HomeMy WebLinkAboutItem 7.1 Attachment 11
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 W ASTEDISPOSAL SERVICES
AGREEMENT WITH WASTE MANAGEMENT OF ALAMEDA COUNTY.
WHEREAS, solid waste disposal services are currently provided to the City of Dublin under an
agreement with Waste Management of Alameda County; and
WHEREAS, the term of the current agreement expires June 30, 2005.
WHEREAS, on July 20, 2004, the City Council directed staffto release a Request for Proposals
for solid waste collection, disposal and recyclil).g 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 competitìve 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 of the City of Dublin does
hereby award the Disposal Services Agreement to Waste Management of Alameda County.; 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 6th day of December, 2004.
AYES:
NOES:
ABSENT:
ABSTAIN:
Mayor
ATTEST:
City Clerk
ATTACHMENT 11
Disposal Service Agreement
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11 DISPOSAL SERVICE AGREEMENT
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Executed Between the
. City of Dublin and
This
(Contractor)
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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...... ............................................................ 6-10
Obligations of City........ ...................... .....................................6-10
Obligations of Contractor......................................................... 6-11
Disposal Rates........................................................................ 6-22
Performance Bond................................................................... 6-25
Insurance....................................................... .......................... 6-25
Indemnification .............. .................. ......... ............................... 6-28
Force Majeure.......................................... ............................... 6-31
Default of Agreement............. .................................................. 6-32
Legal Representation............................................................... 6-34
Financial I nterest ..................................................................... 6-34
Independent Contractor........................................................... 6-35
Laws to Govern....................... ................................................6-35
Consent to J urisd iction ............................................................ 6-35
Assignment.............................................................................. 6-35
Compliance with Laws............................................................. 6-36
Waiver.. ............ ... ....... ........... .......... .................. ...................... 6-36
Prohibition Against Gifts.......................................................... 6-37
Point of Contact....................................................................... 6-37
Notices.................................................................................... 6-37
Nondiscrimination............................................ ........... ..... ........6-38
Contractor's Records...................... .........................................6-38
Quality of Performance of Contractor....................................... 6-38
Severability.............................................................................. 6-40
Right to Require Performance .................................................6-41
All Prior Agreements Superseded ... .........................................6-41
Headings........................................................ .........................6-41
Exhibits.................................................................................... 6-41
Effective Date.......................................................................... 6-41
Disposal Rate Per Ton....................................................... ......6-43
Performance Bond................................................................... 6-45
Guaranty Agreement............................................................... 6-46 .
Resource Recovery Programs................................................. 6-51
Approved Subcontractors........................................................ 6-52
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Disposal Service Agreement
69 CITY OF DUBLIN
70 This Disposal Service Agreement (Agreement) is entered into this ?? day
71 of ??, 2005, by and between the CITY of Dublin, a municipal corporation of the
72 State of California, hereinafter referred to as "CITY" and (Company), a California
73 ?? corporation, hereinafter referred to as "CONTRACTOR".
74 (Proposers should note that this Agreement will be modified
75 depending on whether or not the successful proposer includes transfer
76 operations as part of its proposal.)
77 RECITALS
78 WHEREAS; the CITY enters this Agreement with CONTRACTOR, under which
79 CONTRACTOR receives Solid Waste generated within the CITY of Dublin for
80 Disposal at the Disposal Facility.
81 WHEREAS; the City Council determines, pursuant to its police powers, that
82 obtaining a long-term commitment for Disposal of Solid Waste generated in the
83 CITY is in the best interests of the health, safety and well being of the citizens of
84 the CITY.
85 WHEREAS; the State of California, through enactment of the California
86 Integrated Waste Management Act of 1989 (California Public Resources Code
87 Section 40000, et. seq.) also recognizes the important health and safety
88 consideration to long-term planning for local government's adequate Disposal
89 needs. The California Integrated Waste Management Act of 1989 declares that
90 the responsibility for management of Solid Waste is a shared responsibility
91 between the State and local governments. The State requires local governments
92 to make adequate provision for at least fifteen (15) years of Solid Waste Disposal
93 capacity to preserve the health, safety and well-being of the public. The
94 California Integrated Waste Management Act of 1989 also authorizes local
95 governments to enter into exclusive franchise contracts to provide Solid Waste
96 handling services for the health, safety and well being of its citizens (California
97 Public Resources Code Section 40059).
98 WHEREAS; this Agreement also advances the objectives of the federal
99 government to encourage environmentally sound solid waste management
100 (Resource Conservation and Recovery Act of 1976 (RCRA), 42, U.S.C. Section
101 6941 et. seq.).
102 WHEREAS; the Disposal Facility is intended to be the principal Disposal Facility
103 for Solid Waste generated in the CITY.
104 WHEREAS; the CONTRACTOR guarantees permitted capacity at the Disposal
105 Facility for up to ten (10) years for Disposal of Solid Waste generated in the
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Disposal Service Agreement
106 CITY.
107 WHEREAS; the City Council determines that in order to provide adequate
108 Disposal capacity, it is in the best interests of the CITY to secure a commitment
109 from CONTRACTOR for the right to a portion of the Disposal Facility's current
110 Disposal capacity on the terms and subject to the conditions set out in this
111 Agreement. The intent of this provision is, in part, for the CITY to contribute to
112 preventing the substantial environmental, aesthetic, health, and safety problems
113 that may be created from increasing volumes of Solid Waste in this country.
114 WHEREAS, the CITY reviewed the CONTRACTOR's proposal to provide
115 Disposal Services.
116 WHEREAS, the CITY has entered into a Collection Service Agreement with
117 (insert Company name) to provide Collection Services within the CITY.
118 WHEREAS; the CONTRACTOR receives Disposal fees from the CITY's
119 Collection Contractor for the acceptance of Solid Waste at the Disposal Facility,
120 for the Disposal of Solid Waste at the Disposal Facility.
121 WHEREAS, the CITY determined that the CONTRACTOR has proposed to
122 provide Disposal Services at the Disposal Faèility in a manner and on terms
123 which are in the best interest of the CITY and its residents and businesses,
124 taking into account the qualifications and experience of the CONTRACTOR, and
125 the fees for providing such services.
126 WHEREAS, the CITY wishes to engage the CONTRACTOR to provide the
127 services specified within this Agreement, in accordance with the terms and
128 conditions of this Agreement.
129 WHEREAS, the. City Council of CITY declares its intention of maintaining
130 reasonable rates for the Disposal of Solid Waste and other services.
131 Now therefore, in consideration of the mutual promises, covenants, and
132 conditions contained in this Agreement and for other good and valuable
133 consideration, the CITY and CONTRACTOR agree as follows.
134 ARTICLE 1. Definitions
135 For the purpose of this Disposal Service Agreement, hereinafter referred to as
136 "Agreement", the definitions contained in this Article shall apply unless otherwise
137 specifically stated. If a word or phrase is not defined in this Article, the definition
138 of such word or phrase as contained in Chapter 5.32 of the Dublin Municipal
139 Code shall control. When not inconsistent with the context, words used in the
140 present tense include the future, words in the plural include the singular, and
141 words in the singular include the plural. Use of the masculine gender shall
142 include the feminine gender.
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Disposal Service Agreement
143 1.01 Aqreement. The written document and all amendments thereto,
144 between the CITY and the CONTRACTOR, governing the provision of Disposal
145 Services as provided herein.
146 1.02 Aqreement Year. Each twelve (12) month period from July 1st to
147 June 30th, beginning July 1,2005.
148 1.03 Alternative Daily Cover (ADC). Disposal Facility cover material,
149 other than Organic Waste and at least six (6) inches of earthen material, placed
150 on the surface of the active face of the refuse fill area at the end of each
151 operating day to control vectors, fires, odor, blowing litter, and scavenging as
152 defined in Section 20164 of the California Code of Regulations.
153 1.04 CITY. The City of Dublin, California.
154 1.05 City Representative. That person, or their designee, designated
155 by the CITY and the CONTRACTOR, governing the provision of Disposal
156 Services as provided herein.
157 1.06 Collection Contractor. The entity that has obtained from the CITY
158 an Agreement to provide ~ollection Services.
159 1.07 Construction and Demolition Debris. Used or discarded materials
160 removed from the premises during construction or renovation of a structure
161 resulting from construction, remodeling, repair or demolition operations on any
162 pavement, house, commercial building, or other structure and such other
163 materials as may be removed during the normal cleanup process of such
164 construction, remodeling, repair, or demolition operations.
165 1.08 CONTRACTOR. The entity that has obtained from the CITY an
166 Agreement to provide Disposal Services.
167 1.09 Disposal. The final disposition and management of Solid Waste as
168 provided hereunder at the Disposal Facility. Disposal does not include the use of
169 Organic Waste as alternative daily cover (ADC) so long as CITY and State
170 regulations consider ADC use of Organic Waste as Diversion under the Act.
171 1.10 Disposal Facility. The (enter Disposal Site name) owned by (enter
172 owner name) located in (enter facilitv location) or such place or places approved
173 by the CITY for the disposal, or processing as appropriate, of Solid Waste and
174 other materials as appropriate.
175 1.11 Divert (or Diversion). To prevent Recyclable Materials and other
176 materials from Disposal at the Disposal Facility or transformation facilities
177 (including facilities using incineration, pyrolysis, distillation, gasification or
178 biological conversion methods) through source reduction, reuse, Recycling and
179 composting, as provided in Section 41780 of the California Integrated Waste
180 Management Act of 1989, as such California Integrated Waste Management Act
181 may be hereafter amended or superseded.
182 1.12 Guarantor. (Insert the name of the Guarantor).
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Disposal Service Agreement
183 1.13 Guarantv Agreement. The agreement contained in Exhibit 3, which
184 is attached to and included in this Agreement, that is executed by the Guarantor
185 guaranteeing the timely and full performance of CONTRACTOR's obligations.
186 1.14 Hazardous Waste. Any material which is defined as a hazardous
187 waste under California or United States law or any regulations promulgated
188 pursuant to such law, as such law or regulations may be amended from time to
189 time.
190 1.15 Household Hazardous Waste. Any Hazardous Waste generated
191 at a residential premises.
192 1.16 Large Items. Those materials including; furniture, carpets,
193 mattresses, white goods, brown goods, clothing, tires without rims, large green
194 waste, or some combination of such items in a container the dimensions of which
195 container does not exceed four feet by four feet by two feet (4'x4'x2') and
196 weighing no more than sixty (60) pounds, which are collected by the Collection
197 Contractor through the provision of collection services.
198 1.17 Organic Waste. Green waste, food scraps and trimmings from
199 food preparation, including but not limited to; fruit and vegetable waste, grain
200 waste, dairy waste, meat and fish waste, and such items as non-recyclable or
201 contaminated paper such as pizza boxes, take-out food cartons (cardboard),
202 paper towels, waxed cardboard, wooden packaging such as crates and untreated
203 and unpainted wallboard, etc. that are separated at the source of generation for
204 inclusion in the CITY's organic collection programs.
205 1.18 Post-Closure. All activities and related costs during the Post-
206 Closure period of the Disposal Facility or portions of the Disposal Facility in
207 accordance with applicable laws and permits.
208 1.19 Recovered Material. Recyclable Materials recovered at the
209 Disposal Facility from Solid Waste.
210 1.20 Recvclable Materials. Those materials which are capable of being
211 recycled and which would otherwise be processed or disposed of as Solid Waste.
212 Recyclable Materials include those materials defined by the CITY, including
213 newsprint (including inserts); mixed paper (including magazines, catalogs,
214 envelopes, junk mail, corrugated cardboard, brown bags and paper, paperboard,
215 paper egg cartons, office ledger paper, and telephone books); glass containers;
216 aluminum beverage containers; small scrap and cast aluminum (not exceeding
217 forty (40) pounds in weight nor two (2) feet in any dimension for any single item);
218 steel including "tin" cans, aerosol cans (empty, non-toxic products) and small
219 scrap (not exceeding forty (40) pounds in weight nor two (2) feet in any
220 dimension for any single item); bimetal containers; plastic bottles (#1-7); and
221 aluminum foil and pans; and those materials added by the Collection Contractor.
222 1.21 Roll-Off Container. A metal container that is normally loaded onto
223 a motor vehicle and transported to an appropriate facility.
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Disposal Service Agreement
224 1.22 Solid Waste. Garbage and Rubbish Collected by the Collection
225 Contractor under the terms of the Collection Service Agreement with the CITY.
226 1.23 Ton (or Tonnaqe). A unit of measure for weight equivalent to two
227 thousand (2,000) standard pounds where each pound contains sixteen (16)
228 ounces.
229 1.24 Transformation Facility. A permitted facility used for the
230 incineration, pyrolysis, distillation, gasification, or biological conversion other than
231 composting of Solid Waste.
232 1.25 Un-permitted Materials. Materials that the Disposal Facility may
233 not receive under its permits.
234 1.26 Work Dav. Any day, Monday through Saturday that is not a
235 holiday as set forth in Section 4.06.2 of this Agreement.
236 ARTICLE 2. Term of Agreement
237 2.01 Initial Term. The initial term of this Agreement shall be for a ten
238 (10) year term beginning on July 1,2005 and terminating on June 30, 2015.
239 2.02 Extension of Term. On or about February 1, 2014, the CITY
240 may offer the CONTRACTOR in writing an extension of this Agreement for a total
241 of not more than ten (10) years. CONTRACTOR shall, provide written notice to
242 CITY as to whether CONTRACTOR accepts or rejects CITY'S offer within twenty
243 (20) Work Days of the date of the offer., If CONTRACTOR fails to provide such
244 notice to CITY within said twenty (20) Work Days, CITY'S offer shall be deemed
245 withdrawn and CITY shall have no obligation to extend the term of this
246 Agreement beyond June 30, 2015. If the term of this Agreement is extended, the
247 compensation provisions of Article 5 shall be subject to negotiation.
248 2.03 Nothing in this Agreement shall be construed to provide a
249 unilateral right in either CONTRACTOR or CITY for an extension of the term.
250 (Proposers should note that if the City elects to select a twenty (20) year
251 term, Sections 2.01 and 2.02 above and other sections of this Agreement
252 referring to capacity requirements will be amended accordingly.)
253 ARTICLE 3. Obligations of City
254 3.01 General. The CITY and the CONTRACTOR acknowledge that the
255 CITY will not physically deliver Solid Waste to the Disposal Facility; instead, the
256 Collection Contractor will carry out such deliveries. The parties further
257 acknowledge that the Collection Contractor will pay the Disposal fees for Solid
258 Waste it delivers to the Disposal Facility. The CITY contractually controls the
259 delivery of Solid Waste Collected in the CITY by the Collection Contractor and
260 shall direct Collection Contractor to deliver such Solid Waste to the Disposal
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Disposal Service Agreement
261 Facility). The CONTRACTOR acknowledges that the CITY has no ability to
262 direct individuals who self haul to use the Disposal
263 Facility and does not contractually control the Collection Contractor's residue
264 from its Recyclable Materials and Organic Waste processing activities. Solid
265 Waste shall not be delivered by the CITY to the Disposal Facility, except in an
266 emergency.
267 3.02. Hazardous Material ProQrams. CITY shall contractually require its
268 Collection Contractor to develop and implement a load inspection program to
269 detect and discover Hazardous Material and Household Hazardous Waste and
270 shall prohibit Collection Contractor from knowingly delivering such material to the
271 Disposal Facility. CITY shall encourage its residents to participate in the
272 Alameda County Household Hazardous Waste Program that provides residents
273 with a place for safe Recycling, treatment, and/or disposition of Household
274 Hazardous Waste. The parties recognize, however, that CITY cannot assure
275 CONTRACTOR that such programs will prevent any amount of Hazardous Waste
276 or Household Hazardous Waste from being deliverep to the Disposal Facility.
277 3.03. No Limit on Waste Prevention. CITY, Collection Contractor, or other
278 CITY agents will continue to develop and participate in waste prevention
279 activities, including source reduction and' resource recovery activities, which may
280 reduce the amount of Solid Waste delivered to the Disposal Facility. Nothing in
281 this Agreement shall restrict CITY, Collection Contractor, or other CITY agents
282 from any such activities.
283 ARTICLE 4. Obligations of Contractor
284 4.01 General. During the term of this Agreement, CONTRACTOR shall
285 receive, accept and safely and lawfully Dispose of all Solid Waste generated in
286 CITY and delivered to the Disposal Facility by the Collection Contractor.
287 CONTRACTOR shall perform its obligations with respect to Disposal Services
288 hereunder in accordance with sound management and operations practice,
289 regulatory and permit requirements, applicable law, the provisions hereof, and
290 covenants, conditions, and restrictions pertaining to the Disposal of Solid Waste.
291 4.02 Facilitv Permits.
292 4.02.1 ExistinQ Permits. CONTRACTOR shall obtain, at its own
293 expense, all permits and licenses required by law or ordinance and maintain
294 same in full force and effect throughout the term of this Agreement.
295 CONTRACTOR shall provide proof of such permits, licenses or approvals and
296 shall demonstrate compliance with the terms and conditions of such permits,
297 licenses and approvals upon the request of the City Representative.
298 CONTRACTOR shall keep the CITY fully informed, in a timely manner, of its
299 progress in securing permits, or renewals of permits, which occur during the term
300 of this Agreement as they pertain to the Disposal operations at the Disposal
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Disposal Service Agreement
301 Facility operations in accordance with this Agreement and the costs related
302 thereto.
303 CONTRACTOR shall provide the CITY with copies of any applications that the
304 CONTRACTOR submits to any regulatory body in connection with the issuance
305 of new permits, or the extension, revision or modification of existing permits with
306 respect to the Disposal Facility. CONTRACTOR shall provide such copies to the
307 CITY at the same time the CONTRACTOR submits the applications to the
308 regulatory body.
309 4.02.2 Additional Disposal Facilitv Permits. To assist the CITY in
310 complying with the California Integrated Waste Management Act of 1989,
311 CONTRACTOR shall endeavor to secure additional permits necessary to make
312 available, at all times, ten (10) years of Disposal capacity at the Disposal Facility
313 for Solid Waste generated in CITY in accordance with Section 4.13 of this
314 Agreement, and sound Disposal Facility engineering and operating practices.
315 Should CONTRACTOR reasonably conclude that it is no longer feasible to make
316 available ten (10) years of Disposal capacity, beyond June 30, 2015, and
317 maintain competitive Disposal rates, CONTRACTOR shall notify the CITY of its
318 determination and provide all studies, information and data which support
319 CONTRACTOR's conclusion to the CITY. CITY shall review such support and,
320 CONTRACTOR shall promptly meet with the CITY to review the same and,
321 thereupon, CONTRACTOR shall be relieved of its obligation in this regard.
322 Nothing in this Agreement requires the CITY to issue a permit for, or take
323 any other land use action related to CONTRACTOR's Facility. The CITY retains
324 its right and duty to act on any permit applications or environmental review
325 documents submitted to it in connection with such expansion as it considers
326 appropriate under Applicable Laws and policies, independent of this Agreement.
327 4.02.3 CONTRACTOR Compliance with Permits. CONTRACTOR
328 shall comply with all permits, terms, and conditions of such permits as they may
329 be amended or superseded (including any mitigation measures) related to the
330 operation and maintenance of the Disposal Facility. CONTRACTOR shall be
331 solely responsible for paying any fines or penalties imposed by governmental
332 agencies for CONTRACTOR's noncompliance with permit terms or
333 CONTRACTOR's failure to obtain necessary permits for the Disposal Facility.
334 4.03 Disposal Facility Operations. CONTRACTOR, at its cost and
335 expense, shall at all times operate the Disposal Facility in the manner required by
336 applicable law and permits. CONTRACTOR's responsibilities for the Disposal
337 Facility shall include, but are not limited to, the following:
338 4.03.1 Operation, management, and maintenance of the refuse fill
339 areas including, but not limited, to the receipt, placement, burying, and
340 compaction of Solid Waste in the refuse fill areas; stockpiling, placement and
341 compaction (if necessary) of daily cover, intermediate cover, and final cover;
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Disposal Service Agreement
342 management of fill operations with regard to fill sequencing, side slopes
343 configuration, and working face location and configuration;
344 4.03.2 Provision, operation, and maintenance of all equipment,
345 rolling stock, and supplies necessary for operations, Closure, Post..Closure, and
346 environmental monitoring;
347 4.03.3 Operation, maintenance, and management of leachate and
348 Disposal Facility gas management systems, groundwater monitoring and
349 ' management systems, storm water drainage and control systems, treatment
350 facilities, buildings, on-site roadways, utilities, and any other required facility
351 elements.
352 4.04 Davs and Hours of Operation. CONTRACTOR shall operate the
353 Disposal Facility for the receipt of Solid Waste in accordance with the days and
354 hours of operation as set forth in all permits. At a minimum, CONTRACTOR shall
355 accept Solid Waste delivered by the Collection Contractor Monday through
356 Friday from 6:00 a.m. to 5:00 p.m. and Saturday from 6:00 a.m. to 4:30 p.m.
357 CONTRACTOR may not reduce the hours or total number of hours for
358 acceptance of Solid Waste delivered by the Collection Contractor required by the
359 Agreement without the concurrence of the CITY and Collection Contractor except
360 such changes required by a change in a Disposal Facility permit.
361 4.04.1 EmerQencv Services. In the event of a tornado, major
362 storm, earthquake, fire, natural disaster, or other such event, the City
363 Representative may require the CONTRACTOR to extend the hours of operation
364 in order to accept materials from the CITY'S Collection Contractor. However, the
365 CONTRACTOR shall not be required to extend the hours of operation to the
366 extend that such extension would cause CONTRACTOR to violate its permit(s).
367 4.04.2 Holidavs. CONTRACTOR shall not be required to accept
368 Solid Waste from the Collection Contractor on Thanksgiving Day, Christmas Day
369 and New Years Day.
370 4.05 Traffic Control and Direction. CONTRACTOR shall be responsible
371 for the construction and maintenance of all roads required at the Facility for
372 purposes of transporting Solid Waste to the actual point of unloading by
373 Collection Contractor. CONTRACTOR shall provide necessary signs and
374 personnel to assist drivers to proper unloading areas. The CONTRACTOR shall
375 provide and maintain signs for the convenience of vehicles using the Disposal
376 Facility and to facilitate safe and efficient traffic flow at the Disposal Facility.
377 4.06 CONTRACTOR shall operate the Disposal Facility so that all
378 Collection Contractor collection vehicles are processed, unloaded, and exited
379 from the facility no more than twenty (20) minutes after arriving at the scale
380 house and mounting the scale to weigh'-in.
381 4.07 Scale Operation
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382 4.07.1 Weiqhinq Standards and Procedures. The scale house(s)
383 at the facility's entrance shall serve as the location for weighing vehicles and
384 charging Disposal fees as provided herein. CONTRACTOR scale house
385 personnel shall be responsible for inspecting the Solid Waste delivered to the
386 Disposal Facility. The Collection Contractor vehicles shall be charged Disposal
387 fees based on the Tonnage of Solid Waste accepted by the Disposal Facility and
388 the applicable disposal rates as set forth in Exhibit 1 which is attached to and
389 included in this Agreement. CONTRACTOR shall weigh and record inbound
390 weights of all Collection Contractor vehicles when the vehicles arrive at the
391 Disposal Facility. In addition, CONTRACTOR shall weigh and record outbound
392 weights of such vehicles for which CONTRACTOR does not maintain tare weight
393 information. CONTRACTOR shall provide each driver a receipt showing the
394 date, time, and quantity of Solid Waste delivered to the Disposal Facility and the
395 Disposal fee charged for such material. The scale house computer system shall
396 compile information into various reports in which a typical transaction includes
397 documentation of the Disposal fee charged, weight of vehicle, vehicle
398 identification number, customer account, material type, route number, vehicle
399 type, and origin of Solid Waste. In addition, each transaction shall include
400 documentation noting if the vehicle was directed to material recovery operations
401 at the Disposal Facility.
402 4.07.2 Maintenance and Operation. CONTRACTOR shall
403 maintain, in accordance with applicable law, at least two State certified' motor
404 vehicle scales at the Disposal Facility. All scales shall be linked to a centralized
405 computer recording and billing system which shall be compatible with
406 CONTRACTOR's systems and account for tracking all incoming and outgoing
407 materials. CONTRACTOR shall operate such scales during facility receiving
408 hours, established in Section 4.06, provided that CONTRACTOR shall provide
409 CITY with access to weighing information at all times and copies thereof on the
410 next Working Day on which the scale house is open.
411 4.07.3 Vehicle Tare Weiqhts. Between the time this Agreement is
412 executed and July 1, 2005, CONTRACTOR shall weigh and determine the
413 unloaded ("tare") weight of each Collection Contractor vehicle to be used to
414 deliver Solid Waste to the Disposal Facility. Before July 1, 2005, CONTRACTOR
415 shall provide the CITY and Collection Contractor with a report listing vehicle tare
416 weight information, which shall include, at a minimum, hauler name, tare weight,
417 vehicle identification number, and date tare weight was determined.
418 CONTRACTOR shall, at least every two (2) years, reweigh and revise tare
419 weights for all Collection Contractor vehicles used to deliver Solid Waste to the
420 Disposal Facility.
421 4.07.3.1 When new vehicles are placed into service and
422 immediately after any significant repairs to vehicles by the Collection Contractor,
423 the CONTRACTOR shall promptly weigh such vehicles and determine the tare
424 weight of each vehicle. Within ten (10) Work Days of weighing, CONTRACTOR
425 shall provide the CITY and Collection Contractor with a report listing vehicle tare
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Disposal Service Agreement
426 weight information. CONTRACTOR, CITY, and Collection Contractor shall have
427 the right to request re-weighing of vehicles up to two (2) times per year, unless
428 there is reasonable suspicion or evidence that tare weights are not accurate, in
429 which case, tare weights may be updated more frequently to ensure accuracy.
430 4.07.4 Substitute Scales. To the extent practicable, if either scale
431 is inoperable, being tested or otherwise unavailable, all vehicles shall be weighed
432 on the remaining operating scale. To the extent that both the scales are
433 inoperable, being tested, or otherwise unavailable, CONTRACTOR shall
434 substitute portable scales until the permanent scales are replaced or repaired.
435 CONTRACTOR shall arrange for any inoperable scale to be repaired as soon as
436 possible and, in any event, within three (3) Work Days of the failure of the
437 permanent scale. CONTRACTOR shall arrange to immediately obtain a
438 temporary substitute scale(s) should the repair of the permanent scale require
439 more than twelve (12) hours.
440 4.07.5 Estimates. Pending substitution of portable scales or
441 during power outages, CONTRACTOR shall estimate the Tonnage of Solid
442 Waste delivered to the Disposal Facility by utilizing the arithmetic average of that
443 vehicle's recorded Tons of Solid Waste delivered on its preceding three (3)
444 deliveries, on the same day of the week, to the Disposal Facility, with the
445 exception that the Tonnage estimated in Roll-off Containers shall be made by
446 multiplying the estimated number of cubic yards of Solid Waste delivered per
447 Roll-off Container by 0.25 Tons per cubic yard for mixed Solid Waste and 1.0
448 Tons per cubic yard for loads of dirt, rubble, or rock material.
449 4.07.5.1 All information required by Sections 4.09.1 and
450 4.09.7 shall continue to be recorded for each delivery of Solid Waste to the
451 Disposal Facility during any period the scales are out of service.
452 4.07.6 4.11.6 TestinQ. CONTRACTOR shall test and calibrate all
453 scales in accordance with applicable law, but at least every twelve (12) months.
454 Upon CITY request, CONTRACTOR shall provide the CITY with copies of test
455 results. CONTRACTOR shall further test and calibrate any or all scales upon
456 written request therefore by the CITY, within three (3) Work Days of such request.
457 If such test results indicate that the scale or scales complied with Applicable Law,
458 the CITY shall reimburse CONTRACTOR the direct costs of such tests. If such
459 test results indicate that the scale or scales did not comply with applicable law,
460 CONTRACTOR shall bear the costs thereof and CONTRACTOR shall at its own
461 cost adjust and correct, consistent with the results of such test, all weight
462 measurements recorded and Disposal fees calculated, charged and paid, as the
463 case may be, from the date of such request.
464 4.07.7 Records. CONTRACTOR shall maintain scale records that
465 provide information such as, but not limited to, date of receipt, inbound and
466 outbound time, inbound and outbound weights of vehicles, vehicle identification
467 number, jurisdiction of origin of materials received, type of material, hauler
Page6-15
Disposal Service Agreement
468 identification and/or classification, type, weight, destination of material (i.e., to
469 material recovery operations), and destination of outbound materials.
470 4.08 Personnel. The CONTRACTOR shall engage and train qualified
471 and competent employees, including managerial, supervisory, clerical,
472 maintenance, and operating personnel, in numbers necessary and sufficient for
473 operation of the Disposal Facility and to perform CONTRACTOR's obligations
474 hereunder.
475 4.09 Ownership of Materials. Once Solid Waste is delivered to the
476 Disposal Facility by Collection Contractor, ownership and possession of such
477 material shall transfer directly from the Collection Contractor to CONTRACTOR.
478 CONTRACTOR is hereby granted the right to retain, Recycle, process, Dispose
479 of and otherwise use such materials, or any part thereof, in any lawful fashion or
480 for any lawful purpose desired by CONTRACTOR and such right shall include
481 CONTRACTOR's right to retain any benefit resulting from its right to retain,
482 Recycle, process, Dispose of, or reuse the Solid Waste.
483 4.10 Reiection of Un-permitted Material
484 4.10.1 Inspection. CONTRACTOR shall use standard industry
485 practices to endeavor to detect and discover Un-permitted Material and shall not
486 knowingly accept Un-permitted Material at the Disposal Facility. CONTRACTOR
487 shall comply with the inspection procedures contained in its permit requirements.
488 CONTRACTOR shall promptly modify such procedure to reflect any changes in
489 permits or applicable law.
490 4.10.2 Un-permitted Materials Handlinq and Costs.
491 CONTRACTOR shall arrange for or provide transportation and delivery to an
492 appropriately permitted facility of all Un-permitted Materials that are encountered
493 and which cannot be accepted at the Disposal Facility. CONTRACTOR is solely
494 responsible for handling and arranging transport and disposition of any Un-
495 permitted Material that is contained in or with Solid Waste accepted by the
496 CONTRACTOR, and for all related costs.
497 4.10.3 Remedies for Rejected Materials. If CONTRACTOR
498 rejects material delivered to the Disposal Facility by Collection Contractor,
499 because it contains Un-permitted Material including Hazardous Materials,
500 CONTRACTOR shall direct Collection Contractor to remove and dispose of it in a
501 safe and lawful manner, at the sole expense of the Collection Contractor. In the
502 event that Un-permitted Material is delivered to the Disposal Facility,
503 CONTRACTOR shall be entitled to pursue whatever remedies, if any, it may have
504 against Collection Contractor's bringing such Un-permitted Material to the
505 Facilities, provided that in no case shall the CITY be considered to have brought
506 such Un-permitted Material to the Facilities. In the event the Collection
507 Contractor delivers Un-permitted Materials on a frequent or continuous basis and
508 the Collection Contractor refuses to provide for the proper handling and
509 disposition of such Un-permitted Material, the CONTRACTOR shall provide
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Disposal Service Agreement
510 written Notice to the CITY of such refusal by Collection Contractor. Nothing
511 herein shall excuse the CONTRACTOR from the responsibility of handling such
512 Un-permitted Materials in a lawful manner and to arrange for the proper
513 disposition of such materials.
514 4.10.4 Notification. In the event CONTRACTOR rejects delivered
515 materials CONTRACTOR shall immediately notify the CITY verbally and then
516 follow such verbal notification with written notice. The written notice will identify:
517 the date and time of occurrence; material type; material weight or volume;
518 characterization of material; and the CONTRACTOR's reason for rejection of the
519 delivered material.
520 4.13 Reservation of Disposal Capacity. CONTRACTOR shall guarantee
521 its ability to accept and Dispose of all Solid Waste delivered to the Disposal
522 Facility by the Collection Contractor for ten (10) years from July 1, 2005.
523 CONTRACTOR shall be responsible for reasonably estimating the quantity of
524 capacity that it shall be required to provide to Dispose of all Solid Waste
525 generated in the CITY over the term of the Agreement. The CITY makes no
526 representations, and is under no obligation, regarding the quantity or composition
527 of the Solid Waste delivered to the Disposal Facility by the Collection Contractor.
528 4.11 Alternate Disposal Facilitv
529 4.11.1 If CONTRACTOR becomes unable to accept Solid Waste
530 generated in CITY at the Disposal Facility because it did not use reasonable
531 business efforts in resisting changes, alterations and amendments to permits, or
532 due to reasons within its control and which could have been avoided by the
533 exercise of due care, then CONTRACTOR shall (i) accept and Dispose of such
534 Solid Waste at a transfer station or other Disposal Facility owned by it (or by
535 another company which is owned and controlled, directly or indirectly, by
536 CONTRACTOR), at the then-current Disposal Rates in effect under this
537 Agreement, and shall pay any additional transportation costs incurred by
538 Collection Contractor in delivering the Solid Waste to the transfer station or any
539 additional costs incurred by CONTRACTOR in transferring and transporting Solid
540 Waste to the other disposal facility, or (ii) shall arrange for all Solid Waste to be
541 Disposed of at a transfer station or other disposal facility not owned by it or an
542 affiliated company, in which case CONTRACTOR shall pay any difference in the
543 fees charged at such transfer station or disposal facility plus any additional
544 transportation costs incurred in delivering Solid Waste to the transfer station or
545 disposal facility, and the then-current Disposal Rates in effect under this
546 Agreement.
547 4.11.2 If CONTRACTOR, despite using reasonable business
548 efforts to resist changes, alterations and amendments to permits under Section
549 4.02, becomes unable to accept and Dispose of Solid Waste generated in CITY
550 at the Disposal Facility, or if CONTRACTOR becomes unable to accept and
551 Dispose of Solid Waste at the Disposal Facility as the result of causes which are
552 beyond its control including, but not limited to, an "act of nature" (including, but
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Disposal Service Agreement
553 not limited to, flood, earthquake, or other catastrophic events), war, insurrection,
554 riot, or other similar causes which are not the fault of the CONTRACTOR and
555 which could not have been prevented by the exercise of due care, then
556 CONTRACTOR shall, to the extent it is legally able to do so, offer to accept and
557 Dispose of Solid Waste at another disposal facility or a transfer station owned by
558 it (or by another company which is owned and controlled, directly or indirectly, by
559 CONTRACTOR), at the then-current Disposal Rates in effect under this
560 Agreement. CONTRACTOR has no obligation, however, to pay for additional
561 transportation costs incurred by the Collection Contractor. CITY has no
562 obligation to accept such offer and, if CITY rejects such an offer, CITY may
563 terminate this Agreement by giving written notice in the manner as set forth in
564 Section 21 of this Agreement. Such termination shall be effective thirty (30)
565 calendar days after CITY has given notice.
566 4.12 Monthlv Report. Beginning on July 1, 2005, and monthly during
567 the term of this Agreement, CONTRACTOR shall provide a monthly report by the
568 end of the month following the reporting month. Therefore, the first report will be
569 due no later than August 31, 2005 for the reporting month of July 2005. The
570 report shall include the total Tonnage of Solid Waste generated in the CITY that
571 was Diverted, Transferred, and Disposed at the Disposal Facility and shall also
572 list the Tonnage information separately for each of the following categories:
573 Collection Contractor residential Solid Waste, Collection Contractor commercial
574 Solid Waste, Large Items from Collection Contractor Large Item Collection
575 program, other hauling companies (listed separately) hauling materials generated
576 in the CITY delivered in Drop Boxes or small vehicles as required by Section 4.23
577 of this Agreement and self-hauled Solid Waste. In addition, the monthly report
578 shall include the following
579 4.12.1 Tonnage information by material type for material accepted
580 at the Disposal Facility.
581 4.12.2 Number and nature of rejected loads during the month;
582 4.12.3 Number and nature of occurrences in which
583 CONTRACTOR identified Hazardous Waste inadvertently accepted; and,
584 4.12.4 Number and nature of any notice of violations.
585 4.13 Annual Report of Disposal Facilitv Activitv. Beginning September
586 1, 2006 and annually thereafter during the term of this Agreement,
587 CONTRACTOR shall submit an annual report of Disposal Facility activity to the
588 CITY. This report shall contain all items required by this Section which, at a
589 minimum, include the following: an analysis of the changes to the airspace of the
590 Disposal Facility since the previous report; an analysis of the remaining capacity
591 of the Disposal Facility; a projection of the remaining life of the Disposal Facility;
592 and, a list of parties that CONTRACTOR has guaranteed capacity to through
593 written agreements, the annual estimated Tonnage to be Disposed by each party,
594 and the term of the CONTRACTOR's capacity commitment. In the event
Page 6 - 18 City of Dublin
Disposal Service Agreement
595 CONTRACTOR has agreements with private companies, the name of the party
596 may be withheld from the list; however, the annual tonnage estimate and term of
597 the commitment must be provided. Each analysis shall be based on data
598 generated by an aerial topographic survey of the Disposal Facility. At a
599 minimum, the airspace and remaining capacity of the Disposal Facility shall be
600 expressed in the following or similar Terms: gross remaining airspace (cubic
601 yards and estimated Tons of remaining airspace that includes final cover, refuse,
602 daily cover and liner); effective remaining airspace (cubic yards and estimated
603 Tons of remaining airspace available for refuse and daily cover); and net
604 remaining airspace (cubic yards and estimated Tons of remaining airspace
605 available for refuse only). The annual report of Disposal Facility activity
606 submitted to the CITY shall contain the date of the aerial survey flight; the
607 methodology employed in the analyses; and the calculations performed to
608 determine the gross remaining airspace, the effective remaining airspace, and
609 net remaining airspace.
610 4.13.1 In addition, CONTRACTOR shall also describe any
611 advances in environmental mitigation measures, any advanced technologies
612 utilized in the course of business, and any pilot programs which test advanced
613 technologies; list any violations received during the previous year; and provide
614 proof that CONTRACTOR paid all governmental fees and taxes in accordance
615 with Sections 5.05 and 5.06.
616 4.13.2 The annual report shall include information on amounts of
617 Solid Waste delivered to the Disposal Facility and Disposed, Recycled or
618 Diverted and other information which the CITY may request in order to meet its
619 obligations under the California Waste Management Act of 1989.
620 4.14 Closure and Post-Closure of Disposal Facilitv. CONTRACTOR
621 shall safely manage the Disposal Facility in full regulatory compliance not only
622 during normal Disposal Facility operating period but also during the Disposal
623 Facility Closure and Post-Closure periods. CONTRACTOR acknowledges that it
624 is solely responsible for: (i) the appropriate Closure and Post-Closure activities of
625 the Disposal Facility; and, (ii) the establishment and funding of any reserve funds
626 required by applicable law for the purposes of providing funds for the payment of
627 costs of Closure of the Disposal Facility (or any cell within the Disposal Facility)
628 or Post-Closure activities relating to the Disposal Facility. Without limitation, in no
629 event shall the CITY or Collection Contractor be responsible for paying any
630 deficiencies in such required reserves. In addition, the CITY or Collection
631 Contractor shall have no responsibility to make any payments in the event that
632 actual Closure and Post-Closure costs relating to the Disposal Facility exceed
633 the amounts upon which the CONTRACTOR's Disposal rate was based on and
634 the amount reserved by the CONTRACTOR for such purposes.
635 4.15 RiQht to Enter Facilitv and Observe Operations. The CITY and its
636 designated representative(s) shall have the right to enter, observe and inspect
637 the Facility at any time during operations; conduct studies or surveys of the
Page6-19
Disposal Service Agreement
638 Facility; meet with the Facility manager(s) or their representatives at any time;
639 and meet with other employees upon request, which request shall not be
640 unreasonably denied by CONTRACTOR, provided that the CITY and its
641 representatives comply with CONTRACTOR's reasonable safety and security
642 rules and shall not interfere with the work of the CONTRACTOR or its
643 subcontractors. However, in the event the Facility manager is not on the
644 premises at the time the CITY or its designated representative(s) visit the
645 CONTRACTOR's facility, the CITY or its designated representative shall not be
646 able to inspect some or all areas of the facility and CONTRACTOR shall not be in
647 breach of this Agreement. In such case, the CITY shall give notice requesting
648 access to the site and CONTRACTOR shall arrange for CITY or its designated
649 representative(s) to conduct the on-site inspection within twenty-four (24) hours
650 of such notice. Upon CITY request, CONTRACTOR shall make personnel
651 available to accompany CITY employees on inspections. CONTRACTOR shall
652 ensure that its employees cooperate with the CITY and respond to the CITY's
653 reasonable inquiries.
654 4.16 Provision of EmerQencv Services. CONTRACTOR shall provide
655 emergency services, at the CITY's request, in the event of major accidents,
656 disruptions, or natural calamities. CONTRACTOR shall be capable of providing
657 emergency services within twenty-four (24) hours of notification by the CITY, or
658 as soon thereafter as is reasonably practical, in light of the circumstances.
659 Emergency services, which exceed the CONTRACTOR's obligations under this
660 Agreement including, but not limited to, obligations related to facility receiving
661 hours, the types and quantities of permitted materials accepted at the Transfer
662 Station or Disposal Facility, the nature of Resource Recovery activities, and
663 Transfer requirements, shall be compensated through a modification to the scope
664 of services using procedures set forth herein.
665 4.17 Modifications to Scope of Service.
666 4.17.1 General. CITY may direct CONTRACTOR to perform
667 additional services (including, but not limited to, performance of additional
668 resource recovery activities) or modify the manner in which CONTRACTOR
669 performs existing services (including, but not limited to, the modifications to or
670 elimination of services). CONTRACTOR's Disposal Rates shall be increased or
671 decreased, as appropriate, to give effect to these adjustments.
672 4.17.2 Proposal for Modification of Services. Within sixty (60)
673 calendar days of CITY req'uest for a proposal, CONTRACTOR shall present its
674 proposal to modify existing services. At a minimum, the proposal shall contain a
675 completed description of the following:
676 4.17.2.1 Methodology to be employed (changes to equipment,
677 manpower, staffing, etc.).
678 4.17.2.2 Equipment to be utilized (equipment number, types,
679 capacity, age, etc.)
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Disposal Service Agreement
680 4.17.2.3 Labor requirements (changes in number of
681 employees by classification).
682 4.17.2.4 Provision for program publicity, education, and
683 marketing (if appropriate).
684 4.17.2.5 Estimate of the impact of the service modification
685 (increased Diversion tonnage, reduced costs, increased public service, etc.).
686 4.17.2.6 A cost proposal detailing the additional expenses or
687 savings.
688 4.17.3 CITY's Review. Within ninety (90) calendar days of
689 receiving the CONTRACTOR's proposal, the CITY shall review and comment on,
690 and approve or disapprove of the modification to the scope of services. The
691 CITY and CONTRACTOR may mutually agree to extend the time period for
692 review due to the complexity of the scope of service modification under
693 consideration, the time needed for the review or approval, or for other reasonable
694 reasons.
695 4.17.3.1 The CITY may request the assistance of an
696 independent third party to review the proposal. The reasonable costs of such
697 review shall be paid by the CONTRACTOR if the modification to the scope of
698 services is initiated by the CONTRACTOR or, by the CITY if the modification to
699 the scope of services is initiated by the CITY. CONTRACTOR's refusal to pay
700 the reasonable cost of review of a CONTRACTOR-initiated proposal shall be
701 grounds for CITY rejection of such proposal.
702 4.17.3.2 The CITY may request copies of, or access to, the
703 CONTRACTOR's operating and business records reasonably required to verify
704 the reasonableness and accuracy of the impacts associated with a modification
705 to the scope of services. CONTRACTOR shall fully cooperate with the CITY's
706 request and provide CITY and its agent(s) copies of or access to
707 CONTRACTOR's records.
708 4.17.4 Approval of Modification to Scope of Services. Upon CITY
709 approval or determination, CITY will issue a notice approving the modification to
710 the scope of service and documenting any change to the CONTRACTOR's
711 Disposal Rates, and approved change to CONTRACTOR's obligations
712 hereunder. The parties shall prepare a written amendment to the Agreement
713 documenting any and all changes resulting from the modification to the scope of
714 services. No adjustment in CONTRACTOR's Disposal rate, change in
715 CONTRACTOR's obligations, or change in scope of services shall become
716 effective absent such CITY approval or determination.
717 4.18 Diversion Activities. CONTRACTOR shall use reasonable efforts
718 to operate the Disposal Facility to segregate Recyclable Materials.
719 CONTRACTOR shall document the quantity of Recyclable Materials removed
720 from the Solid Waste delivered by the Collection Contractor for recycling and the
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Page 6 - 21
Disposal Service Agreement
721 quantity of such material Diverted from Disposal. CONTRACTOR shall calculate
722 the quantity of Recyclable Materials Diverted from Disposal on a monthly basis
723 using a methodology acceptable to the CITY and shall report thereon in
724 accordance with reporting requirements in Sections 4.14 and 4.15.
725 CONTRACTOR shall provide resource recovery programs as set forth in Exhibit
726 4 which is attached to and included in this Agreement to divert Recyclable
727 Materials from Disposal.
728 4.19 Recovered Materials Revenues. CONTRACTOR shall retain all
729 revenues generated from the sale of Recovered Materials.
730 4.20 Other Services. CONTRACTOR shall provide additional services
731 not otherwise contemplated under this Agreement at a price to be mutually
732 agreed upon between the City Representative and the CONTRACTOR. In the
733 event the CONTRACTOR and ·the City Representative cannot agree on terms,
734 conditions and price of such service or program City shall have the right to
735 procure the service of other vendors or contractors to provide the requested
736 service or program at a location other than the CONTRACTOR's Disposal
737 Facility.
738 4.21 Non-Permitted Companies. CONTRACTOR recognizes that
739 Construction and Demolition Debris generated in the CITY may only be Collected
740 by a company that has obtained a non-exclusive Construction and Demolition
741 Debris franchise from the CITY. CONTRACTOR shall record loads containing
742 Construction and Demolition Debris identified by the company delivering the
743 materials as being generated in the CITY. As part of the monthly report required
744 in Section 4.14 above, CONTRACTOR shall provide a listing of all Construction
745 and Demolition Debris loads, including the weights of each load and name of
746 company delivering each load. CONTRACTOR shall also post, on a sign in clear
747 view of all customers, the CITY's requirement that a non-exclusive franchise is
748 required for companies delivering Construction and Demolition Debris generated
749 in the CITY in Drop Boxes to the Disposal Facility. For cash customers hauling
750 Construction and Demolition Debris, CONTRACTOR shall provide a monthly
751 report identifying the Tonnage and delivery date of each load.
752 ARTICLE 5. Disposal Rates
753 5.01 Disposal Rate Elements. The Disposal rate shall be comprised of
754 two (2) elements: 1) a Disposal element, and 2) a Disposal government fee
755 element.
756 5.02 Adjustments to the Disposal Element. Except as provided in this
757 Section, the Disposal element shall not be adjusted over the term of this
758 Agreement. In the event of an adjustment to the Disposal element in accordance
759 with this Section, CONTRACTOR shall provide CITY or its agent access to the
760 Transfer Station and Disposal Facility and its financial and operations records in
761 accordance with Sections 4.21 and 8.14. The CITY will adjust the Disposal
Page 6 - 22 City of Dublin
Disposal Service Agreement
762 element based on the results of the review conducted by the CITY or its agent.
763 The adjustment (whether an increase or decrease in the otherwise applicable
764 Disposal element) will be entirely prospective in effect and operation.
765 5.02.1 ReQulatorv Costs. The Disposal element established
766 under Section 5.01 includes all costs associated with complying with all federal
767 and State statutes, and City and County ordinances concerning public health,
768 safety and environmental issues and all laws, regulations, rules, orders,
769 judgments, degrees, permits, approvals, or other requirement of any
770 governmental agency having jurisdiction over the disposition of Solid Waste,
771 Recyclable Materials or Organic Waste that are in force on the effective date of
772 this Agreement including any current provisions which become effective on or
773 which require compliance by a date after the effective date of this Agreement.
774 5.02.2 ChanQes in ReQulatorv Costs. If CONTRACTOR or CITY
775 believes that complying with laws or governmental regulations enacted after the
776 effective date of this Agreement will increase or decrease the costs of operating
777 the facility, then CONTRACTOR or CITY may request an adjustment to the
778 Disposal element by submitting to the other party its proposed method for
779 complying with the new or modified regulations, the estimated cost of
780 compliance, and the associated per-Ton adjustment necessary to the Disposal
781 element. As part of this process, CONTRACTOR shall provide CITY with access
782 to its operational and financial records in aecordance with the requirements of
783 Article 23.
784 5.02.3 CONTRACTOR shall then the proposed method of
785 compliance to the appropriate regulatory agency(ies). If the agency(ies)
786 approves that method without conditions, the Disposal element may be adjusted.
787 5.02.4 If the requesting agency(ies) do not approve the
788 methodology, CONTRACTOR will implement the method of compliance which is
789 approved by the regulatory agency(ies) and resubmit its estimate of cost impacts
790 to Facility operations and proposed Disposal element adjustment for CITY's
791 review and written approval. CITY and CONTRACTOR shall meet and confer in
792 good faith to reach agreement on the cost of compliance and the corresponding
793 adjustment to the Disposal element.
794 5.03 Government Fees. The Disposal rate includes the following
795 government fee elements: (to be completed after Contractor selection)
796
797
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Disposal Service Agreement
(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
$
(g) Conditional Use Permit Fee
$
(h) County Planning Fee
$
$
(i) Other Fee
Total Government Fee Elements
$
798 5.03.1 ChanQes in Government Fee Elements. When
799 government fees are adjusted or new government fees are imposed by
800 regulating agency(ies), the CITY and CONTRACTOR shall meet and agree upon
801 the calculated adjustment to the Disposal rate and the date on which adjusted
802 Disposal rate shall become effective.
803 5.04 Payment of Governmental Fees. CONTRACTOR shall pay, when
804 and as due, any and all governmental fees to the appropriate federal, State,
805 regional, or local governmental entities which levied the fees, and shall provide
806 CITY with proof of such payments promptly upon request.
807 5.05 Payment of Taxes. CONTRACTOR shall pay, when and as due,
808 any and all governmental assessments, or taxes incurred as a result of
809 CONTRACTOR's provision of services under this Agreement, including estimated
810 taxes, and shall provide CITY with proof of such payments promptly upon
811 request.
Page 6 - 24 City of Dublin
Disposal Service Agreement
812 5.06 ACWMA Fees. Regardless of the location of the Facility, the
813 CONTRACTOR shall be required by the CITY to include the following
814 governmental fees in the Disposal government fee element: Alameda County
815 "Measure D" fee, the Alameda County Waste Management Authority (ACWMA)
816 facilities fee, and ACWMA Household Hazardous Waste fee in per-Ton amounts
817 equal to the per-Ton amounts levied on Solid Waste Tonnage Disposed of in
818 Alameda County. CONTRACTOR shall remit such fees to the appropriate parties
819 as if the Facility was located in unincorporated areas of Alameda County.
820 ARTICLE 6. Performance Bond
821 6.01 Performance Bond. Within ten (10) calendar days from the date
822 the City Council approves this Agreement, the CONTRACTOR shall furnish to the
823 CITY, and keep current, a Performance Bond in a form as set forth in Exhibit 2
824 which is included in and attached to this Agreement, for the faithful performance
825 of this Agreement and all obligations arising hereunder in an amount of one
826 million dollars ($1,000,000).
827 6.01.1 Surety Company. The performance bond shall be executed
828 by a surety company licensed to do business in the State of California; having an
829 "A-" or better rating by A. M. Best or Standard and Poors; and included on the list
830 of surety companies approved by the Treasurer of the United States.
831 6.01.2 Letter of Credit. As an alternative to the performance bond
832 required by this Section 6.01, at CITY's option, CONTRACTOR may deposit with
833 CITY an irrevocable letter of credit in an amount as set forth in Section 6.01. If
834 allowed, the letter of credit must be issued by an FDIC insured banking institution
835 chartered to business in the state of California, in the CITY's name, and be
836 callable at the discretion of the CITY. Nothing in this Section shall, in any way,
837 obligate the CITY to accept a letter of credit in lieu of the performance bond.
838 6.02 Corporate Guarantee. In addition to the performance assurance
839 required in Section 6.01, CONTRACTOR is required to obtain Guaranty, and
840 Guarantor has agreed to guarantee CONTRACTOR'S performance of this
841 agreement, including CONTRACTOR'S indemnification obligations hereunder
842 pursuant to a Guaranty Agreement in substantially the form attached as Exhibit 3.
843 The Guaranty Agreement is being provided concurrently with CONTRACTOR'S
844 execution of this Agreement.
845 ARTICLE 7. Insurance
846 7.01 Insurance Policies. CONTRACTOR shall secure and maintain
847 throughout the term of this Agreement insurance against claims for injuries to
848 persons or damages to property which may arise from or in connection with
849 CONTRACTOR'S performance of work or services under this Agreement.
850 CONTRACTOR'S performance of work or services shall include performance by
851 CONTRACTOR'S employees, agents, representatives and subcontractors.
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Disposal Service Agreement
852 7.01.1 Minimum Scope of Insurance. Insurance coverage shall
853 be at least this broad:
854 7.01.1.1 Insurance Services Office Form No. GL 0002 (Ed.
855 1/96) covering Comprehensive General Liability and Insurance Services Office
856 Form No. GL 0404 covering Broad Form Comprehensive General Liability; or
857 Insurance Services Office Commercial General Liability coverage ("occurrence"
858 form CG 0001), including X, C, U where applicable.
859 7.01.1.2 Insurance Services Office Form No.CA 0001 (Ed.
860 12/93) covering Automobile Liability, code 1 "any auto", or code 2 "owned autos"
861 and endorsement CA 0025. Coverage shall also include code 8, "hired autos"
862 and code 9 "non-owned autos".
863 7.01.2 Workers' Compensation insurance as required by the
864 California Labor Code and Employers Liability Insurance.
865 7.01.3 Hazardous Waste and Environmental Impairment Liability
866 Insurance.
867 7.02 Minimum Limits of Insurance. CONTRACTOR shall maintain
868 insurance limits no less than:
869 7.02.1 Comprehensive General Liability: $10,000,000 combined
870 single limit per occurrence for bodily injury, personal injury and property damage.
871 If Commercial General Liability insurance with a general aggregate limit is used,
872 either the general aggregate limit shall apply separately to this Agreement or the
873 general aggregate limit shall be $5,000,000.
874 7.02.2 Automobile Liability: $10,000,000 combined single limit per
875 accident for bodily injury and property damage.
876 7.02.3 Workers' Compensation and Employers Liability: Workers'
877 Compensation limits as required by the California Labor Code and Employers
878 Liability limits of $1,000,000 per accident.
879 7.02.4 Hazardous Waste and Environmental Impairment Liability:
880 $10,000,000 per occurrence.
881 7.03 Deductibles and Self-Insured Retention. Any deductibles or self-
882 insured retention must be declared to, and approved by, CITY'S Risk Manager.
883 At the option of CITY, either: the insurer shall reduce or eliminate such
884 deductibles or self-insured retention as respects CITY, its officers, employees,
885 agents and contractors; or CONTRACTOR shall procure a bond guaranteeing
886 payment of losses and related investigations, claim administration and defense
887 expenses in an amount specified by CITY'S Risk Manager.
888 7.04 Endorsements. The policies are to contain, or be endorsed to
889 contain, the following provisions:
890 7.04.1 General Liabilitv and Automobile Liabilitv Coveraqe.
Page 6 - 26 City of Dublin
Disposal Service Agreement
891 7.04.1.1 The CITY, its officers, employees, agents and
892 contractors are to be covered as additional insureds as respects: Liability arising
893 out of activities performed by, or on behalf of, CONTRACTOR; products and
894 completed operations of CONTRACTOR; premises owned, leased or used by
895 CONTRACTOR; and automobiles owned, leased, hired or borrowed by
896 CONTRACTOR. The coverage shall contain no special limitations on the scope
897 of protection afforded to CITY, its officers, employees, agents and contractors.
898 The Automobile liability is endorsed to contain MCA 90 coverage.
899 7.04.1.2 CONTRACTOR'S insurance coverage shall be
900 primary insurance as respects CITY, its officers, employees, agents and
901 contractors. Any insurance, or self-insurance maintained by CITY, its officers,
902 employees, agents or contractors shall be in excess of CONTRACTOR'S
903 insurance and shall not contribute with it.
904 7.04.1.3 Any failure to comply with reporting provisions of
905 the policies shall not affect coverage provided to CITY, its officers, employees,
906 agents, contractors or Collection Contractor.
907 7.04.1.4 Coverage shall state that CONTRACTOR'S
908 insurance shall apply separately to each insured against whom claim is made or
909 suit is brought, except with respect to the limits of the insurer's liability.
910 7.04.2 All CoveraQe. Each insurance policy required by this
911 Agreement shall be endorsed to state that coverage shall not be suspended,
912 voided, canceled, or reduced in limits except after thirty (30) calendar days prior
913 written notice has been given to CITY.
914 7.05 Acceptabilitv of Insurers. Insurance is to be placed with insurers
915 acceptable to CITY'S Risk Manager.
916 7.06 Verification of CoveraQe. CONTRACTOR shall furnish CITY with
917 certificates of insurance and with original endorsements affecting coverage
918 required by this Agreement. The certificates and endorsement for each
919 insurance policy are to be signed by a person authorized by that insurer to bind
920 coverage on its behalf. CONTRACTOR shall furnish CITY with a new certificate
921 of insurance and endorsements on each renewal of coverage or change of
922 insurers.
923 Proof of insurance shall be mailed to the following address or any
924 subsequent address as may be directed in writing by the CITY'S Risk Manager:
Page 6 - 27
Disposal Service Agreement
925 CITY OF DUBLIN
926 Risk Management
927 100 Civic Plaza
928 Dublin, CA 94568
929 7.07 Subcontractors. CONTRACTOR shall include all subcontractors
930 as insureds under its policies or shall obtain separate certificates and
931 endorsements for each subcontractor.
932 7.08 Modification of Insurance Requirements. The insurance
933 requirements provided in this Agreement may be modified or waived by CITY'S
934 Risk Manager, in writing, upon the request of CONTRACTOR if the CITY'S Risk
935 Manager determines such modification or waiver is in the best interest of CITY
936 considering all relevant factors, including exposure to CITY.
937 7.09 Riqhts of Subroqation. All required insurance policies shall
938 preclude any underwriter's rights of recovery or subrogation against CITY with
939 the express intention of the parties being that the required insurance coverage
940 protects both parties as the primary coverage for any and all losses covered by
941 the above-described insurance. CONTRACTOR shall ensure that any
942 companies issuing insurance to cover the requirements contained in this
943 Agreement agree that they shall have no recourse against CITY for payment or
944 assessments in any form on any policy of insurance. The clauses 'Other
945 Insurance Provisions' and 'Insured Duties in the Event of an Occurrence, Claim
946 or Suit' as it appears in any policy of insurance in which CITY is named as an
947 additional insured shall not apply to CITY.
948 ARTICLE 8. Indemnification
949 8.01 Indemnification. CONTRACTOR shall indemnify and hold
950 harmless CITY, CITY'S contractors, Collection Contractor, and the public officials,
951 officers, directors, employees, agents and other contractors of each of them, from
952 and against any and all claims, costs, losses and damages (including but not
953 limited to all fees and charges of engineers, architects, attorneys and other
954 professionals as well as all Court or other dispute resolution costs), liabilities,
955 expenditures or causes of action of any kind (including negligent, reckless, willful
956 or intentional acts or omissions of the CONTRACTOR, any subcontractor, any
957 supplier, any person or organization directly or indirectly employed by any of
958 them to perform or furnish any services or anyone for whose acts any of them
959 may be liable), arising from, relative to or caused by the performance of the
960 services. This indemnity includes but is not limited to claims attributable to bodily
961 injury, sickness, disease or death and to injury or destruction of tangible property.
962 CONTRACTOR agrees, at CONTRACTOR'S expense, after written notice from
963 the CITY, to defend any action against the CITY that falls within the scope of this
964 indemnity, or the CITY, at the CITY'S option, may elect not to tender such
965 defense and may elect instead to secure its own attorneys to defend any such
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Disposal Service Agreement
966 action and the reasonable costs and expenses of such attorneys incurred in
967 defending such action shall be payable by CONTRACTOR. Additionally, if
968 CONTRACTOR, after receipt of written notice from the CITY, fails to make any
969 payment due under this Agreement to the CITY, CONTRACTOR shall pay any
970 reasonable attorneys' fees or costs incurred by the CITY in securing any such
971 payment from CONTRACTOR. Payment of any amount due pursuant to the
972 foregoing indemnity shall, after receipt of written notice by CONTRACTOR from
973 the CITY that such amount is due, be made by CONTRACTOR prior to the CITY
974 being required to pay same, or in the alternative, the CITY, at the CITY'S option,
975 may make payment of an amount so due and CONTRACTOR shall promptly
976 reimburse the CITY for same, together with interest thereon at the rate of 12%
977 per annum simple interest from the date of receipt by CONTRACTOR of written
978 notice from the CITY that such payment is due.
979 8.01.1 This provision is in addition to all other provisions in this
980 Agreement and is intended to survive the end of the term of this Agreement.
981 CONTRACTOR'S Guaranty Agreement shall extend to the indemnification
982 obligation hereunder.
983 8.02 Hazardous Material Indemnification. CONTRACTOR shall
984 indemnify, defend with counsel acceptable to the CITY, and hold harmless, at
985 CONTRACTOR'S sole cost and expense, the CITY, its City Council, officers,
986 officials, employees, volunteers and agents, and the Collection Contractor
987 (collectively, "indemnitees") from and against any and all claims, damages,
988 injuries, costs (including and without limit any and all response, remediation and
989 removal costs), losses, demands, debts, liens, liabilities, causes of action, suits,
990 legal or administrative proceedings, interest, fines, charges, penalties, and
991 expenses (including reasonable attorneys' and expert witness fees, expenditures
992 for investigation and remediation) and costs of any kind whatsoever, paid,
993 imposed upon, incurred, or suffered by or asserted against any of the
994 indemnitees by reason of, or arising from, the presence, Disposal, escape,
995 migration, leakage spillage, discharge, emission, release, handling or
996 transportation of Hazardous Materials to, in, on, at, or under the Facility
997 (collectively, "environmental events"), any personal injury, death, or property
998 damage, arising out of or related to any of the environmental events; any lawsuit
999 brought or threatened, settlement reached, or government hearing, investigation,
1000 inquiry, proceeding, or order relating to any Hazardous Materials or any of the
1001 environmental events.
1002 8.02.1 Such indemnification shall apply to all events arising from
1003 or attributable to the acts or omissions of CONTRACTOR, its officers, directors,
1004 employees, whether or not negligent or otherwise culpable, in connection with or
1005 related to CONTRACTOR'S performance of this Agreement, including without
1006 limit damages arising from or attributable to any operations, repair, clean-up or
1007 detoxification, or preparation and implementation of any removal, remedial,
1008 response, closure, post-closure or other plan (regardless of whether undertaken
1009 due to governmental action) concerning any Hazardous Materials at the Disposal
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Disposal Service Agreement
1010 Facility. For the avoidance of doubt, the foregoing indemnity is intended to
1011 operate as an agreement pursuant to §107(e) of the Comprehensive
1012 environmental Response, Compensation and Liability Act, CERCLA, 42 U.S.C.
1013 §9607(e) and California Health and Safety Code §25364, to defend, protect, hold
1014 harmless, and indemnify CITY from liability thereunder.
1015 8.02.2 This provision is in addition to all other provisions in this
1016 Agreement and is intended to survive the end of the term of this Agreement.
1017 CONTRACTOR'S Guaranty Agreement shall extend to the indemnification
1018 obligation hereunder.
1019 8.03 Environmental Indemnification. CONTRACTOR shall indemnify,
1020 defend with counsel acceptable to the CITY, and hold harmless, at
1021 CONTRACTOR'S sole cost and expense, the CITY, its City Council, officers,
1022 officials, employees, volunteers and agents, and the Collection Contractor
1023 (collectively, "indemnitees") from and against any and all claims, damages,
1024 injuries, costs (including and without limit any and all response, remediation and
1025 removal costs), losses, demands, debts, liens, liabilities, causes of action suits,
1026 legal or administrative proceedings, interest, fines, charges, penalties, and
1027 expenses (including reasonable attorneys' and expert witness fees, expenditures
1028 for investigation and remediation) and costs of any kind whatsoever, paid,
1029 imposed upon, incurred, or suffered by or asserted against any of the
1030 indemnitees by any lawsuit brought or threatened, settlement reached, or
1031 government hearing, investigation, inquiry, proceeding, or order relating to, or
1032 arising from, directly or indirectly, CONTRACTOR'S alleged failure or actual
1033 failure to comply with the environmental laws and regulations. This
1034 indemnification will not extend to environmental claims to the extent they are
1035 caused by the sole or joint or contributory negligence or intentional misconduct or
1036 omission of the CITY, its officers, employees or agents, or the Collection
1037 Company.
1038 8.03.1 This provision is in addition to all other provisions in this
1039 Agreement and is intended to survive the end of the term of this Agreement.
1040 CONTRACTOR'S Guaranty Agreement shall extend to the indemnification
1041 obligation hereunder.
1042 8.04 Consideration. It is specifically understood and agreed that the
1043 consideration inuring to the CONTRACTOR for the execution of this Agreement
1044 consists of the promises, payments, covenants, rights and responsibilities
1045 contained in this Agreement.
1046 8.05 Obliqation. The execution of this Agreement by the
1047 CONTRACTOR shall obligate the CONTRACTOR to comply with the foregoing
1048 indemnification provision; however, the collateral obligation of providing
1049 insurance must also be complied with as set forth in Article 7 above.
1050 8.06 Subcontractors. The CONTRACTOR shall require all
1051 subcontractors to enter into a Agreement containing the provisions set forth in the
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Disposal Service Agreement
1052 preceding subsection in which Agreement the subcontractor fully indemnifies the
1053 CITY in accordance with this Agreement.
1054 8.07 Exception. Notwithstanding Sections 8.01, 8.02 and 8.03,
1055 CONTRACTOR'S obligation to indemnify, hold harmless and defend CITY, its
1056 officers, employees agents and contractors shall not extend to any loss, liability,
1057 penalty, plain, damage, action or suit arising or resulting from acts or omissions
1058 constituting willful misconduct on the part of the CITY its officers, employees,
1059 agents, contractors, and Colle.ction Contractor.
1060 8.08 DamaQe by CONTRACTOR. If CONTRACTOR's employees or
1061 subcontractors cause any injury, damage or loss to CITY property, including but
1062 not limited to CITY streets or curbs, CONTRACTOR shall reimburse CITY for
1063 CITY'S cost of repairing such injury, damage or loss. Such reimbursement is not
1064 in derogation of any right of CITY to be indemnified by CONTRACTOR for any
1065 such injury, damage or loss. With the prior written approval of CITY,
1066 CONTRACTOR may repair the damage at CONTRACTORS sole cost and
1067 expense.
1068 ARTICLE 9. Force Majeure
1069 9.01 CONTRACTOR shall not be in default of its obligations under this
1070 Agreement in the event, and for so long as, it is impossible or extremely
1071 impracticable for it to perform its obligations due to an "act of nature" (including,
1072 but not limited to, flood, earthquake, or other catastrophic events), war,
1073 insurrection, riot, or other similar causes which are not the fault of, and beyond
1074 the reasonable control of, the party claiming excuse from performance. Labor
1075 unrest, including but not limited to, strike, work stoppage or slowdown, sick-out,
1076 picketing, or other concerted job action conducted by CONTRACTOR's
1077 employees or directed at CONTRACTOR is not an excuse from performance and
1078 CONTRACTOR shall be obligated to continue to accept and Dispose of Solid
1079 Waste, notwithstanding the occurrence of any or all of such events. To claim
1080 excuse under this Section CONTRACTOR must: (i) have taken reasonable
1081 precautions, if possible, to avoid being affected by the cause, including, in the
1082 case of impossibility of performance based on inability to obtain a governmental
1083 permit, compliance with the requirement of Section 4.02, and (ii) notify the CITY
1084 in writing within five working days after the occurrence of the event specifying the
1085 nature of the event, the expected length of time that the CONTRACTOR expects
1086 to be prevented from performing, and the steps which the CONTRACTOR
1087 intends to take to restore its ability to perform.
1088 9.02 The interruption or discontinuance of CONTRACTOR's ability to
1089 accept and Dispose of Solid Waste caused by one or more of the events
1090 described in this Section shall not constitute a default by CONTRACTOR under
1091 this Agreement. Notwithstanding the foregoing, however, if CONTRACTOR is
1092 excused from performing its obligations hereunder for any of the causes listed in
1093 this Section for a period of 30 calendar days or more, upon expiration of the thirty
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Disposal Service Agreement
1094 (30) calendar days, the CITY shall have the right, in its sole discretion, to
1095 terminate this Agreement by giving 10 calendar days' notice except that such
1096 termination may be effective two Working Days after receiving notice by certified
1097 mail if such event(s) result in the CONTRACTOR's failure to accept and Dispose
1098 of Solid Waste.
1099 ARTICLE 10. Default of Agreement
1100 10.01 Termination. The CITY may cancel this Agreement, except as
1101 otherwise provided below in this Section, by giving the CONTRACTOR thirty (30)
1102 calendar days advance written notice, to be served as provided in Article 21,
1103 upon the happening of anyone of the following events:
1104 10.01.1 The CONTRACTOR shall take the benefit of any
1105 present or future insolvency statute, or shall make a general assignment for the
1106 benefit of creditors, or file a voluntary petition in bankruptcy (court) or a petition or
1107 answer seeking an arrangement for its reorganization or the readjustment of its
1108 indebtedness under the Federal bankruptcy laws or under any other law or
1109 statute of the United States or any state thereof, or consent to the appointment of
1110 a receiver, trustee or liquidator of all or substantially all of its property; or
1111 10.01.2 By order or decree of a Court, the CONTRACTOR
1112 shall be adjudged bankrupt or an order shall be made approving a petition filed
1113 by any of its creditors or by any of the stockholders of the CONTRACTOR,
1114 seeking its reorganization or the readjustment of its indebtedness under the
1115 Federal bankruptcy laws or under any law or statute of the United States or of
1116 any state thereof, provided that if any such judgment or order is stayed or
1117 vacated within sixty (60) calendar days after the entry thereof, any notice of
1118 default shall be and become null, void and of no effect; unless such stayed
1119 judgment or order is reinstated in which case, said default shall be deemed
1120 immediate; or
1121 10.01.2.1 By, or pursuant to, or under the authority of any
1122 legislative act, resolution or rule or any order or decree of any Court or
1123 governmental board, agency or officer having jurisdiction, a receiver, trustee or
1124 liquidator shall take possession or control of all or substantially all of the property
1125 of the CONTRACTOR, and such possession or control shall continue in effect for
1126 a period of sixty (60) calendar days; or
1127 10.01.3 The CONTRACTOR has defaulted, by failing or
1128 refusing to pay in a timely manner the administrative charges or other monies
1129 due the CITY and said default is not cured within thirty (30) calendar days of
1130 receipt of written notice by CITY to do so; or
1131 10.01.4 The CONTRACTOR has defaulted by allowing any
1132 final judgment for the payment of money to stand against it unsatisfied and said
1133 default is not cured within thirty (30) calendar days of receipt of written notice by
1134 CITY to do so; or
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Disposal Service Agreement
1135 10.01.5 In the event that the monies due the CITY under
1136 Section 10.01.3 above or an unsatisfied final judgment under Section 10.01.4
1137 above is the subject of a judicial proceeding, the CONTRACTOR shall not be in
1138 default if the sum of money is bonded. All bonds shall be in the form acceptable
1139 to the CITY Attorney; or
1140 10.01.6 The CONTRACTOR has defaulted, by failing or
1141 refusing to perform or observe the terms, conditions or covenants in this
1142 Agreement or any of the rules and regulations promulgated by the CITY pursuant
1143 thereto or has wrongfully failed or refused to comply with the instructions of the
1144 City Representative relative thereto and said default is not cured within thirty (30)
1145 calendar days of receipt of written notice by the CITY to do so, or if by reason of
1146 the nature of such default, the same cannot be remedied within thirty (30)
1147 calendar days following receipt by the CONTRACTOR of written demand from
1148 the CITY to do so, the CONTRACTOR fails to commence the remedy of such
1149 default within said thirty (30) calendar days following such written notice or
1150 having so commenced shall fail thereafter to continue with diligence the curing
1151 thereof (with the CONTRACTOR having the burden of proof to demonstrate (a)
1152 that the default cannot be cured within thirty (30) calendar days, and (b) that it is
1153 proceeding with diligence to cure said default, and such default will be cured
1154 within a reasonable period of time.
1155 10.01.7 CONTRACTOR fails to perform its obligations
1156 under this Agreement, and: (i) if the failure or refusal of CONTRACTOR to
1157 perform Disposal services required by this Agreement has created an imminent
1158 threat to public health and is not cured within 2 Working Days after receiving
1159 written notice from the CITY specifying the breach; or (ii) in the case of any other
1160 breach of the Agreement, the breach continues for more than 30 calendar days
1161 after receiving written notice from the CITY for the correction thereof, provided
1162 that where such breach cannot be cured within such 30-day period,
1163 CONTRACTOR shall not be in default of this Agreement if CONTRACTOR shall
1164 have commenced such action required to cure the particular breach within ten
1165 (10) calendar days after such notice, and it continues such performance diligently
1166 until completed. However, if CONTRACTOR has complied with its obligations to
1167 arrange and pay for Disposal of Solid Waste at an alternative Disposal facility as
1168 set forth in Section 4.13, it shall not be in default of this Agreement.
1169 10.02 Effective Date. In the event of the aforesaid events specified
1170 above, and except as otherwise provided in said subsections, termination shall
1171 be effective upon the date specified in the CITY'S written notice to the
1172 CONTRACTOR and upon said date this Agreement shall be deemed immediately
1173 terminated and upon such termination all liability of the CITY under this
1174 Agreement to the CONTRACTOR shall cease, and the CITY shall have the right
1175 to call the performance bond and shall be free to negotiate with other contractors
1176 for the operation of the herein specified services.
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Page 6 - 33
Disposal Service Agreement
1177 10.03 Rioht to Perform. If this Agreement is suspended and/or
1178 terminated due to CONTRACTOR default, CITY shall have the right to perform
1179 and complete, by contract or otherwise, the work herein or such part thereof as it
1180 may deem necessary and incur all expenses necessary for completion of the
1181 work, including, but not limited to, the costs of transportation to, and Disposal of
1182 Solid Waste at, and alternative disposal facility, but not including any right to
1183 operate the Disposal Facility. If such expenses (including, but not limited to, the
1184 costs of transportation to an alternative facility and the actual fees charged for
1185 Disposal) exceed the amounts which would have been paid to CONTRACTOR
1186 under this Agreement, if it had been fully performed by CONTRACTOR, then
1187 CONTRACTOR shall pay for the remaining term of this Agreement, the amount
1188 of such excess costs to the CITY within thirty (30) calendar days of
1189 CONTRACTOR'S receipt of a claim for reimbursement, and evidence of costs
1190 incurred, from the CITY.
1191 10.04 Immediate Termination. CITY may terminate this Agreement
1192 immediately upon written notice to CONTRACTOR in the event CONTRACTOR
1193 fails to provide and maintain the performance bond as required by this
1194 Agreement, CONTRACTOR fails to obtain or maintain insurance policies
1195 endorsements as required by this Agreement, CONTRACTOR fails to provide the
1196 proof of insurance as required by this Agreement, or CONTRACTOR offers or
1197 gives any gift prohibited by CITY Municipal Code.
1198 10.05 Termination Cumulative. CITY'S right to terminate this Agreement
1199 is cumulative to any other rights and remedies provided by law or by this
1200 Agreement.
1201 ARTICLE 11. Legal Representation
1202 11.01 Acknowledoement. It is acknowledged that each party was, or
1203 had the opportunity to be, represented by counsel in the preparation of and
1204 contributed equally to the terms and conditions of this Agreement and,
1205 accordingly, the rule that a Agreement shall be interpreted strictly against the
1206 party preparing the same shall not apply herein due to the joint contributions of
1207 both parties.
1208 ARTICLE 12. Financial Interest
1209 12.01 Representation. CONTRACTOR warrants and represents that no
1210 elected official, officer, agent or employee of the CITY has a financial interest,
1211 directly or indirectly, in this Agreement the compensation to be paid under it and,
1212 further, that no CITY employee who acts in the CITY as a "purchasing agent" as
1213 defined in the appropriate Section of California Statutes, nor any elected or
1214 appointed officer of the CITY, nor any spouse or child of such purchasing agent,
1215 employee or elected or appointed officer, is a partner, officer, director or
1216 proprietor of the CONTRACTOR and, further, that no such CITY employee,
Page 6 - 34 City of Dublin
Disposal Service Agreement
1217 purchasing agent, CITY elected or appointed officer, or the spouse or child of any
1218 of them, alone or in combination, has a material interest in the CONTRACTOR.
1219 Material interest means direct or indirect ownership of more than five percent
1220 (5%) of the total assets or capital stock of the CONTRACTOR.
1221 ARTICLE 13. Independent Contractor
1222 13.01 In the performance of services pursuant to this Agreement,
1223 CONTRACTOR shall be an independent contractor and not an officer, agent,
1224 servant or employee of CITY. CONTRACTOR shall have exclusive control of the
1225 details of the services and work performed and over all persons performing such
1226 services and work. CONTRACTOR shall be solely responsible for the acts and
1227 omissions of its officers, agents, employees, contractors and subcontractors, if
1228 any. Neither CONTRACTOR nor its officers, employees, agents, contractors or
1229 subcontractors shall obtain any right to retirement benefits, Workers
1230 Compensation benefits, or any other benefits which accrued to CITY employees
1231 and CONTRACTOR expressly waives any claim it may have or acquire to such
1232 benefits.
1233 ARTICLE 14. Laws to Govern
1234 14.01 The law of the State of California shall govern the rights,
1235 obligations, duties and liabilities of CITY and CONTRACTOR under this
1236 Agreement and shall govern the interpretation of this Agreement.
1237 ARTICLE 15. Consent to Jurisdiction
1238 15.01 The parties agreed that any litigation between CITY and
1239 CONTRACTOR concerning or arising out of this Agreement shall be filed and
1240 maintained exclusively in the Municipal or Superior Courts of Alameda County,
1241 State of California, or in the United States District Court for the Northern District
1242 of California to the fullest extent permissible by law. Each party consents to
1243 service of process in any manner authorized by California law.
1244 ARTICLE 16. Assignment
1245 16.01 No assignment of this Agreement or any right occurring under this
1246 Agreement shall be made in whole or in part by the CONTRACTOR without the
1247 express written consent of the CITY. The CITY shall have full discretion to
1248 approve or deny, with or without cause, any proposed or actual assignment by
1249 the CONTRACTOR. Any assignment of this Agreement made by the
1250 CONTRACTOR without the express written consent of the CITY shall be null and
1251 void and shall be grounds for the CITY to declare a default of this Agreement and
1252 immediately terminate this Agreement by giving written notice to the
1253 CONTRACTOR, and upon the date of such notice this Agreement shall be
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Disposal Service Agreement
1254 deemed immediately terminated, and upon such termination all liability of the
1255 CITY under this Agreement to the CONTRACTOR shall cease, and the CITY
1256 shall have the right to call the performance bond and shall be free to negotiate
1257 with other contractors, the CONTRACTOR, or any other person or company for
1258 the service which is the subject of this Agreement. In the event of any
1259 assignment, the assignee shall fully assume all the liabilities of the
1260 CONTRACTOR.
1261 16.02 The use of a subcontractor to perform services under this
1262 Agreement shall not constitute delegation of CONTRACTOR'S duties provided
1263 that CONTRACTOR has received prior written authorization from the City
1264 Representative to subcontract such services and the City Representative has
1265 approved a subcontractor who will perform such services. CONTRACTOR shall
1266 be responsible for directing the work of CONTRACTOR'S subcontractors and
1267 any compensation due or payable to CONTRACTOR'S subcontractor shall be
1268 the sole responsibility of CONTRACTOR. The City Representative shall have the
1269 right to require the removal of any approved subcontractor for reasonable cause.
1270 The subcontractors listed in Exhibit 6, which is attached to and incorporated in
1271 this Agreement, are hereby approved by the CITY.
1272 ARTICLE 17. Compliance with Laws
1273 17.01 In the performance of this Agreement, CONTRACTOR shall
1274 comply with all applicable laws, regulations, ordinances and codes of the federal,
1275 state and local governments, including without limitation the Dublin Municipal
1276 Code.
1277 17.02 CITY shall provide written notice to CONTRACTOR of any
1278 planned amendment to the Dublin Municipal Code that would substantially affect
1279 the performance of CONTRACTOR'S services pursuant to this Agreement. Such
1280 notice shall be provided at least thirty (30) calendar days prior to the City
1281 Council's approval of such an amendment.
1282 ARTICLE 18. Waiver
1283 18.01 Waiver by CITY or CONTRACTOR of any breach for violation of
1284 any term covenant or condition of this Agreement shall not be deemed to be a
1285 waiver of any other term, covenant or condition or any subsequent breach or
1286 violation of the same or of any other term, covenant or condition. The
1287 subsequent acceptance by CITY of any fee, tax, or any other monies which may
1288 become due from CONTRACTOR to CITY shall not be deemed to be a waiver by
1289 CITY of any breach for violation of any term, covenant or condition of this
1290 Agreement.
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Disposal Service Agreement
1291 ARTICLE 19. Prohibition Against Gifts
1292 19.01 CONTRACTOR represents that CONTRACTOR is familiar with
1293 CITY'S prohibition against the acceptance of any gift by a CITY officer or
1294 designated employee. CONTRACTOR shall not offer any CITY officer or
1295 designated employee any gifts prohibited by the CITY.
1296 ARTICLE 20. Point of Contact
1297 20.01 The day-to-day dealings between the CONTRACTOR and the
1298 CITY shall be between the CONTRACTOR and the City Representative.
1299 ARTICLE 21. Notices
1300 21.01 Except as provided herein, whenever either party desires to give
1301 notice to the other, it must be given by written notice addressed to the party for
1302 whom it is intended, at the place last specified and to the place for giving of
1303 notice in compliance with the provisions of this paragraph. For the present, the
1304 parties designate the following as the respective persons and places for giving of
1305 notice:
1306 As to the CITY:
1307 Jason A. Behrmann
1308 Senior Administrative Analyst
1309 100 Civic Plaza
1310 Dublin, CA 94568
1311 Telephone: (925) 833-6650
1312 Fax: (925) 833-6651
1313 E-Mail iason.behrmann@ci.dublin.ca.us
1314
1315
1316 As to the CONTRACTOR:
1317 To be completed.
1318 21.02 Notices shall be effective when received at the address as
1319 specified above. Changes in the respective address to which such notice is to be
1320 directed may be made by written notice. Facsimile transmission is acceptable
1321 notice, effective when received, however, facsimile transmissions received (Le.
1322 printed) after 4:30 p.m. or on weekends or holidays, will be deemed received on
1323 the next business day. The original of items that are transmitted by facsimile
1324 equipment must also be mailed as required herein.
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Disposal Service Agreement
1325 ARTICLE 22. Nondiscrimination
1326 22.01 Nondiscrimination. In the performance of all work and services
1327 under this Agreement, CONTRACTOR shall not discriminate against any person
1328 on the basis of such person's race, sex, color, national origin, religion, marital
1329 status or sexual orientation. CONTRACTOR shall comply with all applicable
1330 local, state and federal laws and regulations regarding nondiscrimination,
1331 including those prohibiting discrimination in employment.
1332 ARTICLE 23. Contractor's Records
1333 23.01 CONTRACTOR shall maintain any and all letters, books of
1334 account, invoices, vouchers, canceled checks, and other records or documents
1335 evidencing or relating to charges for services or expenditures and disbursements
1336 charged to service recipients for a minimum period of three (3) years, or for any
1337 longer period required by law, from the date of final payment to CONTRACTOR
1338 pursuant to this Agreement.
1339 23.02 CONTRACTOR shall maintain all documents and records which
1340 demonstrate performance under this Agreement for a minimum period of three
1341 (3) years, or for any longer period required by law, from the date of termination or
1342 completion of this Agreement.
1343 23.03 Any records or documents required to be maintained pursuant to
1344 this Agreement shall be made available for inspection or audit, at any time during
1345 regular business hours, upon written request by the City Representative, the
1346 CITY Attorney, CITY Auditor, CITY Manager, or a designated representative of
1347 any of these officers. Copies of such documents shall be provided to CITY for
1348 inspection at the CITY offices when it is practical to do so. Otherwise, unless an
1349 alternative site is mutually agreed upon, the records shall be available at
1350 CONTRACTOR'S address indicated for receipt of notices in this Agreement.
1351 23.04 Where CITY has reason to believe that such records or
1352 documents may be lost or discarded due to the dissolution, disbandment or
1353 termination of CONTRACTOR'S business, CITY may, by written request or
1354 demand of any of the above named officers, require that custody of the records
1355 be- given to CITY and that the records and documents be maintained in CITY
1356 Hall. Access to such records and documents shall be granted to any party
1357 authorized by CONTRACTOR, CONTRACTOR'S representatives, or
1358 CONTRACTOR'S successor-in-interest.
1359 ARTICLE 24. Quality of Performance of Contractor
1360 24.01 Determination of Damaqes. The CITY and CONTRACTOR agree,
1361 that as of the time of the execution of this Agreement, it is impractical, if not
1362 impossible, to reasonably ascertain the extent of damages which shall be
1363 incurred by CITY as a result of a breach by CONTRACTOR of its obligations
Page 6 - 38 City Qf Dublin
Disposal Service Agreement
1364 under this. Agreement. The factors relating to the impracticability of ascertaining
1365 damages include, but are not limited to, the fact that: (i) substantial damage
1366 results to the Collection Contractor or CITY who are denied services or denied
1367 quality or reliable service; (ii) such breaches cause inconvenience, anxiety,
1368 frustration, and deprivation of the benefits of the Agreement to the Collection
1369 Contractor or CITY for whose benefit this Agreement exists, in subjective ways
1370 and in varying degrees of intensity which are incapable of measurement in
1371 precise monetary terms; (iii) that exclusive services might be available at
1372 substantially lower costs than alternative services and the monetary loss resulting
1373 from denial of services or denial of quality or reliable services is impossible to
1374 calculate in precise monetary terms; and (iv) the termination of this Agreement
1375 for such breaches, and other remedies are, at best, a means of future correction
1376 and not remedies which make the Collection Contractor or CITY whole for past
1377 breaches.
1378 24.02 Liauidated Damaaes. The parties further acknowledge that
1379 consistent and reliable Disposal Service is of utmost importance to CITY and that
1380 CITY has considered and relied on CONTRACTOR'S representations as to its
1381 quality of service commitment in awarding the Agreement to it. The parties further
1382 recognize that some quantified standards of performance are necessary and
1383 appropriate to ensure consistent and reliable service and performance. The
1384 parties further recognize that if CONTRACTOR fails to achieve the performance
1385 standards, or fails to submit required documents in a timely manner, CITY,
1386 Collection Contractor and City's residents and businesses will suffer damages
1387 and that it is and will be impractical and extremely difficult to ascertain and
1388 determine the exact amount of damages. Therefore, without prejudice to CITY'S
1389 right to treat such non-performance as an event of default under Article 10, the
1390 parties agree that the liquidated damages amount defined in this Section
1391 represent reasonable estimates of the amount of such damages considering all
1392 of the circumstances existing on the effective date of this Agreement, including
1393 the relationship of the sums to the range of harm to CITY that reasonably could
1394 be anticipated and the anticipation that proof of actual damages would be costly
1395 or impractical. In placing their initials at the places provided, each party
1396 specifically confirms the accuracy of the statements made above and the fact that
1397 each party has had ample opportunity to consult with legal council and obtain an
1398 explanation of the liquidated damage provisions at the time that the Agreement
1399 was made.
1400
CITY Initial Here
CONTRACTOR Initial Here
1401 24.02.1 CONTRACTOR agrees to pay (as liquidated
1402 damages and not as penalty) the following amounts:
Page 6 - 39
d.
1403
1404
1405
1406
1407
1408
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1410
1411
1412
1413
1414
1415
1416
1417
1418
1419
1420
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1422
1423
1424
Disposal Service Agreement
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
days
$100 per calendar
day in excess of 30
days
$300 per calendar
day after
August 31st.
c. Failure to submit annual report by August 31st.
Failure to maintain minimum operation hours or days
$100 per Work Day
24.03 CITY may determine the occurrence of events giVing rise to
liquidated damages through the observation of its own employees or
representative or investigation of complaints by Collection Contractor.
, 24.04 Notification. Prior to assessing liquidated damages, CITY shall
give CONTRACTOR notice of its intention to do so. The notice will include a brief
description of the incident(s) and non-performance. CITY may present evidence
of non-performance in writing and through testimony of its employees and others
relevant to the incident(s) and non-performance. CITY will provide
CONTRACTOR with a written explanation of his or her determination on each
incident(s) and non-performance prior to authorizing the assessment of liquidated
damages. The decision of CITY shall be final and no further administrative
remedies shall be available.
24.05 Payment. CONTRACTOR shall pay any liquidated damages
assessed by CITY within tem (10) Work Days after they are assessed. If they
are not paid with the ten (10) day period, CITY may proceed against the
performance bond required by this Agreement or order the termination of the
franchise granted by this Agreement, or both.
ARTICLE 25. Severability
25.01 If any provision of this Agreement or the application of it to any
person or situation shall to any extent be held invalid or unenforceable, the
remainder of this Agreement and the application of such provisions to persons or
situations other than those as to which it shall have been held invalid or
Page 6 - 40 City of Dublin
Disposal Service Agreement
1425 unenforceable, shall not be affected, shall continue in full force and effect, and
1426 shall be enforced to the fullest extent permitted by law.
1427 ARTICLE 26. Right to Require Performance
1428 26.01 The failure of the CITY at any time to require performance by the
1429 CONTRACTOR of any provision hereof shall in no way affect the right of the
1430 CITY thereafter to enforce same. Nor shall waiver by the CITY of any breach of
1431 any provision hereof be taken or held to be a waiver of any succeeding breach of
1432 such provision or as a waiver of any provision itself.
1433 ARTICLE 27. All Prior Agreements Superseded
1434 27.01 This document incorporates and includes all prior negotiations,
1435 correspondence, conversations, agreements and understandings applicable to
1436 the matters contained in this Agreement and the parties agree that there are no
1437 commitments, agreements or understandings concerning the subject matter of
1438 this Agreement that are not contained in this document. Accordingly, it is agreed
1439 tha,t no deviation from the terms of this Agreement shall be predicated upon any
1440 prior representations or agreements, whether oral or written.
1441 ARTICLE 28. Headings
1442 28.01 Headings in this document are for convenience of reference only
1443 and are not to be considered in any interpretation of this Agreement.
1444 ARTICLE 29. Exhibits
1445 29.01 Each Exhibit referred to in this Agreement forms an essential part
1446 of this Agreement. Each such Exhibit is a part of this Agreement and each is
1447 incorporated by this reference.
1448 ARTICLE 30. Effective Date
1449 30.01 This Agreement shall become effective at such time as it is
1450 properly executed by the CITY and the CONTRACTOR and the CONTRACTOR
1451 shall begin Services, as covered herein, as of July 1,2005.
1452
Page6-41
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1471
1472
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1475
Disposal Service Agreement
IN WITNESS WHEREOF, the CITY and the CONTRACTOR have executed this
Agreement on the respective date(s) below each signature.
CITY OF DUBLIN CONTRACTOR
A Municipal Corporation
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 6 - 42 City of Dublin
Disposal Service Agreement
1475
1476
1477
1478
1479
1480
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
July1,2013
July 1, 2014
July 1, 2015
1481
1482
1483
1484 To
1485
1486
be
completed
based
on
CONTRACTOR's
Proposal
Page 6 - 43
Disposal Service Agreement
1486 This page intentionally left blank.
1487
1488
Page 6 - 44 City of Dublin
¡.0;,~
(¡{i/ \\\t1
;19' 162
\~ ,
~'<(.~?l[º~f:..~>_V
Disposal Service Agreement
Exhibit 2
City of Dublin, CA
Performance Bond
(To be inserted after Agreement award)
Page 6 - 45
Disposal Service Agreement
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. Guaranty of the Aqreement. 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 Obliqations 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 6 - 46 City of Dublin
Disposal Service Agreement
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.
Page 6 - 47
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 th~
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 6 - 48 City of Dublin
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. BindinQ 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 6 - 49
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:
(sign here)
Name
Title
RECOMMENDED FOR APPROVAL:
(print name/title)
By:
(sign here)
Name
Title
(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 6 - 50 City of Dublin
Disposal Service Agreement
Exhibit 4
City of Dublin, CA
RESOURCE RECOVERY PROGRAMS
(To be inserted after Agreement award)
Page 6 - 51
Disposal Service Agreement
Exhibit 5
City of Dublin, CA
Approved Subcontractors
(To be inserted after Agreement award)
Page 6 - 52 City of Dublin