AGREEMENT WITNESSETH :

Transcription

1 AGREEMENT This agreement is made and entered into at Davis, California, on August 1, 1993 by and between the CITY OF DAVIS, a Municipal Corporation, hereinafter referred to as "CITY", and DAVIS WASTE REMOVAL CO., INC., a California Corporation, and hereinafter referred to as "CONTRACTOR". WITNESSETH : I. Scope of this Agreement: 1. Purpose of this Agreement The purpose of this Agreement is to provide for a quality waste management service to the citizens and businesses of the City of Davis, at a fair market cost. This Agreement sets down the terms and conditions under which CONTRACTOR shall provide the services of collection, transporting, processing, and disposal or marketing of wastes and recyclables that are generated in or occur within the City of Davis, and the compensation to be received by CONTRACTOR therefore. This Agreement also provides for the orderly transition to a successor operation of wastes and recyclables management by CITY or by a CITY-sponsored successor, in the event that CONTRACTOR does not comply with the terms of this Agreement, or requests a termination to his providing the required services. 2. New Agreement: This present Agreement, with possible future Amendments, replaces the previous Agreement between CITY and CONTRACTOR, dated August 1, 1989, and subsequently amended. 3. Portion Deemed Invalid: Should any condition or provision of this Agreement be judged in a court of law to be void or inapplicable, the integrity of all remaining provisions shall remain valid and shall constitute the 1

2 basis of Agreement between CITY and CONTRACTOR. 4. Term of this Agreement: A) The term of this Agreement shall be for a ten year period beginning August 1, 1993 and terminating July 31, The parties agree that by their mutual consent, each expressed in writing and received at least ninety days before the termination of the current term ending on July 31, 2003, that this Agreement may be extended for an additional period of ten years upon the same terms and conditions as set forth in this Agreement. B) Failure by CITY to at any time require of CONTRACTOR the performance of any provisions of this Agreement shall in no way affect the right of CITY to thereafter enforce same, nor shall a waiver by CITY of any breach of any provision of this Agreement be held as a waiver of any succeeding breach of such provision, or as a waiver of any provision itself. 5. Accountability to CITY The collection and disposal of refuse directly affects the public health and welfare. Therefore, CONTRACTOR shall be accountable to the City for its performance. CONTRACTOR shall obey all Federal, State, and Local laws, ordinances and regulations and generally conduct its performance of this AGREEMENT so as to faithfully and competently collect and dispose of refuse in a safe and efficacious manner. At any time the CITY determines that it is appropriate to meet with CONTRACTOR to discuss performance of this AGREEMENT, CONTRACTOR will do so in good faith. If at any time the CITY determines that CONTRACTOR is guilty of substandard performance, and after notice of such and CONTRACTOR's failure to remedy the cited deficiencies, CITY may take all actions permitted pursuant to the "Breach of Agreement" provision of the AGREEMENT. 2

3 6. City Authority: Whenever the context of this Agreement requires CITY to perform an act, and said act is to be performed by an individual, CITY shall be interpreted as meaning the City Manager or his authorized appointee. 7. Exclusive Agent: Except as otherwise permitted by law or ordinance, CONTRACTOR shall be the exclusive agent to collect, transport, process, and dispose of or market all wastes and recyclables generated in and occurring within the Davis City limits, and in any territory hereinafter annexed to the City. The City warrants that it has the authority to grant such an exclusive right as described in the Agreement and as delegated to it by Public Resource Code section The City covenants that during the term of this Agreement it will not engage other individuals or itself become involved in the activity of collecting and disposing of solid waste and recycling or any other similar activity that would impair the exclusive right of the CONTRACTOR. Ownership of wastes (Hazardous or prohibited waste excluded) shall vest with CONTRACTOR at the time and point of collection by him. Waste materials in CONTRACTOR's containers shall remain the property of the waste generator until the time of pickup by CONTRACTOR. Recyclable materials placed in CONTRACTOR's containers shall become the property of CONTRACTOR at such time as they are placed in said containers. Ownership of curb-side placed recyclables shall vest with CONTRACTOR at the time they are placed at the curb by generator. CITY shall be the enforcement agent regarding ownership and scavenging of recyclable materials. CITY and CONTRACTOR note that Federal, State, Regional, and County legislation in the future may dictate the delivery of collected wastes and recyclables to special facilities at specific discharge fees or payments. CONTRACTOR shall comply with any such Federal, State, Regional, or County mandates. 3

4 8. Breach by Contractor: In the event CONTRACTOR should default in the performance of any material provisions of the AGREEMENT, and the default is not cured within 30 days after receipt of written notice of default from CITY, then CITY may, at its option, hold a hearing at its next City Council meeting to determine whether this AGREEMENT should be terminated. In the event CITY decides to terminate this AGREEMENT, CITY may, at its option, either directly undertake performance of the services or arrange with other persons to perform the service with or without a written agreement. In either event, CONTRACTOR shall be liable to CITY for any expense CITY incurs in performing the services in excess of the amount that would be payable to CONTRACTOR had it performed the services under this AGREEMENT. In the event CITY exercises its option under this paragraph to terminate this AGREEMENT, CITY shall pay to CONTRACTOR the amount due CONTRACTOR under the terms of the AGREEMENT for the services performed as of the date of termination. CITY may, in that event take possession of CONTRACTOR's equipment necessary to perform the services required under this AGREEMENT, and retain it until CITY can purchase or otherwise acquire equipment suitable for that purpose, but in no event longer than 120 days. CITY shall compensate CONTRACTOR for the reasonable rental value of its equipment and facilities during the period CITY retains possession of it. CITY and CONTRACTOR acknowledge that CONTRACTOR serves the suburban area outside the City of Davis with the same objective protecting the public health and safety of that area. CITY shall leave available to CONTRACTOR the necessary vehicles, supplies, facilities, and access to records to enable CONTRACTOR to serve said accounts. 9. Force Majeure: Neither the CONTRACTOR nor the CITY shall be liable for the 4

5 failure to perform their duties nor for any resultant damage, loss, etc., if such failure is caused by a catastrophe, riot, war, governmental order or regulation, accident, act of God, or other similar or different contingency beyond the reasonable control of the CONTRACTOR or CITY. If such circumstances persist for more than 10 days or if after their cessation the CONTRACTOR is unable to render full or substantial performance for a period of 10 days, he may terminate this AGREEMENT upon written notice given to the CITY. 10. Arbitration and Award: Any controversy or claim arising out of or relating to this AGREEMENT, or breach thereof, shall be settled by arbitration in accordance with the rules of the American Arbitration Association. Judgement upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. II. SERVICE, OPERATIONS AND PERFORMANCE 1. Services to be Performed by CONTRACTOR: A) CONTRACTOR shall provide, as from time to time called upon by CITY and by individual subscribers, collection and hauling service of such wastes and recyclables as are generated in or occur within the City of Davis. B) The waste collection and recycling service shall be as provided for in Ordinance 967 amending Chapter 22 of the Municipal Code of Davis, as set forth in Exhibit "A" of this Agreement, and as from time to time amended. C) All service performed by CONTRACTOR shall be in accordance with all applicable City, County, Regional, State, and Federal ordinances, laws, requirements, restrictions, and licensing provision. D) The basic service components to be performed by 5

6 CONTRACTOR under the terms of this Agreement are: (1) Residential Waste Collection: This consists of unlimited volume of containerized, curbside-placed waste collection on a once/week basis. "Other-than-curbside" and handicapped retrieval service for residential subscribers shall be made available to those subscribers requesting or requiring same, on a surcharge basis. (2) Commercial waste collection service on a once/week to six times/week basis, with CONTRACTOR furnishing waste bins or carts where appropriate. (3) Drop box waste collection service, including the use of compactor boxes, on a schedule or on call, with CONTRACTOR furnishing or offering to furnish said drop boxes and compactor boxes or hauling subscriber's boxes. (4) Loose garden refuse collection, from the streets and gutters, on a once/week basis except for a two-month period during the maximum leaf drop season when such collection shall be at least bi-weekly. (5) Recycling collection, processing and marketing consisting of at least weekly collection of curbside-placed cans (Aluminum and tin), glass, cardboard, plastic beverage containers, and newspapers from individually-serviced residences and apartment complexes with one through nine units. Newspaper, glass and beverage container collection from apartments and other communally-served dwellings shall be performed as compliance by apartment owners is made with respect to the requirements of Ordinance No requiring recycle containers space at all apartment complexes. Newspaper, glass and beverage container collection from all businesses and communally served dwellings shall be performed or made available. Additionally, CONTRACTOR shall provide citizen access to CONTRACTOR's facility where the above same materials may be dropped off, and where waste oil may 6

7 be delivered. CONTRACTOR's marketing effort shall attempt to find markets for all collected recyclables, with due consideration for economics. a) CONTRACTOR will provide calendar year quarterly reports and an annual report, due in March for the preceding year to the CITY detailing the amount of recycled material collected and the revenue derived from same. Such detail will be by specified recycled material (e.g., aluminum, glass, newsprint, etc.). Whenever possible, the report will show source of recycled material (residential curbside, commercial, drop-in center). CITY to approve the format of the annual and quarterly report. b) CONTRACTOR shall make reasonable effort to attain the following waste diversion goals: 40% by March 31, % by March 31, 2000 The goals represent the percent of the total waste stream for the twelve month period ending March 31 of each goal year that is to be diverted from the landfill. CONTRACTOR will keep detailed records of all material collected and not landfilled. An annual report shall be provided to CITY showing percent of the City of Davis waste stream (in tons) diverted and the diversion locations by material type. This report may be combined with the report submitted in Section 5A. The report is due in May of each year. (6) Street Sweeping--CONTRACTOR shall perform weekly street sweeping in conjunction with or shortly following CONTRACTOR's weekly loose garden refuse collection service. The downtown core area and major CITY thoroughfares, consisting of approximately 12 miles of streets, shall be swept twice weekly. CITY shall frequently evaluate sweeping performances and bring any deficiencies to CONTRACTOR's attention, which CONTRACTOR shall promptly correct. 7

8 (7) CONTRACTOR shall provide waste collection and recycling service to CITY at such locations and frequency as CITY shall specify, at no cost to CITY, up to a level of service provided in contract year Service level to be at existing level for 6 cubic yards or less and 153 drop box trips with tonnage not to exceed 317 tons. (8) Special Services. a) Spring Clean Up--CONTRACTOR shall provide a Spring Clean Up program once per year in the month of April during which single family residential units may dispose of large or bulky objects. Objects must be placed in the street for collection on the same day as garbage collection, beginning at 7:00 A.M. CONTRACTOR shall contact appropriate charitable organizations to coordinate the possible re-use of items as an alternative to landfilling. CONTRACTOR shall attempt to recycle white goods collected during the Spring Clean Up program. Advertising for this event will be the responsibility of the CITY. b) In the course of performing contracted services should CONTRACTOR encounter a spill of hazardous materials, CITY shall be responsible for the clean up of said spill. CONTRACTOR may bill CITY for costs incurred by CONTRACTOR during the clean up of said spills. c) The basic service components can be altered by City Council, with corresponding adjustments in compensation pursuant to the procedure on rate setting of Paragraph II, Performance Requirements: A) CONTRACTOR shall provide the equipment and workforce reasonably necessary to properly and safely accomplish the waste collection and recyclables collection and processing service within the City of Davis. CONTRACTOR shall exercise competent supervision over his operation. 8

9 B) CONTRACTOR shall perform his service in a courteous, professional, and quality manner. CONTRACTOR shall be exceptionally careful to minimize litter in collecting and transporting waste materials, and at their Corporation Yard. CONTRACTOR shall replace lids or covers on containers immediately after emptying same, and shall repair or replace at their expense any container damaged as a result of their handling, normal wear and tear excepted. C) CONTRACTOR shall adhere to the collection frequency schedule of Chapter 22 of the City Code of Davis, and shall have specific routes and collection days for adhering to that schedule. CONTRACTOR shall furnish CITY with "Residential Refuse Collection Day Scheduling Maps", and shall not make changes to same without first informing CITY. D) CONTRACTOR shall maintain a proper office and Corporation Yard for the management and control of the waste collection and recycling service. Said office shall be staffed by a person or persons who will respond to a telephone maintained on premises during all regular office hours of CITY. E) CONTRACTOR shall attempt to promptly correct any complaint relative to service or missed service. In the event that complaints are registered with CITY rather than with CONTRACTOR, CITY shall inform CONTRACTOR of the complaint, and CONTRACTOR shall promptly and properly respond to the complaint as if it had come directly to CONTRACTOR. F) CONTRACTOR and CITY shall cooperate in the taking of orders for service. Starts and stops, as a result of new or changed occupancies of residences and businesses, shall primarily be the responsibility of CITY, but details of the frequency and days of collection, the furnishing of waste bins, and the like, may be referred to CONTRACTOR for on-site decisions between CONTRACTOR and subscriber. The primary responsibility for taking orders for industrial and special waste collection work shall be 9

10 with CONTRACTOR. G) CONTRACTOR shall not begin residential waste collection service prior to 7:00 a.m., 6:00 a.m. during the period of June 1 - September 30. H) CONTRACTOR's operational and financial records shall be open for inspection by CITY at all times, but shall remain confidential with respect to third parties. 3. Compensation to CONTRACTOR: A) Compensation Rate - For the period of August 1, 1993 to July 31, 1994 the compensation rate to CONTRACTOR shall be as follows: For all billings and services rendered on or after August 1, 1993, except for payments for recycling services, a base rate shall be established based on the amount for each service as set forth in Exhibit "A", a copy of which is attached and incorporated herein by this reference. The base rates reflected in Exhibit "A" are the compilation of component rates for each component of service provided pursuant to this agreement (i.e., basic garbage service, yard refuse, street sweeping, recycling), and are as set forth in Exhibit "B". Said base rates shall be adjusted, each year, commencing August 1, 1994, by adjusting the previous year's base rate, less landfill costs calculated by tipping fees applied to tonnages converted based on the previous year's average weight per subscribed yard. The adjustment to the base rate less landfill will be by the mean average percent change in the "Consumer Price Index, All Items, San Francisco-Oakland-San Jose," as maintained and published by the Bureau of Labor Statistics, United States Department of Labor, for the preceding three years ending in February of the year under consideration. In the event that said index is no longer maintained or is substantially modified, the parties shall agree on a different index of adjustment, or shall adjust the rates pursuant to the procedure recited in subparagraph 10

11 B) below. For recycling services, a new base rate will be negotiated between CITY and CONTRACTOR for the contract year commencing August 1, Subsequent years recycling base rate will be adjusted as with the rest of the services covered in this agreement. A new base rate exhibit will be developed by adjusting the old Exhibit "A" by the adjustments detailed above and by adding back in the landfill component. After the base rates are determined, as provided above, final compensation to the CONTRACTOR shall be computed by adding to each rate the amount the CITY determines to be necessary to cover its costs (cost recovery rate). From said sum the CITY will deduct its cost recovery rate and pay the CONTRACTOR the difference for each service, adjusted for any corrections to prior billings and prorated adjustments for partial month service. B) Adjustments of Compensation to Contractor after July 31, When adjustment is due, the compensation rate paid by CITY to CONTRACTOR shall be set by CITY. The rate CONTRACTOR may charge individual citizens and businesses for drop box service shall also be set by CITY. The setting of the CITY payment rate and the CONTRACTOR charge rate shall be the result of the following procedure: 1) Ninety days prior to August 1, 1995, and every two years thereafter, CONTRACTOR shall research out the payment rate to and charge rates of private collection companies, and the true cost figures for municipal operations, of the surrounding communities of Woodland, West Sacramento, City of Sacramento, County of Sacramento, Vacaville, Dixon, Chico, Fairfield, Dublin, Livermore, and Modesto for the relative service levels of refuse and recyclables collection and street sweeping covered by such rates. CITY will assist in the gathering of information from other agencies. CONTRACTOR shall fully tabulate and evaluate all this data, and shall furnish the specific sources and contact 11

12 persons for each item of information. Based on this data and CONTRACTOR's interpretation of it, CONTRACTOR shall prepare a "Compensation Proposal" of payment rates and charge rates for the various kinds of classes of service that CONTRACTOR is called upon to provide. The basis for CONTRACTOR's Compensation Proposal shall be that the proposed rates are in line with the prevailing rates for like service in the surrounding communities. 2) Upon submission of CONTRACTOR's Compensation Proposal to CITY, the City Manager shall assemble a Review Board. This Board shall consist, by way of example and not by way of limitation, of representatives from the City Manager, Finance, and Public Works offices, and may include a technical representative from the County of Yolo. This Review Board shall evaluate and determine the reasonableness of CONTRACTOR's Compensation Proposal. CONTRACTOR and the Review Board shall negotiate or attempt to negotiate out any differences. 3) If agreement on the Compensation Proposal is obtained at this technical level, the proposal shall be forwarded to the City Council for approval. The City Council decision on approval shall be on the basis of prevailing rates. The total time interval between submittal of the Compensation Proposal to the City Manager and a decision by the City Council shall not exceed 90 days. If agreement and approval of CONTRACTOR's Compensation Proposal cannot be obtained within a 90-day period, the CPI adjustment and landfill increase will be implemented until a settlement can be reached. CITY and CONTRACTOR shall negotiate in good faith. 4) If agreement and approval of CONTRACTOR's Compensation Proposal are obtained, the annual method of adjustment recited in subparagraph a) above shall be applied for the subsequent year. a) City Adjustment of Rates. The parties acknowledge that the difference between the CITY's customer rate 12

13 and amount payable to CONTRACTOR represents the administrative and other costs to the CITY of operation and administration of sanitary and refuse services. In the event CITY determines that its costs have changed, CITY may revise its rates charged to customers upwards or downwards, as appropriate, so long as CONTRACTOR's net payment for each type of service remains the same as provided herein. b) Customer Payments Collected by CONTRACTOR for Drop Box Services. For any drop box services billed and collected by CONTRACTOR, CONTRACTOR shall remit the difference between the amount due CONTRACTOR and the adopted rate to CITY. c) Uncollected Funds. In the event any amount due from any amount due from any customer is uncollectible, from whatever cause, said amount shall be itemized and subtract from any payment due under this agreement. Each party shall make a reasonable good faith effort to collect all customer payments for which it is responsible. If uncollected amounts are later collected, payment will be made with the next billing cycle schedule thereafter. d) Reopener for Change in CONTRACTOR's Expenses or Revenues. If, in any contract year (August 1 to July 31) CONTRACTOR's expenses for fuel or insurance increase by more than twenty-five (25) percent for reasons beyond CONTRACTOR's control, CONTRACTOR may request an adjustment in rates to compensate for the amount of such increased cost. Nothing herein shall obligate CITY to grant such increase, but it shall negotiate in good faith. If in any contract year (August 1 to July 31) CONTRACTOR is subject to a landfill disposal rate increase, all of said increase shall be passed through by means of an immediate rate increase. Any increase in costs due to Federal, State, or Local mandated programs, laws or fees shall be passed through by means of an immediate rate increase. 13

14 e) Reopener for Change in Recycling Revenues. If CONTRACTOR's net cost of service from its current recycling activities decreases by more than twenty-five (25) percent, in any contract year (August 1 to July 31), CITY may request an adjustment in rates to offset the amount of such net income which exceeds twenty-five (25) percent. Nothing herein shall obligate CONTRACTOR to agree to such adjustment but the parties shall negotiate in good faith. If CONTRACTOR's net cost of service from its current recycling activities increases by more than twenty-five (25) percent, in any contract year (August 1 to July 31), CONTRACTOR may request an adjustment in rates to offset the amount of such revenue loss. Nothing herein shall obligate CITY to agree to such adjustment but the parties shall negotiate in good faith. f) Immediately after each rate adjustment hereunder, CONTRACTOR shall provide CITY with a statement of its budgeted cost distribution of payments for each component of service provided pursuant to this agreement, (i.e., basic garbage service, yard refuse, street sweeping, recycling, and special services). g) For purposes of rate computation under this agreement, "service" shall mean each separate place where a container or group of containers is located, even if located on the same parcel of real property. C) Payment by CITY to CONTRACTOR, and payment by CONTRACTOR to CITY, of the above payments, shall be by the 10th of the month following the month of service. D) For contract year of August 1, 1993 to July 31, 1994 CONTRACTOR shall make payment to CITY of $6.00 per ton for all garbage collected exclusive of all drop box services and $3.00 per ton for all yard refuse collected for all months in which the Yolo County Central landfill fee is $30.00 for commercial loads. The intent of this paragraph is to account for a delay in the 14

15 County Landfill rate increases. Rate assumptions of $36.00 for garbage and $28.00 for yard refuse were incorporated into the rate schedule, Exhibit "A". 4. Liquidated Damages: Because of the difficulty of determining actual damages, the parties have agreed that if CONTRACTOR defaults the terms of the Agreement and CITY exercises takeover action, or if CONTRACTOR terminates his services with less than 120 days notice, a $25, liquidation damages shall be levied on CONTRACTOR. This damage amount shall be paid to CITY by CONTRACTOR in cash, or shall be deducted from CITY's final payment to CONTRACTOR for services rendered, or shall be a deduction against any CITY purchase of CONTRACTOR's assets. If CITY exercises the termination privilege of Paragraph I8, or if CONTRACTOR's Compensation Proposal of Paragraph 3.B)1) is not approved within the 90-day time limit, no liquidated damages shall be levied on CONTRACTOR. 5. Insurance and Indemnification: A) CONTRACTOR shall carry public liability insurance in the amount of $500, for the death or injury of one person, $1,000, for the death or injury of more than one person, and $50, property damage. Said insurance shall be primary to any other policy of insurance, and shall carry an endorsement having the CITY, its officers and employees as additional named insureds, and shall further provide that the policy shall not be cancelled and/or reduced without 10 days written notice to CITY. In the event of such cancellation or reduction, CITY may provide such coverage, the cost of same to be borne by CONTRACTOR. C) CONTRACTOR or the insurer provided for above shall appear and defend all actions against CITY or its officers or employees arising out of the exercise of the Agreement, or the failure of performance of any of the terms or obligations imposed hereunder, and shall indemnify and save CITY, its officers, 15

16 employees and agents, free and harmless of and from all claims, actions, or causes of action arising from negligence connected with the exercise of this Agreement or the failure of performance of any of the terms or obligations imposed hereunder. 6. Corporate Ownership: CONTRACTOR states that at the time of signing this Agreement, the stock of Davis Waste Removal Co., Inc. is owned by Paul E. Hart and Paul E. Geisler, Jr. CONTRACTOR shall inform CITY of any stock transfer proposals in the future, and shall not consummate any stock transfer until at least 30 days after informing CITY. If CITY does not respond within 30 days, CITY approval shall be considered granted. CITY shall not unreasonably withhold consent. 7. Assignment and Subcontractors: This Agreement is not assignable, in whole or in part. CONTRACTOR may subcontract out portions of his service work, but only if approval from CITY is first obtained. If CONTRACTOR's request for subcontract approval is not acted upon within 30 days, it shall be considered approved. 8. Notices: All notices to be given hereunder shall be deemed delivered upon personal service upon any of the officers of CONTRACTOR, the names and addresses of same to be delivered to CITY upon execution of this Agreement, and as changed in writing from time to time, or upon deposit, postage prepaid, in the United States Mail, to, Davis Waste Removal Co., Inc. P.o. Box 496 Davis, CA ATTN: Paul Hart Notice to City shall be deemed delivered upon personal service to the City Manager of the City of Davis, or upon deposit, postage prepaid, in the United States Mail, to, City of Davis, c/o City Manager 16

17 23 Russell Boulevard Davis, CA Continuity: This agreement shall inure to and be binding upon the successors or assigns of both parties. 17

18 IN WITNESS WHEREOF, the parties have caused this Agreement to be signed on the day and year first written above, upon which date this Agreement becomes effective. Corporation CITY OF DAVIS, a Municipal By: Mayor DAVIS WASTE REMOVAL CO., INC. By: President ATTEST: RCYCL035.RW 18

19 EXHIBIT `B' CONTRACTOR RATE COMPONENTS (DAVIS WASTE REMOVAL COMPANY, INC.) 8/1/92 BASE NEW LANDFILL NEW ITEM RATE 4.044% RATE $36/TON RATE Residential: Curbside Backyard Handicapped Brush: Street Sweeping: Recycling: Special Collections: SUBTOTAL Curbside TOTAL Backyard TOTAL Handicapped TOTAL Special Collections Component Breakdown: Spring Cleanup Cost $24,440 House Count 10,781 Monthly Cost/Household 0.19 FORM0132.WS 19