted after Agreement award)
Page 43
Disposal Service Agreement
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Exhibit 3
City of Dublin, CA
GUARANTY AGREEMENT
THIS GUARANTY (the "Guaranty) is given as of the _ day of _, 2005.
THIS GUARANTY is made with reference to the following facts and
circumstances:
A. {Insert Company Name}, hereinafter ("CONTRACTOR") is a corporation
organized under the laws of the State of California, all of the issued and
outstanding stock of which is owned by , which is owned by
(Guarantor). Guarantor owns all of the issued and
outstanding stock of
B. CONTRACTOR and the CITY of Dublin ("CITY") have negotiated an
Agreement for Disposal Services dated as of , (hereinafter
"Agreement"). A copy of this Agreement is attached hereto.
C. It is a requirement of the Agreement, and a condition to the CITY entering
into the Agreement, that Guarantor guaranty CONTRACTOR's performance
of the Agreement.
D. Guarantor is providing this Guaranty to induce the CITY to enter into the
Agreement.
NOW, THEREFORE, in consideration of the foregoing, Guarantor agrees as
follows:
1. Guarantv of the Aareement. Guarantor hereby irrevocably and
unconditionally guarantees to the CITY the complete and timely performance,
satisfaction and observation by CONTRACTOR of each and every term and
condition of the Agreement, which CONTRACTOR is required to perform,
satisfy, or observe. In the event that CONTRACTOR fails to perform, satisfy
or observe any of the terms and conditions of the Agreement, Guarantor will
promptly and fully perform, satisfy or observe them in the place of
CONTRACTOR or cause them to be performed, satisfied or observed.
Guarantor hereby guarantees payment to the CITY of any damages, costs, or
expenses which might become recoverable by the CITY from CONTRACTOR
due to its breach of the Agreement.
2. Guarantor's Obliaations 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, and are not conditional upon the genuineness, validity, regularity,
or enforceability of the Agreement. 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 would be available
Page 44 City of Dublin
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Disposal Service Agreement \.J
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 Guaranty or to be released, relieved, exonerated or discharged
from its obligations under this Guaranty 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 §2819.
The Guarantor hereby waives any and all benefits and defenses under
California Civil Code §2846, 2849, and 2850 as may be amended from time
to time, 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 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. The CITY may unqualifiedly exercise in it 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 Guaranty.
The Guarantor hereby waives and agrees to waive at any future time at the
request of the CITY to the extent now or then permitted by applicable law,
any and all rights which the Guarantor may have or which at any time
hereafter may be conferred upon it, by statute, regulation or otherwise, to
avoid any of its obligations under, or to terminate, cancel, quit or surrender
this Guaranty. Without limiting the generality of the foregoing, it is agreed
that the occurrence of anyone or more of the following shall not affect the
liability of the Guarantor hereunder: (a) at any time or from time to time,
without notice the Guarantor, performance or compliance herewith is waived;
(b) any other of any provision of its Agreement indemnification with respect to
CONTRACTOR's obligations under the Agreement or any security therefore
is released or exchanged in whole or in part or otherwise dealt with; or (c) any
assignment of the Agreement is effected which does not require the CITY's
approval.
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Page 45
Disposal Service Agreement
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 Guaranty.
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 Guaranty 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 Guaranty 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 so 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 Guaranty or failure to exercise such rights shall operate as a
waiver of such rights. No notice to 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 Guaranty 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. Attorney's Fees. In addition to the amounts guaranteed under this
Guaranty, Guarantor agrees in the event of Guaranty's breach of its
obligations including to pay reasonable attorney's fees and all other
reasonable costs and expenses incurred by the CITY in enforcing this
Guaranty, or in any action or proceeding arising out of or relating to this
Guaranty, including any action instituted to determine the respective rights
and obligations of the parties hereunder.
7. Governinq Law: This Guaranty is and shall be deemed to be a Agreement
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 suit, action, and other proceeding brought by the CITY or other party to
enforce this Guaranty may be brought and concluded in the courts of the
Page 46 City of Dublin
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Disposal Service Agreement
State of California, in Alameda County or Federal District court for northern
California, which shall have exclusive jurisdiction over such suit, action, or
proceeding. Guarantor appoints the following person as its agents for service
of process in California:
With a copy by certified mail to:
8. Severabilitv. If any portion of this Guaranty is held to be invalid or
unenforceable, such invalidity will have not effect upon the remaining portions
of this Guaranty, which shall be severable and continue in full force and
effect.
9. Binding on Successors. This Guaranty 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.
10. Authoritv. Guarantor represents and warrants that it has the corporate
power and the authority to give this Guaranty, that its execution of this
Guaranty has been authorized by all necessary action under its Article of
Incorporation and By-Laws, and that the person signing this Guaranty on its
behalf has the authority to do so.
11. 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 Dublin
100 Civic Plaza
Dublin, CA 94568
with a copy to the CITY Attorney at the same address.
To the Guarantor: {Insert Title}
Page 47
Disposal Service Agreement
IN WITNESS WHEREOF, the CITY and Guarantor have executed this
Agreement as of the day and year first above written.
GUARANTOR:
CITY OF DUBLIN
A Municipal Corporation
(name of Guarantor)
By:
Name
Title
(sign here)
RECOMMENDED FOR APPROVAL:
(print name/title)
By:
Name
Title
(sign here)
(print name/title)
APPROVED AS TO FORM:
CITY Attorney
Name
CITY Attorney
Proper notarial acknowledgment of execution by Guarantor must be attached.
Chairman, president or vice-president and secretary, assistant secretary,
CFO or assistant treasurer must sign for corporations. Otherwise, the
corporation must attach a resolution certified by the secretary or assistant
secretary under corporate seal empowering the officer(s) signing to bind the
corporation.
Page 48 City of Dublin
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Disposal Service Agreement
Exhibit 4
City of Dublin, CA
RESOURCE RECOVERY PROGRAMS
(To be inserted after Agreement award)
Page 49
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Disposal Service Agreement
Exhibit 5
City of Dublin, CA
Approved Subcontractors
(To be inserted after Agreement award)
Page 50 City of Dublin
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