HomeMy WebLinkAboutAgreement for Commercial Recyclables- CITIES OF ARCADIA, DUARTE AND MONROVIA
AGREEMENT FOR COLLECTION OF RECYCLABLE
MATERIALS FROM COMMERCIAL AND INDUSTRIAL PROPERTIES
This Agreement is made and entered into this day
of , 1994 by and between the CITIES OF ARCADIA, a
municipal corporation, DUARTE, a municipal corporation, and
MONROVIA, a municipal corporation, hereinafter referred to as
"CITIES" or individually as "CITY" and ZAKAROFF SERVICES a
corporation, hereinafter referred to as "CONTRACTOR."
WHEREAS, the CITIES desire to enter into an exclusive
agreement with CONTRACTOR for the collection of recyclable
materials from commercial and industrial properties within the
CITIES; and
WHEREAS, the parties desire that such exclusivity shall
not impair citizens' rights to dispose of their recyclable
commodities without the use of CONTRACTOR'S services provided
such disposal is done pursuant to this Agreement and each CITY'S
"Recycling Ordinance," but rather to prevent the CITIES from
contracting with any other party for such collection services;
and
WHEREAS, the work to be done under this agreement
includes the furnishing of all labor, material, and equipment
necessary for the collection and marketing of recyclables within
the CITIES;
NOW THEREFORE, the parties agree as follows:
SECTION ONE
TERMS AND DEFINITIONS
1.1 Definitions Whenever in the Agreement the following
terms are used, they shall be understood to mean the following:,
Agreement "Agreement" shall mean this Agreement.
Commingled "Commingled Recyclables" shall mean the category
Recyclables of solid waste which includes a mixture of food
and beverage containers or packaging made of
plastic, glass, aluminum, tin or bi -metal intended
for recycling or re -use.
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Commercial or "Commercial or Industrial Business Enterprise or
Industrial
!'Business" shall mean all business, commercial,
Business
industrial, or non - profit uses or any other types
Enterprise or
of premises other than single- family and multi -
Business
family residential, which have commercial garbage
accounts, including those who utilize CONTRACTOR'S
services and those who opt out from participating
in CONTRACTOR'S services. A Business may choose
to share recycling service if location, space
constraints, volume of recyclables or other
considerations so warrant based on the initial
waste audit. If so shared, such shared Businesses
shall together be deemed one (1) Customer or one
(1) Business for purposes of this Agreement.
Customer
"Customer" shall mean each Commercial Business
Enterprise or shared Business which has a
commercial garbage account and which utilizes
CONTRACTOR'S services as provided in this
Agreement.
Holiday
"Holiday" shall mean New Year's Day, Christmas,
Memorial Day, Independence Day, Labor Day and
Thanksgiving Day.
Green Waste "Greenwaste" shall mean a full 33 gallon container
of yard waste material per Customer, including,
but not limited to grass clippings and tree and /or
plant trimmings as well as wood waste.
Minimum "Minimum service level" shall mean collection of
Service Level recyclable materials at least once per week in a
single 96 gallon recyclable container. Minimum
service level shall also include such additional
obligations of CONTRACTOR as set forth in Section
2 below.
Mixed Waste "Mixed Waste Paper" shall mean the category of
Paper solid waste which includes but is not limited to,
colored paper limited to, craft paper, white
office paper, computer paper, cardboard,
magazines, "junk" mail, tab cards, and newspaper.
Recycling "Recycling" shall mean the collection of
recyclables, and the sale of those items to an
agency or organization for the purpose of
remanufacturing or reuse.
Toxic/ "Toxic /Hazardous Waste" shall be defined under the
Hazardous• laws of the State of California and shall include
but not be limited to medical waste.
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Waste Audit_ "Waste Audit" shall mean an assessment of the
types and quantities of waste generated by a
business and shall include an analysis of the
refuse and recyclable materials generated from the
premises on which such audit was conducted.
Other terms appearing in the Agreement shall have the intent and
meaning specified.
1.2 Request for Proposals Incorporated: All provisions of
and definitions contained in that certain Request for Proposals
for the services provided for in this Agreement dated July 20,
1992) ( "RFP") are hereby incorporated herein. Further all
aspects of CONTRACTOR'S response to the RFP ( "Proposal ") are also
deemed to be part of this Agreement. In the event of a conflict
between this Agreement and the RFP this Agreement shall control.
SECTION TWO
STANDARDS FOR COLLECTIONS AND OPERATIONS
The CONTRACTOR shall be obligated and does hereby agree to do and
PERFORM AS FOLLOWS:
2.1 Performance Standard CONTRACTOR shall, on or before
the second anniversary of the commencement of service in each
CITY, meet or exceed a diversion rate of 400 (the "Diversion
Rate ") of each CITY'S commercial and industrial waste (the
"Performance Goal "). The Diversion Rate shall be calculated by
taking the total tons of any and all materials considered
diverted or recycled from the total commercial and industrial
waste stream, as set forth in the combined periodic reports of
all solid waste hauling, recycling and /or generating entities,
including CONTRACTOR, and dividing the resulting numbers by the
total tonnage of commercial and industrial solid waste in each
CITY. For purposes of this Paragraph 2.1 commercial and
industrial solid waste shall include all materials listed in each
CITY'S Source Reduction and Recycling Element, including but not
limited to varieties of paper, plastics, glass, as well as wood,
yard and other Green Waste and manure.
2.2 Collection and Marketing CONTRACTOR shall furnish all
labor, material and equipment necessary for, and shall collect
and recycle the following:
A. Newspaper, mixed waste paper, white paper and
computer paper in containers used for the storage of materials,
as well as cardboard, glass, tin metal cans, aluminum cans, PET
bottles and plastics, HDPE plastics and all other possible
recyclable materials in containers used for the storage of
materials.
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B. Commingled Recyclables in containers used for the
storage of materials.
C. Green Waste and yard and wood waste in containers
used for the storage of material.
CONTRACTOR shall provide each CUSTOMER with a container which may
range in size from a 33 gallon container to a 3 cubic yard bin
for Green Waste (only if Green Waste exists). Commingled
Recyclable containers shall range from 96 gallon semi - automated
barrels to 3 cubic yard bins. The size of the container and
frequency of pick -up shall determine the rate paid by the
CUSTOMER. As an additional service, CONTRACTOR will provide
"Roll -off" (20 or 40 cubic yard container) and compactor roll -off
service to those CUSTOMERS with large volume of material and /or
special collection needs. Roll -off service will be provided at
an additional cost as set forth in Exhibit A.
CONTRACTOR is responsible for the delivery of containers to the
collection area. Collection containers must be returned by
CONTRACTOR to areas near the solid waste container or other
specified areas after collection.
2.3 Collection CONTRACTOR shall furnish all labor,
material and equipment necessary for operating a recycling
collection program for all CUSTOMERS which meets the requirements
set forth in the RFP and is provided for in the Proposal
including the following:
CONTRACTOR shall collect and recycle materials left in any of the
96 gallon collection containers and 3 yard bins provided for the
collection of Commingled Recyclables. Green Waste will be
collected and stored in 33 gallon containers unless larger
amounts require the use of a 3 -yard bin or a 20 -yard or 40 -yard
roll -off container. Collection and processing operations shall
include procedures that assure collected materials will have
limited contamination levels and will meet the highest possible
market specifications set by local and /or international buyers.
CONTRACTOR shall collect and recycle newspaper, mixed waste
paper, cardboard, paper board, white office paper computer paper,
craft paper, colored paper, all glass containers, aluminum cans,
tin cans, steel cans, bi -metal cans, plastic containers, film
plastics and yard and wood waste. Recyclables will be located`in
the recycling containers, supplied by CONTRACTOR.
Unless otherwise requested by the CUSTOMER, CONTRACTOR shall make
all collections from containers placed in a secure location next
to trash containers or in a convenient area near trash collection
bins.
CONTRACTOR shall collect, transport, separate, process and market
any Recyclables collected. There shall be no limit to the amount
of Recyclables provided CONTRACTOR shall be compensated according
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to the rate schedules set forth in Exhibit A for any increase in
Recyclables collected. CONTRACTOR shall also dispose, at
CONTRACTOR'S expense, all residual material resulting from
collection. There shall be no limit to the amount of residual
material which must be disposed at a permitted landfill
incinerator or disposal facility, except that in the event the
amount of residue exceeds 200, based on CONTRACTOR'S periodic
waste characterization, CUSTOMER shall pay an additional charge
equal to one times the percentage of residue multiplied by
CUSTOMERS monthly charge for CONTRACTOR'S services (the "Non
Compliance Adjustment "). The Non Compliance Adjustment shall not
be charged to CUSTOMERS during the first six months of this
Agreement, and shall thereafter only be applicable after the
CUSTOMER has been given at least one warning of CUSTOMER'S non
compliance during the six months preceding the assessment of the
Non Compliance Adjustment.
CONTRACTOR shall provide the necessary supervised labor for the
collection, processing and marketing of Recyclables. CONTRACTOR
also agrees to designate a field supervisor experienced with
recycling collection programs. A communications system must be
developed and implemented to access all field personnel to relay
information such as missed pick -ups. Staff or field personnel
must be available by telephone during the hours of 8:00 am - 5:00
pm Monday through Friday.
2.4 Frequency of Collection CONTRACTOR shall collect
Commingled Recyclables and Green Waste once each week per
CUSTOMER, unless additional collections are otherwise requested
and paid for by the CUSTOMER. CONTRACTOR may operate in the
CITIES up to six days a week.
CONTRACTOR may collect materials one day prior to or after the
observed Holiday if the collection day falls on a Holiday.
However, no collection activity shall take place on Sunday.
CONTRACTOR must make the CUSTOMERS aware of the change in the
collection schedule as a result of a Holidays, and must provide
CUSTOMERS with at least 30 days prior notice of any change in the
collection schedule.
CONTRACTOR will be responsible for providing additional
collection service for Commingled Recyclables as directed by
CUSTOMER. Requests for collection from CUSTOMERS with
"overflowing" bins or missed pick -ups must be serviced within 24
hours of notice of service or notice of missed collection.
CONTRACTOR'S hours for the collection of materials shall be from
7:00 am to 6:00 pm Monday through Saturday, except as may
otherwise be required in residential areas by each of the CITIES'
ordinances.
2.5 Service of Containers CONTRACTOR will be responsible
for the proper placement of containers after collection and will
return recycling containers to their proper location.
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CONTRACTOR will be responsible for the maintenance of all areas
around or near collection bins. CONTRACTOR shall not be
responsible for non - recyclable solid waste that is intended for
placement in a solid waste container but is left near or around
collection containers.
CONTRACTOR shall be responsible for reporting any toxic /hazardous
wastes found near or inside containers. Any containers that are
not collected due to the presence of toxic /hazardous wastes must
be sealed by means of tape and marked to notify the public of the
hazard. All instances regarding toxic /hazardous wastes must be
reported to the person designated by each CITY to review and
coordinate any and all information relating to this Agreement
(the "Waste Manager ") as soon as possible and not more than two
hours after toxic /hazardous wastes have been encountered.
CONTRACTOR shall service containers within twenty -four (24) hours
after notification by the waste Manager that any reported
toxic /hazardous wastes have been removed by the CITIES.
CONTRACTOR will be responsible for maintaining, cleaning and
replacing containers as reasonably directed by the CUSTOMERS.
CONTRACTOR may charge additional amounts for services outside the
scope of normal maintenance such as steam cleaning of container,
a schedule of such additional charges shall be provided to each
of the Cities prior to any such charge being applied to a
CUSTOMER.
CONTRACTOR must deliver containers at the start of the program
and as agreed to by the CUSTOMER, or as otherwise set forth in
the Proposal.
CONTRACTOR shall move collection containers from the specified
location to an area where they can be serviced. Barrels left
indoors will be charged accordingly.
2.6 Processing, Marketing and Disposal CONTRACTOR shall
collect and process materials in a way that will increase
marketability and /or comply with the highest possible quality
specifications set by markets. In cases where materials are
considered contaminated or are rejected from market, for any
reason, the CONTRACTOR will be responsible for undertaking
reasonable measures to upgrade materials to market standards.
CONTRACTOR will be responsible for the storage, at CONTRACTOR'S
expense, of materials until a market is located. Storage of
materials must be in compliance with all local, State and federal
laws and /or regulations regarding material storage.
CONTRACTOR must utilize all reasonable measures to upgrade
materials and /or seek recycling markets for materials. Once all
available measures to upgrade materials or locate markets have
been exhausted CONTRACTOR must notify the Cities of its intent to
dispose of the materials at a permitted landfill, incinerator or
disposal facility.
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CONTRACTOR shall market all collected and processed materials.
CONTRACTOR is responsible for providing all equipment necessary
to market materials.
2.7 Reporting Requirements CONTRACTOR is responsible for
all reporting procedures as outlined in the RFP and Proposal.
CONTRACTOR shall conduct quarterly waste composition studies to
identify the types and amounts of recyclable materials collected
from CUSTOMERS.
CONTRACTOR shall maintain a journal, which may be audited,
recording each instance that Commingled Recyclables are not
collected. The report shall include but is not limited to: the
name (if known), address and reason of non - collection, the form
of notification used to inform the CUSTOMER of the reasons of
non - collection and the end result of the incident.
CONTRACTOR shall maintain an auditable journal recording
complaints and shall maintain records of actions taken to respond
to complaints.
CONTRACTOR shall submit quarterly reports provided for in the RFP
and Proposal. The quarterly reports shall identify participation
and tonnages by material types, revenues and market specifics,
and measurement towards attaining the Performance Standard.
CONTRACTOR shall submit an annual report which summarizes the
previous year's activity and presents any corrective or
contingency measures needed to improve the effectiveness of the
program.
CONTRACTOR shall provide with each quarterly report, a list of
contacts, volunteers, interested CUSTOMERS, program coordinators
or other individuals contacted by CONTRACTOR who are interested
in assisting with the development of the program.
2.8 Waste Audits
A. Initial Waste Audit An initial waste audit shall be
performed by CONTRACTOR for each CUSTOMER prior to establishing
recycling service to determine the appropriate service level and
for each Business which requests to opt out of CONTRACTOR'S
program.
B. Opting Out Businesses If a Business chooses to opt out of
CONTRACTOR'S recycling services, CITY shall require a waste audit
to be performed to ensure compliance. If, as a result of the
waste audit, it is determined that less than ninety percent
(90 %), by aggregate, of all types of recyclable materials are
diverted,*CITY shall require the Business to utilize CONTRACTOR'S
services and pay for the appropriate service level based on the
waste audit. CONTRACTOR shall not be compensated for performing
any waste audit at the Santa Anita Race Track. Said
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Race Track shall not be counted toward the ten percent (10 %) opt
out provisions, and shall be conclusively deemed by the parties
to meet all performance standards for Businesses which opt out,
including the requirement that ninety percent (90 %) by aggregate,
of Santa Anita Race Track's refuse stream is recycled as defined
in Section 2.2 A, B, and C.
C. Payment for Waste Audits CONTRACTOR shall not be
compensated for conducting the initial waste audits. CONTRACTOR
shall be compensated for performing quarterly waste audits of
Businesses which opt out only if ten percent (10 %) or more of the
Businesses in the affected CITY opt out of CONTRACTOR'S recycling
services. The amount of compensation for such waste audits shall
be at the rate of $4.50 per cubic yard per quarter of all solid
waste and recyclable materials generated by the audited Business.
D. CONTRACTOR to Perform Except as provided herein for Santa
Anita Race Track, all waste audits shall be performed by
CONTRACTOR and CITIES shall not contract with or compensate any
other person or entity to conduct such waste audits.
2.9 Education CONTRACTOR shall provide education programs
consistent with the requirements set forth in the RFP and
provided for in the Proposal. CONTRACTOR shall further provide
all notices prescribed in the RFP and agreed to in the Proposal.
All elements of the educational program must be reviewed and
approved by the CITIES. The CITIES agree to provide CONTRACTOR
with a determination regarding the educational program within ten
(10) business days after it has been submitted for review.
Failure to provide a determination within the time period
specified shall be deemed approval. The CONTRACTOR shall show
satisfactory proof to the CITIES that the notices were delivered
as required.
The CONTRACTOR shall also promote the program in each CITY by
means of advertisements published once a week for two (2)
consecutive weeks in one or more newspapers of general
circulation within the CITIES, starting two weeks prior to
beginning of each program. Said published advertisement shall
contain the name, address and phone number of the CONTRACTOR.
CONTRACTOR shall deliver and distribute promotional materials to
each CUSTOMER participating in the program, at least two weeks
prior to delivery of containers.
CONTRACTOR shall include information regarding products made of
post consumer materials and shall also include information
regarding the availability of these materials which includes a
listing of local retailers who market materials made of post
consumer materials.
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CONTRACTOR shall be responsible for the preparation and
distribution of promotional brochures and /or fliers to all
CUSTOMERS.
2.10 Equipment Specifications CONTRACTOR shall assure that
containers and equipment meet specifications and requirements of
the RFP and Proposal, as well as all Fire and Safety codes.
CONTRACTOR shall provide uniforms for staff collecting materials.
Each uniform must indicate the name of the employee and the
business name of CONTRACTOR.
CONTRACTOR shall equip each collection vehicle with a broom,
shovel, trash bags, notice of non - collection tags, masking tape
and first aid kit at all times.
CONTRACTOR shall provide all necessary vehicles and equipment to
store, collect, transport, market and process materials.
CONTRACTOR shall maintain an office in the Los Angeles County
area. The location and phone number for this office must be
listed in the phone book of each of the CITIES and an employee
must be available by phone during the hours of 8:00 am 5:00 pm
Monday - Friday.
2.11 Liability CONTRACTOR shall be responsible for all
property supplied to collect recyclable material. CONTRACTOR
will be responsible for the prompt and timely payment for broken,
lost, stolen or damaged property of the CITIES or private
property. CONTRACTOR will also be liable for any damages to
privately owned property as a result of CONTRACTOR'S operational
procedures, however, CONTRACTOR shall not be responsible for
broken pavement or damage to driveways or streets within the
public right of way due to the weight of CONTRACTOR'S equipment,
unless specific weight limits are posted in a manner visible to
CONTRACTOR'S employees.
2.12 Additional CONTRACTOR shall provide any additional
work or equipment as outlined in the Proposal.
2.13 Failure to Collect Should CONTRACTOR fail to collect
Commingled Recyclables placed for collection as herein provided,
by the end of the day designated for collection and recycling of
the material, or within 24 hours of notification of such failure
to collect, the CITIES may collect and recycle the same and
CONTRACTOR shall be liable for all expenses incurred including,
but not limited to, transportation, labor, administration and
legal costs. Reimbursement to the CITIES for such expenses will
be paid by CONTRACTOR or assessed as liquidated damages.
2.14 Field Supervisor The CONTRACTOR shall assign a field
supervisor whose responsibility it shall be to represent the
CONTRACTOR'S operation in the field.
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Such supervisor shall serve as liaison to the CONTRACTOR'S crews
in the field and the CITIES. The field supervisor shall spend as
much time supervising the collection routes as is needed to
accomplish the provisions of these specifications and contract.
2.15 Office For Inquiries and Complaints The CONTRACTOR
shall equip all trucks, including the Field Supervisor's vehicle,
with two -way radio communications with CONTRACTOR'S office.
Complaints received by the CONTRACTOR, either directly from the
CUSTOMER or the CITIES, must be resolved within 24 hours from the
time of the complaint. CONTRACTOR shall provide the CITIES with
an emergency telephone number that can be reached 24 hours a day.
2.16 Independent Contractor Status The CONTRACTOR shall be
an Independent Contractor and not an Agent or employee of the
CITIES. CONTRACTOR shall have no authority to make any contracts
or legal commitments on behalf of the CITIES.
SECTION THREE
CONTRACTOR'S OBLIGATIONS
CONTRACTOR shall perform hereunder pursuant to the following
3.1 Records CONTRACTOR shall provide the CITIES with a
copy of its annual financial statements as reported on by a
certified public accountant who has annexed his or her
Unqualified opinion thereto in compliance with Rule 58.1 of the
"Rules and Regulations of the State Board of Accountancy" as
established by the California Code of Regulations, Title 16,
Chapter 1. Such certified public accountant shall not be an
employee of the CONTRACTOR and shall have no financial interest
whatsoever in the business of CONTRACTOR. Notwithstanding any
applicable provisions of law, said financial statements shall be
kept confidential by the CITIES except (1) financial information
specifically submitted in support of an application for a rate
increase or (2) as otherwise directed by a court of competent
jurisdiction. The CITIES may specify the form and detail of such
statements. In the event that the financial statements are not
provided by the CONTRACTOR pursuant to this Agreement, the CITIES
reserve the right to employ at the CONTRACTOR'S expense a
certified public accountant to report on such statements.
Nothing stated herein shall be deemed to abrogate any provision
of the California Public Records Act.
3.2 Compliance With All Laws The CONTRACTOR shall comply
with each of the CITIES' Ordinances, State Vehicle Codes, and all
conditions and limitations in any permits or licenses under which
the CONTRACTOR operates. CONTRACTOR shall also comply with all
State and Federal laws regarding the collection, transportation,
marketing and disposal of solid waste and recyclables.
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3.3 Storage of Vehicles CONTRACTOR shall not store any
vehicle on any public street or other public property in the
CITIES.
3.4 Transfer of Loads on Public Streets CONTRACTOR shall
not transfer any load from one collection vehicle to another on
any public street or road unless transfer is essential to the
method of operation and is approved by the Waste Manager, or is
necessary owing to mechanical failure or accidental damage to a
collection vehicle.
3.5 Noise Level All collections shall be made as quietly
as possible, and CONTRACTOR shall ensure that collections shall
not cause the ambient noise level to exceed 75 decibels when
measured at a distance of 25 feet from the collection activity or
such higher decibel figure as may be set by CITY ordinance.
3.6 CONTRACTOR'S Employees Wages CONTRACTOR shall pay
wages to its employees in accordance with Sections 1770 and 1773
of the Labor Code of the State of California.
3.7 Non - Discrimination CONTRACTOR shall not discriminate
in the hiring of employees or in the employment of subcontractors
on the basis of race, religion or gender or any other basis
prohibited by law.
SECTION FOUR
CITIES' OBLIGATIONS
4.1 Establishment of Ordinances Each CITY shall establish
ordinances which require participation in recycling by Businesses
( "the Recycling Ordinances "). Such ordinances shall obligate
Businesses to establish recycling programs for all recyclable
materials, including but not limited to Commingled Recyclables,
Mixed Waste Paper and Green Waste. In accordance with each
CITY'S specified procedures, the Recycling Ordinances may allow a
CITY to place a lien on the property and /or rescind the business
license of any Business which does not comply with said
Ordinance.
Notwithstanding the foregoing, the Recycling Ordinances may
permit Businesses to sell, donate or pay to either a charitable
organization or another recycling company for such Business'
recyclable materials and thereby opt out of participation in
CONTRACTOR'S recycling services, provided that such Businesses
shall prove to the satisfaction of the CITY that ninety percent
(900), by aggregate, of all types of recyclable materials
required to be diverted pursuant to this Agreement are being
diverted from such Business' refuse stream. The Recycling
Ordinances shall also provide for additional anti - scavenging
regulations whereby individuals will be subject to fines and
penalties for removal of recyclables from recycling containers.
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The Recycling Ordinances shall also require any Business opting
out of CONTRACTOR'S services to provide the CITY with quarterly
reports on a form provided by the CITY concerning their waste
diversion, including the type and estimated amount of each
product sold, donated or provided for a fee to any charity or
other recycling company. The Recycling Ordinances shall also
require any recycling company or waste hauler removing
recyclables from the waste stream to report such diversion to the
CITY and indicate the type and amount of material diverted on a
quarterly basis`. The forms referred to in this Section shall be
in a format substantially as set forth in Exhibit "B ", attached
hereto and incorporated herein by this reference.
4.2 Use of Public Facilities CITY shall allow CONTRACTOR
access to public facilities, such as auditoriums, parks or
community meeting rooms, at no charge, provided no other event is
scheduled and CONTRACTOR has made a request to use such
facilities within a reasonable time period prior to CONTRACTOR'S
scheduled event. CONTRACTOR'S use of the public facilities shall
be for educational purposes or other events which promote the
Cities' recycling efforts.
4.3 Additional Assistance The CITIES shall provide the
CONTRACTOR, whenever possible, additional assistance by providing
services which may include, but not be limited to, the following:
A. Provide letters of support and explanation as
"stuffers" to CONTRACTOR'S first billing statements.
B. Provide announcements in CUSTOMERS' utility bills.
C. Provide a liaison between CONTRACTOR and the
Chamber of Commerce and other merchant associations.
D. Provide booth space at public festivals.
E. Provide volunteers for educational programs.
F. Explore creation of a recycling task force.
G. Provide CONTRACTOR with a list of businesses in
the CITY which includes addresses, phone numbers and the name of
a principal contact.
SECTION FIVE
BREACH AND TERMINATION
5.1 ' Failure to Perform All terms, provisions and
specifications of this Agreement are material and binding, and
failure to perform any portion of the work described herein shall
be considered a breach of this Agreement. Should the Agreement
be breached in any manner, the CITIES may, at their option,
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terminate the Agreement not less than (60) days after written
notification is -given to CONTRACTOR to remedy the violation
within the stated time. In the event a breach does not result in
termination, but does result in costs being incurred by the
CITIES, said costs shall be charged to CONTRACTOR.
The provisions of the preceding paragraph shall not be exclusive
but shall be cumulative and in addition to any other remedies
provided hereunder or pursuant to law.
5.2 Default by Cities In the event that any CITY defaults
under any of its obligation under the terms of this Agreement,
CONTRACTOR shall have the right to terminate this Agreement as it
relates to such CITY, upon 60 days prior written notice to the
CITY, provided that the CITY has not cured such default within
that time period.
SECTION S
TERM & ASSIGNMENT
6.1 Term of Agreement This Agreement shall become
effective pursuant to paragraph 10.3 below for a term of five
years (the "Initial Term "). At the end of the Initial Term and
continuing thereafter, this Agreement shall automatically renew
every two years provided CONTRACTOR has met the Performance Goals
set forth in Paragraph 2.1, above, for year five of the Initial
Term and continues to do so each year thereafter. In the event
CONTRACTOR fails to meet the Performance Goal above, in any year
after the second anniversary of the "Commencement Date," as
defined below, each of the CITIES may terminate this Agreement
upon 90 days' prior written notice to CONTRACTOR. Notwith-
standing the foregoing, if CONTRACTOR meets or exceeds the
Performance Goal, then commencing on the third anniversary of
this Agreement, the CITIES may only terminate this Agreement upon
giving two years prior written notice to CONTRACTOR.
6.2 Assignment of Agreement CONTRACTOR shall not assign,
subcontract or otherwise delegate authority to perform any
portion of this Agreement, unless to a subsidiary wholly owned by
CONTRACTOR, without the prior express written consent of the
CITIES. Neither shall any interest in this Agreement of any
right or privilege accruing to CONTRACTOR under the terms of the
Agreement be so assigned. In the event of any assignment duly
authorized by the CITIES, the Assignee shall assume liability of
CONTRACTOR. For purposes of this paragraph 6.2, an assignment of
this Agreement shall be deemed to be made if CONTRACTOR sells,
grants or merges a majority interest in its ownership to any
entity which it or its principal shareholder does not own or
control.
6.3 Bankruptcy If CONTRACTOR shall at any time during the
term of the Agreement become insolvent, or if proceedings in
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bankruptcy shall be instituted by or against CONTRACTOR, or if
CONTRACTOR shall be adjudged bankrupt or insolvent by any court,
or if a trustee in bankruptcy or a receiver of any CONTRACTOR
shall be appointed in an suit or property of CONTRACTOR shall be
appointed in any suit or proceeding brought by or against
CONTRACTOR, or if CONTRACTOR shall make an assignment for the
benefit of creditors, then in each and every such case, this
Agreement shall immediately cease, terminate, and be canceled
upon written notice by the CITIES and without the necessity of
suit or other proceeding.
SECTION SEVEN
SPECIAL PROVISIONS AND CONDITIONS
7.1 Force Majeure CONTRACTOR'S work and service
obligations provided herein shall be excused for such time that
meeting such obligation is impossible due to a natural disaster.
The standards shall also be waived for such time and in such
areas that the streets are not in condition to permit the safe
passage of CONTRACTOR'S vehicles. Work and service shall
continue within twenty -four (24) hours upon determination that
streets are in a condition to permit safe passage of CONTRACTOR'S
vehicles. Additional work to be performed as a result of a
natural disaster shall be in accordance to the standards set
forth in this Agreement. Labor disturbances, labor strikes, and
shortages of gasoline and diesel fuel shall be considered
circumstances for which the obligations contained in this
Agreement shall be waived during the pending of such
circumstances.
7.2 Compliance with All Laws CONTRACTOR agrees to handle,
transport, and dispose of all solid waste /recyclables and to
perform all of the service on its part as required by the
provisions of this Agreement, in -a careful manner, and in
accordance with all laws, ordinances, and regulations of the
United States, State of California, and the CITIES.
7.3 CITIES' Licenses CONTRACTOR shall be required to pay
all normal business license fees and such other fees or taxes the
CITIES may assess provided such fees and /or taxes are assessed
solely as a pass- through to the CUSTOMERS and not the payment
responsibility of the CONTRACTOR.
7.4 Wages, Salaries, Taxes, Etc CONTRACTOR shall
exonerate, defend, indemnify and hold harmless the CITIES, their
employees and agents, and.shall assume full responsibility for
payment of all wages or salaries and all Federal, State and local
taxes or contributions, including but not limited to, those
imposed and required under the Unemployment Insurance, Social
Security, Income Tax laws and Workers' Compensation laws with
respect to CONTRACTOR'S employees engaged in the performance of
CONTRACTOR'S obligations hereunder.
940301 10341 -00001 skv 0850959 2 — 14 —
7.5 Changes The CITIES may at any time by written order
modify CONTRACTOR'S obligation or the standards under which
CONTRACTOR is to perform its services. If any such modification
causes an increase or decrease in the per unit rate provided for
in the Proposal, or the time required for, performance of this
Agreement, an equitable adjustment shall be made in the per unit
rate provided. Any claim by CONTRACTOR for adjustment under this
paragraph must be asserted within thirty (30) days form the date
of receipt by CONTRACTOR of the notification of modifications.
7.6 Ownership of Equipment The CONTRACTOR shall own or
lease and maintain at its expense all equipment necessary to
perform its duties as provided for under this Agreement,
including sufficient radio equipment for office -to -field
communication. CONTRACTOR shall only be obligated to replace
containers once per year free of charge. In the event CUSTOMER
loses containers more than once per year, CUSTOMER shall pay
CONTRACTOR for the replacement of such container AT CUSTOMER'S
cost.
7.7 Non - Waiver No acquiescence, failure or neglect of
either party hereto to insist upon strict performance of any or
all of the provisions of this Agreement shall be construed to
constitute a waiver of any term, condition, or provision of this
Agreement nor of any performance required hereunder, nor of any
remedy, damage or other liability arising as a result of any
failure of performance, neglect, or inability to perform at any
time.
7.8 Verbal Unofficial or Unauthorized Agreements No oral
agreement or conversation with any officers, agents or employees
of the CITIES, either before or after the execution of this
Agreement, shall affect or modify any of the terms or obligations
contained in this Agreement. Any such oral agreement or
conversation shall be considered as unofficial information and in
no way binding upon the CITIES.
7.9 Attorneys Fees and Enforcement If any action at law
or suit in equity is brought to enforce or interpret the
provisions of this Agreement, the prevailing party shall be
entitled to reasonable attorney's fees in addition to any other
relief to which it may be entitled.
SECTION EIGHT
CHARGES AND COLLECTIONS /NON- PAYMENT
8.1 Compensation and Rate Adjustments CUSTOMERS shall pay
CONTRACTOR monthly compensation for CONTRACTOR'S services in
accordance with the rates set forth in the Exhibit "A," which
exhibit is attached hereto and made a part hereof by this
reference.
940301 10341 -00001 skv 0850959 2 — 15 —
A. Billing Procedure: CONTRACTOR shall bill
CUSTOMERS by the 5th of each month prior to month of service and
payment shall be due within Fifteen (15) days upon receipt of
invoice.
8.2 Basis for Adjustments The per -unit rate set forth in
this Agreement and any renewals or extension thereof shall be
increased on the anniversary of the "Commencement Date," as
defined below, pursuant to the following formula:
The adjusted per -unit rate shall be determined by
multiplying the existing per -unit rate by 1 plus the cumulative
total of:
A. The percentage change in the Consumer Price Index
( "CPI") for Urban Population /Los Angeles - All Urban Consumers as
published by the U.S. Department of Labor, Bureau of Labor
Statistics, multiplied by .43; plus
B. The percentage change in the CPI for Urban
Population /U.S. CITY Average For Gasoline - All Urban Consumers
multiplied by .08; plus
C. The percentage change in CONTRACTOR'S tipping fee
at landfills utilized by CONTRACTOR multiplied by .10; plus
D. The percentage change in the average annual
tipping fee for commingled commercial recyclables at three
Material Recovery Facilities (MRF) mutually agreed upon by
CONTRACTOR and the Cities as representative of the market for
such services in Los Angeles County multiplied by .39.
By way of example, if the CPI for labor and gasoline increased by
10% and 15% respectively, and CONTRACTOR'S landfill costs went up
by 20% and there was a 5% average increase in MRF costs,
CONTRACTOR'S annual adjustment would be 9.45% derived by the
following equation:
.10 X .43 = .043
.15 X .08 = .012
.20 X .10 = .02
05 X .39 = .0195
.043 + .012 + .02 + 0195 = .0945 or 9.45%
In the event CONTRACTOR believes that there has been substantial
cost increases during any given year, CONTRACTOR may petition the
CITY for an increase based on the foregoing formula prior to the
annual adjustment. Such petition shall be in writing and may not
be done more than once annually in addition to the scheduled
increase set forth above.
940301 10341 -00001 skv 0850959 2 — 16 —
S ECTION NINE
INSURANCE PROVISIONS
9.1 Types Required With respect to performance of work
under this Agreement, CONTRACTOR shall maintain and shall require
all of its subcontractors to maintain insurance as described
below:
A. Worker's compensation insurance with statutory
limits, and employer's liability insurance with limits of not
less than $1,000,000 per accident.
B. Comprehensive general liability insurance with a
combined single limit of not less than $4,000,000 per occurrence.
Such insurance shall include products /completed operations
liability, owner's and CONTRACTOR'S protective, blanket
contractual liability, personal injury liability, broad form
property damage coverage and explosion, collapse and underground
hazard coverage. Such insurance shall (a) name the CITIES, their
appointed and elected officials, officers, employees and agents
as additional insureds; and (b) be primary with respect to any
insurance or self - insurance programs maintained by the CITIES;
and (c) contain standard cross liability provisions.
C. Comprehensive automobile liability insurance with
a combined single limit of not less than $1,000,000 per
occurrence. Such insurance shall include coverage for owned,
hired and non -owned automobiles.
9.2 Certificates Required CONTRACTOR shall (a) furnish
properly executed certificates of insurance to the CITIES prior
to commencement of work under this Agreement, which certificates
shall clearly evidence all coverages required above and provide
that such insurance shall not be materially changed, terminated
or allowed to expire except on 30 days prior written notice to
the CITIES; and (b) maintain such insurance from the time work
first commences until completion of the work under the Agreement;
and (c) replace such certificates for policies expiring prior to
completion of work under the Agreement.
9.3 Failure to Provide If CONTRACTOR, for any reason,
fails to maintain insurance coverage which is required pursuant
to this Agreement, the same shall be deemed a material breach of
contract. The CITIES, at their sole option, may forthwith
terminate the Agreement and obtain damages from the CONTRACTOR
resulting from said breach.
9.4 Indemnity Provision. Notwithstanding the existence of
insurance coverage required of CONTRACTOR pursuant to this
Agreement, CONTRACTOR shall save, keep, indemnify, hold harmless,
and defend the CITIES and their appointed and elected officials,
officers, employees, and agents, from any claim or demand made
940301 10341 -00001 skv 0850959 2 — 17 —
and any liability, loss, damage or expense of any nature
whatsoever and all costs or expenses incurred in connection
therewith, which arise at any time, by reason of damage to the
property of, or personal injury to, any person, occurring or
arising out of the performance of CONTRACTOR, its officers,
agents or employees, including, but not limited to, its
subcontractors (hereinafter collectively "CONTRACTOR "), of the
work required pursuant to this Agreement, occasioned by any
alleged or actual wrongful act or omission by the CONTRACTOR
including but not limited to any such liability imposed in
consequence of the use in the performance of CONTRACTOR of the
work hereunder of any article or material supplied or installed
pursuant to a contract with the CITIES.
A. CONTRACTOR shall defend any action or actions
filed in connection with any of said claims, damages, penalties,
obligations or liabilities and will pay all costs and expenses,
including attorneys' fees incurred in connection herewith.
B. CONTRACTOR shall promptly pay any judgment
rendered against CITY, its officers, agents of employees for any
such claims, damages, penalties, obligations or liabilities; and,
C. In the event the CITIES, their officers, agents or
employees are made party to any action or proceeding filed or
prosecuted against CONTRACTOR for such damages or other claims
arising out of or in connection with the wrongful acts of
CONTRACTOR hereunder, CONTRACTOR agrees to pay the CITIES, their
officers, agents, or employees, any and all costs and expenses
incurred by the CITIES, their officers, agents or employees in
such action or proceeding, including but not Limited to,
reasonable attorney's fees.
9.5 Indemnification CONTRACTOR shall indemnify the
CITIES, defend, protect and hold harmless the CITIES, their
officers, employees, agents and assigns not limited to natural
resources damage, punitive damages, response remediation and
removal costs, CERCLA related liabilities, causes of action,
legal or administrative proceedings, interest, penalties and
expenses (including, but not limited to, attorneys' and expert
witness fees and costs incurred in connection with defending
against any of the foregoing or in enforcing this indemnity) of
any kind whatsoever paid, incurred or suffered by, or asserted
against the CITIES or their officers, employees, and agents
arising from or attributable in any manner to the CONTRACTOR'S
performance of this Agreement up to a maximum amount of one
million dollars ($1,000,000) per CITY. The foregoing indemnity
is intended to operate as an agreement pursuant to the
Comprehensive Environmental Response, Compensation and Liability
Act, 42 United States Code Section 9607(e), and California Health
and Safety Code section 25364, to insure, protect, hold harmless,
and indemnify the CITIES from CERCLA related liability.
940301 10341 -00001 skv 0850959 2 — 18 —
SECTION TEN
MISCELLANEOUS PROVISIONS
10.1 Joint Powers Agreement This Agreement shall be
considered a cooperative effort by and between the CITIES as
authorized under the State of California Government Code, and
shall obligate each of the CITIES to work together in ensuring
the success of the programs established hereunder, as well as to
pass such legislation as may be necessary to carry out each
CITIES' obligations hereunder.
10.2 No Joint and Several Liability This Agreement shall
not be construed as to establish any joint or several liability
on the part of the CITIES for any of the CITIES' obligations
hereunder, or for the payment of any amounts owed by any of the
CUSTOMERS. By way of example, in the event the CITY of Duarte
decides to terminate this Agreement, the Cities of Monrovia and
Arcadia shall not be responsible for the loss of profits of
CONTRACTOR due to such termination.
10.3 Effectiveness This Agreement shall be deemed
effective as to each of the CITIES, and the term shall commence,
as it relates to each CITY, thirty (30) days after the approval
by each CITY Council and execution by the respective mayor (the
"Commencement Date' ").
10.4 Entire Agreement This Agreement supersedes all prior
proposals, agreements, and understandings between the parties and
may not be modified or terminated orally, and no modification,
termination or attempted waiver of any of the provisions hereof
shall be binding unless in writing and signed by the party
against whom the same is sought to be enforced.
940301 10341 -00001 skv 0850959 2 — 19 —
10.5 Governing Law This Agreement shall be governed by the
laws of the State of California.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
CITY OF ARCADIA
BY:
M OR
CITY OF DUARTE
WA
ATTEST
+ CITY CLERK
CITY OF MONROVIA
BY: / "—
ATTEST:
CITY CLERK
APPROVED AS TO FORM:
CITY A TORNEY OF:
BY:
CITY ATTORNEY OF:
r
BY
CITY ATTORNEY OF: V f'U Ll
ATTEST:
Qi. I
CITY CLERK
ZAKAROFF SERVICES
BY:
ROUBEN DILIAN, PRESIDENT
940301 10341 -00001 skv 0850959 2 — 20 —
NOTICE OF PUBLIC HEARING
BEFORE THE
ARCADIA CITY COUNCIL
NOTICE IS HEREBY GIVEN that on TUESDAY, MARCH 15, 1994, at
7:30 p.m. in the Arcadia City Hall Council Chambers, 240 West
Huntington Drive, Arcadia, California, a public hearing will be
held by and before the City Council in consideration of AMENDED
AGREEMENT FOR COLLECTION OF RECYCLABLE MATERIALS FROM COMMERCIAL
AND INDUSTRIAL PROPERTIES and the reintroduction of ORDINANCE NO.
2000 AMENDING THE ARCADIA MUNICIPAL CODE BY ADDING PART 3 TO
CHAPTER 1 OF ARTICLE V TO IMPLEMENT AND PROVIDE REGULATIONS FOR A
COMMERCIAL AND INDUSTRIAL RECYCLING PROGRAM.
At said time and place an opportunity will be
afforded all those interested and the public in
general to be heard.
For additional information please contact Tamara Gates at (818)
574 -5436 in the City Manager's Office, Solid Waste Division, at
City Hall, Monday through Friday, between the hours of 8:00 a.m.
and 5:00 p.m.
June D. Alf
City Clerk
Dated: February 24, 1994
Publish: March 3, 1994