c) Step Three - Multiply the Total Rate Adjustment Percentage from Step Three by the existing Customer rates to calculate the increase or decrease to the maximum rates. Add the rate increase or decrease to the existing rates to derive the newly adjusted rates.
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d) Step Four - Recalculate Residential and Commercial cost component weightings for the following year based upon these changes.
7.5 Competitive Rate Guarantee
Contractor has agreed to a competitive rate guarantee for Residential and Commercial rates.
All Residential and Commercial rates shall be equal to or less than the 50th percentile of comparable rates for Solid Waste Service, as of July 1 each year, charged by the following ten (10) jurisdictions in north Orange County: Anaheim, Fullerton, Garden Grove, Irvine, Placentia, Santa Ana, Tustin, Villa Park, Brea, and Yorba Linda. Comparable rates shall be the rates charged to ratepayers less any amount attribut able to fees paid to or collected by the jurisdiction, and less any amount for non- Solid Waste related services. The 50th percentile of the comparable rates shall be the midpoint between the comparable rates of the 4th and 5th ranked jurisdictions.
Notwithstanding any rate adjustment resulting from the annual CPI adjustment in Section
7.4, City shall apply the competitive rate guarantee so that the Solid Waste Service rates shall not exceed the median of the rates for similar services among the ten (10) north Orange County cities. In other words, the maximum Solid Waste rates would be adjusted by the annual CPI adjustment, with specific rates reduced if the 50th percentile of comparable rates among the 10 jurisdictions in north Orange County listed above are less than the CPI-adjusted rate under the Competitive Rate Guarantee. The rates would be adjusted each July 1 to account for both the CPI adjustment and the Competitive Rate Guarantee.
7.6 Extraordinary Adjustments
Contractor may request an adjustment to maximum rates at reasonable times other than that allowed under Section 7.4 in the event of extraordinary changes in the cost of providing service under this Agreement. Such changes shall not include:
a) Changes in tipping fees for Recyclable Material processing costs;
b) Cyclical changes in Roll-off volume;
c) Inaccurate estimates by the Contractor of its proposed cost of operations;
d) Unionization of Contractor's work force; or,
e) Changes in wage rates or employee benefits.
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Unusual increased costs may include:
a) Extraordinary changes in the market value of Recyclables;
b) Extraordinary increases in the tipping fees charged at the Orange County Landfill System;
c) Changes in direct per ton fees assessed at a Disposal Site by Federal, State or local regulatory agencies;
d) Changes in service mandated by the City;
e) Changes to the Orange Municipal Code affecting Contractor’s operations;
f) Increases in fees imposed by the City;
g) Changes in State or local government solid waste fees and charges; or,
h) Changes in the law.
For each request for an adjustment to the maximum rates that Contractor may charge Customers brought pursuant to this section , Contractor shall prepare a schedule documenting the extraordinary costs. Any request for an extraordinary adjustment shall be submitted at least one hundred twenty (120) days pri or to the effective date of the adjustment. Such a request shall be prepared in a form acceptable to City Manager or designee with support for assumptions made by Contractor in preparing the estimate.
Contractor shall also submit a schedule showing how it s total costs and total revenues have changed over the past three years for the services provided under this Agreement.
The City Manager or designee may request a copy of the Contractor's annual financial statements in connection with the City Manager or designee's review of Contractor's rate adjustment request. The City Manager or designee shall review the Contractor's request and, in City Manager or designee's sole judgment and absolute, unfettered discretion, make the final determination as to whether an adjustment to the maximum rates will be recommended to the City Council , and the appropriate amount of the adjustment . The City Manager or designee may consider increases or decreases in the Contractor's total revenues and total cost of services when reviewing an extraordinary rate adjustment request . Only a recommendation that an adjustment be allowed shall be presented to the City Council.
Should the City Council approve the request, the extraordinary rate adjustment shall become effective at the start of the next billing cycle, i.e., the next month for commercial and the next quarter for residential, and may not be applied retroactively. 653
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No increase in rates may occur unless and until any notice and hearing which may be required by Proposition 218 (California Constitution Article XIII D, section 6), and related California Government Code sections have been given and held. The City shall initi ate and undertake the notice and hearing process with respect to any increases in fees and charges occurring from time to time during the Term arising from the operation of this section, in accordance with the requirements of Proposition 218 (California Co nstitution Article XIII D, section 6), and related California Government Code sections. If the proposed increase in rates is not approved at the hearing pursuant to the requirements of the Proposition 218 process, there will be no increase in the rates under this Agreement.
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8. REVIEW OF SERVICES AND PERFORMANCE
8.1 Performance Review Meeting
City may hold a meeting or a public hearing annually to review Contractor's Solid Waste Handling efforts, source reduction, processing and other Diversion services , and overall performance under this Agreement (the “Solid Waste Services and Performance Review Meeting”). The purpose of the Solid Waste Services and Performance Review Meeting is to provide for a discussion and review of technological, economic, and regulatory changes in Collection, source reduction, Recycling, processing , and Disposal to achieve a continuing, advanced Solid Waste Handling, source reduction, and Recycling and Disposal system; and to ensure services are being provided by Contractor with adequate quality, effectiveness , and economy, and in full compliance with the terms of this Agreement. Topics for discussion and review at the Solid Waste Services and Performance Review Mee ting shall include, but shall not be limited to, services provided, feasibility of providing new services, application of new technologies, Customer complaints, amendments to this Agreement, developments in the law, new initiatives for meeting or exceeding AB 939 goals, regulatory constraints, results of route audits, and Contractor performance. City and Contractor may each select additional topics for discussion at any Solid Waste Services and Performance Review Meeting.
City shall notify Contractor of it s intent to hold a Solid Waste Services and Performance Review Meeting at least sixty (60) days in advance. Thirty (30) days after receiving notice from City of a Solid Waste Services and Performance Review Meeting, Contractor shall submit a report to City which may contain such information as it wishes to have considered, and shall contain the following:
a) Current Diversion rates and a report on Contractor's outreach activities for the past year.
b) Recommended changes and/or new services to improve City's ab ility to meet the goals of AB 939 and to contain costs and minimize impacts on rates. A specific plan for AB 939 compliance shall be included.
c) Any specific plans for provision for new or changed services by Contractor.
The reports required by this Agreement regarding Customer complaints shall be used as one basis for review of Contractor's performance, and Contractor may submit other relevant performance information and reports for consideration at the Solid Waste Services and Performance Review Meeting. In addition to the above, City may request Contractor to submit any other specific information relating to its performance for consideration at the Solid Waste Services and Performance Review Meeting, and any Customer may submit 655
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comments or complaints during or before the meeting, either orally or in writing. Contractor shall be present at and participate in the Solid Waste Services and Performance Review Meeting.
As a result of its findings following any Solid Waste Services and Performance Review Meeting, City may require Contractor to provide expanded or new services within a reasonable time and City may direct or take corrective actions for any performance inadequacies (although nothing contained in this provision should be construed as requiring City to hold a Solid Waste Services and Performance Review Meeting in order to enforce any rights or remedies it has pursuant to the terms in this Agreement .) Should City require expanded or new services as a remedy for Contractor's failure to perform its obliga tions hereunder, no additional compensation shall be due for such services. Otherwise, any new or expanded services required of Contractor shall be subject to the provisions of Section 2.10.
8.2 Performance Satisfaction Survey
If requested by the City, Contractor shall create and conduct a survey at Contractor's expense in preparation for any Solid Waste Services and Performance Review Meeting held pursuant to Section 8.1. City shall notify Contractor of its desire for such a survey at least ninety ( 90) days in advance of the Solid Waste Services and Performance Review Meeting. The purpose of the survey is to determine Customer satisfaction with current Collection services and Customer service provided by Contractor. The Survey will be distributed to a minimum of ten percent (10%) of the Residential Customers and ten percent (10%) of the Commercial Customers, selected at random. City may instruct Contractor to send out separate Sing le- family and Multi-family/Commercial surveys. Contractor shall obtain City's approval of each survey's content, format, and mailing list prior to its distribution. City may require that Contractor have Customer responses to the survey returned directly to City. The survey results shall be made available to the City thirty (30) days prior to the Solid Waste Services and Performance Review Meeting.
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9. RECORDS, REPORTS AND INFORMATION REQUIREMENTS
9.1 General
Contractor shall maintain such accounting, statistical, and other records related to its performance under this Agreement as shall be necessary to develop the financial statements and other reports required by this Agreement. Also, Contractor agrees to conduct data collection, information and record keeping, a nd reporting activities needed to comply with Applicable Laws and regulations and to meet the reporting and Solid Waste program management needs of City. To this extent, such requirements set out in this and other sections of this Agreement shall not be co nsidered limiting or necessarily complete. In particular, this section is intended to only highlight the general nature of records and reports and is not meant to define exactly what the records and reports are to be and their content.
Further, with the wr itten direction or approval of City, the records and reports to be maintained and provided by Contractor in accordance with this and other s ections of the Agreement shall be adjusted in number, format, or frequency.
9.2 Records
9.2.1 General
Contractor shall maintain records required to conduct its operations, to support requests it may make to City, and to respond to requests from City in the conduct of City business.
Adequate record security shall be maintained to preserve records from events that can be reasonably anticipated such as a fire, theft, and earthquake. Electronically maintained data/records shall be protected and backed up. All records shall be maintained for five (5) years and shall continue to be available for five (5) years after the expiratio n of this Agreement. After minimum holding periods are met, Contractor shall notify City ninety (90) days before destroying records.
Contractor agrees that the records of any and all companies conducting operations addressed in the Agreement shall be prov ided or made available to City and its official representatives during normal business hours. Account histories shall be accessible to the City by computer for a minimum of five (5) years. City may review or utilize any of the records described in this section. Such records include, but are not limited to, financial, Solid Waste, CERCLA, and Disposal records.
9.2.2 Financial Records
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segregated from such records relating to its other operations. Contractor shall maintain at least the following records:
a) Audited financial statements for Contractor or, if a guarantee was provided, for the parent company guarantor as a whole;
b) Financial statements (compiled, reviewed , or audited) of revenue and expenses for this Agreement segregated from the other operations of Contractor (including without limitation those operations of Contractor in City and surrounding jurisdictions which are not covered by this Agreement), including a description of segregation methodology; and,
c) Complete descriptions of related party transactions (corporate and/or regional management fees, inter- company profits from transfer, processing , or Disposal operations).
9.2.3 Solid Waste Records
Contractor shall maintain and make available to th e City upon request the following records relating to its operations pursuant to this Agreement:
a) Customer services and Billing/City payment records; upon request, Contractor shall provide customer service and billing data in electronic format that is acceptable to City.
b) Records of tons Collected, processed, diverted, and disposed by waste stream (Refuse, Recycling, Organic Waste), by Customer type (Cart, Residential Bin, Commercial, and Roll-off Box), and the Facilities (Transfer Station, MRF, or landfill) where such material was taken (Residential Bin versus Commercial Bin tonnage may be estimated based upon Container distribution or other method approved by City);
c) Quantity of Recyclable Materials recovered by material type, as well as quantity of material diverted from landfills in compliance with AB 939;
d) Bulky Item results and Special Event tonnages, including tons disposed and diverted;
e) Routes;
f) Facilities, equipment and personnel used;
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g) Facilities and equipment operations, maintenance, and repair;
h) Number and type of Refuse, Recycling, and Green Waste Containers in service;
i) Complaints; and,
j) Missed pickups.
9.2.4 CERCLA Defense Records
City views the ability to defend against the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and related litigation as a matter of great importance. For this reason, City regards the ability to prove where Solid Waste Collected in the City was taken for Disposal, as well as where it was not taken, to be matters of concern.
Contractor shall maintain data retention and preservation systems which can establish where Solid Waste Collected in the City was landfilled (and therefore establish where it was not landfilled) for not less than five (5) years following the termination of this Agreement, and agrees to notify City's Risk Manager and City Attorney before destroying such records thereafter. At any time, including after the expiration of the Term of this Agreement , Contractor shall provide copies of such records to City. The requirements of this section shall survive the expiration of the Term of this Agreement.
9.2.5 Disposal Records
Contractor shall maintain, and make available to the City upon request, records of Disposal of all Solid Waste Collected in City for the period of this Agreement and all extensions to this Agreement or successor Agreements. In the event Contractor discontinues providing Solid Waste Collection Services to City, Contractor shall provide all records of Disposal or processing of all Solid Waste Collected in City within thirty (30) days of discontinuing service.
Records shall be in chronological and organized form and readily and easily interpreted.
9.2.6 Other Programs' Records
Records for other programs shall be tailored to specific needs. In general, they shall include:
a) Plans, tasks, and milestones; and,
b) Accomplishments in terms such as dates, activities conducted, quantities of products used, produced or distributed, and numbers of participants and responses.
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9.2.7 Audit
City may conduct an audit of Contractor at any time. The scope of the audit, and auditing party, shall be determined by City and the scope may include, but is not limited to, compliance with terms of this Agreement, Customer service levels and Billing, fee payments, Gross Receipts, tonnage, verification of weightings of cost components used in the rate adjustment formula described in Section 7.4 , and verification of D iversion rate. The first audit, to be performed during 20 25, will be based on the Contractor's reports and records for calendar year 20 24. Audits will be performed every other year thereafter (the biennial audit).
Contractor will reimburse to the City the cost of such audits (including audits conducted by City staff) up to $90,000 for the first audit, and $60,000 for each subsequent biennial audit in 2020 dollars. The $60,000 amount in subsequent years shall be increased annually by the change in CPI using the formula for the change in the service component of the rates in Section 7.4.
Should an audit conducted or authorized by the City disclose that fees payable by Contractor were underpaid by two percent (2%) or more, that tonnage was misreported by 2% or more, or that more than two percent (2%) of the Customers were inaccurately billed based on the auditor's sampling, for the period under review, City may expand the scope of the audit and recover additional audit costs from the Contractor.
9.2.8 Payments and Refunds
Should an audit disclose that fees payable by the Contractor were underpaid or that Customers were overcharged for the period under review, Contractor shall pay to City any underpayment of fees and/or refund to Contractor's Customers or to City, as directed by City, any overcharges within thirty (30) days following the date of the audit.
Contractor shall pay interest to the City for any under payment or overcharges at an annual rate of twelve percent (12%). Undercharges shall not be billed in arrears for more than ninety (90) days of service, with any remaining undercharges absorbed by Contractor. Should an audit disclose that fees were overpai d, City shall credit such amounts against future fees payable by Contractor.
9.3 Reports
9.3.1 Report Formats and Schedule
Records shall be maintained in forms and by methods that facilitate flexible use of data contained in them to structure reports, as needed. Contractor may propose report formats that are responsive to the objectives and audiences for each report. The format of each report 660
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shall be approved by City. In addition to submitting all reports on paper, Contractor agrees to submit all reports in an electronic format approved by City, compatible with City's software/computers at no additional charge.
Reports shall be submitted within thirty (30) calendar days after the end of the reporting period. Annual reports for which a date is not otherwise specified in this Agreement shall be submitted within thirty (30) calendar days after the end of the calendar year. If requested, Contractor's complaint summary, described in Section 6.2.2, shall be sent to the Publlic Works Director within five (5) business days of request. All reports shall be submitted to:
Public Works Director (or designated representative)
City of Orange
300 E. Chapman Ave.
Orange, CA 92866
9.3.2 Monthly Reports
The information listed below shall be the minimum reported:
a) Solid Waste Collected by Contractor, sorted by type of Solid Waste Collected and diverted (Refuse, Recycling, Organic Waste ) in tons (including contamination and Diversion rates for each waste stream and Customer type), Customer type (Cart, Residential Bin, Commercial Bin , and Roll-off Box) and the Facilities where the tons were processed or disposed.
b) Warning notices issued for contaminated Recyclable Materials and Organic Waste Containers.
c) Narrative summary of problems encountered and actions taken with recommendations for City, as appropriate.
d) Quantity of Recyclable Materials recovered by material t ype, as well as quantity of material diverted from landfills in compliance with AB 939.
e) Description of Contractor outreach activities and copies of promotional and public education materials sent during the month.
f) A list of all Customers that generate recoverable edible Food Waste.
g) Other information or reports that City may reasonably request or require.
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9.3.3 Annual Report
The Annual Report is to be essentially in the form and content of the monthly report, but shall also include:
a) A summary of the number of Containers in service as of December 31 by size (number of gallons, number of yards), sector (Residential Cart, Commercial Cart, Residential Bin, Commercial Bin and Roll-off Box), service frequency, and type of service (Refuse, Recycling, Organic Waste).
b) Records of tons Collected, processed, diverted, and disposed by waste stream (Refuse, Recycling, Organic Waste ), by Customer type (Cart, Residential Bin, Commercial Bin and Roll-off Box), and the Facilities (Transfer Station, MRF, or landfill) where such material was taken.
c) Gross Receipts by sector (Cart, Residential Bin, Commercial Bin , and Roll-off Box).
d) A complete inventory of vehicles used to provide all services, including make, year, type, fuel used, use, California license number, and whether or not it is used as a spare.
e) Number of routes and route hours per day by type of service as of December
31. f) General information about the Contractor and its most recent annual report.
g) Other information or reports that City may reasonably request or require.
9.3.4 CalRecycle Electronic Annual Report
Contractor shall prepare the CalRecycle Electronic Annual Report ( EAR), including but not limited to supplying required data for preparation of the reports, and completing all required data input in the Local Government Information Center (LoGIC). Contractor shall prepare and submit the EAR each year by the August 1
st deadline or deadline date established by
CalRecycle.
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9.3.5 Financial Report
The City may, at City's option, request and be provided with Contractor's financial reports/statements for the most recently completed fiscal year in connection with any audit, extraordinary rate adjustment request, or verification of other information required under this Agreement.
Financial statements shall include a supplemental combining schedule showing Contractor's results of operations, including the specific revenues and expenses in connection with the operations provided for in this Agreement, separated from others included in such financial statements. The financial statements and footnotes shall be prepared in accordance with GAAP and audited, in accordance with Generally Accepted Auditing Standards (GAAS) by a certified public accountant (CPA) licensed (in good standing) to practice public accounting in the State of California as determined by the State of California Department of Consumer Affairs Board of Accountancy. The cost for preparation of the financial statements and audit shall be borne by Contractor as a direct cost of service. In addition, Contractor shall provide to City the supplemental schedule on a compiled basis.
9.4 Reporting Adverse Information
Contractor shall provide City two copies (one to the City Manager or designee, one to the City Attorney) of all reports, pleadings, applications, notifications, Notices of Violation, communications, or other material relating in any way to Contractor's performance of services pursuant to this Agreement, su bmitted by Contractor to, or received by Contractor from, the United States or California Environmental Protection Agency, the California Department of Resources Recycling and Recovery, the Securities and Exchange Commission or any other Federal, State or local agency, including any Federal or State court. Copies shall be submitted to City within thirty (30) days of receipt by Contractor, or sooner if reasonably apparent that to do so is materially relevant, and any responses by Contractor shall be submitted to City simultaneously with Contractor's filing or submission of such matters with said agencies. Contractor's routine correspondence to said agencies need not be routinely submitted to City but shall be made available to City promptly upon City's written request.
9.5 Right to Inspect Records
City shall have the right to inspect or review the specific documents or records required expressly or by inference pursuant to this Agreement, or any other similar records or reports of Contractor or its Affiliates that City shall deem, in its sole discretion, necessary to evaluate annual reports, and Contractor's performance provided for in this Agreement. Contractor shall make all records and documents to be reviewed and inspected by City as a part of any 663
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audit or other record review conducted by City, available for City's review, inspection , and copying within five (5) days of receiving written notice from City requesting the same.
9.6 Failure to Report
The refusal or failure of Contractor to file any required reports, or to provide required information to City, or the inclusion of any materially false or misleading statement or representation by Contractor in such report shall be deemed a material breach of the Agreement as described in Section 12.1 and shall subject Contractor to all remedies which are available to the City under Agreement or otherwise.
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10. INDEMNIFICATION, INSURANCE, BOND AND LETTER OF CREDIT
10.1 Indemnification
Contractor hereby agrees to and shall indemnify and hold harmless City, its elected and appointed boards, commissions, officers, employees, consultants , and agents (collectively, “Indemnitees”) from and against any and all loss, liability, penalty, forfeiture, claim, demand, action, proceeding or suit in law or equity of any and every kind and description (including, but not limited to, injury to and death of any Person and damage to property, or for contribution or indemnity claimed by thi rd parties) arising or resulting from and in any way connected with (1) the negligence or willful misconduct of Contractor, its officers, employees, agents, contractors and/or subcontractors in performing services under this Agreement; (2) the failure of C ontractor, its officers, employees, agents, contractors and/or subcontractors to comply in all respects with the provisions of this Agreement, A pplicable Laws (including, without limitation, the Environmental Laws), ordinances and regulations, and/or applicable permits and licenses; (3) the acts of Contractor, its officers, employees, agents, contractors and/or subcontractors in performing services under this Agreement for which strict liability is imposed by law (including, without limitation, the Environmental Laws). The foregoing indemnity shall apply regardless of whether such loss, liability, penalty, forfeiture, claim, demand, action, proceeding, suit, injury, death, or damage is also caused in part by any of the Indemnitees' negligence but shall not extend to matters resulting from the Indemnitees' sole negligence, or willful misconduct. Contractor further agrees to and shall, upon demand of City, at Contractor's sole cost and expense, defend (with attorneys acceptable to City) the Indemnitees against any claims, actions, suits in law or equity or other proceedings, whether judicial, quasi -judicial or administrative in nature, arising or resulting from any of the aforementioned events, and to reimburse City for any and all costs and expenses City incurs in providing any such defense, either before, during or after the time Contractor elects to provide such defense, including any and all costs incurred in overseeing any defense to be provided in this Agreement by Contractor.
Contractor, upon demand of City, made by and through the City Attorney, shall protect City and appear in and defend the Indemnitees in any claims or actions by third parties, whether judicial, administrative or otherwise, including, but not limited to disputes and litigation over the definitions of “ Solid Waste” or “Recyclable Material”, the scope of the rights granted in this Agreement, conflicts between the rights granted in this Agreement and rights asserted by other Persons, or the limits of City's authority with respect to the g rant of licenses, or agreements, exclusive or otherwise, or asserting rights under the United States or California Constitutions or any federal or State law to provide Solid Waste Collection Services in the City.
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THE PROVISIONS OF THIS SECTION SHALL NOT T ERMINATE OR EXPIRE, SHALL BE GIVEN THE
BROADEST POSSIBLE INTERPRETATION AND SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT.
10.2 Hazardous Substances Indemnification
Without regard to any insurance coverage or requirements, and without limiting the above general indemnification obligation in any way, Contractor specifically agrees to and shall, to the maximum extent permitted by law, defend (with counsel acceptable to City), reimburse, indemnify, and hold harmless Indemnitees from and against any and all claims, actions, liabilities, damages, demands, judgments, losses, costs, liens, expenses, suits, actions, attorneys' fees, consultant fees, penalties , and any and all other losses, damages, fees and expenses of whatever kind or nature (“Claims”) (including but not limited to response costs, investigative costs, assessment costs, monitoring costs, treatment costs, cleanup costs, removal costs, remediation costs, and similar costs, damages, and expenses) that arise out of or are alleged t o arise out of or in any way relate to any action, inaction , or omission of Contractor that;
a) results in any demand, claim, notice, order, or lawsuit, asserting that any Indemnitee is liable, responsible, or in any way obligated to investigate, assess, monitor, study, test, treat, remove, remediate, or otherwise cleanup, any Hazardous Contaminant (as defined in this Agreement); or
b) relates to material Collected, transported, recycled, processed, treated , or disposed of by Contractor.
Contractor's obligations pursuant to this section shall apply, without limitation, to:
a) any Claims brought pursuant to or based on the provisions of any Environmental Law;
b) any Claims based on or arising out of or alleged to be arising out of the ownership, use, lease, sale, de sign, construction, maintenance , or operation of Contractor of any Facility;
c) any Claims based on or arising out of or alleged to be arising out of the marketing, sale, distribution, storage, transportation, Disposal, processing , or use of any materials recovered by Contractor; and
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d) any Claims based on or arising out of or alleged to be arising out of any breach of any express or implied warranty, representation, or covenant arising out of or in connection with this Agreement.
The foregoing indemnity and defense obligations shall apply irrespective of the negligence or willful misconduct of Contractor or any Affiliate of Contractor.
For purposes of this section, the term “Hazardous Contaminant” shall mean any Hazardous Substance, any Hazardous Waste , any crude oil or refined or unrefined petroleum product, or any fraction or derivative thereof; and any asbestos or asbestos -containing material. The term “Hazardous Contaminant” shall also include any and all amendments to any referenced statutory or regulatory provisions made before or after the date of execu tion of this Agreement.
THE PROVISIONS OF THIS SECTION SHALL NOT TERMINATE OR EXPIRE, SHALL BE GIVEN THE
BROADEST POSSIBLE INTERPRETATION AND SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT.
10.3 Indemnification and Guarantee
To the extent authorized by law, Contractor agrees to indemnify and hold harmless City from and against all fines and/or penalties imposed by CalRecycle in the event the source reduction and Recycling goals or any other requirement of AB 939 , AB 341, AB 1826, AB 159 4, or SB 1383 are not met by City with respect to the waste stream Collected under this Agreement.
Contractor warrants and represents that it is familiar with City's waste characterization study as set forth in City's Source Recovery and Recycling Element (SRRE), and that it has the ability to and shall provide sufficient programs and services to ensure City will meet or exceed the Diversion requirements (including, without limitation, amounts of Solid Waste to be diverted, time frames for Diversion, and any other requirements) set forth in AB 939, AB 341, AB 1826, AB 1594, or SB 1383, with respect to that portion of the Solid Waste generated in City that is the subject of this Agreement.
10.4 Insurance
Contractor shall procure and maintain during the entire Term of this Agreement the following types of insurance, and shall maintain the following minimum levels of coverage, which shall apply to any claims which may arise from or in connection with Contractor's performance hereunder or the actions or inactions of any of Contractor's officers, agents, representatives, employees, or subcontractors in connection with Contractor's performance. The insurance 667
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requirements hereunder in no way limit Contractor's various defense and indemnification obligations, or any other obligations as set forth in this Agreement.
a) Minimum Scope of Insurance. Coverage shall be at least as broad as:
1) The most recent editions of Insurance Services Office Commercial General Liability coverage (“occurrence” form CG 00 01).
2) The most recent editions of Insurance Services Office form number CA 00 01 covering Automobile Liability, code 1 “a ny auto” and endorsement CA 00 25.
3) Workers' Compensation insurance as required by the Labor Code of the State of California and Employers Liability insurance.
b) Minimum Limits of Insurance. Contractor shall maintain in force for the term of this Agreement limits no less than the greater of the following, or all the insurance coverage and/or limits carried by or available to Contractor:
1. Comprehensive General Liability: Ten Million Dollars ($10,000,000) limit aggregate and Ten Million Dollars ($10,000,000) limit per occurrence for bodily injury, death and property damage.
2. Automobile Liability: Ten Million Dollars ($10,000,000) combined single limit per accident for bodily injury, death, and property damage.
3. Workers' Compensation and Employers Liability: Workers' compensation limits as required by the Labor Code of the State of California or provide evidence of State approval to be self-insured.
4. Employer’s Liability: $2,000,000 per accident for bodily injury or disease.
c) Deductibles and Self -Insured Retentions. Any deductibles or self- insured retentions must be declared to and approved by City. At the option of City, either: the insurer shall reduce or eliminate such deductibles or self -insured retentions with respect to City, its officials, employees , and agents; or Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses.
d) Other Insurance Provisions. The policies are to contain, or be endorsed to contain, the following provisions:
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1. General Liability and Automobile Liability Coverages
i) City, its elect ed and appointed boards, commissions, officers , employees, agents, and volunteers (collectively, “Insureds”) are to be named as additional insureds with respect to: liability arising out of activities performed by or on behalf of Contractor; products and completed operations of Contractor; Premises owne d, leased , or used by Contractor; or vehicles owned, leased, hired, or borrowed by Contractor. The coverage shall contain no special limitations on the scope of protection afforded to Insureds.
ii) Contractor's insurance coverage shall be primary insurance with respect to Insureds. Any insurance or self -insurance maintained by Insureds shall be excess of Contractor's insurance and shall not contribute with it.
iii) Any failure to comply with reporting provisions of the policies shall not affect coverage provided to Insureds.
iv) Coverage shall state that Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
2. Workers' Compensation and Employers Liability Coverage - The insurer shall agree to waive all rights of subrogation against Insureds for losses arising from work performed by Contractor for City.
e) Acceptability of Insurers. The insurance policies required by this section shall be issued by an insurance company or companies authorized to do business in the State of California and with a rating in the most recent edition of Best Insurance Reports of size category VII or larger and a rating classification of A or better.
f) Verification of Coverage. Contractor shall furnish City with certificates of insurance and with original endorsements affecting coverage required by this clause. The certificates and endorsements for each insurance policy are to be signed by a Person authorized by that insurer to bind coverage on its behalf.
The certificates and endorsements are to be on forms provided by or acceptable to City and are to be received and approved by City before work commences. City reserves the right to require complete, certified copies of all 669
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required insurance policies, at any time. Renewal certificates shall be furnished periodically to City to demonstrate maintenance of the required coverage throughout the Term.
g) Companies and Subcontractors. Contractor shall include all Companies and subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each Contractor and subcontractor. All coverages for Companies and subcontrac tors shall be subject to all of the requirements stated in this Agreement.
h) Required Endorsements
1. The Workers' Compensation policy shall contain an endorsement in substantially the following form:
i) Thirty (30) days’ prior written notice by certified mail, return receipt requested, shall be given to City in the event of cancellation, reduction in coverage, or non -renewal of this policy. Such notice shall be sent to:
City Manager
City of Orange
300 E. Chapman Ave.
Orange, CA 92866
2. The General Liability policy shall contain endorsements in substantially the following form:
i) Thirty (30) days’ prior written notice shall be given to City in the event of cancellation, reduction in coverage, or non -renewal of this policy.
Such notice shall be sent to:
City Manager
City of Orange
300 E. Chapman Ave.
Orange, CA 92866
ii) “This policy shall be considered primary insurance with respect to any other valid and collectible insurance maintained by City, including any self-insured retention or program of self-insurance, and any other such insurance shall be considered excess insurance only.”
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iii) “Inclusion of City as an insured shall not affect City's rights with respect to any claim, demand, suit or judgment brought or recovered against Contractor. This policy shall protect Contractor and City in the same manner as though a separate policy had been iss ued to each, but this shall not operate to increase Contractor's liability as set forth in the policy beyond the amount shown or to which Contractor would have been liable if only one party had been named as an insured.”
i) Other Insurance Requirements
1. In the event any services are delegated to another company or subcontractor, Contractor shall require such Contractor or subcontractor to provide statutory workers' compensation insurance and employer's liability insurance for all of the Contractor or subc ontractor's employees engaged in the work in accordance with this Section 10.4 . The liability insurance required by this Section 10.4 shall cover all Contractor or subcontractors or the Contractor or subcontractor must furnish evidence of insurance provided by it meeting all of the requirements of this Section
10.4. 2. Contractor shall comply with all requirements of the insurers issuing policies. The carrying of insurance shall not relieve Contractor from any obligation under this Agreement. If any claim exceeding the amount of any deductibles or self- insured reserves is made by any third Person against Contractor or any Contractor or subcontractor on account of any occurrence related to this Agreement, Contractor shall promptly rep ort the facts in writing to the insurance carrier and to City.
If Contractor fails to procure and maintain any insurance required by this Agreement, City may take out and maintain, at Contractor's expense, such insurance as it may deem proper and deduct the cost thereof from any moneys due Contractor.
10.5 Faithful Performance Bond
Concurrently with execution of this Agreement, Contractor shall deliver to City a performance bond in the sum of the amount of Seven Hundred Fifty Thousand Dollars ($750,00 0), from a surety and in a form acceptable to City Attorney, which secures the faithful performance of this Agreement, including, without limitation, payment of any penalty and the funding of any work to cure a breach of this Agreement, unless such require ment is waived by the City 671
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Manager or designee. The bond shall contain the original notarized signature of an authorized officer of the surety and affixed thereto shall be a certified and current copy of his/her power of attorney. The bond shall be uncondi tional and remain in force during the entire term of the Agreement and shall be null and void at the conclusion of the term of this Agreement only if the Contractor promptly and faithfully performs all terms and conditions of this Agreement.
10.6 Faithful Performance Letter of Credit
In addition to the bond as noted in Section 10.5, Contractor shall furnish an irrevocable letter of credit in the amount of Seven Hundred Fifty Thousand Dollars ($750,000), from a financial institution acceptable to the City and in a form acceptable to the City Attorney as security for the performance of this Agreement (the “LOC”). The LOC shall be the sole responsibility of Contractor and shall be released within thirty (30) days after both (i) the expiration of the term of this Agreement, or upon the earlier termination of this Agreement ; and (ii) Contractor's satisfactory performance of all obligations hereunder.
10.7 Forfeiture of Performance Bond
In the event Contractor shall for any reason become unable to, or fail in any way to, perform as required by this Agreement, City may declare a portion or all of the performance bond which is necessary to recompense and make whole the City forfeited to the City. Upon partial or full forfeiture of the performance bond, Contractor shall restore the performance bond to its face amount, or provide a new bond, within thirty (30) days of the City's declaration.
Failure to restore the performance bond to its full amount, or provide a new bond in the full amount, within thirty (30) days shall be a material breach of the Agreement.
10.8 Forfeiture of Letter of Credit
Thirty (30) days following City providing Contractor with written notice of its failur e to pay City any amount owing under this Agreement, the LOC may be drawn upon by City for purposes including, but not limited to:
a) Payment of sums due under the terms of this Agreement which Contractor has failed to timely pay to City.
b) Reimbursement of costs borne by City to correct violations of this Agreement not corrected by Contractor, including but not limited to the liquidated damages described in Section 12.3.
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City may draw upon the entire LOC and convert it to a cash deposit if Contractor fails to cause the LOC to be extended or replaced with another satisfactory letter of credit no later than sixty (60) days prior to its expiration during the term of this Agreement.
10.9 Performance Security Beyond Service Term
Some Agreement requirements extend beyond the Term of this Agreement and other requirements, such as minimum Diversion rates per Section 4.2.5 , will not be substantiated until after the final service date. Therefore, the Contractor shall not terminate the performance bond or letter of credit and will renew them to ensure continuous availability to the City, until receiving a written release from the City. Permission from the City to discontinue holding these performance securities does not relieve Contractor of payments to the City that may be due or may become due.
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11. CITY'S RIGHT TO PERFORM SERVICE
11.1 General
In the event that Contractor, for any reason whatsoever, fails, refuses, or is unable to Collect, Recycle, process, transport , or dispose of any or all Solid Waste as required by this Agreement, at the time and in the manner provided in this Agreement, for a period of more than forty-eight (48) hours, and if, as a result thereof, Solid Waste should accumulate in City to such an extent, in such a manner, or for such a time that such accumulation endangers or menaces the public health, safety , or welfare, then City shall have the right, but not the obligation, (1) to perform, or cause to be performed, such services itself with its own or other personnel without liability to Contractor; and/or (2) to take possession of any or all of Contractor's land, equipment and other property used or useful in the Collection and transportation of Solid Waste, and to use such property to Collect and transport any Solid Waste generated within City which Contractor would otherwise be obligated to Collect, transport and properly dispose of or process pursuant to this Agreement.
Notice of City's determination to e ffect its rights under this s ection may be given orally by telephone to Contractor at its principal offic e and shall be effective immediately. Written confirmation of such oral notification shall be sent to Contractor within twenty -four (24) hours of the oral notification. Contractor further agrees that in such event:
a) It will take direction from City to effect the transfer of possession of equipment and property to City for City's use, or for use by any Person or entity designated by the City.
b) It will, if City so requests, keep in good repair and condition all such equipment and property, provide all motor vehicles with fuel, oil and other service, and provide such other service as may be necessary to maintain said property in operational condition.
c) City may immediately engage all or any personnel necessary or useful for the Collection and transportation of Solid Waste, including, if City so desires, employees previously or then employed by Contractor. Contractor further agrees, if City so requests, to furnish City the services of any or all management or office Personnel employed by Contrac tor whose services are necessary or useful for Solid Waste Collection, transportation, processing and Disposal operations and for the Billing and Collection of fees for these services.
City agrees that it assumes complete responsibility for the proper and normal use of such equipment and facilities while in its possession.
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If the interruption or discontinuance in service is caused by any of the reasons listed in Section 12.4, City shall pay to Contractor the reasonable rental value of the equipment and facilities, possession of which is taken by City, for the period of City's possession, if any, which extends beyond the period of time for which Contractor has rendere d Bills in advance of service, for the class of service involved. If the interruption or discontinuance in service is caused by any other reason, regardless of City's implementation of options under this Agreement, City may consider this a default.
11.2 Billing and Compensation to City During City's Possession
Contractor agrees that it shall reimburse City for any and all costs and expenses incurred by City beyond that billed and received by City in taking over possession of the above-mentioned equipment and property for Solid Waste service in such manner and to an extent as would otherwise be required of Contractor under the terms of this Agreement. Such reimbursement shall be made from time to time after submission by City to Contractor of each statement listing such costs and expenses, but in no event later than five (5) working days from and after each such submission.
11.3 City's Right to Relinquish Possession
It is further mutually agreed that City may at any time at its discretion relinquish possession of an y or all of the above -mentioned property to Contractor and thereupon demand that Contractor resume the Solid Waste Collection Services as provided in this Agreement, whereupon Contractor shall be bound to resume the same.
11.4 City's Possession Not A Taking
It is expressly agreed between the Parties that City's exercise of its rights under this s ection (1) does not constitute a taking of private property for which compensation must be paid, (2) shall not create any liability on the part of City to Contractor, and (3) does not exempt Contractor from any of the indemnity and insurance provisions of this Agreement, which are meant to extend to circumstances arising under this section provided that Contractor is not required to indemnify City against claims and damages arising from the sole negligence of City, its elective and appointive boards, commissions, officers, employees , and agents in the operation of Collection Vehicles during the time City has taken possession of such vehicles.
11.5 Duration of City's Possession
City's right pursuant to this s ection to retain temporary possession of Contractor's facilities and equipment, and to render Collection services, shall terminate when City determines that 675
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such services can be resumed by Contractor, or when City no longer reasonably requires such property or e quipment. In any case, City has no obligation to maintain possession of Contractor's property or equipment and/or continue its use for any period of time and may at any time, in its sole discretion, relinquish possession to Contractor. 676
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12. DEFAULT, REMEDIES AND LIQUIDATED DAMAGES
12.1 Events of Default
All provisions of the Franchise and this Agreement to be performed by Contractor are considered material. Each of the following shall constitute an event of default by the Contractor.
a) Fraud or Deceit or Misrepresen tation. If the Contractor engages in, or attempts to practice, any fraud or deceit upon City or makes a misrepresentation regarding material information to City.
b) Insolvency or Bankruptcy. If Contractor becomes insolvent, unable, or unwilling to pay its debts, files a bankruptcy petition, or takes steps to liquidate its assets.
c) Failure to Maintain Coverage. If Contractor fails to provide or maintain in full force and effect the Workers' Compensation, liability, or indemnification coverage as required by this Agreement.
d) Violations of Regulation. If Contractor violates any orders or filings of any regulatory body having jurisdiction over Contractor relative to this Agreement, provided that Contractor may contest any such orders or filings by appropriate proceedings conducted in good faith, in which case no breach of the Franchise and this Agreement shall be deemed to have occurred until a final decision adverse to the Contractor is entered.
e) Failure to Perform. If Contractor ceases to provide all or a portion of the Collection, processing or Recycling services, or any other Solid Waste Handling Services as required under this Agreement for a period of two (2) consecutive days or more, for any reason within the control of Contractor.
f) Failure to Pay. If Contrac tor fails to make any payments required under this Agreement and/or refuses to provide City, within ten (10) days of the demand, with required information, reports, and/or records in a timely manner as provided for in the Agreement.
g) Failure to Cooperate w ith Audits. Failure to complete, perform, or cooperate with any audit as described by this Agreement.
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h) Failure to Submit Reports or Documentation. Failure to complete or to provide required reports or documents to City as required by this Agreement
i) Acts or Omissions.
1. Any act or omission by Contractor relative to the services provided under this Agreement which violates the terms, conditions, or requirements of this Agreement, or AB 939, or any law, statute, ordinance, order, directive, rule, or regulation issued pursuant to AB 939 shall constitute a d efault by the Contractor. Any failure to correct or remedy any such violation within the time set in the written notice of the violation or, if Contractor cannot reasonably correct or remedy the breach within the time set forth in such notice, if Contracto r should fail to commence to correct or remedy such violation within the time set forth in such notice and diligently effect such correction or remedy thereafter shall constitute a default by Contractor.
2. Any situation in which Contractor or any of its off icers, directors or employees are found guilty of any crime related to the performance of this Agreement, or of any crime related to anti-trust activities, illegal transport or Disposal of hazardous or toxic materials, or bribery of public officials shall constitute a default by Contractor . The term "found guilty" shall be deemed to include any judicial determination that Contractor or any of Contractor's officers, directors , or employees is guilty as well as any admission of guilt by Contractor or any of Contractor's officers, directors, or employees including, but not limited to, the plea of “ guilty”, “nolo contendere”, “no contest”, and “guilty to a lesser charge.”
j) False or Misleading Statements. Any representation or disclosure made to City by Contractor in connection with or as an inducement to entering into this Agreement, or any future amendment to this Agreement, which proves to be false or misleading in any material respect as of the time such representation or disclosure is made, whether o r not any such representation or disclosure appears as part of this Agreement
k) Attachment. The seizure of, attachment of, or levy on, the operating equipment of Contractor, including, without limits, its equipment, maintenance or office facilities, or any part of its equipment or facilities.
l) Suspension or Termination of Service. Any termination or suspension of the transaction of business by Contractor, including, without limitation, due to 678
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labor unrest including strike, work stoppage or slowdown, sick-out, picketing, or other concerted job action lasting more than two (2) consecutive days.
m) Failure to Provide Assurance of Performance. If Contractor fails to provide reasonable assurances of performance as required under Section 12.6.
n) Commingling of Recyclables with Refuse/Landfilling of Recyclables. If Contractor empties Containers of properly set out Recyclable Materials or Organic Waste into a Refuse load, or transpo rts Recyclable Materials or Organic Waste to a landfill or other location at which the material will not be diverted from landfilling.
o) Failure to Meet Section 4.2.5 Diversion Goal. Failure to meet the minimum Diversion requirements identified in Section 4.2.5 for two consecutive calendar years.
p) CalRecycle Compliance Issues. CalRecycle issues a compliance order or assesses a penalty against City in regard to compliance with AB 939.
Contractor shall have forty -eight (48) hours from the time it is given notification by City to cure any default arising under subsections e, f, g, h, k, l, m and n provided, however, that City shall not be obligated to provide Contractor with a notice and cure opportunity if Contractor has committed the same or similar breach within a twenty -four (24) month period. It is expressly understood that Contractor is not entitled to receive notice of default, or to cure such default, with respect to those matters listed in subsections a, b, c, d, i, j, l, o and p above.
12.2 Right to Terminate Upon Default and Right to Specific Performance
If Contractor commits a material breach, including specifically any of the matters listed in subsections a through p of Section 12.1 above (and, if permitted to cure, does not cure it within forty-eight (48) hours), City shall be entitled to unilaterally terminate this Agreement or impose other such sanctions (which may include financial sanctions, temporary suspensions, or any other c onditions it deems appropriate short of termination) as it shall deem proper. Should City decide to terminate this Agreement upon a default by Contractor, City shall have the right to do so upon giving ten (10) days’ notice to Contractor, and shall not be required to take any further action (such as holding any hearing, bringing any suit, or taking any other action).
City's rights to terminate this Agreement and to take possession of Contractor's Facility and/or equipment are not exclusive, and City's termination of this Agreement shall not 679
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constitute an election of remedies. Instead, such remedies shall be in addition to any and all other legal and equitable rights and remedies which City may have.
City, acting through its City Manager or designee, reserv es the right to terminate this Agreement for any reason giving ninety (90) days written notice of intent to terminate to Contractor. Contractor shall cease work on the 90 th day after receiving notice , unless the notice provides otherwise. Should City termi nate this Agreement, City shall pay Contractor for services satisfactorily provided and all allowable reimbursements insured to the date of termination in compliance with this Agreement, unless such termination shall be for cause, in which event the City may withhold any disputed compensations. City shall not be liable for any claim of lost profits.
By virtue of the nature of this Agreement, the urgency of timely continuous and high-quality service, the time required to effect alternative service, and the rights granted by City to Contractor, the remedy of damages for a breach of this Agreement by Contractor is inadequate and City shall be entitled to seek injunctive relief and/or specific performance of any breach of this Agreement.
12.3 Liquidated Damages
General. City finds, and Contractor agrees, that as of the time of the execution of this Agreement, it is impractical, if not impossible, to reasonably ascertain the extent of damages which shall be incurred by City as a result of a breach by Contractor of c ertain specific obligations under this Agreement. The factors relating to the impracticability of ascertaining damages include; but are not limited to, the fact that (i) substantial damage results to members of the public who are denied services or denied quality or reliable service; (ii) such breaches cause inconvenience, anxiety, frustration, and deprivation of the benefits of the Agreement to individual members of the general public for whose benefit this Agreement exists, in subjective ways and in varyi ng degrees of intensity which are incapable of measurement in precise monetary terms; (iii) that the services that are the subject of this Agreement might be available at substantially lower costs than alternative services and the monetary loss resulting f rom denial of services or denial of quality or reliable services is impossible to calculate in precise monetary terms; and (iv) the termination of this Agreement for such specific breaches, and other remedies are, at best, a means of future correction and not remedies which make the public whole for past breaches.
Service Performance Standards; Liquidated Damages for Failure to Meet Standards. The parties further acknowledge that consistent, reliable Solid Waste Handling Service is of utmost importance to City and that City has considered and relied on Contractor's representations as to its quality of service commitment in entering this Agreement with it .
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and appropriate to ensure consistent and reliable service and performance. The Parties further recognize that if Contractor fails to achieve the performance standards, or fails to submit required documents in a timely manner, City and its residents will suffer damages and that it is and will be impractical and extremely difficult to ascertain and determine the exact amount of damages which City will suffer. Therefore, without prejudice to City's right to treat such breaches as an event of default under this Section 12, the Parties agree that the following liquidated damage amounts represent a reasonable estimate of the amount of such damages for such specific breaches, considering all of the circumstances existing on the date of this Agreement, including the relationship of the sums to the range of harm to City that reasonably could be anticipated and the anticipation that proof of actual damages would be costly or impractical. In placing their initials at the places provided, each party specifically confirms the accuracy of the statements made above and the fact that each party has had ample opportunity to consult with legal counsel and obtain an explanation of the liquidated damage provisions at the time that the Agreement was made.
Contractor City
Initial Here ________ Initial Here ________
Contractor agrees to pay or credit by the City’s choice (as liquidated damages and not as a penalty) the amounts set forth below:
a) Service Reliability
1. For each failure to commence service to a new Customer account 1.ithin seven (7) days after order: $200.00.
2. For each failure to Collect Solid Waste from any established Customer account on the scheduled Collection day and not make up the Collection within the time allotted per Section 4.6.1.3: $200.00.
3. For each failure to Collect Solid Waste, that has been properly set out for Collection, from the same Customer on two (2) consecutive scheduled pickup days: $200.00.
4. For each calendar day a sweeping route is not completed due to equipment failure or insufficient qualified personnel: $500.00.
5. For each instance in which Contractor receives a rating of ninety (90) or lower pursuant to the Inspection Rating System described in Section 5.3 :
$500.00.
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6. For each calendar day a sweeping route does not follow the on -street parking schedule: $500.00.
7. For each calendar day a sweeping route does not start its route on time:
$500.00.
8. For each instance when a sweeper is observed to complete its route at a high rate of speed that diminishes the sweeper’s effectiveness at vacuuming debris from the street: $500.00.
b) Service Quality
1. For each failure to properly return empty Containers to avoid pedestrian or vehicular traffic impediments or to place Containers upright: $200.00.
2. For each occurrence of excessive noise or discourteous behavior: $500.00.
3. For each occurrence of Collecting Solid Waste during unauthorized hours:
$500.00.
4. For each failure to clean up Solid Waste spilled from Solid Waste Containers within ninety (90) minutes: $300.00.
5. For each twenty-four (24) hour period after two days that Contractor’s GPS system is not operational: $100.00.
6. For each instance Contractor obtains water from the City’s water system without using a water meter: $500.00.
c) Customer Responsiveness
1. For each failure to initially respond to a Customer complaint within one (1) business day, and for each additional day in which the complaint is not addressed: $300.00.
2. For each failure to process Customer complaints as required by Section
6.2.3: $300.00.
3. For each failure to remove graffiti from Containers, or to replace with Containers bearing no graffiti, within two (2) business days of request from City or Customer: $100.00 per day.
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4. For each failure to repair or replace a damaged or missing Container within two (2) business days of request from City or Customer: $100.00 per day.
5. For each failure to process a claim for damages within thirty (30) days from the date submitted to Contractor: $200.00.
6. For each additional thirty (30) day increment of time in which Contractor has failed to resolve a claim for damages within thirty (30) days from the claim date: $200.00.
7. For each day the Contractor fails to have the customer online platform operational and available to the public: $1,000 per day.
d) Diversion Efforts
1. For every Organic Waste Cart Collected as Refuse without issuing a red tag per Section 4.2.3: $100.00 per Cart.
e) Timeliness of Submissions to City . Any report shall be considered late until such time as a correct and complete report is received by City. For each calendar day a report is late, the daily liquidated damage amount shall be:
1. Monthly Reports: $200.00.
2. Annual Reports: $400.00.
f) Accuracy of Billing . For e ach Customer invoice that is not prepared in accordance with the City's approved rate schedule: $50.00.
g) Cooperation with Service Provider Transition
1. For each day routing information requested by City in accordance with Section 13.7 (or Section 4.11 or Section 4.6.9 ) is received after City - established due dates, both for preparation of a request for proposals and for new service provider's implementation of service: $2,000.00 per day.
2. For each day delive ry of keys, access codes, remote controls, or other means of access to Solid Waste Containers is delayed beyond one (1) day prior to new service provider servicing Customers with access issues, as described in Section 13.7: $2,000.00 per day.
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3. For delay in not meeting the requirements contained in Section 13.7 (or Section 4.11or Section 4.6.9 ) in a timely manner, in addition to the daily liquidated damages for breach under g)1 and g)2 above, liquidated damages of: $100,000.00.
h) General Agreement Adherence. For each day that Contractor fails to provide services required under the Agreement, or comply with terms of the Agreement, within five (5) business days after receipt of written notification from City that such services are not being provided or terms are not being met:
$300.00.
1. City may determine the occurrence of events giving rise to liquidated damages through the observation of its own employees or representative or investigation of Customer complaints. Prior to assessing liquidated damages, City shall give Contractor notice o f its intention to do so. The notice will include a brief description of the incident(s)/non-performance.
Contractor may review (and make copies at its own expense) all information in the possession of City relating to incident(s)/non - performance. Contract or may, within ten (10) days after receiving the notice, request a meeting with City. Contractor may present evidence in writing and through testimony of its employees and others relevant to the incident(s)/non-performance. City will provide Contractor with a written explanation of its determination on each incident(s)/non- performance prior to authorizing the assessment of liquidated damages. The decision of City shall be final.
i) Amount. City may assess liquidated damages for each calendar day or event, as appropriate, that Contractor is determined to be liable in accordance with this Agreement.
j) Timing of Payment. Contractor shall pay any liquidated damages assessed by City within ten (10) business days after they are assessed. If they are not paid within the ten (10) business day period, City may proceed against the performance bond required by the Agreement or find Contractor in default and terminate this Agreement pursuant to Section 12.2, or both.
12.4 Excuse from Performance
The Parties shall be excused from performing their respective obligations hereunder in the event they are prevented from so performing by reason of floods, earthquakes, other natural 684
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disasters, war, civil insurrection, riots, acts of any government (including judicial action), and other similar catastrophic events which are beyond the control of and not the fault of the party claiming excuse from performance hereunder. Labor unrest, including, but not limited to, strike, work stoppage or slowdown, sick -out, picketing, or other concerted job action conducted by Contractor's employees or directed at Contractor is not an excuse from performance and Contractor shall be obligated to continu e to provide service notwithstanding the occurrence of any or all of such events.
The party claiming excuse from performance shall, within two (2) days after such party has notice of such cause, give the other party notice of the facts constituting such c ause and asserting its claim to excuse under this section.
The interruption or discontinuance of Contractor's services caused by one or more of the events excused shall not constitute a default by Contractor under this Agreement.
Notwithstanding the fore going, however, if Contractor is excused from performing its obligations hereunder for any of the causes listed in this section for a period of seven (7) days or more, City shall nevertheless have the right, in its sole discretion, to terminate this Agreement by giving ten (10) days' notice, in which case the provisions relative to taking possession of Contractor's land, equipment and other property and engaging Contractor's Personnel in Section 11 and this Section 12 will apply.
12.5 Notice, Hearing and Appeal of City Breach
Administrative Hearing. Should Contractor contend that City is in breach of any aspect of this Agreement, it shall give notice to the City Manager or designee requesting an administrative hearing on the allegation. A hearing officer shall be appointed by the City Manager or designee, and the hearing shall occur a s soon as reasonably possible, or on such date as mutually agreed by the City Manager or designee and Contractor . The hearing officer shall make an advisory ruling on Contractor's allegations and suggest a remedy if a breach by City is determined to exist . The hearing officer's ruling shall be advisory only. Each Party shall accept or reject the hearing officer’s ruling within thirty (30) days.
Other Remedies; Claims. Contractor shall be entitled to all available remedies in law or equity for City's breach of this Agreement; provided, however, Contractor shall not file or otherwise commence any action against City, in law or equity, in any court, until after an administrative hearing as set forth above has been completed, and the above noted thirty ( 30) day period to accept the hearing officer's decision has passed, or either City or Contractor has given timely written notice to the other that it will not accept the hearing officer’s decision.
Actions for Damages. As a prerequisite to the filing and maintenance of any action for damages by Contractor against City arising out of this Agreement, Contractor shall present a 685
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claim to City, as required by Government Code section 910 et seq, within thirty (30) days of the date of the occurrence giving rise to the claim for damages.
12.6 Assurance of Performance
City may, at its option and in addition all other remedies it may have, demand from Contractor reasonable assurances of timely and proper performance of this Agreement, in such form and substance as City may require. If Contractor fails or refuses to provide satisfactory assurances of timely and proper performance in the form and by the date required by City, such failure or refusal shall be an event of default. 686
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13. OTHER AGREEMENTS OF THE PARTIES
13.1 Relationship of Parties
The Parties intend that Contractor shall perform the services required by this Agreement as an independent contractor engaged by City and not as an officer or employee of City nor as a partner of or joint venture with City. No employee or age nt or Contractor shall be or shall be deemed to be an employee or agent of City. Except as expressly provided in this Agreement, Contractor shall have the exclusive control over the manner and means of conducting the Solid Waste Handling Services performed under this Agreement, and all Persons performing such services. Contractor shall be solely responsible for the acts and omissions of its officers, employees, Affiliates, contractors, subcontractors , and agents.
Neither Contractor nor its officers, employe es, Affiliates, contractors, subcontractors , and agents shall obtain any rights to retirement benefits, workers' compensation benefits, or any other benefits which accrue to City employees by virtue of their employment with City.
13.2 Governing Law
This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California.
13.3 Jurisdiction and Venue
Except for those matters where Federal Courts have exclusive jurisdiction, any lawsuits between the Parties arising out of this Agreement shall be brought and concluded in the courts of the State of California, which shall have exclusive jurisdiction over such lawsuits.
Venue for any dispute shall be in Orange County, California.
13.4 Assignment
Except as may be provided for in Section 11, Contractor shall not assign its rights, nor delegate, subcontract or otherwise transfer its obligations under this Agreement (collectively referred to as an “assignment”) to any other Person without the prior written consent of City.
Any such assignment made without the consent of City shall be void and the attempted assignment shall constitute a material breach of this Agreement.
For purposes of this section the term “ assignment” shall be given the broadest possible interpretation, and shall include, but not be limited to (i) a sale, exchange , or other transfer of substantially all of Contractor's assets dedicated to service under this Agreement to a third party; (ii) a sale, exchange, or other transfer of outstanding common stock of Contractor to a third party provided said sale, exchange , or transfer may result in a change of control of 687
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Contractor; (iii) any dissolution, reorganization, consolidation, merger, re -capitalization, stock issuance or re -issuance, voting trust, pooling agreement, escrow arrangement, liquidation, or other transaction which results in a change of ownership or control of Contractor; (iv) any assignment by operation of law, including those resulting from me rgers or acquisitions by or of Contractor or any of its Affiliates, insolvency or bankruptcy, making assignment for the benefit of creditors, writ of attachment for an execution being levied against this Agreement, appointment of a receiver taking possession of Contractor's property, or transfer occurring in the event of a probate proceeding; and (v) any combination of the foregoing (whether or not in related or contemporaneous transactions) which has the effect of any such transfer or change of ownership, or change of control of Contractor.
Contractor acknowledges that this Agreement involve s rendering a vital service to City's residents and businesses, and that City has selected Contractor to perform the services specified in this Agreement based on (1) C ontractor's experience, skill, and reputation for conducting its Solid Waste Handling Services in a safe, effective , and responsible fashion, at all times in keeping with applicable Environmental Laws, regulations , and best Solid Waste management practices , and (2) Contractor's financial resources to maintain the required equipment and to support its indemnity obligations to City under this Agreement. City has relied on each of these factors, among others, in choosing Contractor to perform the services to be rendered by Contractor under this Agreement.
If Contractor requests City's consideration of and consent to an assignment, City may deny or approve such request in its sole and absolute discretion. Any request for an assignment must be approved by the Ci ty Manager or designee, and no request by Contractor for consent to an assignment need be considered by City unless and until Contractor has met (or with respect to matters that would only occur upon completion of the assignment if approved, made reasonable assurances that it will meet) the following requirements:
a) Contractor shall pay City its reasonable expenses for attorney's fees and investigation costs necessary to investigate the suitability of any proposed assignee, and to review and finalize any doc umentation required as a condition for approving any such assignment. An advance payment towards expenses may be requested by City prior to City consideration of any assignment request and Contractor shall be responsible to pay all costs incurred by City in considering a request for assignment, including those in excess of the aforesaid deposit amount, regardless of whether City consents to the assignment.
b) Contractor shall pay the City a transfer fee equal to one percent (1%) of the Gross Receipts it, or its assignee, will receive during the remaining term of the Agreement, as estimated by City.
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c) Contractor shall furnish City with audited financial statements for itself, and the proposed assignee's operations for the immediately preceding three (3) operating years.
d) A proforma financial statement (income statement and balance sheet) for the proposed assignee with the projected results of operations assuming that the assignment is completed. Such proforma financial statement shall reflect any debt to be incurred by the assignee as part of the acquisition of Contractor's operations.
e) Contractor shall furnish City with satisfactory proof: (i) that the proposed assignee has at least ten (10) years of Solid Waste management experience on a scale equal to or exceeding the scale of operations conducted by Contractor under this Agreement; (ii) that in the last five (5) years, the proposed assignee has not suffered any significant citations or other censure from any F ederal, State, or local agency having jurisdiction over its Solid Waste management operations due to any significant failure to comply with State, Federal, or local Environmental Laws and that the assignee has provided City with a complete list of any such citations and censures; (iii) that the proposed assignee has at all times conducted its operations in an environmentally safe and conscientious fashion; (iv) that the proposed assignee conducts its Solid Waste management practices in accordance with sound Solid Waste m anagement practices in full compliance with all F ederal, State, and local laws regulating the Collection and Disposal of Solid Waste including Hazardous Substances; and, (v) of any other information required by City to ensure the proposed assignee can fulfill the terms of this Agreement in a timely, safe, and effective manner.
Under no circumstances shall City be obliged to consider any proposed assignment by City if Contractor is in default at any time during the period of consideration. Should City conse nt to any assignment request, such assignment shall not take effect until all conditions relating to City's approval have been met.
13.5 Contracting or Subcontracting
Contractor shall not engage any contractors or subcontractors for the Collection of Solid Waste.
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13.6 Binding on Assigns
The provisions of this Agreement shall inure to the benefit to and be binding on the permitted assigns (if any) of the Parties.
13.7 Cooperation in Preparation for Termination or Expiration of Agreement
Prior to, and at the end of the Term or in the event this Agreement is terminated for cause prior to the end of the Term, Contractor shall cooperate fully with City and any subsequent Solid Waste enterprise City designates to assure a smooth transition of Solid Waste Handling Services. Contractor's cooperation shall include, but not be limited to, providing route lists, Billing information, and other operating records needed to service all Premises covered by this Agreement. The failure to cooperate with City following termination shall be conclusively presumed to be grounds for specific performance of this covenant and/or other equitable relief necessary to enforce this covenant.
Contractor shall provide a new service provider with all keys, security codes , and remote controls used to access garages and Bin enclosures. Contractor shall be responsible for coordinating transfer immediately after Contractor's final pickups, so as not to disrupt service. Contractor shall provide City with detailed route sheets containing service names and addresses, Billing names and addresses, monthly rate and service levels (number and size of Containers and pickup days) at least ninety (90) days prior to the transition date, and provide an updated list two weeks before the transition and a final list of changes the day before the transition. Contractor shall provide means of access to the new service provider at least one (1) full business day prior to the first day of Collection by another party, and always within sufficient time so as not to impede in any way the new service provider from easily servicing all Containers.
13.8 Parties in Interest
Nothing in this Agreement, whether express or implied, is intended to confer any rights on any Persons other than the Parties to it and their representatives, successors, and permitted assigns.
13.9 Waiver
The waiver by either party of any breach or violation of any provisions of this Agreement shall not be deemed to be a waiver of any breach or violation of any other provision nor of any subsequent breach of violation of the same or any other provision. The subsequent acceptance by either Party of any moneys which become due hereunder shall not be deemed 690
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to be a waiver of any pre-existing or concurrent breach or violation by the other Party of any provision of this Agreement.
13.10 Contractor's Investigation
Contractor has made an independent investigation (satisfactory to Contractor) of the conditions and circumstances surrounding the Agreement and the work to be performed by it.
13.11 Condemnation
City fully reserves the rights to acquire Contractor's property utilized in the performance of this Agreement, by purchase or through the exercise of the right of eminent domain. This provision is additive, and not intended to alter the rights of the Parties set forth in Section 11.
13.12 Notice
All notices, demands, requests, proposals, approvals, consents , and other communications which this Agreement requires, authorizes or contemplates shall be in writing and shall either be personally delivered to a representative of the Parties at the address below, be deposited in the U. S. mail, first class postage prepaid, or sent by email. Either party may change their notice address by notifying the other party in writing. Notices shall be deemed received upon receipt of same or within three ( 3) days of deposit in the U.S. Mail, whichever is earlier.
Notices sent by email shall be sent on letterhead as a portable document (PDF) attachment and followed up with a hard copy via U. S. Mail. Emails shall be sent to an agreed upon and regularly monitored general email address for each Party, and not to an individual. Emails sent at or befor e 4:00 P.M. on a business day shall be deemed received on the date of the email transmission. Emails sent on a non-business day, or after 4:00 P.M. on a business day, shall be deemed received on the following business day.
As it relates to Solid Waste:
If to City:
Public Works Director
City of Orange
300 E. Chapman Ave.
Orange, CA 92866
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If to Contractor:
CR&R Incorporated
Senior Regional Vice President
11292 Western Avenue
Stanton, California 90680
As it relates to Street Sweeping:
If to City:
Director of Public Works
City of Orange
300 E. Chapman Ave.
Orange, CA 92866
If to Contractor:
CR&R Incorporated
Senior Regional Vice President
11292 Western Avenue
Stanton, California 90680
13.13 Representatives of the Parties
References in this Agreement to the “City” shall mean the City Council and all actions to be taken by City shall be taken by the City Council except as expressly provided in this Agreement. The City Council may delegate, in writing, authority to the City Manager or designee, and/or to other City e mployees and may permit such employees, in turn, to delegate in writing some or all of such authority to subordinate employees. Contractor may rely upon actions taken by such delegates if they are within the scope of the authority so delegated to them.
Contractor shall, by the Effective Date, designate in writing a responsible officer who shall serve as the representative of Contractor in all matters related to the Agreement and shall inform City in writing of such designation and of any limitations upon his or her authority to bind Contractor. City may rely upon action taken by such designated representative as actions of Contractor unless they are outside the scope of the authority expressly delegated to him/her by Contractor as communicated to City.
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13.14 City Free to Negotiate with Third Parties
City may investigate all options for the Collection, transporting, Recycling, processing , and Disposal of Solid Waste for periods during which this Agreement has expired or been terminated. Without limiting the generality of the foregoing, City may solicit proposals from Contractor and from third parties for the provision of Solid Waste Handling Services which are the subject of this Agreement, including without limitation Collection services, Disposal services, Rec ycling services, Organic Waste services and processing, and any combination thereof, and may negotiate and execute agreements for such services which will take effect upon the expiration or earlier termination of this Agreement pursuant to Section 12.1 or otherwise.
13.15 Compliance with Municipal Code, Local, State and Federal Law
Contractor shall be knowledgeable of and comply with the City’s municipal code and all local, State, and Federal laws pertaining to the subject matter in this Agreement or in any way regulating the activities undertaken by Contractor or any subcontractor.
13.16 Privacy
Contractor shall strictly observe and protect the rights of privacy of Customers. Information identifying individual Customers or the composition or contents of a Customer's waste stream shall not be revealed to any Person, governmental unit, private agency, or company, unless upon the authority of a court of law, by statute, or upon valid authorization of the Customer. This provision shall not be construed to preclude Contractor from preparing, participating in, or assisting in the preparation of waste characterization studies or waste stream analyses which may be required by AB 939. This provision shall not apply to reports or records provided to City pursuant to this Agreement.
13.17 Proprietary Information, Public Records
The City acknowledges that a number of the records and reports of Contractor are proprietary and confidential. Contractor is obligated to permit City inspection of its records on demand and to provide copies to City where requested. City will endeavor to maintain the confidentiality of all proprietary information provided by Contractor. Notwithstanding the foregoing, any documents provided by Contractor to City that are public records may be disclosed pursuant to a proper public records request.
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14. MISCELLANEOUS PROVISIONS
14.1 Entire Agreement
This Agreement contains the entire integrated agreement and understanding concerning the subject matter in this Agreement and supersedes and replaces any prior negotiations, promises, proposals, and agreements between the Parties, whether written or oral. The Parties acknowledge this document has been executed with the consent and upon the advice of counsel. Each of the Parties acknowledges that no Party or agent or attorney of any other party has made any promise, representation, or warranty, express ed or implied, not contained in this Agreement, to induce the other Party to execute this instrument.
14.2 Section Headings
The section headings in this Agreement are for convenience of reference only and are not intended to be used in the construction of this Agre ement nor to alter or affect any of its provisions.
14.3 References to Laws
All references in this Agreement to laws shall be understood to include such laws as they may be subsequently amended or remodified, unless otherwise specifically provided.
14.4 Interpretation
This Agreement, including the e xhibits attached hereto, shall be interpreted and construed reasonably and neither for nor against either Party, regardless of the degree to which either Party participated in its drafting.
14.5 Agreement
This Agreement may not be modified or amended in any respect except by a writing signed by the authorized Parties.
14.6 Severability
If any non-material provision of this Agreement is for any reason deemed to be invalid and unenforceable, the invalidity or unenforceability of such provision shall not affect any of the remaining provisions of this Agreement which shall be enforced as if such invalid or unenforceable provision had not been contained in this Agreement. 694
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14.7 Exhibits
Each of the Exhibits (Exhibit A through Exhibit F), Appendix A1 through A6, and Appendix B, referred to in this Agreement, are an integral part of this Agreement.
14.8 Attorneys' Fees
If either Party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to recover its reasonable attorneys’ fees and costs. Attorneys' fees shall include attorneys’ fees on any appeal, and in addition a Party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment.
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14.9 Signatures
IN WITNESS WHEREOF, City and Contractor have executed this Agreement as of the day and year first written above.
CITY OF ORANGE (“City”)
Dated:______________________ Dated:______________________
CITY OF ORANGE CR&R INCORPORATED
By:________________________ By:________________________ Name: Daniel R. Slater Name: David Ronnenberg
Title: Mayor Title: President
Approved as to form by:
By:________________________ By:________________________ Name: Michael Vigliotta Name: Clifford R. Ronnenberg Title: City Attorney Title: Chairman/Chief Executive Officer
ATTEST:
By: ________________________
Name: Pamela Coleman, CMC
Title: City Clerk
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Exhibit A – Initial Maximum Rates – Single-family Residential
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Exhibit B – Initial Maximum Rates – Commercial and Multi-family
698
Exhibit C – Initial Maximum Rates – Roll-off
699
Exhibit D – Initial Maximum Rates – Special Sweeps
700
Exhibit E – Example Rate Adjustment Calculation - Residential
701
Exhibit F – Example Rate Adjustment Calculation – Commercial and Roll-off
702
Rates Effective - February 1, 2024 - June 30, 2025
Cart Service - one each refuse, recycling, and green waste cart95 Gal 24.93$ per month Cart Service - one each refuse, recycling, and green waste cart65 Gal 23.68$ per month Cart Service - one each refuse, recycling, and green waste cart35 Gal 22.44$ per month Additional Refuse Cart 4.96$ per month
Additional Recycling Cart (3 or more) 4.96$ per month Additional Green Waste Cart (3 or more) 4.96$ per month Additional Special Overage pickup for Automated Cart Customers 9.97$ per month Additional Bulky item pickups (in excess of four per year) 30.20$ per month Cart Exchange 29.89$
Cart Re-delivery 49.81$
Delivery Fee (per set) 31.62$
Sunday
1 2 3 4 5 6 Service
1.5yd or 3yd Split Bin 156.14$ 248.52$ 352.49$ 447.92$ 539.78$ 629.01$ 174.31$ 217.88$ 2yd or 4yd Split Bin 165.32$ 263.14$ 373.23$ 474.27$ 571.53$ 666.01$ 184.58$ 230.72$ 2 cubic yd/ Compactor 262.86$ 418.39$ 593.43$ 754.09$ 908.73$ 1,058.96$ 293.48$ 366.85$ 3 cubic yard 183.69$ 292.38$ 414.70$ 526.97$ 635.03$ 740.01$ 185.79$ 232.24$ 3 cubic yd/ Compactor 292.07$ 464.88$ 659.37$ 837.88$ 1,009.70$ 1,176.62$ 295.40$ 369.26$ 4 cubic yard 202.06$ 321.61$ 456.17$ 579.66$ 698.54$ 814.01$ 151.87$ 189.84$ 4 cubic yd/ Compactor 321.27$ 511.37$ 725.31$ 921.67$ 1,110.67$ 1,294.28$ 241.48$ 301.85$ 2 yd manure 123.99$ 197.36$ 279.92$ 355.70$ 428.65$ 499.51$ 138.44$ n/a 3 yd manure 137.77$ 219.29$ 311.03$ 395.23$ 476.27$ 555.01$ 139.34$ n/a 6 Yard 238.80$ 380.09$ 539.11$ 685.06$ 825.54$ 962.01$ 179.49$ 224.36$ 35G set (1 Trash, 1 Recy) 24.13$ n/a n/a n/a n/a n/a n/a n/a 65G set (1 Trash, 1 Recy) 25.47$ n/a n/a n/a n/a n/a n/a n/a 95G set (1 Trash, 1 Recy) 26.81$ n/a n/a n/a n/a n/a n/a n/a Extra trash cart 15.27$ n/a n/a n/a n/a n/a n/a n/a Extra recycle cart 12.98$ n/a n/a n/a n/a n/a n/a n/a 35g Foodwaste/Green/Manure cart28.72$ 57.45$ 86.17$ 114.90$ 143.63$ 172.35$ 28.72$ n/a 65g Foodwaste/Green/Manure cart37.60$ 75.22$ 112.82$ 150.46$ 188.06$ 225.68$ 37.60$ n/a95g Foodwaste/Green/Manure cart41.80$ 83.56$ 125.35$ 167.13$ 208.91$ 250.70$ 41.80$ n/a 1 2 3 4 5 6
Locking Bin Svc 5.08$ 10.14$ 15.24$ 20.37$ 25.44$ 30.52$ n/a Scout Truck 28.85$ 58.44$ 87.62$ 116.88$ 146.13$ 175.33$ n/aScout - Carts (90% of bin rate) 25.96$ 52.60$ 78.86$ 105.19$ 131.52$ 157.80$ n/a Rates for Recycling, Foodwaste and Greenwaste bins will be charged at 85% of the Commercial MSW bin rate Manure bins will be charged at 75% of the Commercial MSW bin rate Rate
Standard Roll-Off Box - Rate per pull, plus disposal:
10-yard (up to 4 tons) 677.44$
30-yard (up to 4 tons) 564.45$
40-yard (up to 4 tons) 594.92$
Compactor Roll-Off Box - Rate per pull (excluding rental):
30-yard (up to 4 tons) 671.15$
40-yard (up to 4 tons) 686.61$
Use in excess of 7 days 43.22$
Overweight charge (per ton over 4 tons) 90.32$
Roll-Off Box Cleaning (above one per year) 298.29$
Re-delivery/Return Trip Fee 120.01$
Special Overweight Collection Charge 949.61$
Cost per Ton Processing Above Limit (over 4 tons) 133.06$ Delivery Fee 146.77$
Container Size Monthly Rate (Based on pickups per week) Rate per Extra P/U
Commercial & Multi-family Rates
Commercial & Multi-family Rates
EXHIBIT 3A
Proposed Rates
Residential Service Rate
Container Size Monthly Rate (Based on pickups per week) Rate per Extra P/U
Roll-Off Box Charges
Rates Effective - February 1, 2024 - June 30, 2025
EXHIBIT 3A
Proposed Rates
Hourly Rate
Special Sweep - Emergency Response 198.45$
Special Sweep - Non-emergency Response 132.29$
Rate Per
Service
3 cubic yard bin-temporary service 185.72$
Bin Return Trip Charge 56.52$
Bin Re-delivery fee (if bins are pulled for non-pmt) 56.52$ Commercial Bulky Item Pickup 43.14$
Initial Installation of Hasp for Locking Bin Service 143.86$ Emergency Service Rates- one crew and one collection truck 192.13$ Bin Cleanings (over one per year) 57.52$
Bin Overage Cleanup (following one written warning) 67.82$ Commercial Bin Delivery Fee 92.14$
Street Sweeping - Special Sweeps
Service Category
City of Orange
Public Works Department
Memo
To: Christopher Cash, Public Works Director
From: Frank Sun, Assistant PW Director/City Engineer Date: October 25, 2023
Re: CR&R Pavement Impact Fee
In April 2022, the City’s Pavement Management Program (PMP) was updated with the latest Pavement Condition Index (PCI) report that showed the pavement condition in the City’s pavement network.
Currently, both the arterial network (MPAH) and local network are in “Good” condition with a citywide PCI of 83.3. The PCI table below shows total section miles by Condition category. From the table, we can see close to 25% of the City’s streets are in the Very Poor to Fair condition that requires sustained pavement rehabilitation.
(Network are shown as centerline miles)
The total replacement value of the Orange pavement network is approximately $771,000,000 (2022).
This value clearly indicates that the City’s pavement network is the most valuable and essential asset to Orange. Necessary street maintenance effort needs to be consistent and adequately funded to keep this vital infrastructure in great condition and protect the substantial investment we have already made.
Well-maintained streets offer many benefits such as reduction of deferred maintenance, promoting economic development, and improving property values.
To maintain the existing average network PCI, the required annual funding is about $7.8 million per the 2022 PMP. However, due to continued construction cost escalation, we estimate the funding needed to effectively maintain similar scope of work is now close to be about $9 million. In current fiscal year (FY 24), $6.3 million (including $600,000 general fund) has been programmed in our capital improvement project as part of the City’s PMP. However, without relying on any inconsistent general fund investment, only $5.7 million is available from M2 (OCTA) and Road Maintenance and Rehabilitation Program (RMRP) on an annual basis. The $2.1 million shortfall between PMP recommended funding level and what is available (other than general fund) should be addressed urgently to implement the PMP’s maintenance requirement.
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Pavement condition deterioration rate is mainly due to environmental, heavy vehicle load, and high average daily traffic (ADT) volumes. Heavy vehicles such as utility, buses, street sweeping, and refuse vehicles have a significant impact to the City’s annual pavement deterioration. Solid waste vehicles have been found to have a significant impact to pavement condition. A study conducted by the City of Santa Ana in 2016 found that 40.63% of pavement loading impacts are from solid waste trucks (38.13%) and street sweeping vehicles (2.5%) combined.
The 2016 City of Santa Ana study is used as a reference document for Orange to assess an impact cost because we have similar street networks and pavement types (Asphalt and Concrete); Santa Ana has 25% of its street networks in arterial and 75% in local vs Orange’s 30% in arterial and 70% in local networks. Adjusting for the difference in street network capacity between arterial and local streets, a pavement loading impact of 35% for solid waste trucks is very reasonable, and combined with 2.5% from street sweeping, resulting in a total 37.5% pavement impact cost determination for the City of Orange.
Utilizing the $7.8 million PMP recommended annual street pavement maintenance funding, and applying the 37.5% pavement loading impact, the proportional share of street deterioration impact costs from solid waste and street sweeping vehicles would be calculated at as much as $2.93 million ($7.8M x 37.5%) annually. To meet the more effective funding level of $9 million, the solid waste vehicle impact cost would be calculated at $3.38 million ($9M x 37.5%).
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