HomeMy WebLinkAbout2014-07-08 Item 13
City of Chula Vista
Staff Report
File#:, Item#: 13.
14-0372
RESOLUTIONNO.2014-129OFTHECITYCOUNCILOFTHECITYOFCHULAVISTAOFITS
INTENTIONTOCONSIDERGRANTINGAWASTEMANAGEMENTFRANCHISERENEWALTO
ALLIEDWASTESERVICES,INC.(DBAREPUBLICSERVICESOFCHULAVISTA)ONTHE
TERMSPRESENTEDUNTILJUNE30,2024WITHTWOOPTIONSTOEXTENDUNTILJUNE30,
2031ANDJUNE30,2039RESPECTIVELY,SUBJECTTOTHECITY’SDETERMINATIONOF
SATISFACTORYPERFORMANCEANDSETTINGTHEPUBLICHEARINGTOCONSIDERSAME
FOR JULY 22, 2014
RECOMMENDED ACTION
Council adopt the resolution and set the public hearing for July 22, 2014.
SUMMARY
CitystaffhasnegotiatedwithAlliedWasteServices,Inc.(dbaRepublicServicesofChulaVista
(hereinafter“Republic”)todevelopthetermsandconditionsforaproposedWasteManagement
FranchiseRenewal(“FranchiseRenewal”).BeforeCouncilmayconsideractionontheFranchise
Renewal,Section1201oftheCityCharterrequiresthataresolutionofintentionbeadoptedanda
public hearing be scheduled. This item implements that requirement.
ENVIRONMENTAL REVIEW
TheDevelopmentServicesDirectorhasreviewedtheproposedactivityforcompliancewiththe
CaliforniaEnvironmentalQualityAct(CEQA)andhasdeterminedthattheactivityisnota"Project"as
definedunderSection15378oftheStateCEQAGuidelinesbecausetheproposalconsistsofa
continuingadministrativeactioninvolvingtheapprovalofacurrentwastemanagementfranchise
agreementthatwillnotresultindirectorindirectphysicalchangestotheenvironment.Therefore,
pursuanttoSection15060(c)(3)oftheStateCEQAGuidelinestheactivityisnotsubjecttoCEQA
review.
BOARD/COMMISSION RECOMMENDATION
Not Applicable
DISCUSSION
ThecurrentwastemanagementfranchiseagreementwithRepublicwasnegotiatedandapprovedin
1999.Theagreementprovidedavarietyandquantityofserviceoptionsnotreadilyavailableinother
jurisdictions.AmutuallybeneficialOtayLandfillExpansionAgreementwasapprovedconcurrently.
TheproposedFranchiseRenewaldoesnottakeawayanyoftheservicesthatthecitizensofChula
Vistacurrentlyenjoy.BringingthisproposalfromRepublictoCityCouncilisimportantforseveral
reasons:
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1.ThecurrentfranchiseagreementexpiresonJune30,2015;withtwo,eight-yearoptionsfor
extension until 2031.
2.Newlydevelopingregulationsregardingtherecyclingoforganicdiscards,suchasyardwaste
andfoodwaste,andreducingtheassociatedgreenhousegasemissions,willrequirethe
implementation of new technologies and methods, other than landfill disposal.
3.Capitalimprovementsareneededtomeetthedemandofthesedevelopingregulations,as
well as the continued growth of the city.
CitystaffhasnegotiatedwithRepublictoupdatethelanguageofthe1999solidwastedisposaland
landfillagreementstoreflectthepassageoftime(completedmilestones,operationalchanges,etc.)
andprovideenhancementstocomponentsoftheagreementsthatwillimprovecustomersatisfaction,
keeptheCitystreetscleanerandassistwithStatemandatedsolidwasteandgreenhousegas
emissions reduction goals.
Scope of Proposal
1.Term:
TheproposedFranchiseRenewaltakesthelastyearofthecurrentagreementalong
withthetwo,eightyearcontractextensionsandrestructuresthemsothatRepublic
maycommitthecapitalnecessarytomeettheneedsofourgrowingCityandbein
compliancewithStatesolidwasteandgreenhousegasemissionsreduction
requirements.
ThenewinitialtermshallcommenceSeptember2014andendJune30,2024,unless
extendedorearlierterminatedperthetermsoftheagreement.Republicwillhavethe
firstoptiontoextendthetermforanotherseven(7)years(2031)onthesameterms
andconditions,providedtheCityManagerreasonablydeterminesthatRepublichas
satisfactorilyperformedandisinfullcompliancewiththeagreementandapplicable
law.CityalsocanextendtheterminitsdiscretionifforanyreasonRepublicelects
not to.
TheCityisprovidedone(1)additionaleight(8)yearextensionoptionatitssole
discretionsubjecttoearlierterminationbyRepublicintheeventtheOtayLandfill
closes.
2.Franchise Fee and Bonus Payments:
InconsiderationoftheCity’sgrantoftheFranchiseRenewal,Republicwillpaytothe
City20%ofRepublic’sgrossreceiptsasaFranchiseFee.(ThepreviousFranchise
Feewas10%).CityreservestheoptiontoincreasetheFranchiseFeeto25%
commencingJuly1,2015ifeitherpartyextendstheFranchiseuntil2031.Per
industrystandard,Republichastherighttopassthroughthisfranchisefeeto
ratepayers.RepublicmustalsopaytheCityanannual“bonusfee”.Thisprovisionis
carriedoverfromthe1999agreement.Thecurrentfeeis$962,823.86.Thefee
increasesby3%peryear.Republicisprohibitedfrompassingthroughthebonusfee
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to ratepayers.
3.Free Disposal for City Business:
TheCitywillnotbechargeddisposalformaterialsgeneratedbyCitycrews,
contractorsorsub-contractorsperformingworkfortheCityandtakentotheOtay
Landfilluptoamaximumof5%ofthetotalmaterialscollected(thetotaltonnageof
solidwaste,recyclablematerialsandgreenwaste)intheCity.Anyamountoverthe
5%willbebilledtotheCity.Thisisanincreaseinfreetonnagethatwaspreviously
basedupon5%oftheamountofsolidwasteonlycollectedintheCity.Withinthis5%
capontonnage,theFranchiseRenewalalsoallowsCity-designatededucational,
medicalorsportsorientednon-profitsbuildingfacilitieswithintheCitytotake
advantage of this free disposal benefit.
4.New Recycling Programs:
Pilotprogramsandinnovativeserviceswhichmayentailnewcollectionmethodsor
processes may be directed by the City to meet applicable laws.
5. Bulky Waste Items:
Residentsmaycallin24hoursinadvanceoftheirservicedaytogetnextdayservice
on free bulky item collection. This was previously a 48 hour requirement.
6. Customer Service:
Telephoneswillbeattendedbylivecustomerservicerepresentativesfrom8:00amto
6:00pmMondaythroughFriday,and8:00amtonoononSaturdays.Thisincreased
theavailabletimefrom5:30pmto6:00pmtoallowtimeforresidentstoreturnhome
and call in any service issues.
7.Recycling Education:
Republicwillpay$110,000annuallyfortheRecyclingEducationProgramandwill
escalatethisamount1%peryear.Thisisa$41,000increaseovertheexisting
contract.
8.Rate Adjustment Formula:
The rates for Large Quantity Generators and Small Quantity Generators, will take
effect beginning July 1, 2015, and September 1, 2015, respectively and each annual
anniversary thereafter.
TheMaximumRatesforGeneralServicesshallincreaseinanamountnottoexceed
theproductofthepreviousyear’sRatemultipliedby100percent(upfrom66.7%
underthe1999agreement)oftheConsumerPriceIndexforthepreviouscalendar
yearincrease.TheCPIoftheSanDiegoAreaforAllUrbanConsumers(allitems)will
be used. (Rate x CPI = Adjusted Rate.)
Significantratepayerprotectionsfromthe1999agreementremainunchanged.For
example,atnotimewilltheSmallQuantityGeneratorRatebeallowedtoexceed90
percentoftheaverageforSanDiegoCountyforthesamelevelofservice,after
governmentalpassthroughfeeshavebeenremoved.Moreover,ifRepublicoffersa
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lowerratewithintheCounty,underafranchiseforsimilarservices,itisrequiredto
offer that lower rate in Chula Vista.
9. Otay Landfill Agreement:
IntandemwiththeFranchiseRenewal,anAmendedandRestatedOtayLandfill
ExpansionAgreementhasbeennegotiatedwithRepublicanditsaffiliate,Otay
Landfill,Inc.ThisagreementprovidesadditionalbenefitstothecitizensofChula
Vista.AdefaultbyRepublicunderthelandfillagreementwillalsoconstituteadefault
under the Franchise Renewal.
Free Compost Material for Chula Vista Residents -
Republicwillprovidethree,composteventspercalendaryeartoSmall
QuantityGeneratorsfreeofcharge.Eacheventwillprovide150cubicyards
ofcomposttoCityresidentsandnon-landscapingSmallQuantityGenerator
businesses on a first come, first serve basis.
Landfill Capacity for Chula Vista Residents -
Asthelandfillbeginstoreachcapacity,Republicwillholdbackspacewithin
thelandfilltoguaranteeChulaVistanswillhavesufficientlandfillspaceto
accommodate their needs until, at a minimum, year 2028.
-
Future Resource Recovery Park
UponclosureoftheOtayLandfill,aminimumof20acresupto30acreswill
bedevelopedforaResourceRecoveryParkforsolidwastehandling,
transferand/orprocessingtoservetheCityandotherjurisdictions.A
ResourceRecoveryParkmayco-locatereuse,recyclingcomposting
processingandrelatedmanufacturingandretailbusinessesinacentral
locationwiththegoaltoworktowardszerodiscardedmaterialstolandfill
disposal.
Landscaping -
Upon closure, the landfill will be contoured to resemble the surrounding
mountains. The slopes will be re-vegetated with the goal of creating a habitat
for native species plants and wildlife. It will not look like an engineered
mountain.
DECISION-MAKER CONFLICT
Staff has determined that the action contemplated by this item is ministerial, secretarial, manual, or
clerical in nature and, as such, does not require the City councilmembers to make or participate in
making a governmental decision, pursuant to California Code of Regulations Title 2, section 18702.4
(a). Consequently, this item does not present a conflict under the Political Reform Act (Cal. Gov't
Code § 87100, et seq.). Staff is not independently aware, and has not been informed by any council
member, of any other fact that may constitute a basis for a decision maker conflict of interest in this
matter.
LINK TO STRATEGIC GOALS
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The Franchise Renewal and the Amended and Restated Landfill Agreements support the Healthy
Community, Operational Excellence and Economic Vitality Strategic Goals by promoting recycling,
guaranteeing good service for competitive prices, and providing sustainable services over the next
two decades.
CURRENT YEAR FISCAL IMPACT
ApprovaloftheresolutionnoticestheCity’sintenttograntawastemanagementfranchiserenewalto
RepublicServices,includinganimmediate10%increasetotheFranchiseFee,increasingtherate
from10%to20%andreservingtherighttoincreasetheFranchiseFeebyanadditional5%,toatotal
of25%,withwrittennoticetoRepublic.InadditiontoincreasingtheFranchiseFeerate,therenewal
agreementpreservestheannualbonuspayment,increasestheannualfundingfortheRecycling
Educationprogram,andestablishesa1%annualescalatortotheRecyclingEducationprogram
funding.
Impact to City
Underthecurrentagreement,Republicpays10%ofgrossreceiptstotheCityinFranchiseFees.
Thisgeneratesapproximately$2.1millionindiscretionaryGeneralFundrevenuesannually.If
granted,therenewalagreementwillincreasetheFranchiseFeerateto20%,doublingtheFranchise
FeespaidtotheCity.WithanestimatedeffectivedateofNovember1,2014,thisequatestoan
estimated current year fiscal impact of approximately $1.2 million.
InadditiontothestandardFranchiseFee,RepublicpaystheCityanannualbonus,totaling
approximately$962,000infiscalyear2014-15,increasingby3%annually.Therenewalagreement
preservesthisbonus,includingtheannual3%escalator,throughthetermoftheagreement(2023).
Approvaloftherenewalagreementdoesnotincreasetheannualbonus,butdoespreservethis
source of discretionary funds.
Lastly,therenewalagreementincreasestheannualRecyclingEducationprogramfundingfromthe
current$69,000to$110,000,andestablishesanannual1%escalatorinfutureyears.This
representsanincreaseinprogramfundinginthecurrentfiscalyearof$41,000(paymentwillnotbe
prorated).Thesefundsarenotdiscretionary,andmustbespenttopartiallyfundarecyclingpublic
information and enforcement program.
Impact to Rate Payer
Underthecurrentagreement,Republicpays10%ofgrossreceiptstotheCityinFranchiseFees.Of
thisamount,Republicpasses8%throughtothecustomer,and2%ispaidbyRepublic.Ifgranted,
therenewalagreementwillincreasetheFranchiseFeerateto20%,andallowRepublictopassthe
entire20%throughtothecustomer.Ratepayerswillseeanincreaseof12%ontheirsolidwaste
billsasaresultoftherenewalagreement.ForSmallQuantityGenerators(cartcustomers)thiswill
equatetoapproximately$2.00permonth.ForLargeQuantityGenerators(bincustomers)thiswill
equate to approximately $4.25 per month for a three cubic yard bin, serviced one time per week.
ONGOING FISCAL IMPACT
Underthecurrentagreement,Republicpays10%ofgrossreceiptstotheCityinFranchiseFees.
Thisgeneratesapproximately$2.1millionindiscretionaryGeneralFundrevenuesannually.If
granted,therenewalagreementwillincreasetheFranchiseFeerateto20%,doublingtheFranchise
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FeespaidtotheCity.ThiswillgenerateadditionaldiscretionaryrevenuestotheCityof
approximately$2.1millionannuallythroughthetermoftheagreement(2023).Implementationofthe
additional5%increaseauthorizedintheagreementwouldgenerateapproximately$1millionin
additional discretionary revenues, for a total annual increase of $3.1 million.
TheCitywillcontinuetoreceivetheannualbonuspayment,includingtheexisting3%annual
escalator,andwillreceiveadditionalRecyclingEducationprogramfundingof$41,000annually,
increasing 1% each year.
ATTACHMENTS
Waste Management Franchise Renewal Agreement
Draft - Amended and Restated Otay Landfill Expansion Agreement
Staff Contact: Lynn France, Environmental Services Section, ext. 5790
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RESOLUTION NO. __________
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA
VISTA OF ITS INTENTION TO CONSIDER GRANTING A WASTE
MANAGEMENT FRANCHISE RENEWAL TO ALLIED WASTE
SERVICES (DBA REPUBLIC SERVICES OF CHULA VISTA) ON
THE TERMS PRESENTED UNTIL JUNE 30, 2024, WITH TWO
OPTIONS TO EXTEND UNTIL JUNE 30, 2031 AND JUNE 30,
2039, RESPECTIVELY, S
DETERMINATION OF SATISFACTORY PERFORMANCE AND
SETTING THE PUBLIC HEARING TO CONSIDER SAME FOR
JULY 22, 2014.
WHEREAS, IN 1999, the City granted an Amended and Restated Solid Waste
and Recycling Franchise Agreement to Republic; and
WHEREAS, concurrently a mutually beneficial Otay Landfill Expansion
Agreement was approved; and
WHEREAS, with the passage of time (completed milestones, operational
changes, etc.), growth of the City and changes in pending regulations, City staff and
Republic have negotiated updates to the language with enhancements to components;
and
WHEREAS, the following represents a summary of the scope of the new
proposal with other key provisions of the franchise remaining:
1. Term:
The proposed Franchise Renewal takes the last year of the current
agreement along with the two, eight year contract extensions and
restructures them so that Republic may commit the capital necessary to
meet the needs of our growing City and be in compliance with State solid
waste and greenhouse gas emissions reduction requirements.
The initial term shall commence September 2014 and end June 30,
2024, unless extended or earlier terminated per the terms of the
agreement. Republic will have the first option to extend the term for
another seven (7) years (2031) on the same terms and conditions,
provided the City Manager reasonably determines that Republic has
satisfactorily performed and is in full compliance with the agreement and
applicable law. City also can extend the term in its discretion if for any
reason Republic elects not to.
The City is provided one (1) additional eight (8) year extension option at
its sole discretion subject to earlier termination by Republic in the event
the Otay Landfill closes.
2. Franchise Fee and Bonus Payments:
the Franchise Renewal, Republic
as a Franchise Fee.
(The previous Franchise Fee was 10%). City reserves the option to
increase the Franchise Fee to 25% commencing July 1, 2015 if either
party extends the Franchise until 2031. Per industry standard, Republic
has the right to pass through this franchise fee to ratepayers. Republic
over from the 1999 agreement. The current fee is $962,823.86. The fee
increases by 3% per year. Republic is prohibited from passing through
the bonus fee to ratepayers.
3. Free Disposal for City Business:
The City will not be charged disposal for materials generated by city
crew, contractors or sub-contractors performing work for the City and
taken to the Otay Landfill up to a maximum of 5% of the total materials
collected (the total tonnage of solid waste, recyclable materials and
green waste) in the City. Any amount over the 5% will be billed to the
City. This is an increase in free tonnage that was previously based upon
5% of the amount of solid waste only collected in the City. Within this 5%
cap on tonnage, the Franchise Renewal also allows City-designated
educational, medical or sports oriented non-profits building facilities
within the City to take advantage of this fee disposal benefit for their
construction and demolition disposal.
4. New Recycling Programs:
Pilot programs and innovative services which may entail new collection
methods or processes may be directed by the City to meet applicable
laws.
5. Bulky Waste Items:
Residents may call in 24 hours in advance of their service day to get
next day service on free bulky item collection. This was previously a 48
hour requirement.
6. Customer Service:
Telephones will be attended by live customer service representatives
from 8:00 am to 6:00 pm Monday through Friday, and 8:00 am to noon
on Saturday. This increased the available time from 5:30 pm to 6:00 pm
is to allow time for residents to return home and call in any service
issues.
Resolution No.
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7. Recycling Education:
Republic will pay $110,000 annually for the Recycling Education
Program and will escalate this amount 1% per year. This is a $41,000
increase over the existing contract.
8. Rate Adjustment Formula:
The rates for Large Quantity Generators and Small Quantity Generators
will take effect beginning July 1, 2015, and September 1, 2015,
respectively and each annual anniversary thereafter.
The Maximum Rates for General Services shall increase in an amount
not to exceed the product of the previous
percent (up from 66.7% under the 1999 agreement) of the Consumer
Price Index for the previous calendar year increase. The CPI of the San
Diego Area for All Urban Consumers (all items) will be used. (Rate x
CPI = Adjusted Rate.)
Significant ratepayer protections from the 1999 agreement remain
unchanged. For example at no time will the Small Quantity Generator
rate exceed 90% of the average for San Diego County for the same level
of service, after governmental pass through fees have been removed.
Moreover, if Republic offers a lower rate within the County, under a
franchise for similar services, it is required to offer that lower rate in
Chula Vista.
9. Otay Landfill Agreement:
In tandem with the Franchise Renewal, an Amended and Restated Otay
Landfill Expansion Agreement has been negotiated with Republic and its
affiliate, Otay Landfill, Inc. This agreement provides additional benefits
to the citizens of Chula Vista. A default by Republic under the Landfill
Agreement will also constitute a default under the Franchise Renewal.
Free Compost Material for Chula Vista Residents
Republic will provide three, free, compost events per calendar
year to Small Quantity Generators. Each event will be provided
150 cubic yards of compost free to City residents and non-
landscaping, Small Quantity Generator businesses on a first
come, first serve basis, up to 150 cubic yards per event.
Landfill Capacity for Chula Vista Residents
As the landfill begins to reach capacity, Republic will hold back
space within the landfill to guarantee Chula Vistans will have
landfill space until, at a minimum, year 2028.
Future Resource Recovery Park
Upon closure of the Otay Landfill, a minimum of 20 acres up to
30 acres will be develop for a Resource Recovery Park for solid
waste handling, transfer and/or processing to serve the City and
other jurisdictions. A Resource Recovery Park may co-locate
reuse, recycling composting processing and related
manufacturing and retail businesses in a central location with
the goal to work towards zero discarded materials to landfill
disposal.
Landscaping
Upon closure the landfill will be contoured to resemble the
surrounding mountains. The slopes of the landfill will be re-
vegetated with the goal of creating a habitat for native species,
plants and wildlife. It will not look like an engineered mountain.
WHEREAS, in accordance with Section 1201 of the City Charter, the City Council
shall adopt a resolution declaring its intention to grant a franchise and shall schedule a
public hearing for the consideration of such grant.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula
Vista, that it does set a public hearing for 2:00 pm on July 22, 2014 in the Council
Chambers, 276 Fourth Ave, Chula Vista, CA at which the City Council intends to
consider granting to Republic Services a Waste Management Franchise renewal on the
terms and conditions set forth above as more specifically provided in the Franchise
Renewal Agreement.
BE IT FURTHER RESOLVED by the City Council of the City of Chula Vista that
the City Clerk is hereby authorized and directed to publish, at least once within fifteen
days after the passage of this resolution and at least ten days prior to the date of the
hearing, appropriate notice of such hearing.
Presented by Approved as to form by
Richard Hopkins Glen R. Googins
Director of Public Works City Attorney
AMENDED AND RESTATED SOLID WASTE COLLECTION AND RECYCLING
FRANCHISE AGREEMENT
This AMENDED AND RESTATED SOLID WASTE COLLECTION,
RECYCLING AND DISPOSAL FRANCHISE AGREEMENT ("Franchise") is entered
into effective as of _________, 2014 by and between the CITY OF
CHULA VISTA, a chartered municipal corporation of the State of California ("City")
andALLIED WASTE SYSTEMS, INC., a Delaware corporation, which is a subsidiary
of Republic Services, Inc., and is doing business as Republic Services of Chula Vista,
and also doing business as Allied Waste Services of Chula Vista ("Republic").
Recitals
This Franchise is made and entered into with reference to the following facts:
A. City is a chartered city within the meaning of California Constitution
Article 11, Sections 3 and 5 and has reserved its powers pursuant to California Public
Resources Code Section 40000 et seq. to grant an exclusive Solid Waste and
Recycling franchise; and
B. In 1982, pursuant to Article XII of the City Charter and Chapter
8.24 of the Chula Vista Municipal Code, City granted a Solid Waste disposal franchise
("Original Franchise") to Chula Vista Sanitary Service ("CVSS"); since 1982, the
Original Franchise has been assigned on various occasions, most recently to
Republic.
C. Since 1982, the Original Franchise has been amended as follows:
(1) Ordinance No. 2104, adopted February 28, 1985; (2) Ordinance No. 2332,
adopted September 12, 1989; (3) Ordinance No. 2427, adopted December 4, 1990;
(4) Ordinance No. 2429, adopted December 11, 1990; (5) Ordinance No. 2475,
adopted September 3, 1991; (6) Ordinance No. 2562, adopted July 20 1993; (7)
Ordinance No. 2569, adopted September 21, 1993; and (8) Ordinance No. 02792,
adopted on July 13, 1999.
D. Ordinance No. 02792, among other things, extended the term of
the Original Franchise, as amended, through June 30, 2007. Pursuant to the terms
thereof, City and Republic subsequently exercised their rights to extend the term of
the Original Franchise, as amended, , through June 30, 2015.
E. In 2013, City staff and Republic entered into negotiations for the
further extension of the Original Franchise, as amended, ultimately reaching
agreement on terms to be presented to the City Council for consideration.
F. On July 8, 2014, pursuant to City Council Resolution No. _______,
City approved a resolution of intention to consider the renewal of the Original
Franchise, as amended, on the new terms presented (hereinafter referred to as the
1
"Franchise") and set a public hearing for such purpose for July 22, 2014 at _____ p.m.
G. On July 22, 2014, a duly noticed public hearing was held on this
Franchise, all public testimony was reviewed and considered by the City Council, all
protests were overruled, and Ordinance No. _______approving the Franchise was
placed on first reading.
H. On ________, 2014, pursuant to its adoption of Ordinance No.
_______ and written acceptance thereof, City granted, and Republic
accepted the Franchise on the terms and conditions set forth herein.
I. The purpose of this Franchise is to set forth in a single document
the terms and conditions of the Original Franchise, as extended, the terms and
conditions of all subsequent amendments thereto, and the further revisions agreed to
by City and Republic which are also set forth herein. This Franchise is intended to
supersede and replace, as of the Effective Date,all prior agreements between the City
andRepublic with respect to the subject matter hereof.
Agreement
NOW, THEREFORE, in consideration of the above recitals, the covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which the parties hereby acknowledge, City and Republic hereby agree
as follows:
1. Definitions.Whenever in this Franchise the words or phrases hereinafter in
this section defined are used, either with initial caps or small case lettering, they shall
have the respective meaning assigned to them in the following definitions (unless in
the given instance, the context wherein they are used shall clearly indicate a different
meaning):
1.1 "Affiliate" means any parent or subsidiary corporation, partnership or other
entity, controlling, controlled by or under common control with any entity, or
any fellow member of an association, joint venture or similar arrangement for
the provision of Solid Waste disposal or Recycling services in which
Republic holds a direct or indirect interest.
1.2 "Aluminum" means recoverable materials made from aluminum such as
used aluminum food or beverage containers, aluminum foil, siding,
screening, and other items manufactured from aluminum.
1.3 "Applicable Law" means any federal, State or local law,rule, regulation,
requirement, guideline, permit, action, determination or order of any
Governmental Body having any jurisdiction applicable to the subject matter
of this Franchise, as now in effect and as may be newly enacted or amended
from time to time. Applicable Law shall include, without limitation, the City
Charter, and Municipal Code.
1.4 or automation means the Curbside Collection of
2
Solid Waste, Recyclables or Yard Waste in Carts designed to be taken from
the gutter or street and transferred into a Collection vehicle completely by
mechanical means such as a robotic arm. The mechanical arm also
replaces the container at the curb or parkway as designated by the City.
1.5 "Bin" means those plastic or metal containers of one cubic yard (202 gallons)
to eight cubic yards that have plastic lids on the top (unless metal lids are
designated by the City Manager). Bins are used for weekly or more frequent
Collection of Solid Waste, Yard Waste or Designated Recyclables by City or
Republic.
1.6 "Bulky Waste" means discarded items whose large size or shape precludes
or complicates their handling by standard Residential or Commercial Solid
Waste, Recycling and Green Waste Collection methods. Bulky items include
White Goods, furniture, large auto parts, trees, stumps, carpet and other
potentially oversize wastes. Bulky Waste does not include hazardous or
infectious waste unless specifically exempt such as Freon containing
refrigerators.
1.7 broker
certified by the state of California to provide, electricity from wind,
photovoltaic, small hydro-electric, thermal or other renewable and clean non-
fossil fuel sources.
1.8 "Cardboard" means post-consumer waste paper grade corrugated cardboard
(grade #11), kraft (brown) paper bags, or solid fiber boxes which have
served their packaging purposes and are discarded and can later be
reclaimed for Collection and recovery for Recycling.
1.9 "Carts" means those plastic containers with a capacity of less than 202
gallons (one cubic yard). Carts shall have a fixed lid and are designed for
automated and/or semi-automated Collection of Solid Waste, Yard Waste
and/or Designated Recyclables by City or Republic.
1.10 "Change in Law" means any of the following events or conditions occurring
on or after the date hereof:
(a) the enactment, adoption, promulgation, issuance,
material modification or written change in an Applicable Law or
administrative or judicial interpretation of any Applicable Law; or
(b) the order or judgment of any Governmental Body with
jurisdiction over Solid Waste that applies to this Franchise, to the extent such
order or judgment is not the result of willful or negligent action, error or
omission or lack of reasonable diligence of City or Republic, whichever is
asserting the occurrence of a Change in Law; provided, however, that the
contesting in good faith or the failure in good faith to contest any such order
or judgment shall not constitute or be construed as such a willful or negligent
action, error or omission or lack of reasonable diligence.
3
1.11 "City" means the City of Chula Vista, a municipal corporation of the State of
California in its present incorporated form or in any later reorganized,
consolidated, enlarged or reincorporated form.
1.12 means a vehicle that meets or exceeds the
pollution emission performance of a properly equipped and operating
compressed natural gas, or equivalent, solid waste collection vehicle,
operating in conformance with California law. Pollutant emissions to be
considered include, but not limited to: particulate matter, nitrous oxide,
carbon dioxide and sulfur dioxide emissions as well as any other emissions
that are currently regulated or may be regulated by the California Air
Resources Board. Acceptable clean fuels include: electricity, propane,
natural gas, liquid natural gas, hydrogen fuel cells, compressed natural gas,
bio-fuel, or equivalent fuels approved by City.
1.13 "Collection" means the act of removing and conveying nonhazardous and
non-infectious Solid Waste, Yard Waste, Recyclables, co-mingled or source
separated materials, from Residential, Commercial, Industrial, or Institutional
(governmental) Generators, to a facility for Processing, composting, transfer,
disposal or transformation.
1.14 "Commercial" means a site and/or business zoned or permitted for any use
other than Residential including but not limited to Commercial, light
Industrial, Industrial and agricultural.
1.15 "Compactor Containers" means those fully enclosed metal containers of any
size (approximately seven to twenty cubic yards) provided by City's hauler or
customer. Compactors typically serve Large Quantity Generators.
1.16 "Curbside Collection" means the service of removing and conveying of
non-hazardous and non-infectious Solid Waste, source separated
Recyclables, Green Waste, Newspaper (ONP), Mixed Paper (MP),
corrugated Cardboard (OCC), steel, Tin and Bi-metal Cans, metal coat
hangers, glass food and beverage containers, #1 and #2 plastic containers,
used oil and used oil filters from the public thoroughfare at the curb or alley.
(City shall make the final determination regarding eligibility for Curbside
Collection which shall generally apply to Small Quantity Generators.)
1.17 "Designated Containers" ("Containers") means those containers designated
by the City Manager for temporary Storage and Collection of Solid Waste,
Yard Waste or Designated Recyclables including but not limited to
"Recycling Boxes, Carts, Bins, Roll-off Boxes, and or Compactor Containers.
1.18 "Designated Recyclables" means those materials designated by the City
Manager for recovery or reuse through this Franchise
Code. The list currently includes: Newspaper (ONP), Mixed Paper (MP),
corrugated Cardboard (OCC), steel, Tin and Bi-metal Cans, metal coat
hangers, Aluminum containers, White Goods, glass food and beverage
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containers, plastic containers, used oil, used oil filters, concrete and asphalt.
based on market conditions or a Change in Law.
1.19 "Designated Solid Waste and Recycling Collection or Storage Location"
means a place designated by the City Manager for Storage and/or Collection
of Solid Waste, Green Waste and/or Recyclables pursuant to Section
8.24.100 of the Chula Vista Municipal Code. Designated locations include,
but are not limited to, the curb, alley, waste/Recycling enclosure, a loading
dock, or basement of a Commercial enterprise or Multi-family complex where
Solid Waste and Recyclables are placed for Collection or temporary Storage
prior to Collection by Republic.
1.20 "Franchised Recyclables" means any Residential, Commercial or Industrial
Recyclables, as defined herein, by Municipal Code Chapter 8.25, placed in
designated Recycling containers or at designated Recycling Solid Waste and
Recycling Collection or Storage Location(s) to be collected by Republic.
1.21 "Garbage" means all non-hazardous, non-infectious organic waste including:
kitchen and table waste, and animal or vegetable waste that attends or
results from the storage, preparation, cooking, or handling of food stuffs,
except organic wastes separated therefrom and used in composting in
accordance with Chula Vista Municipal Code Chapter 8.25, Section
8.25.090.
1.22 "General Services" means those services provided to Small Quantity
Generators, Large Quantity Generators and Industrial Generators excluding
Miscellaneous Equipment and Service Rates or Optional Services as listed
on Exhibit G of this Agreement.
1.23 "Generator" means every owner, tenant, occupant or person owning or
having the care and control of any premises in the City including the
temporary use of parks, open space or a public thoroughfare.
1.24 "Glass Bottles and Jars" means food and beverage containers made from
silica or sand, soda ash and limestone, the product being transparent or
translucent and being used for packaging or bottling, including container
glass designated redeemable under the California Beverage Container
Recycling and Litter Reduction Law, Division 12.1 (commencing with Section
14500) of the California Public Resources Code), as well as glass jars and
bottles without redeemable value ("scrap"), but excluding household,
kitchen, and other sources of non-container glass such as drinking glasses,
ceramics, light bulbs, window pane glass, and similar glass products that are
not bottles or jars.
1.25 "Governmental Body" means any Federal, State, County, City or regional
legislative, executive, judicial or other governmental board, agency,
authority, commission, administration, court or other body, or any officer
thereof acting within the scope of his or her authority.
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1.26 "Green Wastes" means the leaves, grass, weeds, shrubs, tree branches,
tree trunk and other wood materials from trees. Green Waste may also
include pre-consumer food waste, incidental amounts of waxed or plastic
coated corrugated Cardboard, unpainted and untreated lumber. Green
Waste does not include tree stumps in excess of 100 pounds, more than
incidental dirt or rock, plastic, glass, metal, painted or treated lumber,
plywood, particle board or other manufactured products that contain glue,
formaldehyde, non-organic or non-biodegradable materials.
1.27 "Gross Receipts" means all gross operating revenues received by Republic
from Rates charged to Generators under this Franchise (for collecting,
removing, transporting, Processing and/or disposing Solid Waste and
Recyclables, composting and related services. Excluding: a) Franchise
Fees, b) AB 939 Fees, c) Household Hazardous Waste Fees d) any other
City imposed fees, taxes, or surcharges, (except fees, taxes or surcharges of
general application), e) revenue generated from the sale of Recyclables
collected under this Franchise, and f) revenue generated from the sale or
lease of storage containers and la-val locks.
1.28 "Hazardous or Toxic Waste" means any material, waste, chemical,
compound, substance, mixture, or byproduct that is identified, defined,
designated, listed, restricted or otherwise regulated under Applicable Laws
as "hazardous constituent," "hazardous substance," "hazardous waste
constituent," "infectious waste," "medical waste," "bio-hazardous waste,"
"extremely hazardous waste," pollutant," "toxic pollutant," "chemical
constituent," "solid waste," or "contaminant," or any other formulation
intended to classify substances by reason of properties that are deleterious
to the environment, natural resources or public health or safety including
without limitation, ignitability, infectiousness, corrosiveness, radioactivity,
carcinogenicity, toxicity, and reproductive toxicity. Without limiting the
generality of the foregoing, Hazardous or Toxic Waste shall include any form
of natural gas, as well as any petroleum products or any fraction thereof, and
any substance that, due to its characteristics or interaction with one or more
other materials, wastes, chemicals, compounds, substances, mixtures, or by
products, damages or threatens to damage the environment, natural
resources, or public health or safety, or is required by any law or public entity
to be remediated, including remediations which such law or public entity
requires in order for real property to be put to any lawful purpose.
1.29 "Hospitality" means any establishment that offers dining services, food or
beverage sales. This includes taverns, bars, cafeterias, and restaurants, as
well as, motels and hotels (temporary housing of less than one month
duration), hospitals, schools, colleges, and other such establishments that
have dining services, or a restaurant or bar on their premises.
1.30 "Industrial" means any property or Generator that is engaged in the
manufacture of products including but not limited to construction and
demolition. Industrial Generators are typically serviced by Roll-off Boxes of
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10-40 yard capacities and typically generate Inert materials such as asphalt,
concrete, building debris and some wood and dry Green Waste.
1.31 "Industrial Recyclables" means Recyclables from Industrial, construction,
and demolition operations, including, but not limited to, asphalt, concrete,
dirt, land clearing brush, sand and rock.
1.32 "Inert" means non-reactive materials such as concrete, soil, asphalt,
ceramics, earthen cooking ware, automotive safety glass, and mirrors.
1.33 "Institutional" means any premise owned and/or occupied by local, State and
federal agencies, typically office or education facilities with a common waste
stream.
1.34 "Landfill" means a disposal system by which Solid Waste is deposited in a
specially prepared area which provides for environmental monitoring and
treatment pursuant to the California Code of Regulations, the California
Public Resources Code and the Federal Resource Conservation and
Recovery Act.
1.35 "Large Quantity Generator" means those Residential, Commercial, Industrial
and Institutional entities that generate more than four (4) ninety-six (96)
gallon Carts of waste per week excluding source separated Recyclables
diverted from disposal or transformation.
1.36 "Large Quantity Multi-family Generator" means Generators in Multi-family
complexes of 10 or more Units.
1.37 actions to reuse, recycle,
compost or otherwise divert commercial solid waste from disposal, as
described in Title 14 California Code of Regulations section 18837.
1.38 actions to collect compostable
materials separately from solid waste generated by premises within the City,
in order to divert such compostable material from disposal, as described in
Title 14 California Code of Regulations section 18837or any amendment,
supplement or replacement thereof.
1.39 "Mixed Paper" means corrugated Cardboard, all high and low grade ledger
and other fibers not contaminated by food waste or other materials that
render them unmarketable.
1.40 "Mixed Waste Processing" means a system of recovering Recyclables from
the mixed waste stream through separation at a Processing facility, transfer
station, Landfill, or other such facility instead of separation at the primary
waste generation source.
1.41 "Multi-family" means a structure or structures containing a total of 4 or more
dwelling Units in any vertical or horizontal arrangement on a single lot or
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building site.
1.42 "Newspaper" means newsprint-grade paper including any inserts that come
in the paper, and excluding soiled paper, all magazines, and other
periodicals, telephone books.
1.43 "Nuisance" means anything which is injurious to human health, or is indecent
or offensive to the senses, and interferes with the comfortable enjoyment of
life or property, and affects at the same time an entire community or
neighborhood, or any number of persons, although the extent of annoyance
or damage inflicted upon the individual may be unequal, and which occurs
as a result of the storage, removal, transport, processing, or disposal of Solid
Waste, compost and/or Designated Recyclables.
1.44 "Plastic Bottle" means a plastic container with narrow neck or mouth opening
smaller than the diameter of the container body, used for containing milk,
juice, soft drinks, water, detergent, shampoo or other such substances
intended for household or Hospitality use; to distinguish from non-bottle
containers (e.g., deli or margarine tub containers) and from non-household
plastic bottles such as those for containing motor oil, solvents, and other
non-household substances.
1.45 "Processing" means the reduction, separation, recovery, conversion, or
Recycling of any component(s) of Solid Waste.
1.46 "Putrescible Wastes" means the waste in organic material with the potential
decomposition capacity to emit noticeable quantities of odor and gas
by-products. Material in this category includes, but is not limited to kitchen
waste, dead animals, food from containers, etc., except organic wastes
separated therefrom and used in composting.
1.47 "Recyclables" means any materials that are recyclable, reclaimable, and/or
reusable within the following generating categories: Small Quantity
Generator and Large Quantity Generator. Any material having an economic
value on the secondary materials market or that is otherwise Salvageable
shall be included and/or other materials that have been separated from other
Small Quantity Generators or Large Quantity Generators for the purposes of
being recycled for resale and/or reuse, and placed at a Designated Solid
Waste and Recycling Collection or Storage Location or in a Recycling or
waste container for the purpose of Collection and Processing, or any such
designated recyclable materials collected under a Mixed Waste Processing
program. Recyclables shall not include Hazardous or Infectious Waste.
1.48 "Recycling" means any process by which materials which would otherwise
be discarded, deposited in a Landfill or transformation facility and become
Solid Waste are collected (source separated, commingled, or as "Mixed
Waste"), separated and/or processed and returned to the economic
mainstream in the form of raw materials or products or materials which are
otherwise salvaged or recovered for reuse.
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1.49 "Recycling Carts" shall mean those containers with a capacity of 32 gallons
to 96 gallons which are supplied by Republic for automated Collection of
Designated Recyclables.
1.50 "Refuse" means Garbage and Rubbish.
1.51 "Removal" means the act of taking Solid Wastes, Yard Waste or Designated
Recyclables from the place of generation either by the Republic or by a
person in control of the premises.
1.52 "Removal Frequency" means frequency of Removal of Solid Wastes, Yard
Waste or Designated Recyclables from the place of generation.
1.53 "Residential" means any building or portion thereof designed or used
exclusively as the residence or sleeping place of one or more persons,
including single and multiple family dwellings, apartment-hotels, boarding
and lodging houses. Residential does not include short-term Residential
uses, such as motels, tourist cabins, or hostels which are regulated as
Hospitality establishments.
1.54 "Roll-off Boxes" means those 10 to 40 cubic yard steel temporary containers
with an open top and doors at least at one end typically used for temporary
service to remove and convey non-putrescible, inert (concrete, asphalt, other
demolition debris) Solid Wastes and Recyclables or Green Waste.
1.55 "Roll-off Service" means service provided for the Collection, Removal and
Disposal of Industrial waste such as construction, demolition and other
primarily Inert non-Putrescible Wastes and Green Wastes. Roll-off Service
is usually provided using metal containers of 10 to 40 cubic yards that are
open on the top with doors on one end.
1.56 "Rubbish" means non-Putrescible Solid Wastes such as ashes, paper, glass,
bedding, crockery, plastics, rubber by-products or litter. Such materials that
are designated as recyclable or compost may be exempt from categorizing
as Rubbish provided such materials are handled, processed and maintained
in a properly regulated manner.
1.57 "Salvaging or Salvageable" means the controlled and/or authorized Storage
and Removal of Solid Waste, Yard Waste, Designated Recyclables or
recoverable materials.
1.58 Scavenging means the uncontrolled and/or unauthorized Removal of Solid
Waste, Yard Waste, Designated Recyclables or recoverable materials. Such
activity is unlawful and is a misdemeanor punishable by up to six months in
jail and $1,000 in civil penalties under section 8.24.200, 8.25.080 of the
Chula Vista Municipal Code and Chapter 9 Section 41950 of the California
Integrated Waste Management Act of 1989.
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1.59 - means the Curbside Collection of Solid Waste,
Recyclables or Yard Waste using ahydraulic arm or flipper on the collection
vehicle combined with collection personnel assistance as necessary.
1.60 "Small Quantity Generator" means all Residential dwellings of four units or
less (without restriction on the amount of waste generated by such
dwellings) and all Commercial, Industrial and Institutional entities that
generate an amount equal to or less than four (4) ninety-six (96) gallons
Carts of waste per week excluding source separated Recyclables diverted
from Disposal or transformation.
1.61 "Small Quantity Multi-family Generator" means Generators in Residential
dwellings of 9 Units or less.
1.62 "Solid Waste" means all Putrescible and non-Putrescible solid waste,
semi-solid and liquid wastes, such as Refuse, Garbage, Rubbish, ashes,
Industrial wastes, demolition and construction wastes, abandoned vehicles
and parts thereof, discarded home and Industrial appliances, manure,
vegetable or animal solid and semi-solid wastes, and includes liquid wastes
disposed of in conjunction with Solid Wastes at Solid Waste Transfer or
Processing Stations or disposal sites, which are generated by Residential,
Commercial or Industrial sites. Solid Waste shall not include: Hazardous
and Infectious Waste, Special or Designated Waste such contaminated soils,
sewage collected and treated in a municipal or regional sewage system or
materials or substances having commercial value or other importance which
can be salvaged for reuse, Recycling, composting or resale.
1.63 "State" means the State of California.
1.64 "Storage" means the interim containment of Solid Wastes, Yard Wastes, or
Recyclables in an approved manner after generation and prior to Disposal,
Collection or Processing. (Interim means for one week or less, Roll-off
containers may store non-Putrescible waste for up to thirty days.)
1.65 "Streets and Byways" means the public streets, ways, alleys and places as
the same now or may hereafter exist within said City, including State
highways now or hereafter established within said City.
1.66 "Tin and Bi-metal Cans" means any steel food and beverage containers with
a tin or Aluminum plating.
1.67 "Transfer or Processing Station" means those facilities utilized to receive
Solid Wastes and to temporarily store, separate, convert, or otherwise
process the Solid Waste and/or Recyclables.
1.68 "Uncontrollable Circumstances" means any of the following acts, events or
conditions, if such act, event or condition is beyond the reasonable control
and is not also the result of the willful or negligent act, error or omission or
failure to exercise reasonable diligence on the part of the party relying
10
thereon as a justification for not performing an obligation or complying with
any condition required by such party under this Franchise:
(a) an act of God (but not including reasonably anticipated
weather conditions for the geographic area of the City), hurricane, landslide,
lightning, earthquake, fire, explosion, flood, sabotage or similar occurrence,
acts of a public enemy, extortion, war, blockade or insurrection, riot or civil
disturbance;
(b) strikes or work stoppages occurring with respect to any
activity performed or to be performed under this Franchise; and
(c) pre-emption of materials or services by a Governmental
Body in connection with a public emergency or any condemnation or other
taking by eminent domain.
It is specifically understood that none of the following acts or conditions shall
constitute Uncontrollable Circumstances: (a) general economic conditions,
interest or inflation rates, currency fluctuations or changes in the cost or
availability of commodities, supplies or equipment; (b) changes in the
financial condition of City, Republic or any subcontractor affecting their ability
to perform their obligations; (c) the consequences of errors, neglect or
omissions by City, Republic or any subcontractor; (d) any failure of any
subcontractor to furnish labor, materials, service or equipment for any
reason (other than an Uncontrollable Circumstance); (e) equipment failure;
and (f) any impact of minimum wage law, prevailing wage law, customs or
practices on Republic's or City's operating costs.
1.69 "Unit" means an individual residence contained in a Residential Multi-family
complex.
1.70 means a program for Solid Waste and Recyclables
collection and multiple service Rates for Small Quantity Generators based
on volume or units of Solid Waste put out for disposal, as compared to a
single flat Rate for unlimited disposal.
1.71 "White Goods" means kitchen or other large enameled appliances which
includes, but is not limited to, refrigerators, washers, and dryers.
1.72 "Wood Waste" means lumber and wood products but excludes tree stumps
in excess of 100 pounds, with more than incidental dirt or rock, plastic, glass,
metal, painted or treated wood, plywood, particle board or other
manufactured products that contain glue, formaldehyde, non-organic or
non-biodegradable materials.
1.73 "Yard Waste" means the leaves, grass, weeds, and wood materials from
trees and shrubs from single family and Multi-family Residential sources (to
include landscape haulings from Residential sources). Acceptable materials
for Collection include all Yard Waste as herein defined, excluding treated or
11
processed wood or lumber, Bulky Waste or any other materials as shall be
determined by City as to not be Salvageable. All acceptable Yard Waste
shall be void of nails, wire, rocks, more than incidental dirt or any other
material that is not considered Yard Waste. Roll-off Box loads containing
50% or more palm fronds may be delivered to and used by the Otay Landfill
as alternative daily cover.
2. Grant of Franchise.
2.1 In General. City hereby grants to Republic, subject to the terms
and conditions set forth herein, an exclusive Franchise ("Franchise") to collect and
dispose of, for a fee, Solid Waste and Franchised Recyclables from Residential,
Commercial and Industrial sites within the City, in the manner and on the terms
specified herein, and to use for such purposes the City Streets and Byways. This
Franchise is granted pursuant to the authority and subject to the terms and conditions
contained in Article XII, Sections 1200 through 1206 of the City Charter, and Chapter
8.23 of the Chula Vista Municipal Code. This Franchise is granted upon each and
every condition herein contained, and shall be strictly construed in accordance with
Applicable Law. Each of said conditions is a material and essential condition to the
granting of this Franchise. Nothing shall pass by the Franchise granted hereby to
Republic unless it is granted in plain and unambiguous terms. The parties
acknowledge and agree that in the event of a dispute over the interpretation of this
Franchise, if the term in dispute is ambiguous and susceptible of two meanings such
term shall be construed liberally in favor of the public in accordance with Applicable
Law.
2.2 Exclusive Nature of Franchise.
2.2.1 During the Term of this Franchise, except as hereinafter
otherwise provided, or except as may otherwise be required by federal or State law,
the rights granted to Republic under this Franchise shall be exclusive to Republic, and
City will not let any contract to, or enter into any contract with, any other person, firm,
or corporation for the performance of the services herein required to be performed by
Republic. City shall protect Republic's rights to such exclusive contract by proper
ordinances, and by reasonable enforcement thereof.
2.2.2 Such exclusive rights shall not extend to Solid Waste or
Recycling Services that cannot be exclusively franchised under federal or State law.
In addition, this grant of exclusive Franchise is not intended and does not preclude
duly licensed City based non-profit organizations and community groups from
conducting Recycling programs for the purpose of raising funds, nor does it preclude a
person from selling their own Recyclables at a buy-back center or from donating their
own Recyclables, so long as said collection(s), donation(s) or sale(s) do not occur at
Designated Solid Waste and Recycling Collection or Storage Location(s);and City
hereby expressly excludes from Republic's exclusive rights hereunder the picking up,
gathering, and Removal of Refuse pursuant to contracts between (a) State agencies
or local governmental districts and(b)some other Solid Waste service provider acting
in accordance with Applicable Law.
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3. Term.
3.1 Term. The Franchise term ("Term") shall commence on the
Effective Date andshall terminate on June 30, 2024, unless extended or earlier
terminated in accordance with the provisions hereof.
3.2 Extension of Initial Term by City or Republic. Republic shall have
the option to extend the Term for an additional seven (7) year period ("Extended
Term"), on the same terms and conditions provided hereunder, or such other terms
and conditions as may be agreed upon by City and Republic, each acting in their sole
discretion, provided the City Manager reasonably determines that Republic has
satisfactorily performed under and is in full compliance with this Franchise and
Applicable Law and has the ability to perform its obligations under this Franchise
during the Extended Term. Republic shall notify City in writing as to whether it desires
to exercise its option to extend the Term at least one hundred eighty (180) days prior
to the end of the initial Term. If, for whatever reason, Republic elects not to exercise
such option, City may extend this Franchise for the Extended Term on the same terms
and conditions provided hereunder, in City's sole discretion, by written notice to
Republic within sixty (60) days of City's receipt of notice of intention.
3.3 Extension of Extended Term by City.City shall have one (1)
additional option to further extend the Extended Term in sole
discretion,for an additional eight (8) year period on the same terms and conditions;
provided, however, in recognition that the Otay Landfill may reach full capacity during
such further extension period, , Republic may terminate this Franchise prior to the
expiration of such City extension period if and when the Otay Landfill reaches full
capacity by providing City at least 365 days prior written notice.The City Manager
shall notify Republic in writing as to whether the City desires to exercise its option to
further extend the Extended Term at least one hundred eighty (180) days prior to the
end of the Extended Term.
4. Consideration
4.1 Franchise Fee.
4.1.1 In consideration of City's grant of this Franchise, Republic
shall pay to City twenty percent (20%)of Republic's Gross Receipts. City shall have
the right to decrease the Franchise Fee at any time by resolution of the City Council
(and subsequently require Republic to reduce General Service Rates a corresponding
amount). Republic shall not materially change its Collection or Processing methods or
the terms and conditions of its existing contracts in such a way as to adversely affect
the Franchise Fees to be paid to City, nor shall it enter into any new contracts that
would have such effect without City's prior written approval. In the event that the Term
is extended pursuant to Section 3.2 hereof, as of the commencement date of the
Extended Term, by written notice to Republic, City shall have the right to increase the
Franchise Fee by five percent (5%) for a total Franchise Fee of twenty-five (25%). It is
understood that with respect to any Franchise Fee increase imposed by City, Republic
shall have the right at its sole discretion to increase Rates by such increased amount.
13
nd
4.1.2 By, on or before the 22 of each month throughout the
term of this Franchise, Republic shall (a) file with the director of finance of City a duly
verified statement showing in detail the total Gross Receipts of Republic during the
preceding month or fractional month from the Collection and disposal of Solid Waste
and Franchised Recyclables within the City; and (b) pay to City, in lawful money of the
United States, the aforesaid percentage of its total Gross Receipts for such month, or
such fractional month, covered by such statement, plus any and all City imposed fees
collected by Republic pursuant to this Franchise or other City approved program.
4.1.3 The acceptance by City of payments of the Franchise
Fee shall be without prejudice to City's right to an examination of Republic's books
and records maintained with respect to the calculation thereof in order to verify the
amount of Republic's Gross Receipts. At any reasonable time within three years after
receipt of any statement furnished it by Republic as provided in Section 4.1.2, above,
and upon fifteen (15) days prior written notice to Republic, City may cause a special
audit to be made of those books and records of Republic (i) relating to the calculation
of City's Franchise Fee for the period covered by the statement, relating to (ii) the Net
Revenue generated from the sale of Recyclables and (iii) as are reasonably
necessary to verify Republic's compliance with its performance obligations hereunder.
Except as provided below, the cost of such audit shall be borne by City. If it shall be
determined that there has been an error in the payment of the Franchise Fee, then a
reconciling payment or credit shall be made. If it is determined that the error
exceeded three percent (3%) of the amount owed for the period covered by the audit,
and such error is to the disadvantage of City, then Republic shall also reimburse City
for the cost of the audit. City shall keep all information received from Republic in
connection with any audit hereunder confidential, and shall not disclose or use any
such information without the prior written consent of Republic, except to the extent
required under Applicable Law or in connection with any dispute resolution proceeding
with respect to this Franchise.
4.2 Annual Bonus. In further consideration of City's grant of this
Franchise, Republic shall pay to City during the Term an annual bonus ("Annual
Bonus"). The Annual Bonus shall be payable commencing July 15, 2014, and on
each July 15 thereafter for the remainder of the Term, in annual lump sum
Exhibit A
installments in the amounts set forth in attached hereto.
4.3 Free Disposal for City Business.
4.3.1 City and City designated contractors and sub-contractors
performing public works for the City shall not be charged tipping fees for Solid Waste
qualified for disposal in and delivered to the Otay Landfill or Sycamore Landfill. City
designated educational, medical or sports oriented public or private non-profits
developing public or quasi--Profit
shall also not be charged tipping fees for construction and demolition debris
generated from the development of such facilities if qualified for disposal in and
delivered to the Otay Landfill or Sycamore Landfill Notwithstanding the foregoing,
tipping fees will be charged to City and/or its designated
contractors/subcontractors/Non Profit Partners under this section if the tonnage
deposited thereby in the Otay Landfill (or Sycamore Landfill) in any one calendar year
14
exceeds an amount equal to five percent (5%) of the total tonnage of Solid Waste,
Recyclable Materials and Green Waste generated in the City and collected by
Republic in that year; provided, however, such charges shall only apply to the tonnage
that exceeds this five percent (5%) limit. City shall provide advance notice to Republic
of City crews and City contractors, subcontractors and Non-Profit Partners for whom
City may be entitled to a credit hereunder. City shall submit its requests for free
disposal from contractors, sub-contractors and Non-Profit Partners that qualify for free
disposal to Republic by providing on City letterhead the name of the company
delivering the Solid Waste, the vehicle license number(s), the date or time period of
delivery and an estimate of the total tonnage or number of vehicle loads. Republic
shall file monthly reports with City to verify appropriate use of free disposal at Republic
facilities.
4.3.2 Free City Service. Republic shall provide City with free
Solid Waste, Yard Waste and Recycling Collection, Removal, Processing and
disposal services at all City facilities during the term of this Franchise. City shall pay
for Roll-off Service (or similar temporary services) requested by City. Only the
disposal tonnage for Roll-off Service and other temporary services requested by City
shall accrue against the annual 5% City disposal allowance described in
Section 4.3.1. Roll-off Service shall accrue based on actual weight per load.
Temporary services shall accrue at a rate of 100 lbs. per loose cubic yard times the
frequency of pickup.
4.4 City Designation as "State Curbside Operator". Throughout the
Term of this Franchise, Republic shall maintain City's designation as "State Curbside
Operator" with the Department of Conservation, Division of Recycling, for the
purposes of all California Redemption Value ("CRV") materials collected in Chula
Vista by Republic and deliver to City Annual CRV payments payable pursuant to
California Public Resources Code section 14549.6 ("CRV Fee") as it may be amended
or replaced. City shall be entitled to the CRV Fees which accrue during the Term. All
other CRV revenue and scrap value payments generated as a part of the per ton
value from the Processing of Designated Recyclables shall be subject to revenue
sharing between Republic and City as described in Section 8.6. Funds accrued to
City under this section shall be used to support Integrated Solid Waste Management,
Recycling public education, printing, promotion and incentive programs. Republic
shall not materially change its Collection or Processing methods or subcontracts in
such a way as to adversely affect CRV Fees or other amounts to be paid to City
without City's prior written approval.
4.5 Limitations on Taxes, Fees and Assessments. Except for the
Franchise Fees, Annual Bonuses and other fees provided in this Article IV and any
generally City imposed taxes, fees or charges assessed on all businesses for goods
or services in City, City shall not impose any other or further fees or assessments on
Republic or any valid successor or assign in connection with its activities under this
Franchise except to the extent that Republic may immediately pass-through such tax,
fee, charge or assessment to Ratepayers (and for which Republic shall cooperate with
City in collecting). City agrees to coordinate, whenever possible, the concurrent
imposition of any pending regulatory fee increases with any pending service rate
increases by Republic. Further, in the event that such taxes, fees charges, or
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assessments are imposed on Republic with respect to Republic's rights under this
Franchise by any Governmental Body other than City, and the legislative action or
actions imposing the same further requires that the same be diverted, earmarked or
otherwise paid over to the benefit of City, in whole or in part, and such action or
actions (i) are not offset by a related legislative action or actions which reduce City
revenues under this Franchise, (ii) do not compensate City for additional regulatory
duties, (iii) do not reimburse City for new, direct out-of-pocket costs, or (iv) are related
to hazardous materials collection or remediation at the landfill by City due to the failure
of Republic or its Affiliates to comply with its obligations to City under Section 10
hereunder, such sums, if any, shall be promptly rebated to Republic's accounts or paid
over to Republic.
4.6 AB 939 Fee.City may also impose a fee on Republic to fund the
939
Gross Receipts. City shall
have the right to increase this AB 939 Fee during the Term in order to address AB 939
program cost increases. The parties agree that if the City increases the AB 939 fee,
Republic shall have the right at its sole discretion to increase Rates by such increased
amount.
5. Compliance with Laws and Directives.
5.1 Applicable Law. Republic shall comply with all Applicable Law (or
such higher standards as may be required under this Franchise) regarding the manner
in which it conducts its trade and business. Republic and City agree to cooperate with
each other in reaching a modification to this Franchise to the extent required by law at
any time it should be deemed necessary in the future. In the event of any Change in
Law, or a successful third-party challenge to all or any material provision of this
Franchise that in either case materially affects City's consideration or Republic's
operational requirements hereunder, the parties agree to meet and confer in order to
develop reasonable modifications to this Franchise in order to allow this Franchise to
continue in substantial conformance with its terms as they existed prior to such
Change in Law.
5.2 City Directives. In addition, at all times during the Term of this
Franchise, Republic shall perform its obligations hereunder to the reasonable
satisfaction of the City Manager (or a delegate thereof) who shall have the right,
consistent with the terms and conditions of this Franchise, to issue orders, directions
and instructions to Republic from time to time with respect to the Collection,
transportation, and Removal of Solid Waste and Franchised Recyclables, the
performance of Republic's services hereunder, and Republic's compliance with the
provisions of the ordinances of the City of Chula Vista as they now exist or may from
time to time be amended, and Republic agrees to comply therewith.
5.3 New Recycling Programs. In the event City does not meet the
current diversion requirement of 50% imposed by AB 939 with respect to all waste
generated in City, City may direct Republic to perform additional services (including
the implementation of new diversion programs) or modify the manner in which it
performs existing services, and Republic agrees to do so at no additional charge. Pilot
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programs and innovative services which may entail new Collection methods, and use
of new or alternative waste processing and disposal technologies, are included among
the kinds of changes which City may direct; provided, however, that Republic shall be
entitled to receive additional reasonable compensation for any new programs required
by the City or otherwise imposed by Applicable Law to meet diversion requirements
greater than the 50% diversion requirement under AB 939.The parties shall meet and
confer to mutually determine the timing, amount and form of such additional
reasonable compensation.
6. Services to be Provided.
6.1 In General. Republic undertakes and agrees, for the consideration
set forth herein, to collect, pick up, remove and dispose of, all Solid Waste and
Franchised Recyclables which are generated or accumulated by or upon all property
located within the jurisdictional boundaries of the City during the Term of this
Franchise, except as herein otherwise provided, subject to and in accordance with the
terms and provisions hereof. Republic shall furnish all labor, equipment, and vehicles
(including adequate standby equipment and vehicle capacity to provide the service
herein required in the event of a breakdown), and all insurance and bonds necessary
under Section 9 hereof to insure the efficient and timely performance of such
obligation. All Solid Waste and Franchised Recyclables collected by Republic shall
become the property of Republic immediately upon the Collection thereof, and shall
be forthwith removed and transported by Republic for disposal in the Otay Landfill, the
Sycamore Canyon Landfill or such other Landfill or Processing facility for Franchise
Recyclables mutually agreed upon by Republic, City, Otay Landfill, Inc. and Sycamore
Canyon Landfill, Inc., or for sale, as appropriate, which shall be provided, arranged for
or furnished by Republic in accordance with the terms of this Franchise. The
Collection and Removal of Solid Waste and Franchised Recyclables shall be done in
a prompt, thorough, lawful and workmanlike manner.
6.2 Operational Plan. The Collection, Removal and disposal of said
Solid Waste and Franchised Recyclables by Republic shall be done in accordance
with an operational plan reasonably approved by the City Manager ("Operational
Plan"). The Operational Plan shall describe the routes to be established and shall
contain details regarding servicing schedule, the equipment to be used, and alternate
procedures to be followed in the event of severe weather or equipment failures. The
Operational Plan may be amended at any time by mutual agreement of the parties. In
addition, City reserves the right to require reasonable modifications to the Operational
Plan if at any time during the Term of this Franchise City determines that the public
interest requires a Collection program differing from that which Republic has
established, or that technological or other changes materially affect the necessity of or
level of the services provided for hereunder. The Operational Plan shall include, at a
minimum, the programs, terms and conditions contained in this section and in Section
Exhibit B
8 hereof, below. Additional performance standards are contained in
attached hereto.
6.2.1 Collection Times and Frequency. At least one regular
weekly Collection for Solid Waste, Recycling and Yard Waste shall be provided to
each Small Quantity Generator and Large Quantity Generator within the City as
17
applicable (except for multi-family Recycling, which shall be at least once every two
weeks). Industrial Collection shall be handled on an on-call basis in a manner
mutually agreeable to Republic and individual customers as more specifically provided
in Section 6.2.3 below. Republic shall not collect Solid Waste or Franchised
Recyclables (i) within a Residential area between the hours of 6:00 p.m. and 7:00 a.m.
or (ii) within a Commercial area which is immediately adjacent to a Residential area
before 7:00 a.m. Republic shall complete all routes by the end of the scheduled
allowed service day, except in the event of emergency, hazardous weather conditions,
natural disaster or other unforeseen circumstances beyond Republic's reasonable
control. With prior written permission of the City Manager, this time frame may be
modified. Republic agrees to meet and confer with City and make a good faith effort
to remedy each circumstance where Collection service may be a Nuisance to
residents, including but not limited to Commercial Collection adjacent to a Residential
dwelling or dwellings.
6.2.2 Holidays. The following shall be considered legal
holidays where Collection services shall not be required for purposes of this
Franchise: New Year's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day and Christmas Day. Any other days must have prior written
approval from the City Manager. When a regularly scheduled Small Generator
Collection date falls on a legal holiday, the Collection for that day, andthe succeeding
days of that week, shall be rescheduled for one day later. Holiday disruptions of
Large Generator and Industrial Collections shall be handled in a manner mutually
agreeable to Republic and individual customers.
6.2.3 Containers; Type and Location.Republic shall make
available to all Small Quantity Generators a choice of three sizes of Refuse Carts with
approximate sizes of 32 gallons, 64 gallons and 96 gallons, and a 96 gallon Recycling
Cart. All Carts and Refuse Bags, shall be color coded in a manner approved by the
City. Republic shall provide Bins as required for Large Generator (Commercial) and
Industrial Generator customers or whenever other customers of Republic request their
use. Each Bin shall be placed in an accessible, outside location according to
individual agreements with each customer subject in all cases to the requirement that
the Bin(s) be located within an enclosure or some other City-approved Designated
Collection location. Any new or replacement Bins shall be fitted with plastic lids.
Republic shall color code all Carts, Bins and Recycling Boxes in a manner approved
by City. At City's election, at the end of the Term, Republic shall be required to
transfer ownership to City and City shall accept all operable Solid Waste, Recycling
and Yard Waste Recycling Boxes and Carts which are 5 years old or less (excluding
metal containers of one yard capacity or greater) in exchange for City's payment to
Republic of an amount equal to (i) 90% of the original wholesale purchase cost of all
of such containers which are 1 year old or less, (ii) 80% of the original wholesale
purchase cost of all of such containers which are between 1 and 2 years old, (iii) 70%
of the original wholesale purchase cost of all of such containers which are between 2
and 3 years old, (iv) 60% of the original wholesale purchase cost of all of such
containers which are between 3 and 4 years old and (v) 50% of the original wholesale
purchase cost of all of such containers which are between 4 and 5 years old. At City's
election, at the end of the Term, Republic shall be required to transfer ownership to
City and City shall accept all operable Solid Waste, Recycling and Yard Waste
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Recycling Boxes and Carts which are 5 years old or greater (excluding metal
containers of one yard capacity or greater) at no charge to City.
6.2.4 Public Place Containers. Republic agrees to provide and
maintain up to twenty (20) additional litter containers per year (provided City
reimburses Republic for the cost of any such container to the extent such cost
exceeds $350) for the use of the general public for public areas such as plazas and
rights-of-way and to empty and dispose of the contents as necessary. Republic shall
provide additional standard litter bins, with covers and signage approved by City, at
locations requested by City within 96 hours of City's request. Materials deposited in
such public place litter bins shall be collected weekly or twice per week as needed
with Residential or Commercial waste.
6.2.5 Notice of Collection Schedule. Republic shall prepare
and furnish to all customers not less than four (4) days prior to the beginning of, or
change in service, schedules setting forth the days on which the Collections shall be
made. Notice shall be in such form as is first approved by the City Manager or a
designee thereof.
6.2.6 Local Operations and Manager. Republic shall maintain
its offices and service fleet at its current facility on Energy Way in the City, or at
another appropriate location within the City. Republic shall at all times during the term
of this Franchise have the general market manager for the San Diego region with
decision making authority with respect to this Franchise or the operations manager for
the San Diego region responsible for the oversight and implementation of this
Franchise located at its Chula Vista offices.
6.2.7 Customer Convenience Center. Republic or its Affiliate
shall implement a citizen drop-off program at a customer convenience center whereby
Chula Vista residents may drop-off Solid Waste and Recyclables generated by such
residents at the Otay Landfill using Landfill Passes in substantially the form attached
Exhibit D-1
hereto as and incorporated herein by this reference.
6.2.8 Construction Demolition Program. Republic shall
Exhibit C
implement construction demolition recommendations attached hereto as
and incorporated herein by this reference.
6.2.9 Single Can Service for Seniors.Republic shall maintain a
reduced price single can program for eligible senior citizens who maintain eligibility.
Such service shall have scheduled billing comparable to standard Residential
.
curbsideRepublic shall maintain a reduced price single can program for eligible
senior citizens who have established senior rate service prior to January 1, 2002, and
who maintain eligibility thereafter.
6.2.10 Missed Pick-Ups. In case of a missed pick-up called in
by City or a Generator, Republic shall, where possible, provide Collection within 24
hours. If unable to accommodate due to inadequate notice, the Generator shall be so
notified and the materials shall be picked up on the next scheduled Collection day.
Information on missed pick-ups shall be logged by Republic and shall be available to
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City upon request.
6.2.11 Special Events. Republic shall cooperate with City in
carrying out special events to improve community appearance. Such cooperation
shall include, but not be limited to, Republic's provision of free Solid Waste and
Recycling containers and Collection services for at least two special public events
sponsored by City. Additional events may be serviced at Republic's discretion. Free
services shall not be offered to special event organizers other than City until such
parties have submitted a solid waste, recycling and litter abatement plan to the City
Manager and received his or her approval thereof. Special events shall include, but
not be limited to, Harbor Days, Chula Vista Expo, Arturio Barrios and Youth runs,
Bonitafest, Lemon Festival and Christmas Parade.
6.2.12 Bulky Waste.Republic shall institute and carry out for the
Term of this Franchise a free Bulky Waste pick- up program for Small Quantity
Generators and a limited Bulky Waste pick-up program for Large Quantity Multi-family
Exhibit D
Generators in accordance with the terms and conditions set forth on
attached hereto and incorporated herein by this reference.
6.2.13 Equipment Specifications and Maintenance.Throughout
the Term, the average age of all Collection vehicles must be not more than ten (10)
years, and all such vehicles must be radio or similar communication technology
controlled. All trucks shall be completely enclosed with metal, watertight and capable
of withstanding internal fires. Republic shall utilizesmaller and lighter Collection
vehicles for mobile home parks and special services. Republic shall clean and wash
all trucks at least once each week and shall otherwise keep them clean, neat and in a
sanitary condition at all times. All vehicles shall be field inspected by someone other
than the driver on a regular basis, but not less than quarterly, for solid or liquid
leakage. All leaks discovered shall be immediately repaired. Republic shall paint its
name and telephone number on the side of each truck and on all drop bodies and
similar equipment in letters not smaller than four inches high or use a decal approved
by the City Manager. Each vehicle shall at all times have in the cab, the registration of
the truck, certificate of insurance card and an identification card with the name of
whom to telephone in case of an accident. Each vehicle shall also be equipped with a
five-pound fire extinguisher certified by the State fire marshal, as well as a two-way
radio or similar communication technology.All graffiti on equipment shall be promptly
removed, by no later than 2 weeks after the earlier to occur of Republic's discovery or
City's notice to Republic thereof. All of Republic's equipment may be inspected at the
discretion of the City Manager or any other appropriate agency at the point of
operation at any time.
6.2.14 Spillage. Republic shall exercise all reasonable care and
diligence in collecting Solid Waste and Franchised Recyclables so as to prevent
spilling, scattering or dropping of Solid Waste or Franchised Recyclables, and shall
immediately, at the time of known occurrence, or upon notification by City, clean up
any spillage.
6.2.15 Disposal of Solid Waste. Republic shall dispose of Solid
Waste (which has not been source separated for the purposes of recycling or
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composting), at its expense, at the Otay Landfill or the Sycamore Canyon Landfill,
both being City authorized Landfills, in accordance with all Applicable Law, or such
other Landfill mutually agreed upon by Republic, City, Otay Landfill, Inc. and
Sycamore Canyon, Inc. Disposal of Solid Waste at waste-to-energy plants and
Landfills located outside of the State requires the prior approval of City. Republic shall
not dispose of Solid Waste, Yard Waste or Recyclables generated within the City by
land application, incineration, waste-to-energy or any other form of transformation
without first obtaining written approval from the City Manager.
6.2.16 Employees. Republic shall provide top quality service by
industry standards, including competent, qualified and sober personnel who serve the
public in a courteous, helpful and impartial manner. Subject to all Applicable Law, and
the provisions of collective bargaining agreements negotiated in good faith (a) City
may, at its option, require fingerprinting of Republic's employees or agents whose
service will cause them to enter onto or work in close proximity to private property;
and (b) Republic shall hire employees without regard to race, religion, color, national
origin, sex, political affiliation, or any other non-merit factor. Any employee driving a
vehicle shall at all times have in his possession a valid and appropriate vehicle
operator's license issued by the State. Republic and its employees and agents shall
be required to wear clean clothing of a uniform type when engaged in Collection
service on public streets.
6.2.17 Inquiries and Complaints.
a. Telephones will be attended by competent personnel
providing live customer response from 8:00 a.m. to 6:00 p.m. on regular work days,
8:00 a.m. to 12:00 p.m. on Saturdays, and an answering service shall be provided
after hours, weekends and holidays.
b. Republic shall have a formal and auditable complaint
procedure. Upon request, City will be provided details of any complaints, including the
resolution thereof. Republic shall make a good faith effort to return such calls by noon
the next business day, and to resolve all Collection issues by 6:00 p.m. the next
business day. Republic shall staff its phones such that the average wait time to reach
a customer representative does not exceed ninety (90) seconds for any standard
calendar week and is otherwise not excessive.
6.2.18 Billing. Republic will provide the billing and be totally
responsible for the collection of payments, including City imposed fees for remittance
to City. Republic shall include City inserts in its billing statements
at no cost to City. Service to Small Quantity Generators shall not be shutoff for
nonpayment and delinquent Small Quantity Generator accounts will be referred to City
for collection. Service shutoff of service to Large Quantity Generators and Industrial
customers for nonpayment shall not be instituted before thirty days after initial billing
and after sufficient notification (including a list of such accounts to City), to the extent
permissible under Applicable Law. To the extent of any inconsistency between the
provisions of this section and the Chula Vista Municipal Code the terms of the
Municipal Code shall govern. Commercial billing shall be monthly in arrears of
service. Republic will exercise its best efforts to convince the individuals responsible
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for corporate billing policies at Republic to exempt City and this Franchise from
existing corporate policies such that Republic may convert its stationary and billing
notices to a post-consumer content recycled paper and may remove plastic window or
other non-recyclable items from billing.
6.2.19 Public Information. As City may elect, City shall produce
updated
brochure for all classes of new customers. Republic shall mail the same to the new
customers as soon as reasonably possible but in no event later than the date of initial
service to such customers. Where City has elected to have Republic produce the
brochure, City shall have ten (10) business days advance notice to review and
approve public information before printing and distribution, including billing inserts and
handouts. City's failure to respond within such 10-day notice period shall be deemed
City's approval of such public information.
6.2.20 Tagging and Penalties. Republic shall "tag" and collect
(as trash, if necessary) inappropriate set outs of Solid Waste, Yard Waste and
Franchise Recyclables by the end of the scheduled service day and shall provide City
a monthly report of same. Republic shall comply with and implement City's system for
imposing penalties on Generators which violate applicable Municipal Code provisions.
6.2.21 Reports. Monthly, quarterly and annual reports shall be
provided to the City Manager regarding Franchise operations. Monthly reports shall
be provided on the 22nd day of each month for the prior month. Quarterly reports
shall be provided on the 22nd day of the first month after each calendar year quarter
for the prior quarter. Annual reports shall be provided by February 16 of the
subsequent year. Unless otherwise agreed upon by the parties, the contents of the
Exhibit
reports and their format shall be in substantially the form attached hereto as
F
. City shall have the right to audit such records as necessary to verify operational
performance. If the reports and records are found to have major discrepancies with
Republic's reports and/or the requirements of the Operational Plan, Republic shall
reimburse City for the costs directly related to the audit. City will not request such an
audit without having provided Republic with 20 working days to respond to a
verification of Operational performance or the contents of a report.
6.2.22 Industrial Roll-Off Service. Republic shall provide Roll-off
Services and compactor equipment and personnel sufficient to meet the Solid Waste,
Recycling and composting demands of local contractors, Industrial Collection shall be
handled on an on-call basis in a manner mutually agreeable to Republic and individual
customers with the standard being the delivery of bins and/or Collection service by the
end of the next regular business day following a request for service, and same day
service shall be available upon request. The level and cost of each service shall be
Exhibit G
as outlined in .
6.2.23 Notice of Change of Equipment. Republic shall notify City
prior to changing the color or signage of vehicles, and shall meet and confer with City
in order to determine the appropriateness of same.
6.2.24 Clean Fuel Source.Republic or its Affiliate shall provide
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and continuously operate new Clean Fuel Source Collection vehicles using clean
energy. Collection, support vehicles and on-site equipment using gasoline or diesel
(such as fork lifts or generators) shall be converted to new Clean Fuel Source
equivalent upon replacement.
6.2.25 Co-Mingling.
a. Republic shall not co-mingle Solid Waste, Yard Waste or
Recyclables with Solid Waste of any kind from other jurisdictions. Republic shall
separately reflect in its reports Solid Waste or Recyclables collected from other
franchises from the Solid Waste or Recyclables collected in the performance of this
Franchise. Republic and City shall meet and confer regarding on-board scales or
other such provisions that Republic may recommend to accurately report the origin of
such material. Co-mingling shall be allowed only with prior City approval at City's sole
discretion and is anticipated to apply to a limited number of routes where Commercial
or Residential developments are divided by two or more jurisdictional boundaries.
b. Republic -
recyclables in a Collection vehicle with one compartment approved by City.
7. Rates for Collection and Other Services.
7.1 In General. In consideration of Republic's provision of Solid Waste
and Recycling services in accordance with the terms of this Franchise, Republic shall
be permitted to charge service fees ("Rates") to Generators, except for Generators
that are exempt from Rates under this Franchise or under Applicable Law for which,
Republic has received prior written approval from City authorizing such exemption
("Ratepayers"). Notwithstanding the foregoing, in no event shall the Rates charged
exceed the Maximum Rates established by City under this Section 7 ("Maximum
Rates").
7.2 Variable Rate System.
a. In General.Republic shall maintain an Automated
Variable Rate Structure program utilizing three basic Refuse Cart sizes, and three
Variable Rate
b. Carts and Refuse Bags. Carts shall be approximately 32-
gallons, 64-gallons and 96-gallons and shall be color-coded to contrast with Recycling
and Yard Waste Carts. Residents will be eligible for one free cart exchange during
their first six months of participation in the Variable Rate program. Thereafter any
increase in Refuse cart size will be accompanied by a one-time Cart exchange fee.
Small Quantity Generators will all be eligible to purchase supplemental disposal
capacity by purchasing a box of specially identified plastic bags, (to be sold in boxes
of approximately ten bags each). Small Quantity Generators that have more than 96-
gallons of waste will also have the option of requesting an additional 64 to 96 gallon
Refuse Cart for an additional (discounted) monthly fee. Initial rates for these services
Exhibit G
shall be as set forth on attached hereto and incorporated herein by this
reference. Such rates are subject to adjustment as provided in Section 7.4.1(a)
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hereof.
7.3 Initial Collection Rates. The initial Maximum Ratespermitted to be
charged by Republic and paid by Ratepayers for Solid Waste and Recycling services
provided by Republic under this Franchise shall be those set forth on Exhibit G
attached hereto and incorporated herein by this reference.
Exhibit G
The Maximum Rates set forth on shall remain in effect from the
beginning of the Term until July 1, 2015. Thereafter, the Maximum Rates shall be
subject to increase by Republic in accordance with the terms of Section 7.4hereof,
below.
7.4 Republic's Right to Increase Collection Rates.
7.4.1 Commencing on July 1, 2015, and upon each one year
anniversary for the remainder of the Term, except as provided in subsections 7.4.1.b.
andc., below, the Maximum Rates (excluding any City imposed Franchise Fees,
under this Franchise) shall be increased on the following basis:
a. Commencing on July 1, 2015 for Large Quantity
Generators and September 1, 2015 for Small Quantity Generators and each annual
anniversary thereafter during the term of this Franchise, Maximum Rates for General
Service Rates shall increase in an amount not to exceed the product of the previous
yeone hundred (100%) of the increase in the San Diego Area
Consumer Price Index for All Urban Consumers (all items) for the previous calendar
year.
b. Notwithstanding the foregoing, at no time shall the Small
Quantity Generator Rates exceed ninety percent (90%) of the average for the County
of San Diego for the same level of service \[as published in the SANDAG semi-annual
rate review, or in the event SANDAG no longer published such review, such
independent survey or surveys mutually agreed upon by City and Republic (all
franchise cities in the County, with Republic and City each at their option excluding
one jurisdiction)\], after subtracting any Franchise Fees, AB 939 Fees, Household
Hazardous Waste Fees,and any other pass-throughs expressly allowed under this
Franchise, and after adding back any readily identifiable direct local subsidies
shall be applied only to determine whether Republic is entitled to the CPI adjustment
described above, and in no event shall Republic be required to reduce Small Quantity
Generator Rates as a result of this calculation.
c. Beginning July 1, 2015 and at each four year anniversary
thereof throughout the Term of this Franchise, Republic shall be eligible for a market
adjustment for its then applicable Maximum Rates for Commercial Recycling
(excluding three-yard bin or smaller/once per week service)and Commercial Green
Waste. The maximum market adjustments applicable to such Maximum Rates shall
be ninety-five percent (95%) of the corresponding Mean County Average. Such
market adjustments are intended to allow Republic to make upward adjustments in its
Rates. In no event shall this market adjustment provision require Republic to reduce
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its Maximum Rates for any service level.
7.4.2 Republic's right to increase a Rate as provided above is
contingent upon Republic providing written notice of a proposed increase including
proposed Rates for all Generator classes of fees to City and all affected Ratepayers
by no later than 45 days prior to the effective date of the proposed increase. At City's
discretion, failure to comply with this notice requirement may be deemed to be a final
decision by Republic not to increase Rates for the upcoming year. Notwithstanding
the foregoing, if Republic does not elect to increase a Rate in any year, or does elect
to increase a Rate, but not up to the allowable Maximum Rate for such year, the
allowable Maximum Rate for such year shall become the base Rate for purposes of
determining the allowable Maximum Rate for the ensuing year such that its unused
capacity to increase Rates in any given year shall be carried forward to subsequent
years. If Republic elects not to increase service Rates up to the Maximum Rate
allowable for any given year, upon City's request, Republic agrees to meet and confer
with City to discuss the expected timing and amounts of possible future imposition of
Rate increases.
7.4.3 Miscellaneous Rates shall automatically increase at the
rate of 100% of the Applicable CPI Increase. Miscellaneous Rates shall include all
Rates other than General Service Rates, storage container Rates and la-val lock
Rates.
7.4.4 Republic agrees to coordinate, whenever possible, the
concurrent imposition of any pending Rate increase with any pending regulatory fee
increases by City.
7.4.5 Whenever Franchise Fees and AB 939 Fees are to be
subtracted or excluded for purposes of determining Maximum Rates under this
Section 7.3, City agrees to meet and confer with Republic with respect to the inclusion
or exclusion of any other additional fees by any other Governmental Body for such
calculations.
7.5 Senior and Other Preferred Rate Schedules. To the extent allowed
by Applicable Law City Council may, at any time, establish a program for preferential
Rates for senior citizens or other classifications which are deemed to be in the public
interest, and Republic shall have the right to pass through the cost of any decrease in
Rates payable by under such program(s) to the remaining Ratepayers.
7.6 Most Favored Nation Rate.
7.6.1 Notwithstanding any provision in this section 7 to the
contrary, in the event that, during the Term of this Franchise, Republic, or any Affiliate
thereof, agrees to a Rate or Rates for collecting, removing, transporting, Processing
and/or disposing Solid Waste and Recyclables under a waste management franchise
(or equivalent contract) with a City or local district within the County of San Diego
which is/are lower than the Rate or Rates then in effect for the corresponding
service(s) within the City, then Republic shall immediately charge such lower Rate(s)
to City Ratepayers. For purposes of comparing City Rates with those offered in
25
another franchise (or equivalent contract) within the County of San Diego, Franchise
Fees, AB 939 Fees, Household Hazardous Waste Fees, and any other pass throughs
expressly allowed under this Franchise shall first be subtracted and any readily
identifiable direct local subsidies by other jurisdictions shall be added back so that no
such amount shall be a component of the Rate comparison.
7.6.2 In the event that the lower Rate or Rates that formed the
basis for downward adjustments in City Rates are subsequently increased in the other
Franchised territories, Republic shall have the right, after meeting and conferring with
City to coordinate timing issues, to make a corresponding increase in the
corresponding City Rate(s); provided, however, in no event shall such increased Rate
exceed the maximum Rate that would have been chargeable pursuant to City's
standard Rate structure as set forth in Sections 7.1 and 7.2 hereof, calculated as if no
initial downward adjustment in City Rates had been made.
7.6.3 For purposes of implementing this section 7.6 the
(i.e. the Rate for a container of approximately 64 gallons of Refuse collected once per
week with Recyclables and Yard Waste services as set forth in Exhibit G) shall be the
may be distributed among the three Small Quantity Generator rates (instead of solely
to red
7.7 Republic's Reserved Right to Request Increases Based on
Extraordinary Circumstances. Notwithstanding the foregoing, Republic may submit a
request to the City Council for additional Rate relief at any time extraordinary
expenses are incurred beyond Republic's reasonable control. City Council reserves
the right to approve or disapprove such a request in its sole discretion.
8. Recycling Services.
8.1 In General. Republic agrees to provide all necessary labor,
services, materials and equipment to implement Residential, Multi-family and
Commercial Recycling services for Franchised Recyclables on the terms and
conditions set forth below:
8.2 Recycling Collection.
8.2.1 Small Quantity Generators. Republic shall collect and
remove all Franchised Recyclables that are placed in a Designated Recycling
container at the curbside on public streets or Designated Solid Waste, Yard Waste
and Recycling Location, from Small Quantity Generators. Republic shall collect the
Franchised Recyclables once each week, regardless of weather conditions.
Collection will be on the same day of the week as the regularly scheduled trash
Collection day. Republic and City will mutually agree to any changes in Collection
day. Republic will notify Small Quantity Generators of any changes in the Collection
day by distributing a flyer no later than two weeks prior to the affected day. Unless
Republic obtains City's prior written approval, Republic shall not change the current
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method of commingled Collection at the curb for Small Quantity Generators for the
following materials: (a) news print (ONP), (b) mixed Residential paper (MRP),
corrugated Cardboard (OCC), (d) rigid containers, including glass, tin, bi-metal, steel,
White Goods, Aluminum, plastic No. 1 and No. 2 plastics, motor oil and filters, metal
Republic shall
not change the method for collection for used oil, oil filters and Yard Waste without
obtaining
8.2.2 Multi-Family Residential. Republic shall provide curbside
Recycling Rates and services to all Multi-family complexes of nine Units or less.
Commingled Recycling services shall be provided to Multi-family complexes of ten
Units or more. Collection will be on regularly scheduled days as shall be arranged
with the building property owner, manager or designated agent thereof, with service
as needed, but no less than every two weeks. Republic and City will mutually agree
to any changes in Collection schedule frequencies or Removal Frequency.
8.2.3 City-Wide. Republic shall provide free Mixed Paper
Collection services at all California Redemption Value Program convenience zone
locations in Chula Vista in accordance with a program approved by the City
Manager. City and Republic shall meet and confer regarding any changes to the
program that may contribute to City's efforts to meet State-mandated recycling goals.
8.3 Recycling Containers. The type and cost of container to be used,
or changes of container type shall be approved by City prior to purchase and
distribution. Containers may include 32 to 96 gallon Solid Waste, Recycling and Yard
Waste Carts, and 2 to 8 cubic yard Bins. Each container shall conform to the
following: new plastic containers and/or lids shall contain a minimum of 25% post-
consumer content recycled plastic; be fire resistant; be of durable quality and
warranty; be heat stamped or labeled for commodity; be clearly labeled on the lids and
the front facing of the Bin, in Spanish and English (with graphics) as to the Designated
Recyclable(s) and "No Trash"; and be clearly labeled with Republic's name and phone
number.
8.3.1 Small Quantity Generator and Small Quantity Multi-family
Generator Curbside. Republic shall purchase and distribute 32, 64 and 96 gallon
curbside Recycling Carts to be used by each Small Quantity Generator and Small
Quantity Multi-family Generator included in the program as necessary to implement
the Variable Rate System. Republic shall retain ownership of the Carts subject to
City's right to purchase set forth in Section 6.2.3 hereof. \[Note: This cite is the correct
one.\] Each dwelling eligible to participate in the program will receive one container. If
Republic determines that the volume of recyclable material exceeds the capacity of
the one container, additional containers shall be provided at no cost to the Generator.
Replacement of containers that are stolen and/or damaged shall be made at no cost
to the Generator at Republic's discretion. Republic will be responsible for keeping
records and making them available to City regarding additional containers requested,
and the reason for the request, e.g., damaged, stolen, needed to handle residence
Recyclables beyond capacity of one container.
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8.3.2 Large Quantity Multi-family Generators. Appropriate
container(s) shall be provided for use by each Large Quantity Multi-family Generator
not provided Curbside Collection service for each Unit under Section 8.2.2., above.
Such container(s) shall meet the space restraints and Collection needs of the
respective complex and the residents therein. Republic shall provide to each Large
Quantity Multi-family Generator at least one exterior Recycling container per complex
for co-mingled Recyclables.To the extent possible, exterior Recycling containers
shall be required to be placed adjacent to or near the Refuse Collection containers.
8.3.3 Yard Waste; Green Waste. Republic shall purchase and
distribute, or otherwise arrange for the distribution of Yard Waste container(s) as
follows:
a. Small Quantity Generators. A container on wheels
(approximately 64 to 96 gallons) to be used for the Collection of Yard Waste shall be
offered to each eligible Small Quantity Generator for purchase or rent. Republic shall
distribute containers to all Small Quantity Generators requesting use of said
containers. Republic shall retain ownership of the containers unless the Small
Quantity Generator pays in full for the container, as specified herein. Notwithstanding
the foregoing, customers shall continue to be allowed to place Yard Waste in their
own standard waste containers pursuant to the provisions contained in Chula Vista
Municipal Code Section 8.24.080.A.
b. Multi-Family. An appropriate Yard Waste Collection and
Storage container(s) shall be provided for use at each Multi-family complex that meets
the space restraints and Collection needs of the respective complex and the residents
therein.
Unless Republic obtains City's prior written approval, Republic shall
not change the current method of source separated Collection at Residential or
Commercial locations for Green Waste.
8.4 Transportation of Materials.
8.4.1 In General. Except as provided below, Republic shall
transport collected Franchised Recyclables to a central Collection point for Processing
and shall retain responsibility for the sale of such materials so as to yield the highest
available market value for the material. No non-contaminated Franchised Recyclables
shall be landfilled, unless approved by City. Should market failure occur for one or
more material types, only the City Manager (or designee) of City may decide not to
collect the affected material. All written contracts, if any, with processors, recyclers or
other buyers of Franchised Recyclables shall be submitted to City.
8.4.2 Yard Waste.Republic shall deliver Green Waste
collected under the Franchise to the Otay Landfill, and cause it to be used as ADC at
the Otay Landfill, throughout the term of the Franchise, in a manner which qualifies,
pound for pound, as waste stream diversion under the California Integrated Waste
Management Act of 1989 or any equivalent App
Waste generated in the City shall, at all times, have priority access to the Otay
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a Change of Law within or affecting the Diversion Laws that requires a different ADC
prior written approval, Republic shall modify its ADC process to comply with such
Change of Law, or process Green Waste in a manner that does qualify for pound for
pound waste stream diversion, as the Change of Law requires. Republic shall provide
the Green Waste service and ADC processing contemplated hereby within the
existing General Service Rates structure under the Franchise, subject to any and all
allowed Rates increases and limitations set forth therein.
\[Intentionally Deleted\]
8.5
8.6 Sale of Materials. Republic shall use its best efforts to sell
Franchised Recyclables (excluding Yard Waste) for cash at the highest available
market rates. The "Net Revenues" (defined below) from such sales based upon an
"All Materials Annual Average" (defined below) shall be shared between Republic and
City in accordance with the following formula:
a. Where the applicable All Materials Annual Average is
equal to or less than sixty dollars ($60) per ton, Republic shall retain one hundred
percent (100%) of the Net Revenues.
b. Where the applicable All Materials Annual Average is
greater than sixty dollars ($60) per ton, and the California Department of Resources,
Recycling and Recovery ("CalReycle") has determined that City has not met the 50%
diversion goal stated in AB 939, the amount of "Incremental Net Revenues" (defined
below), derived from the portion of the All Material Annual Average above $60 per ton,
shall be split forty percent (40%) of the Incremental Net Revenues to Republic and
sixty percent (60%) of the Incremental Net Revenues to City.
c. Where the applicable All Materials Annual Average is
greater than sixty dollars ($60) per ton, and CalRecycle has determined that City has
met or exceeded the 50% diversion goal stated in AB 939, the amount of "Incremental
Net Revenues" (defined below), derived from the portion of the All Material Annual
Average above $60 per ton, shall be split sixty percent (60%) of the Incremental Net
Revenues to Republic and forty percent (40%) of the Incremental Net Revenues to
City.
For purposes of this section: "Net Revenues" shall mean all Gross
Revenues accrued by Republic over a relevant time period from sale of Franchised
Recyclables (excluding Yard Waste, but including CRV and scrap value payments
from each ton of material collected in the City), minus any amounts paid to third
parties for Processing of sold Recyclables or as a broker's fee or commission.
"Incremental Net Revenues" shall mean Net Revenues less the product of $60
multiplied by the number of tons of Franchised Recyclables (excluding Yard Waste)
sold to generate such Net Revenues. "All Material Annual Average" shall mean the
average price per ton (2,000 pounds U.S.) agreed to be paid to Republic by
purchasers of all Franchised Recyclables sold (excluding Yard Waste) over a relevant
calendar year. Such amount shall be calculated by dividing the Net Revenues
29
generated over the relevant calendar year by the number of tons of Franchised
Recyclables sold (excluding Yard Waste) over that same period. Republic shall pay
any sums due to City under this Section 8.6 no later than March 22nd of each year.
8.7 Contamination
8.7.1 Franchised Recyclables from a single Small Quantity,
Large Quantity or Industrial Generator (as opposed to an entire vehicle load) that are
contaminated due to the placement of Solid Waste in a designated Recycling
container, or inclement weather that leaves the Franchised Recyclables
unmarketable, may be placed in a designated landfill. Republic shall retain a record of
such occurrences and report said occurrences to City on a quarterly basis. Should
contamination occur more than twice at a single Generator, said Generator shall be
notified. Should contamination occur at a Generator site three or more times, the
Small Quantity Generator shall be notified and charged pursuant to Section 6.2.20.
Should contamination occur at a Large Quantity or Industrial Generator site the
Generator shall be notified in advance and charged the disposal fee for dumping the
contaminated Recyclables as Refuse at the Landfill.
8.7.2 Yard Waste, Wood Waste and pre-consumer food waste
that is contaminated by plastic or non-organic material may from a specific Generator
(as opposed to an entire vehicle load) be disposed of as Solid Waste. Republic shall
retain a record of such occurrences and report said occurrences to City on a monthly
basis. Should contamination of Franchised Recyclables occur at a Generator site,
Republic shall "tag" such Generator and enforce City Municipal Code provisions in
accordance with the procedures contained in Section 6.2.20 hereof.
8.8 Recycling Education. For each City fiscal year during the Term,
Republic shall pay City $110,000, payable on July 1,2015 and every annual
anniversary thereof, which amount shall escalate one percent (1%) per year, all of
which funds City agrees to use for purposes of partially funding a Recycling public
information and enforcement program ("Recycling Education Program"). The parties
agree to meet and confer from time to time in order to assess the effectiveness of the
Recycling Education Program, and, if necessary, to agree upon appropriate
modifications thereto. City shall have lead responsibility for directing the development
and implementation of the Recycling Education Program. City also agrees to take
such steps as may be reasonably necessary to protect Franchised Recyclables
placed at the curbside for Collection by Republic under the terms of this Franchise
and shall reasonably enforce the existing anti-Scavenging ordinance, as it may be
amended from time to time by City.
8.9 Large Multi-Family Recycling Program Severable. The Small
Quantity Generator curbside Recycling service, the large Multi-family Recycling
service and the Small Quantity Generator Yard Waste Recycling service required
hereunder are each subject to the performance standards and Franchise conditions
detailed herein. For purposes of measuring satisfactory performance, and for
enforcement purposes hereunder, Republic agrees that its performance of the large
Multi-family Recycling service will be considered severable from this Franchise, as
further described in Section 8.10 below.
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8.10 Recycling Program Expansion. It is City's intention to develop a
comprehensive Recycling program to reduce the amount of material being disposed of
in the Landfills and to comply with the mandates of the California Integrated Waste
Management Act of 1989 (AB 939) and/or any similar federal or state law enactments.
Republic agrees to use its best efforts to assist City in meeting such mandates by
adding commodities to existing programs as resale markets are identified. Republic
also agrees to meet and confer with City to direct recovered materials futures to local
manufacturers developing or improving long term markets at a comparable or greater
net value. Contracts with non-Affiliates previously provided to and approved by City
shall not be governed by this meet and confer obligation. However, Republic shall
meet with City to address such opportunities prior to renewing or entering into any
new contract. Both parties hereby agree that City may not go out to bid for the
expansion of this Recycling program until after City has met and conferred with
Republic with regard to its intent to do so. If separate amendments to this Franchise
for Refuse Collection are not negotiated between City and Republic as a result of such
meet and confer process, City may go out to separate bid.
8.11 ADC Program. Republic shall accept non-compostable greens
such as large Commercial loads of palm from Chula Vista Generators as ADC.
9. Insurance and Performance Bond.
9.1 Republic agrees, at Republic's own expense, to carry insurance in
Exhibit H
the forms and amounts set forth on attached hereto and incorporated herein
by this reference.Such policies shall guarantee payment of any final judgment
rendered against Republic or City within the coverage provided, irrespective of the
financial condition of, or any acts or omission of, Republic. All of said policies shall be
subject to the approval of the City attorney.
9.2 Republic shall also secure at its own expense and deliver to the
City Manager a twelve (12) month performance bond in the amount of $1,000,000 to
secure the full, true and faithful performance of all their terms, obligations and
conditions of this Franchise on the part of Republic. Republic shall present said bond
together with a certificate from the surety showing payment in full for such bond, to the
City Manager prior to the commencement of operations pursuant hereto and provide a
one-year renewal and certificate of payment prior to the start of each year of this
Franchise.Such performance bond shall also be subject to the approval of the City
Attorney.
9.3 In the event of the termination or cancellation of the insurance or
bond required hereunder or the failure of Republic to provide the insurance and/or
bond as hereinabove provided, prior to the effective date of such cancellation or
termination, this Franchise may be suspended or terminated forthwith by City, by
written notice thereof to Republic. Any such suspension shall be for such period or
periods as the City Manager from time to time may determine. No liability or
obligation shall be incurred by City in favor of Republic by virtue of any such notice or
notices or from any such suspension or termination. In the event of such suspension
or termination by City upon the failure of Republic to secure and maintain on file said
31
insurance and/or bond during the full term of this Franchise, Republic shall be liable
for any and all damages suffered by City arising out of such suspension or
termination.
10. Indemnification and Hold Harmless.
10.1 In General. To the maximum extent allowed by law, Republic shall
protect, defend, indemnify, save and hold harmless, City and any elected
representatives, officers, employees, agents and volunteers thereof (
Indemnified Party, "City Indemnified Parties") against and from all
damages, including bodily injury and property damages, losses, liabilities, demands,
claims, remediation or investigation obligations related to government regulated
materials, judgments, decrees, costs (including court costs and reasonable attorneys'
fees) and expenditures (collectively, "Losses") which such City Indemnified Party may
suffer, or which may be sought or recovered from, or obtainable against such City
Indemnified Party for, or by reason of, or growing out of or resulting from, directly or
indirectly, City's grant or the exercising by Republic of any or all of the rights or
privileges granted hereby, or by reason of any act(s) or omissions of Republic, its
Affiliates, or any officers, employees, contractors, servants or agents thereof, in
fulfilling any of its/their obligations or exercising any of its/their rights hereunder
.
10.2 Duty of Defense. obligations under this Section 10shall
include the duty of defense with counsel selected by Republic andreasonably
approved by City, with respect to any suit or claim that may be instituted against any
City Indemnified Party by reason of or growing out of or resulting from any Losses
Causing Activity.
10.3 Hazardous Materials. Without limiting the generality of the
foregoing, Republic shall protect, defend, indemnify, save and hold harmless any City
Indemnified Parties from and against all Losses which such City Indemnified Parties
may suffer, including Losses which may be recovered from, or obtainable against
such City Indemnified Parties resulting from any investigation,repair, clean-up or
detoxification, or preparation and implementation of any removal, remedial, response,
closure or other plan or replacement or restoration of natural resources (regardless of
whether undertaken due to governmental action), for, or by reason of, or growing out
of or resulting from, directly or indirectly,the Removal or disposal of Solid Waste
collected from City Generators at any Landfill by Republic (including its predecessor-
in-interest and its successors-in-interest), or other activities of Republic or its Affiliates,
which result in a release or threatened release of hazardous materials into the
environment in or around the City or at any Landfill. The foregoing obligation is
intended to operate as an indemnity and hold harmless agreement allowed by
Section 107(e) of the Comprehensive Environmental Response, Compensation and
Liability Act (CERCLA), 42 USC, Section 9607(e), and California Health and Safety
Code 25364 for the allocation of liability thereunder as between the City, Republic and
its Affiliates.
10.4 Miscellaneous. 10 shall
not be restricted to insurance proceeds, if any, received by City Indemnified Parties,.
32
shall not be limited by any prior or
subsequent declaration by the Republic. Republic further agrees to pay any and all
costs City incurs enforcing its rights under this Section 10.Nothing in this Section is
intended to supersede any other of the parties obligations under this Franchise,
including, without limitation, the obligation to meet and confer in the event of a Change
in Law as provided in Section 5.1 hereof.
10.5 Survival. The provisions of this Section 10 shall survive the end of
the term or termination of this Franchise.
11. Remedies for Default Resolution of Dispute.
11.1 Defaults. The occurrence of any one or more of the following
events shall constitute a material default and breach of this Franchise by Republic:
11.1.1 Republic's failure to make any payment of the Franchise
Fee or any other sum due under this Franchise, as and when due, where such failure
shall continue for a period of ten (10) days after written notice from City that such
amount was not paid on the date such payments is due;
11.1.2 Republic's failure to observe or perform any of the
material covenants, conditions or provisions of this Franchise to be observed or
performed by Republic (other than a monetary default as described in Subsection
11.1.1, above, a minor default as described in Section 11.2.1, below, or where such
failure is excused by an Uncontrollable Circumstance as described in Section 13.9
below), where such failure shall continue for a period of thirty (30) days after delivery
of written notice thereof from City to Republic; provided, however, if the nature of such
default reasonably requires more than thirty (30) days to cure, then Republic shall not
be in default in the event that Republic shall commence cure of such breach within the
foregoing thirty day period and diligently prosecute such cure to completion; or
11.1.3 Republic files for bankruptcy protection, or is placed
involuntarily into bankruptcy, control of a material portion of its assets thereof is
assumed by a receiver or trustee or assigned for the benefit of its creditors, and such
proceeding or condition is not dismissed or vacated within thirty (30) days of its
commencement;
11.1.4 Republic's excessive commission of minor defaults as
more specifically described in Section 11.2.1(b), below; or
11.1.5
perform any material covenants, conditions or provisions of that certain Amended and
Restated Otay Landfill Expansion Agreement between City and OLI dated ____, 2014
resulting in a material breach of that agreement under the terms
and conditions thereof. OLI is an Affiliate of Republic and the parties agree that a
11.2 Remedies Upon Republic's Default. Upon the occurrence of any
33
event of default by Republic, City shall have any and all remedies available to City at
law or in equity. Without limiting the generality of the foregoing, City shall have the
following remedies:
11.2.1 Liquidated Damages.
a. Imposition of Liquidated Damages.City may assess
liquidated damages against Republic for unsatisfactory performance under the terms
and conditions of this Franchise (except where such failure is excused by an
Uncontrollable Circumstance as described in Section 13.9 below). A description of
the actions or omission which will result in damages and the monetary amount of
Exhibit B
damages corresponding thereto is attached hereto as . City will provide
Republic with five (5) days written notice of any proposed assessment. Republic will
have the right to appeal City's assessment to the City Manager in accordance with the
Exhibit B
dispute resolution procedures set forth in hereof.
b. Default.Notwithstanding the foregoing, if more than 200
individual penalties, or fifteen thousand dollars ($15,000) in aggregated damages
assessed under this Section 11.2.1 (excluding those late fees and interest amounts
determined as a percentage of delinquent amounts due and payable to City
hereunder) are imposed with respect to any calendar quarter, Republic shall be in
material default under this Franchise and City shall be entitled to pursue any and all
additional remedies provided hereunder, including termination of this Franchise, but
without the obligation to provide Republic with an opportunity to cure.
11.2.2 Termination. If Republic shall fail, neglect or refuse to
comply with any of the material conditions of this Franchise (other than where such
failure is excused by an Uncontrollable Circumstance as described in Section 13.9),
and if such failure, neglect or refusal shall continue for more than thirty (30) days after
written demand by the City Manager for compliance therewith (subject to extension as
described in Section 11.1.2), then City, by the City Council, in addition to all rights and
remedies allowed by law, thereupon may terminate the right, privilege and Franchise
granted hereby, and all the rights, privileges and this Franchise of Republic granted
hereby shall thereupon be at an end. Thereupon and immediately, Republic shall
surrender all rights and privileges in and to this Franchise granted hereby. This
Franchise is also subject to termination by City in the event that Republic fails to
obtain City Council approval for a change in ownership of its operating company in
accordance with Chula Vista municipal Code Section 8.23.080.
11.2.3 Self Help. In the event Republic fails, refuses, or
neglects to collect and dispose of Solid Waste or Franchised Recyclables set out or
placed for Collection at the time and in the manner herein required (after delivery of
notice by City of City's intention to exercise its rights under this Section 11.2.3), City
may collect and dispose of the same or cause the same to be collected and disposed
of and Republic shall be liable for all expenses incurred in connection therewith. Such
remedy of City shall be cumulative and in addition to any and all other remedies it may
have in the event of such failure, refusal or neglect of Republic. The Collection,
Processing and disposal of Solid Waste or Franchised Recyclables by City or by
others as aforesaid shall not be deemed an election of remedies which shall preclude
34
City from availing itself of additional remedies for Republic's breach of contract.
11.2.4 Remedies Cumulative. No provision herein made for the
purpose of securing the enforcement of the terms and conditions of this Franchise
granted hereby shall be deemed an exclusive remedy or to afford the exclusive
procedure for the enforcement of said terms and conditions, but the remedies and
procedure outlined herein or provided, including forfeiture, shall be deemed to be
cumulative.
11.3 City's Default. City shall be in default of its obligations hereunder
as a result of a breach by City of any material obligation required to be performed by it
hereunder (other than where such failure is excused by an Uncontrollable
Circumstance as described in Section 13.9) if City fails to cure such default within
thirty days after the receipt of written notice from Republic specifying such default;
provided, however, if the nature of City's default is curable, but more than thirty days
are required therefor, City shall not be in default so long as it has commenced
performance of such cure within said thirty day period and thereafter diligently pursues
the same to completion. Upon any default by City hereunder, Republic shall be
entitled to pursue any and all rights provided at law or in equity. Notwithstanding the
foregoing, City shall not be in default under this Agreement for any act or omission by
City where City is required by law to exercise independent legislative quasi-judicial,
judicial or administrative discretion.
11.4 No Waiver of Remedies. The failure of either party at any time to
require performance by the other of a provision hereof, shall in no way affect the right
of such party entitled to performance to enforce the same thereafter. Nor shall the
waiver of either party of any breach of any provisions hereof be construed to be a
waiver of such provisions or of any succeeding breach thereof.
11.5 Administrative Review of Disputes. Prior to commencing litigation,
a party shall first give the other party written notice of any dispute with respect to this
Franchise. Such notice shall specify a date and location for a meeting of the parties
hereto at which such parties shall attempt to resolve such dispute, and the name of a
mediator selected by such party to mediate the meeting. City shall keep a record of
the proceedings conducted and information presented during such meeting. The cost
of such resolution shall be divided and paid equally by the parties. In the event that
such dispute cannot be resolved by the parties hereto within thirty (30) days, the
matter may be referred by mutual agreement of the parties to non-binding arbitration,
or by either party to legal proceedings. Neither party may act to terminate this
Franchise for cause except (a) at the conclusion of the meeting of the parties held
pursuant to this Section 11.5, or (b) in the event the parties have referred the dispute
to arbitration, at the conclusion of the arbitration.
12. Renewal. This Franchise may be renewed pursuant to Municipal Code
Section 8.23.060 which provides as follows:
Where a contract or Franchise has been entered into between the
City and an operator and the operator has satisfactorily performed
under such contract or Franchise, the City Council, without inviting
35
bids or proposals therefor, may, either prior to or after the
expiration of such contract, extend or renew the same upon the
same conditions or such other conditions as the City Council may
provide. The City Council shall, however, whether considering a
contract or a Franchise follows the procedures established by
Article XII of the Charter for notice and hearing.
Notwithstanding the foregoing, and except as provided in Section 3.2,
Republic acknowledges and agrees thatRepublic has no right whatsoever to require
City to renew or extend this Franchise, and City retains the right, in its sole discretion
to decide to renew or extend this Franchise, or not to renew or extend this Franchise.
Except for any extension expressly provided for herein, any extension or renewal of
this Franchise shall require, and shall be subject to, the mutual written agreement of
the parties on the terms and conditions applicable to any such extension or renewal
period.
13. General Provisions.
13.1 Authority. Each party represents that it has full right, power and
authority to execute this Franchise and to perform its obligations hereunder, without
the need for any further action under its governing instruments, and that the parties
executing this Franchise on behalf of such party are duly authorized agents with
authority to do so.
13.2 Assignment. Except as expressly provided herein, neither this
Franchise, nor any rights or interest herein, shall be assigned by either party. City's
prior consent shall be subject to the terms and conditions of City Charter Section
1203. Any attempted assignment in violation of this section shall be void and shall
constitute a material default entitling the other party to terminate this Franchise. In
addition, both parties agree to comply with any and all provision contained in the
Municipal Code governing the change of ownership of Republic or the transfer of this
Franchise.
13.3 Counterparts. This Franchise may be executed in multiple copies,
each of which shall be deemed an original, but all of which shall constitute one
agreement after each party has signed such a counterpart.
13.4 Entire Agreement. This Franchise, together with all exhibits
attached hereto and other agreements expressly referred to herein, constitutes the
entire agreement between the parties with respect to the subject matter contained
herein. All prior or contemporaneous agreements, understandings, representations,
warranties and statements, oral or written, are superseded.
13.5 Exhibits. All exhibits referred to herein are attached hereto and
incorporated herein by this reference.
13.6 Governing Law. This Franchise shall be governed, interpreted,
construed and enforced in accordance with the laws of the State of California.
36
13.7 Notice. Any notice that may be given to either party under or with
respect to this Franchise shall be deemed to have been given when delivered
personally or when sent by registered or certified mail, postage prepaid, addressed as
follows:
REPUBLIC:
Allied Waste Systems,Inc.
dbaRepublic Services of Chula Vista
dba Allied Waste Services of Chula Vista
881 Energy Way
Chula Vista, CA 91911
Attn: Alberto Guardado, General Manager
with a copy to:
Allied Waste Systems, Inc.
San Diego, CA 92111
Attn: Nathan Cabbil,Region President
7025 N. Scottsdale Road, Ste. 200
Scottsdale, AZ 85253
with a copy to:
General Counsel
Republic Services, Inc.
18500 North Allied Way
Phoenix, AZ 85054
CITY:
City of Chula Vista
276 Fourth Avenue
Chula Vista, CA 91910
Attn: City Manager
with a copy to:
City Attorney
13.8 Successors. Subject to the restrictions on assignment and change
of ownership contained herein, all terms of this Franchise shall be binding upon, inure
to the benefit of, and be enforceable by the parties hereto and their respective heirs,
legal representatives, successors, and assigns.
13.9 Uncontrollable Circumstances. Except as otherwise specifically
provided in this Franchise, neither Republic nor City shall be in breach of this
Franchise for any temporary failure or delay in the performance of any obligation
37
under this Franchise (other than any payment at the time due and owing) to the extent
such failure or delay is due to the occurrence of an Uncontrollable Circumstance;
provided, however, the party experiencing an Uncontrollable Circumstance shall not
be in breach only if such party complies with the requirements in this Section 13.9.
The party experiencing an Uncontrollable Circumstance shall notify the other party by
telecommunication or telephone and in writing ("Notice immediately after the party
experiencing such Uncontrollable Circumstance first learns of the commencement
thereof, followed within forty-eight hours by a written description of (1) the
Uncontrollable Circumstance and the cause thereof (to the extent known) and (2) the
date the Uncontrollable Circumstance began and the cause thereof, its estimated
duration, the estimated time during which the performance of such party's obligations
hereunder will be delayed. Each party shall provide prompt written notice of the
cessation of such Uncontrollable Circumstance. A party's obligations hereunder shall
be delayed commencing at the date of Notice time for only so long as the
Uncontrollable Circumstance continues and prevents full compliance with Franchise
obligations. Whenever such act, event or condition shall occur, the party claiming to
be adversely affected thereby shall (a) use its best efforts to eliminate the cause
therefor, (b) minimize the adverse impacts caused thereby, and (c) shall take all
necessary and appropriate actions, including, if necessary, bringing in labor and
equipment from unaffected areas to resume full performance under this Franchise as
quickly as possible.
13.10 Other Governmental Bodies. In the event any value paid to City
under this Franchise is to be shared with or otherwise paid over to any other
Governmental Body, City shall be solely responsible for transferring such value to
such Governmental Body, without any indemnification or any other reimbursement
from Republic or its Affiliates under this Franchise. Notwithstanding the foregoing,
any such requirement shall be considered a Change in Law pursuant to the terms of
this franchise and this Section shall not relieve Otay, Republic or its Affiliates of its
obligations under section 5.1 hereof.
\[Next Page Is Signature Page\]
38
\[SIGNATURE PAGE TO SOLID WASTE DISPOSAL AND RECYCLING
FRANCHISE AGREEMENT BETWEEN CITY OF CHULA VISTA AND ALLIED
WASTE SYSTEMS INC. DBA REPUBLIC SERVICES OF CHULA VISTA\]
IN WITNESS WHEREOF, Republic and City have entered into this
Franchise Agreement as of the Effective Date.
CITY:REPUBLIC:
City of Chula Vista,AlliedWaste Systems, Inc.,
a municipal corporationa Delaware corporation,
dba Allied Waste Services of Chula
Vista, dba Republic Services of Chula
By: _______________________Vista
Cheryl Cox, Mayor
By:_____________________
_____________________
Attest:_____________________ \[Print Name and Title\]
Donna Norris, City Clerk
By:_____________________
Approved as to form by_____________________
\[Print Name and Title\]
____________________________
Glen R. Googins, City Attorney
39
EXHIBIT B
Enforcement Summary
performance standards is difficult if not impossible to ascertain. Consequently, the
parties agree that the following liquidated damages schedule shall reflect liquidated
damages that shall be payable to City in accordance with the terms hereof, and Section
11.2.1 of the Franchise.
#Unsatisfactory DescriptionPenalty
Service IndicatorAmount
Missed Pick Up Failure to Collect Missed Pick-Up By The End Of The
$15.00
Response Time Next Business Day After The City Notification.
1
\[Section 6.2.10\]
Each Additional Business Day After Receiving
Notification From City.
$25.00
Failure to Respond Failure To Make A Good Faith Effort To Resolve
2
$15.00
\[Section 6.2.17\]
Customer Request By Next Business Day.
Improper Imposition Franchisee Charges For A Special Service Not Included
of Special Service In Exhibit F Or By Prior City Written Approval
3$500.00
\[Section 2\]
Spillage Or LitterFailure To Make A Good Faith Effort To Clean Up
4
\[Section 6.2.14\]
SpillageOr Litter Within 90 Minutes After Notification By
$15.00
The City Or Customer
Processing Claim Failure To Respond In Writing To A Damage Claim
5For DamagesWithin 30 Days Of Receipt And Initiate A Process To $100.00
Resolve.
nd
Remitting City Fees Failure To Remit City Fees By The 22Of The Month.1 ½% of the
\[Section 4.1.2\]
Amount of
6
Late
Payment
Providing Reports Penalty Assessed For Not Providing All Reports By The
$100.00
nd
\[Section 6.2.21\]
22Of The Month.
Recycling Revenue Reported Will Always Be 60 Days In
7
Arrears.
Each Additional Day Late.
$15.00
Billing Problems Failure To Resolve A Billing Complaint Within 50% Of the
$25.00
\[Section 6.2.18\]
Billing Cycle Time Period.
8
Each Additional Day Problem Not Resolved.
$5.00
Container Supply Failure To Repair Or Replace Inoperable Containers/Bins
$25.00
\[Section 6.2.3\]
Within Fourteen Working Days Of Request.
9
Each Additional Day Problem Not Resolved.
$5.00
Unauthorized Contractor Operating During Hours Not Previously
Operating Hours Authorized By City
10$100.00
\[Section 6.2.1\]
Sub-Contractor Failure To Deliver Material To City Approved Sub-
ProvisionsContractor For Yard Waste, By End Of Their Scheduled
Working Day On The Same Day As Collection, Or If Not
$100.00
Reasonably Possible By The Following Business Day.
11
Per Vehicle Load.
#Unsatisfactory DescriptionPenalty
Service IndicatorAmount
Tagging Materials Failure To Tag Or Otherwise Collect On The Same Day
\[Section 6.2.20\]
And Properly Dispose Of Contaminated Or Improperly
12$15.00
Set Out Materials.
Equipment Equipment Not Maintained To Franchise Standards.
13Maintenance $25.00
\[Section 6.2.13\]
Excessive If Total Residuals From Curbside Recycling Program
ContaminationExceed 7% And/OrMulti-Family Recycling Program
14*Exceed 9% Of Total Material Collected In A Quarterly $250.00
Allocation Study Plus Incremental Residual Disposal Cost
For Quarter
Improper Disposal When Materials Collection From Source Separated
\[Section 6.2.15\]
Program Intended For Diversion Are Disposed Of At A
Landfill Or Transformation Facility Without Prior City
15
Approval.
Up To First Ton:$50.00
Every Ton Or Part Of A Ton Thereafter$50.00
Excessive ViolationsDamages Amount Increase When Contractor Has
Received A Penalty For A Particular Service Indicator
15% Per
16More Than 15 Times Per Quarter. After 15 Violations In A
Quarter
Category, The Damages Amount Will Increase By An
Additional 25% ForEach 5 Additional Penalties.
*Footnote to Box #14: The City agrees to meet and confer with Republic Services to review cause
due to activity in the field, such as proposed services/automation.
1. Cross References. Where an unsatisfactory service indicator includes a cross-reference to a
Section of the Franchise, any additional or inconsistent performance standards set forth in this
Schedule shall govern.
2. Following Day Obligations. In each where a cure for unsatisfactory performance can be rendered
within a specified time period, if the expiration of such time period falls on a non-business day,
3. Penalties for Additional Days in Breach: Minor Violation.
unreasonably withhold a request for additional time to cure. In addition, minor occasional
violations with advance notice from Republic and prompt cure may be excused at the discretion
of the City Manager.
4. Right to Appeal. Republic will have the right to appeal any City Assessment to the City Manager.
5. Single Assessment. Where a single operational failure may potentially constitute multiple
violations, such failure will constitute only a single violation, subject to only one penalty.
EXHIBIT C
Construction Demolition Guidelines
Small Quantity Generators.
The fees, vehicles and safety equipment used for
collecting standard household waste are not designed to handle large quantities of
construction or landscape debris. When building, remodeling or re-landscaping
homeowners shall be encouraged by City and Republic to reuse materials on site
whenever possible. When homeowners cannot reuse the materials on site they should
contact Republic Services to request an appropriately sized demolition recycling or
waste bin. Small Quantity Generators may also haul the waste to an appropriate
recycler or landfill themselves. Construction and demolition debris is not considered
standard Residential waste.
Small Quantity Generator waste service is not an acceptable means of disposing of
landscape or demolition debris in excess of 200 pounds. When disposing of small
quantities of demolition or landscape debris please observe the following guidelines:
A small quantity of rock, bricks, dirt, wood or other demolition debris that is
generated as an incidental part of regular home occupancy will be collected as
long as the driver believes it is safe for him and the equipment to do so,
The material must be free of protruding nails, glass or sharp objects,
The demolition debris must be less than 10% of the total waste being collected
and the Republic collection personnel makes the final determination regarding
the 10% limit,
An automated container must weigh less than 250 pounds (or the maximum
weight identified on the container by manufacturer) when collected,
Wood must be free of nails, glass or sharp objects and cut into four foot lengths
or less and placed into a waste receptacle or tied into bundles weighing less than
35 pounds each,
Non painted or treated wood should also be free of nails or sharp objects and
should be bundled and placed as Yard Waste not trash.
When quoting a demolition Roll-off or bin for concrete/asphalt, clean dirt and
wood the customer shall be instructed to keep the items separate from each
other and regular Garbage so it may be recycled not land filled.
Republic shall sponsor the "Free Landfill Passes" program.
Large Quantity Generators.
When building, remodeling or landscaping Large Quantity
Generators shall be encouraged by City and Republic to reuse materials on site,
recycle, and compost with landfilling as the last option. When materials cannot be
reused on site, Republic will provide appropriately sized demolition, recycling,
composting or waste bins / roll-off containers, pricing as described in Exhibit G. Large
Quantity Generators may also haul the waste to an appropriate recycler or landfill
themselves, providing the generator is utilizing their own personnel and equipment.
Large Quantity Generators are to comply with C.V.M.C Section 8.25.095
Construction and Demolition Debris Recycling and the California Green Building Code
Standard which includes completion of a Waste Management Report and a
performance deposit.
EXHIBIT D
Free Bulky Pick-Up Policy
Small Quantity Generators
The program is intended to provide Small Quantity Generators with free Collection
service for bulky items generated from the "standard" Residential use of a single family
dwelling. The "standard" is based on the number, frequency and type of items
generated. Items that do not meet that standard may be subject to additional fees.
Free service includes up to one free service stop per week for non-hazardous,
non-infectious household bulky items such as a sofa, chair, mattress, lawn
furniture, barbecue, or appliance than can be easily and safely moved by hand or
hand truck. Free bulky service does not include items brought from another
location or generated from a business such as an auto mechanic or upholstery
business conducted at home. Such items will be subject to a fee per item or per
half hour as described on Exhibit G.
Collection of more than 10 household bulky items in any week or 60 items in any
90 day period may be subject to a surcharge per item or per half hour charge as
described on Exhibit G.
customer on the next regular Residential trash service day for that residence.
Whenever possible, the customer should dismantle or break down items so they
may be easily and safely collected. Each item shall weigh less than 60 pounds if
they need to be removed by hand.
Items over 60 pounds shall be prepared by residents so they can be safely
collected on a hand truck. Collection of items that cannot be safely collected with
a hand truck may be subject to a fee of per half hour or may be tagged with an
explanation and left.
Collection on any day other than the standard Refuse and Recycling day is
subject to an initial service charge of up to described on Exhibit G for up to the
first five items and a per item charge for every additional item.
Loose construction, demolition, Yard Waste and other items are not considered
bulky items and should be properly recycled or disposed of at a permitted
drop-off facility or the customer may subscribe to temporary Roll-off Box/Bin
Collection service as appropriate.
Republic shall sponsor the "Free Landfill Passes" program described in Exhibit
D-1 attached hereto.
Small Quantity Generators shall be eligible for two (2) Free Yard Waste Passes
per year as described in Exhibit D-2. The pass is limited to one standard truck
load of material. This tonnage does not count against City's 5% annual free
tonnage allowance.
Free Bulky Pick-Up Policy
Large Quantity Multi-Family Generators
The free program is intended to collect only those items generated from the
dwelling Units as a part of normal Residential use.
Republic shall provide up to one free service stop per month for non-hazardous,
non-infectious materials such as a sofa, chair, mattress, lawn furniture, barbecue,
or appliances that can be easily and safely moved by hand or hand truck. Free
Collection does not include construction and demolition debris.
Free Service is to be provided on an on call basis, with 24 hou
customer.
Collection to be performed on the same day as Residential Trash for their service
area.
Items shall be dismantled or broken down so they may be easily collected and
loaded. Items shall weigh less than 60 pounds if they need to be removed by
hand. Items over 60 pounds shall be prepared by residents so they can be
collected on a hand truck. Example: carpet shall be cut into four foot widths,
rolled into sections weighing under 55 pounds and secured with twine or packing
tape so that it can also be moved by a hand truck.
All items for one complex must be ready for Collection at one time and at one
location in the complex that is accessible to the Republic bulky collection vehicle.
Location to be established at the time of 24-hour notice.
Free Collection is limited to up to 5 items for every ten Units in the complex. (i.e.,
a building with 11 Units gets up to 10 items a building of 21 Units gets up to 15
items)
Collection of more than the standard number of items will result in a per item
charge described on Exhibit G. Additional items that are not collectible by hand-
truck will be subject to a per half-hour charge describe on Exhibit G.
Collection of any day other than the standard day may include a service charge
for the first five items and a per item charge for every additional item, as
described on Exhibit G.
Loose construction/demolition, Yard Waste and other items are not considered
bulky items and should be properly recycled disposed of at a permitted drop-off
facility (see demolition guide) or the customer may subscribe to temporary Roll-
off Box/Bin collection service with Republic as appropriate.
EXHIBIT D-1
LANDFILL DISPOSAL PASSES
Republic Services will provide landfill passes to Chula Vista residents in lieu of semi-
annual community clean ups. Each resident will be entitled to two passes per calendar
year which Republic will track in the customer account notes within its proprietary
software.
Passes will be valid 90 days from the issue date. The passes may be used anytime
in Chula Vista. Their account must be current with Republic Services. Residents must
electric or disposal bill with Chula Vista address) when going to the landfill with the
pass. Residents may also request by phone to have passes mailed to the address
associated with the customer account. Republic Services will not be responsible for lost
or stolen passes.
The residents will have a special area to dump their materials and will not be in the
commercial traffic at the face of the landfill. Roll off boxes will be set up for each
material type at the Convenience Center located near the main entrance of the Otay
Landfill. Residents will be expected to off-load their separated materials into the
appropriate roll off boxes; recyclable materials, non-recyclable trash, metals, white
goods, concrete/asphalt and wood waste/organics.
Each pass may be used for a maximum material weight of one (1) ton. Loads over the
one (1) ton limit will be charged current landfill rates.
EXHIBIT D-2
LANDFILL YARD WASTE PASSES
Republic Services will provide 2 yard waste passes to Chula Vista residents per
calendar year which Republic will track in the customer account notes within its
proprietary software.
Passes will be valid 90 days from the issue date. The passes may be used anytime
in Chula Vista. They must have a current account with Republic Services and
identification demonstrating their r
disposal bill with Chula Vista address) when going to the landfill with the pass.
Residents may also request by phone to have passes mailed to the address associated
with the customer account. Republic Services will not be responsible for lost or stolen
passes.
The residents will have a special area to dump their materials and will not be in the
commercial traffic at the face of the landfill. Roll off boxes will be set up for each
material type at the Convenience Center located near the main entrance of the Otay
Landfill. This pass will be good for recycling green waste recycling only; palm fronds,
grass clippings, tree trimmings and non-treated wood. Residents can recycle the
following materials for free and without a pass at the Otay Landfill; metal, cardboard,
paper, bottles and cans. Residents will be expected to off-load their separated materials
into the appropriate roll off boxes; wood waste/organics and recyclable materials.
Each pass may be used for a maximum material weight of 1 ton. Loads over the 1 ton
limit will be charged current landfill rates.
EXHIBIT E
Tagging Improper Set Outs - Small Quantity Generators
When tagging a customer
container for improper set out (as described in Section 6.22 Tagging and Penalties) the
tag should identify the specific violation. Republic Services shall preserve the stub
demonstrating proof of notice for three (3) years). Information on trash, Recycling, Yard
Waste or bulky Collection shall be left with tag to instruct customer on future set outs.
First Contact - Generator to be tagged and served. Item(s) should be collected either
as a recyclable, bulky item or trash on the same day as regular service unless the
Collection of items would be hazardous to Republic Services personnel, equipment or
their Collection is specifically prohibited by federal, State or local law.
Second Contact - Generator receives a tag only (preferably marked 2nd request)
Third Contact - Generator receives a tag (preferably marked 3rd request). Information
is forwarded to City. City shall then send a letter and instruction regarding violation and
warning of fine to customers and fax a list of addresses notified to Republic. Republic
shall continue to tag address if necessary and forward information to City.
Fines - A first fine may follow no sooner than 15 days after notice from City. The first
fine shall be up to $3 per applicable service. A second fine shall be up to $5 per
applicable service. A third fine and each fine thereafter shall be up to $10 per
applicable service. Substantiated fines are part of the regular Refuse fee and are
subject to collection in the same manner.
EXHIBIT F
General Reporting Requirements
Quarterly and annual reports shall include a cumulative and up to date accounting of the
monthly report form in a format approved by the city.Reports shall also include the
market price received for each commodity in the Quarterly and Annual Reports
(quarterly average is acceptable). The weight receipts and market value for material at
the time sold shall be available for inspection by City upon request under the provisions
outlined in Section 4.1.3 regarding right to audit.
Republic shall not be expected to include actual revenues for the most recent month in
the monthly reports however they shall make a good faith effort to include them in the
quarterly reports. Republic shall update actual revenue no later than the first monthly
report due date or the 22nd day following the end of the quarter.
The Quarterly and Annual Reports shall also include a summary of customer service
inquiries taken by Republic Customer Service Staff for Chula Vista. The report shall
include an outline of any future operational or customer service adjustments that may
be necessary to reduce or eliminate the general type of service inquiry or complaint in
the future. Additionally, the annual report shall include recommendations for future
changes in Collection or customer service operations that may contribute to an increase
in the potential diversion of recyclable or reusable material from landfill disposal.
Finally, the monthly, quarterly and annual reports shall also include any additional
information necessary to meet State and/or Federal mandated reporting requirements
-contractor's Collection, Processing and or disposal
of material under the franchise agreement.
EXHIBIT G
\[ATTACHED RATE SHEETS\]
EXHIBIT H
Insurance Requirements
Insurance Requirements for Republic Services of Chula Vista,
dba Allied Waste
Contractor shall procure and maintain for the duration of the contract insurance against
claims for injuries to persons or damage to property which may arise from or in
connection with its exercise of its rights or performance of its duties under the
Franchise, including acts or omissions by the Contractor, its agents, representatives,
employees, or subcontractors. With respect to Commercial General Liability, Automobile
Liability, Workers Compensation and Pollution Legal Liability, coverage should be
maintained for a minimum of five (5) years after contract completion.
MINIMUM SCOPE AND LIMIT OF INSURANCE
Coverage shall be at least as broad as:
Commercial General Liability
1. (CGL): Insurance Services Office Form CG 00
01 07 04, or equival
products-completed operations, property damage, bodily injury, & personal injury,
with limits no less than $10,000,000 combined single limit per accident or
occurrence. If a general aggregate limit applies, either the general aggregate limit
shall apply separately to this project/location or the general aggregate limit shall
be twice the required per occurrence limit.
Automobile Liability:
2.Insurance Services Office Form Number CA 0001
covering any auto (Code 1), or if Contractor has no owned autos, hired (Code 8)
and non-owned (Code 9) autos, with limit no less than $10,000,000 combined
per accident or
single limitper person for bodily injury and property damage,
occurrence
.
3. insurance as required by the State of California, with
$1,000,000 per accident for bodily injury or disease.
Pollution Legal Liability
4. applicable to the work being performed, with a limit no
less than $10,000,000 per claim or occurrence and $10,000,000 aggregate per
policy period of one year. The forms and other terms of Pollution Legal Liability
insurance shall be subject to the reasonable approval of the City Attorney and
t
reasonably required consistent with industry standards or best practices.
If Contractor maintains higher limits than the minimums shown above, the Entity
requires and shall be entitled to coverage for the higher limits maintained.
Any combination of primary and excess/umbrella policies may be utilized to satisfy the
required limits of liability.
Deductible and Self-Insured Retentions
Regardless of the existence or amount of any deductibles or self-insured retentions that
benefits of policy coverages by applying or deducting any such deductibles or self-
insured retentions, so that the policy coverage shall apply starting with the first dollar of
any covered defense cost or indemnity obligation.
Other Insurance Provisions
A. The Commercial General Liability, Automobile Liability, and Pollution Legal Liability
policies are to contain, or be endorsed to contain, the following provisions:
The Entity, its officers, officials, employees, and volunteers are to be
1.
covered as additional insureds
with respect to liability arising out of automobiles
owned, leased, hired, or borrowed by or on behalf of the Contractor; and with
respect to liability arising out of work or operations performed by or on behalf of
the Contractor including materials, parts or equipment furnished in connection
with such work or operations. General liability coverage can be provided in the
form
Form CG 20 10, 11 85 or both CG 20 10 and CG 20 37 forms if later revisions
used). The Endorsement must not exclude Products /Completed Operations.
2. For any claims related to this project,
shall be primary insurance
as respects the Entity, its officers, officials,
employees, agents, and volunteers. Any insurance or self-insurance maintained
by the Entity, its officers, officials, employees, agents, or volunteers shall be
3. Each insurance policy required above shall provide that coverage shall not be
canceled, except with notice to the Entity.
B. The Automobile Liability policy shall be endorsed to include Transportation Pollution
Liability insurance, covering materials to be transported by Contractor pursuant to
the contract. This coverage may also be provided on the Contractors Pollution
Liability policy.
C. If Commercial General Liability, and/or Pollution Legal Liability coverages are written
on a claims-made form:
1. The retroactive date must be before the date of the contract or the beginning of
contract work.
2. Insurance must be maintained and evidence of insurance must be provided for at
least five (5) years after completion of the contract of work.
3. If coverage is canceled or non-renewed, and not replaced with another claims-
made policy form with a retroactive date prior to the contract effective date, the
Contractor must purchase an extended period coverage for a minimum of five (5)
years after completion of contract work.
4. If the services involve lead-based paint or asbestos handling, disposal,
identification and/or remediation, the Pollution Legal Liability shall not contain
lead-based paint or asbestos exclusions. If the services involve mold identification
/ remediation, the Pollution Legal Liability shall not contain a mold exclusion and
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best rating of no less than
A:VII if admitted in the State of California. If Pollution Legal Liability coverage is not
available from an admitted insurer, the coverage may be written by a non-admitted
insurance company. A non-admitted company should have an A.M. Best rating of A:X or
higher. Exception may be made for the California State Compensation Insurance Fund
if not rated.
Verification of Coverage
Contractor shall furnish the Entity with original certificates and amendatory
endorsements, or copies of the applicable insurance language, effecting coverage
required by this contract. All certificates and endorsements are to be received and
approved by the Entity before work commences. However, failure to obtain the required
provide them.
Waiver of Subrogation
Contractor hereby grants to Entity a waiver of subrogation which any insurer may
acquire against Entity, its officers, officials, employees, and volunteers, from Contractor
by virtue of the payment of any loss. Contractor agrees to obtain any endorsement that
may be necessary to effect this waiver of subrogation but this provision applies
regardless of whether or not the Entity has received a waiver of subrogation
endorsement from the insurer.
favor of the Entity for all work performed by the Contractor, its employees, agents, and
subcontractors.
Subcontractors
Contractor shall require and verify that all subcontractors maintain insurance meeting all
the requirements stated herein.
Special Risks or Circumstances
Entity reserves the right to modify these requirements, including limits, based on the
nature of the risk, prior experience, insurer, coverage, or other special circumstances.
Contractor agrees to meet and confer with City every 5 years regarding any required
increases in coverage amounts or types based upon new industry standards or best
practices.
CHULA VISTA FRANCHISE - 2015 RATE SCHEDULE FOR LQG & 2015 RATE SCHEDULE FOR SQG RATES
Estimated 2014 CPI = 2.0%
PROJECTED LQG and Industrial CPI Rate Increase Effective: July 1, 2015
City Franchise Fee = 20.0%
: July 3, 2014
PROJECTED SQG CPI Rate Increase Effective: September 1, 2015
AB 939 Recycling Fees =
5.0%
DESCRIPTION : 2014 SQG RATES 2015 SQG RATES
Other Other
CART SERVICE RT SERVICE
32 Gal 64 Gal 96 Gal Service32 Gal 64 Gal 96 Gal Service
A. SMALL QUANTITY GENERATOR :
2.00%
SQG 100% CPI % Adj =
Based upon Estimated 2014 CPI
Residential - single unit 15.22 19.73 23.21
15.52 20.12 23.67
Additional cart 6.917.05
Trash Exempt
3.583.65
Minimum Service Charge15.2215.52
Extra trash set out / 32 gal equivalent4.044.12
Prepaid extra 32 gal - bag services 2.022.06
Residential - Senior (
On program before 12/31/01) 10.72 NA NA10.93 NA NA
Residential - Multi-family up to 9 units15.22 19.73 23.2115.52 20.12 23.67
15.22 19.73 23.2115.52 20.12 23.67
Mobile Home Parks - coach to coach
Commercial/Industrial SQG
15.22 19.73 23.2115.52 20.12 23.67
One time weekly on residential service day for the area
6.917.05
Additional carts
99.74101.73
Replacement cart charge (32, 64, or 96 gal cart) due to repeated customer abuse
SQG Bulky Item(s) - FreeFree
Pick up free if called in 48 hours in advance of service day for up to 10 items.
3.793.87
Per Bulky item fee applied for items over the 10 items allowance. Items over 60 lbs. must be prepared
for safe handling with a hand truck. If not properly prepared, may be subject to a 1/2 hour service fee.
Collection requested on any day other than the standard service day is subject to the Bulky Item
1/2 Hour Service Fee for the first five items. Any Bulky Items over 5 item allowance will be charged
the per item fee.
Bulky Item 1/2 Hour Service Fee - 32.6033.25
for non-scheduled service. Will pickup maximum of 5 items,
where upon the SQG Bulky Item Fee is applied for each of the items over the 5 item allowance
170.29 173.70
Temporary 3 yd container at residential unit (includes 1 dump and 17 day limit)
(LQG Pricing)
64.10 65.38
Additional dumps - same as LQG extra pick up rate
(LQG Pricing)
3.793.87
Temporary Bin Rental charges begin at 18 days.
(LQG Pricing)
1.30
1.27
Green Waste Cart Rental (1, 64 gal or 96 gal. Cart- min. 6 mth. Rental period)
Special Handling Charges
Call Backs / Non scheduled - customer requested 12.6512.90
Customer Requested Special Service - i.e.cart cleaning , misc electronic waste
12.6512.90
Televisions and Computer Monitors curbside pickup
6.46
6.33
Restricted Access 12.90
12.65
City Non-Compliance Fee (City Staff Imposed) **
*($3, $5, $10.00 as appropriate for the situation)
2015 Projected Exhibit G EXHIBIT G - PAGE 1 of 4
CHULA VISTA FRANCHISE - 2015 RATE SCHEDULE FOR LQG & 2015 RATE SCHEDULE FOR SQG RATES
Estimated 2014 CPI = 2.0%
PROJECTED LQG and Industrial CPI Rate Increase Effective: July 1, 2015
City Franchise Fee = 20.0%
: July 3, 2014
PROJECTED SQG CPI Rate Increase Effective: September 1, 2015
AB 939 Recycling Fees =
5.0%
DESCRIPTION : 2014 LQG RATES 2015 LQG RATES
B. LARGE QUANTITY GENERATORS :
2.00%
LQG CPI Adjustment =
( SEE ATTACHED SCHEDULES FOR DETAILED PRICING MATRIX BY BIN SIZES AND SERVICE LEVELS)
Based upon Estimated 2014 CPI
1 X 2YD X 1/WK BASIC SERVICE 81.16
82.78
1 X 2YD X 1/WK EXPANDED SERVICE 96.52
98.45
1 X 3YD X 1/WK BASIC SERVICE 110.05
112.25
1 X 3YD X 1/WK EXPANDED SERVICE 126.75
129.29
1 X 4YD X 1/WK BASIC SERVICE 175.27
178.78
1 X 4YD X 1/WK EXPANDED SERVICE 197.78
201.74
1 X 5YD X 1/WK BASIC SERVICE 219.04
223.42
1 X 5YD X 1/WK EXPANDED SERVICE 247.25
252.20
1 X 6YD X 1/WK BASIC SERVICE 262.84
268.10
1 X 6YD X 1/WK EXPANDED SERVICE 296.69
302.62
Note: "Expanded Service" such as a container push out in excess of 25 feet.
Extra pick up Charges: Commercial Trash 64.10
65.38
Commercial Recycling 48.85
49.83
Green Waste Recycling 37.92
38.68
GREEN WASTE RECYCLING 1 X 1/WEEK 104.08
106.16
1 X 2/WEEK 170.05
173.45
1 X 1/BI-WEEKLY 56.11
57.23
COMMERCIAL RECYCLING
( SEE ATTACHED SCHEDULES FOR DETAILED PRICING MATRIX BY BIN SIZES AND SERVICE LEVELS)
up to 8 yard of service 1x w 1 X 1/WEEK 3 YD Bin59.56
60.75
1 X 1/BI-WEEKLY50.02
51.02
NON-HOSPITALITY 1 X 1/WEEK25.18
25.68
( UP TO 4-96GAL CARTS ) 1 X 1/BI-WEEKLY21.01
21.43
Residential Multi-family bin service for 6 to 9 units
(with City approval)
Trash rates - commercial service as needed, per commercial container rate schedules
Recycling only - charge per unit (in addition to the trash rate) 2.24
2.28
Recycling and Greenwaste - charge per unit (in addition to the trash rate)
3.67
3.74
Over weight Bins -
Upon approval by the City,
1. Determine the ratio of pounds per cubic yard over the 110 pounds average per cubic yard.
2. Ratio establishes the number of bins to use when calculating the charge.
2015 Projected Exhibit G EXHIBIT G - PAGE 2 of 4
CHULA VISTA FRANCHISE - 2015 RATE SCHEDULE FOR LQG & 2015 RATE SCHEDULE FOR SQG RATES
Estimated 2014 CPI = 2.0%
PROJECTED LQG and Industrial CPI Rate Increase Effective: July 1, 2015
City Franchise Fee = 20.0%
: July 3, 2014
PROJECTED SQG CPI Rate Increase Effective: September 1, 2015
AB 939 Recycling Fees =
5.0%
DESCRIPTION : 2014 LQG RATES 2015 LQG RATES
B. LARGE QUANTITY GENERATORS : Continued
2.00%
LQG CPI Adjustment =
Vertical compactor service rate calculation -
Based upon Estimated 2014 CPI
1. Select the compactor bins size that corresponds with the bin size on the rate table.
2. The compaction ration of the compactor becomes the number of bins serviced (Example: 4 to 1 = 4 bins)
3. Select the "Weekly Lifts" or service frequency chosen by the generator.
4. The commercial trash rate table identifies the applicable "Basic Service" rate for that level of service.
6.97
Lock on carts /bins 6.83
Container exchange after complementary annual exchange (30 days notice requested, not 67.63
68.98
required)
Delay wait time/Special Service (upon customer request) per 1/2 hour61.18
62.40
Replacement 3 yd bin container due to repeated customer abuse819.50
835.89
(extra charges may apply for personalized container purchase upon City approval).
Bulky Item Pick up 1/2 Hour Service Fee
33.98
34.66
Bulky Item Pick up Commercial/Industrial -
if called in 48 hours in advance of service day for
3.79
3.87
the SQG route in that area.Items over 60 lbs. must be prepared for safe handling with a hand
truck. If not, may be subject to a 1/2 hourly service rate fee. Collection on any day other than SQG
route day for the area is subject to be charged a 1/2 hourly service rate fee.
Bulky Item Pick up for Multi-family (LQG) -
5 items for every 10 units are free if called in 48 hours
3.79
3.87
in advance of SQG route day for the area. Items over 60 lbs. must be prepared for safe handling
with a hand truck. If not, may be subject to a 1/2 hourly rate service fee. Collection on any day
other than SQG route day for the area is subject to be charged a 1/2 hour service fee. Additional
items over the 5 per 10 units allowance will be charged for each additonal item.
Extra pickup or call back on recycling services (per stop not per container)12.65
12.90
2015 Projected Exhibit G EXHIBIT G - PAGE 3 of 4
CHULA VISTA FRANCHISE - 2015 RATE SCHEDULE FOR LQG & 2015 RATE SCHEDULE FOR SQG RATES
Estimated 2014 CPI = 2.0%
PROJECTED LQG and Industrial CPI Rate Increase Effective: July 1, 2015
City Franchise Fee = 20.0%
: July 3, 2014
PROJECTED SQG CPI Rate Increase Effective: September 1, 2015
AB 939 Recycling Fees =
5.0%
DESCRIPTION : 2014 LQG RATES 2015 LQG RATES
C. INDUSTRIAL GENERATORS :
2.00%
LQG CPI Adjustment =
Based upon Estimated 2014 CPI
Compactor 258.48 263.65
Roll-off 167.17 170.51
C.O.D. HAUL + DELIVERY + 7 TON DISPOSAL 586.61 598.34
2014 $162.33 + $40.51 + $366.80 = 569.64
(Haul charge + Delivery Charge +7 Ton Disposal)
Anything over 7 tons is charged at current disposal rate per ton.
* DISPOSAL PER TON (includes Franchise Fee & AB939 Tax) 53.96 55.04
All recycling material processing fees are passed through to the generator.
Any disposal charges due to contamination will be passed through to the generator.
A rebate of 50% of the market value minus processing costs is offered for clean recycling loads.
Bulky Item Hourly Service Rate - per 1/2 hour
Compactor Container Wash Out
Relocation of the Container
Dry Run Charge - 50% of the Haul Rate
Roll -off Delivery Charge (initial delivery only, subsequent exchanges do not get charged)
Roll-off Container Daily Rental Charge (After 17 days)
Bulky Item Pick up Commercial/Industrial - if called in 48 hours in advance of service day for
the SQG route in that area.Items over 60 lbs. must be prepared for safe handling with a hand
truck. If not, maybe subject to $25 per half hour service fee. Collection on any day other than
SQG route day for the area is charged Bulky Item Hourly Service rate per 1/2 hour.
Same Day Service Request until 3:00 pm
Special Events:
Trash Bin, each
Recycling Bin, each
96 or 64 gallon cart
Recycling 15 gal "Red Box" OR Special Event Cardboard Box
2015 Projected Exhibit G EXHIBIT G - PAGE 4 of 4
DRAFT
Proposed FINAL
July 3, 2014
AMENDED AND RESTATED
OTAY LANDFILL EXPANSION AGREEMENT
This AMENDED AND RESTATED OTAY LANDFILL EXPANSION AGREEMENT
("Agreement") is entered into effective as of__ ______, 2014 , by and between
the CITY OF CHULA VISTA, a chartered municipal corporation of the State of California
("City") and OTAY LANDFILL, INC., a Delaware Corporation ("Otay"). Allied Waste North
America, Inc., a Delaware corporation ("Allied"), and Allied Waste Systems, Inc. dba Republic
, Affiliates of Otay, are also parties to this Agreement to the
extent that they hereunder and as otherwise
expressly provided herein. Allied, Republic and their Affiliates are sometimes collectively
Otay, the Otay Affiliates and City are, from time to
time, referred to collectively herein
This Agreement is entered into with reference to the following facts:
A. Otay, a wholly-owned subsidiary of Allied, and an Affiliate of Republic, owns
and operates the Otay Landfill, located in San Diego County, California (the
"Landfill").
B. Landfill Expansion
potential impacts of the Otay Landfill Expansion Project on the City of Chula Vista and with the
C. The Parties now wish to amend and restate the Original Agreement to reflect the
passage of time and the subsequent agreement of the Parties to amend some of the terms and
conditions of the Original Agreement. This Agreement shall also supersede all prior agreements
and understandings between Otay Affiliates and City regarding the Otay Landfill, except for the
Collection Franchise Agreement entered into by City and Republic contemporaneously herewith.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which the parties hereby acknowledge, City, Otay and the Otay Affiliates hereby agree as
follows:
1.0 Definitions. Whenever in this Agreement the words or phrases hereinafter in this
section defined are used, either with initial caps or small case lettering, they shall have the
respective meaning assigned to them in the following definitions (unless in the given instance,
the context wherein they are used shall clearly indicate a different meaning):
1.1 "Affiliate" means any parent, subsidiary corporation, partnership or other entity
controlling, controlled by or under common control with any entity, or any fellow member of an
1
association, joint venture or similar arrangement for the provision of landfill, Solid Waste
disposal or Recycling services in which Otay or Allied holds a direct or indirect interest.
1.2 cover material other than earthen
material placed on the surface of the active face of a municipal solid waste landfill at the end of
each operating day to control vectors, fires, odors, blowing litter, and scavenging.
1.3 "Applicable Law" means any federal, state or local rule, regulation, requirement,
guideline, permit, action, determination or order of any Governmental Body having any
jurisdiction applicable to the subject matter of this Agreement, as now in effect and as amended
from time to time. Applicable Law shall include, without limitation, the City Charter, and
Municipal Code.
1.4 "CEQA" means the California Environmental Quality Act, codified at Cal. Pub.
Res. Code Section 21000 et seq., as amended or superseded, and the regulations promulgated
thereunder.
1.5 "Change in Law" means any of the following events or conditions occurring on or
after the date hereof:
(a) the enactment, adoption, promulgation, issuance, material modification or
written change in Applicable Law or administrative or judicial interpretation of any
Applicable Law; or
(b) the order or judgment of any Governmental Body with jurisdiction over
the Landfill, to the extent such order or judgment is not the result of willful or negligent
action, error or omission or lack of reasonable diligence of City, Otay, Allied or any
Affiliate thereof, whichever is asserting the occurrence of a Change in Law; provided,
however, that the contesting in good faith or the failure in good faith to contest any such
order or judgment shall not constitute or be construed as such a willful or negligent
action, error or omission or lack of reasonable diligence.
Notwithstanding the foregoing, a "Change in Law" shall not include a denial by a
Governmental Body of a permit for the Landfill Expansion, or any imposition of conditions in
connection therewith.
1.6 "City" shall mean the City of Chula Vista, a municipal corporation of the State of
California in its present incorporated form or in any later reorganized, consolidated, enlarged or
reincorporated form.
1.7
Waste Collection and Recycling Fra
Waste Systems, Inc., an affiliate of Otay, contemporaneously with this Agreement.
1.8 "Governmental Body" means any Federal, State, County, City or regional
legislative, executive, judicial or other governmental board, agency, authority, commission,
2
administration, court or other body, or any officer thereof acting within the scope of his or her
authority.
1.9 "Green Waste" means the leaves, grass, weeds, shrubs, tree branches, tree trunk
and other wood materials from trees. Green Waste may also include pre-consumer food waste,
incidental amounts of waxed or plastic coated corrugated cardboard, unpainted and untreated
lumber. Green Waste does not include tree stumps in excess of 100 pounds, more than incidental
dirt or rock, plastic, glass, metal, painted or treated lumber, plywood, particle board or other
manufactured products that contain glue, formaldehyde, non-organic or non-biodegradable
materials.
1.10 all Residential dwellings of four units or less
(without restriction on the amount of waste generated by such dwellings) and all Commercial,
Industrial and Institutional entities that generate an amount equal to or less than four (4) ninety-
six (96) gallon Carts of waste per week excluding source separated Recyclables diverted from
Disposal or transformation.
1.11 "Solid Waste" means all putrescible and non-putrescible solid waste, semi-solid
and liquid wastes, such as refuse, garbage, rubbish, ashes, industrial wastes, demolition and
construction wastes, abandoned vehicles and parts thereof, discarded home and industrial
appliances, manure, vegetable or animal solid and semi-solid wastes, and includes liquid wastes
disposed of in conjunction with Solid Wastes at Solid Waste transfer or processing stations or
disposal sites, which are generated by residential, commercial or industrial sites. Solid Waste
shall not include: hazardous and infectious waste, sewage collected and treated in a municipal or
regional sewage system or materials or substances having commercial value or other importance
which can be salvaged for reuse, Recycling, composting or resale.
1.12 "Uncontrollable Circumstances" means any of the following acts, events or
conditions, if such act, event or condition is beyond the reasonable control and is not also the
result of the willful or negligent act, error or omission or failure to exercise reasonable diligence
on the part of the party relying thereon as a justification for not performing an obligation or
complying with any condition required by such party under this Agreement:
(a) an act of God (but not including reasonably anticipated weather conditions
for the geographic area of the City), hurricane, landslide, lightning, earthquake, fire,
explosion, flood, sabotage or similar occurrence, acts of a public enemy, extortion, war,
blockade or insurrection, riot or civil disturbance;
(b) strikes or work stoppages occurring with respect to any activity performed
or to be performed under this Agreement; and
(c) pre-emption of materials or services by a Governmental Body in
connection with a public emergency or any condemnation or other taking by eminent
domain.
It is specifically understood that none of the following acts or conditions shall constitute
3
Uncontrollable Circumstances: (a) general economic conditions, interest or inflation rates,
currency fluctuations or changes in the cost or availability of commodities, supplies or
equipment; (b) changes in the financial condition of City, Otay, Allied or its Affiliates or any
subcontractor affecting their ability to perform their obligations; (c) the consequences of errors,
neglect or omissions by City, Otay, Allied or its Affiliates or any subcontractor; (d)
any failure of any subcontractor to furnish labor, materials, service or equipment for any reason
(other than an Uncontrollable Circumstance); (e) equipment failure; and (f) any impact of
minimum wage law, prevailing wage law, customs or practices on the operating cost of Otay,
Allied or its Affiliates or City.
2.0 Obligations.
2.1 Flow Control. For so long as Republic, or an Affiliate thereof, is City's
franchised waste management provider, City agrees to direct disposal of Solid Waste generated
in the City (excluding recyclables) to the Landfill.
2.2 Donated Parcel. Pursuant to the Original Agreement, Otay transferred to City
Exhibit A
the unimproved real property located west of the Landfill described on hereto,
consisting of approximately fifty-four (54) acres ("Donated Parcel"). The Donated Parcel may be
utilized in City's sole discretion. Otay represents and warrants that the Donated Parcel has not
been committed to serve as mitigation property or for any other purpose that would prevent its
development. City shall not develop any portion of this parcel for residential housing.
2.3 Community Facilities Improvement Payment. Pursuant to the Original
Agreement, Allied made a payment of Four Million Dollars ($4,000,000) to City ("Community
Facilities Improvement Payment"). The Community Facilities Improvement Payment may be
utilized in City's sole discretion.
2.4 Annexation. The Otay Affiliates shall support any City proposal to annex into the
City (a) the Donated Parcel, (b) that certain parcel adjacent thereto as more particularly described
Exhibit B
on hereto (the "Adjacent Parcel"), and (c) the Landfill; provided, however, that City
shall be responsible for all fees, taxes, costs and expenses arising out of or resulting from such
annexation, including, without limitation, annexation costs, environmental review costs, transfer
taxes, recording fees, due diligence fees, escrow fees and attorneys' fees. City shall be further
responsible for obtaining any necessary County approval for such annexations that may be
required by law or pursuant to City/County agreement. Notwithstanding the forgoing, the Otay
Affiliates shall have no obligation under this Section 2.4 with respect to the Adjacent Parcel or
the Landfill, as the case may be, if annexation of either such property would result in a valuation
or assessment for property tax purposes greater than the valuation or assessment that would have
resulted if such property had not been annexed into the City. City agrees that the Otay Affiliates
may condition their support for annexation on City's agreement to designate for land use
purposes (i) the Landfill as the lowest assessed category for open space, and (ii) the Adjacent
Parcel as the lowest assessed category for open space so long as Otay maintains its current use
for such property. In connection with such annexation, City shall consider becoming certified as
the Local Enforcement Agency for the Landfill. City will cooperate with the Otay Affiliates in
establishing a connection between the Otay Landfill and existing or future City sanitary sewer
4
lines and other utilities; Otay shall bear the cost of any such connection.
2.5 Residential Setback. City shall not allow the development of residential units on
properties within 1,000 feet of the active area of the Otay Landfill, as illustrated on the attached
Exhibit B
drawing . Similarly, Otay agrees that it shall keep the active area of the Landfill at
least 1,000 feet away from any developed residential units. The parties agree to meet and confer
from time to time to coordinate, to the extent possible, their respective obligations hereunder.
Notwithstanding the foregoing, it is understood that Otay may need to modify the slopes of the
Landfill outside the active area of the Landfill from time to time to address settlement,
landscaping and other drainage and maintenance requirements and install and operate
environmental control systems.
2.6 Heritage Road Alignment. Otay shall grant an easement to City in connection
with the Heritage Road alignment for no consideration except as otherwise specifically set forth
herein. Such easement shall be at the location and configuration as set forth in the alignment map
Exhibit C
submitted by City to Otay and attached hereto as . City and Otay shall meet and
confer to make any adjustments to the easement as may be recommended by the City Engineer.
Adjustments recommended by the City Engineer which do not interfere with proposed Landfill
Expansion or Applicable Law shall not be unreasonably withheld. City shall be solely
responsible for any environmental review and costs associated with the creation, operation and
maintenance of the easement. The easement agreement shall contain a provision in which City
agrees to indemnify and defend Otay with respect to any damages they may incur arising out of
the use or operation the easement, except those due to the negligence or willful misconduct of
Otay. In the event that the grant of the easement results in a loss of mitigation property by
OtayCity agrees to exercise best efforts to assist Otay in replacing any lost mitigation property
through a no cost or low cost alternative; provided, however, that nothing contained herein shall
obligate City to expend City funds or purchase new property.
2.7 Reasonable Access on Maxwell Road. st, Otay shall grant an
easement to City which allows for reasonable access to the Donated Parcel from Maxwell Road,
for no consideration except as otherwise specifically set forth herein. City and Otay shall meet
and confer to determine the exact location of the easement, with roadway construction
specifications satisfactory to the City Fire Marshall and City Engineer, based on standards
comparable to those for other roadways.
2.8 Litter Collection and Sweeping. Otay shall hand collect litter as needed but not
less than weekly to keep the public streets listed below free of debris. The hand pick-up shall
include the lesser of the following areas: (i) from the curb of the street to up to 20 feet of
adjoining property from the curb or (ii) from the curb of the street to the closest fence line. Otay
shall provide or contract for street sweeping with a broom or re-circulating air sweeper capable
of providing service comparable to that used by City for street sweeping services. The service
shall be provided as needed to remove material associated with the removal and disposal of
waste but not less than weekly. The commitment to provide such service is in addition to that
provided by City and its contractor or as arranged by City with other agencies to mitigate any
impacts their operations may have on the area. Otay shall be responsible for providing the
services described in this Section 2.7 in the following areas: (i) Otay Valley Road from the South
5
entrance of the Sleep Train Amphitheater to Interstate 805, (ii) Maxwell Road from the Landfill
to Otay Valley Road, (iii) Heritage Road from Otay Valley Road to Olympic Parkway (including
an easterly extension of Otay Valley Road when such extension is built and in public use).
2.9 Improper Disposal Reduction Measures. Otay shall establish a 24-hour hotline
number which individuals may call to report suspected improper disposal of Solid Wastes in the
City. Information obtained from such callers shall be communicated to City for appropriate City
action on the following business day. Otay shall post a sign at least thirty (30) days prior to
making any reduction in the hours or days of operation of the Landfill. The sign shall fully
inform the public of such change. When an Uncontrollable Circumstance has caused the change
in operation, Otay will make a good faith effort to post the sign by the end of the next business
day. They will also make a good faith effort to notify the previous month's regular customers by
telephone or fax within five (5) working days if the interruption in service is likely to last more
than ten (10) working days.
2.10 Dust. Otay shall (i) pave on-site roads where practicable (e.g., frequently used
roads with an anticipated life of at least 5 years in its current location), (ii) sweep on-site streets
(at least weekly), (iii) apply water daily to all on-site roads (except those used infrequently,
which-shall be watered prior to use) and apply other dust control agents and (iv) re-vegetate
disturbed areas that are not in the path of planned disturbance in the near future in a manner
similar to the manner described in the Landscaping Plan (as hereinafter defined) for vegetation of
stock slopes.
2.11 Berms. Otayshall construct Landfill screening berms designed to enclose
Landfill operations; provided, however, that nothing contained herein shall be construed as an
obligation by Otay to ensure that no collection vehicle traffic may ever be viewed above such
berms. Whenever possible, ingress and egress pathways through the berms shall be located away
from any surrounding residential areas.
2.12 Birds. Otay shall continue to implement bird control activities for birds that
may be attracted to the Landfill, Such control activities may include the use of pyrotechnic or
other means as may be necessary to control birds.
2.13 Vernal Pools. Otay shall provide chain link fencing at the boundaries of the
watersheds to the vernal pools located along the northeastern portion of the Landfill.
2.14 Gate Check Procedure. Otay shall implement and maintain a gate check
procedure at the Landfill for the purpose of accurately allocating Solid Waste not generated in
the City to the jurisdiction of origin.
2.15 Collection Vehicle Traffic. None of the Otay Affiliates shall oppose any action
by City to restrict collection vehicle traffic on Brandywine Avenue, north of Auto Parkway,
except such collection vehicle traffic as is necessary to provide services to persons located within
such area. The Otay Affiliates agrees to abide by City directives regarding traffic control before,
during and after amphitheater or other special events in the Otay Valley Road area.
6
2.16 Landscaping Plan. Otay shall implement a phased landscaping plan which is in
Exhibit D
attached hereto ("Landscaping Plan"), with such modifications as may mutually be
agreed upon from time to time by the Parties specifically. Notwithstanding the timing for
implementation described in the attached Landscaping Plan, Otay agrees to phase in landscaping
as the Landfill expands and height increases. The Landscaping Plan will be implemented in a
manner that respects and compliments existing vegetation adjacent to Wolf Canyon. The
Landscaping Plan, and any approved modifications thereto, shall be subject to San Diego County
approval. The Parties agree to cooperate in presenting and advocating the Landscaping Plan
before all applicable County agencies with approval authority. At such time as will allow for the
implementation of phased landscaping as described above, Otay also agrees to develop a final
closure plan in accordance with state and federal regulations for the Landfill which includes a
protective cap and vegetative layer. To the extent allowed by law, the final protective cap shall
be designed to use monolithic soils capable of sustaining and promoting re-vegetation of finished
slopes with native plant species. At a minimum, the final vegetative layer shall be two (2) feet
thick and shall be designed with undulations to accommodate greater thicknesses' of up to six (6)
feet where engineeringly feasible and allowed by law.
2.17 Contouring. Otay shall incorporate "landform" contouring into the Landscaping
Plan, provided implementation of such contouring does not result in the generation of additional
significant impacts that require additional studies or analysis, or recirculation of the EIR that
would significantly delay the CEQA process. The parties agree to meet and confer to develop
contouring plan specifics not addressed in the Landscaping Plan and to evaluate alternative
contouring for the finished expanded Landfill. Such alternative contouring shall include possible
undulation of the side slopes and potential regrading of upper contours to soften the slope angle
more gradually where engineeringly feasible and allowed by law. City agrees to work with Otay
to minimize any loss of airspace proposed in the Landfill Expansion as a result of contouring.
2.18 Soil Stockpiles. During construction for the expansion of the Landfill, should
the need arise to stockpile soil, such stockpile(s) shall at no time exceed the final allowable
height of the Landfill under the expansion permits . Otay shall vegetate stockpile
slopes in accordance with the Landscaping Plan.
2.19 Gas Recovery. Otay shall exercise good faith efforts to increase its existing gas
recovery system or develop a new gas recovery system with respect to methane production in an
effort to reduce or eliminate the need for a flare system, subject to the requirements of the DEIR,
the Landfill permits, current contracts (without extensions) and Applicable Law. Otay
obligations under this Section 2.19 shall include (i) meeting and conferring with City to take
advantage of all state and federal credits and preferences and (ii) as deemed necessary by Otay,
the solicitation and acceptance of bids which reduce or eliminate the need for a flare system
provided the additional costs of such gas recovery system do not exceed one percent (1%) of the
costs set forth in bid(s) received to provide such gas recovery without the reduction or
elimination of a flare system.
2.20 Clean Fuel Source. Otay shall implement a program regarding the purchase of
new clean fuel source (e.g., E-rated electricity, propane, natural gas, liquid natural gas, hydrogen
7
fuel cell, CNG, etc.) support vehicles upon the replacement of such support vehicles whenever
an appropriate clean fuel source vehicle isreasonably available. Otay shall exercise good faith
efforts to solicit bids for clean fuel source grinding equipment and services used in Green Waste
with respect to the expiration of its existing contract therefor (excluding extensions).
2.21 Categorization of Waste Materials. In order to fully assist City in meeting its
AB 939 obligations, to the extent City diverts inert materials, non-compostable Green Waste and
similar waste materials, Otay will identify these materials as recyclables or alternative daily
cover to the extent the same qualifies as such under Applicable Law.
2.22 General Operational Measures. Otay shall provide top quality Landfill operations
by industry standards. The Parties agree to meet and confer to address City concerns relating to
Landfill operational issues and to develop measures to address such concerns.
2.23 Limitation on Taxes Fees and Assessments. Except for the Donated Parcel and
Community Facilities Improvement Payment provided herein, and any generally City imposed
taxes, fees or charges assessed on all businesses for goods or services in the City, City shall not
impose any other or further fees or assessments on the Otay Affiliates or any valid successor or
assign in connection with the current operations of the Landfill (including the Landfill Expansion
as contemplated by and described in the DEIR) except to the extent that Otay Affiliates may
immediately pass-through such tax, fee, charge or assessment to City ratepayers (and for which
such party shall cooperate with City in collecting). Further, in the event that such taxes, fees,
charges or assessments are imposed on any of the Otay Affiliates related to the Landfill by any
Governmental Body other than City, and the legislative action or actions imposing the same
further requires that the same are diverted, earmarked or otherwise paid over to the benefit of
City, in whole or in part, and such action or actions (i) are not offset by a related legislative
action or actions which reduce City revenues under this Agreement, (ii) do not compensate City
for additional regulatory duties, (iii) do not reimburse City for new, direct out-of-pocket costs or
(iv) are related to hazardous materials collection or remediation at the Landfill by City due to the
failure of the Otay Affiliates to comply with its obligations to City under Section 3.14 hereunder,
such sums, if any, shall be promptly rebated to Otay's accounts or paid over to Otay.
2.24City Benefits
Program.
throughout the term of the Collection Franchise Agreement, Otay agrees to provide the benefits
set forth in this Section, below. These benefits shall continue, without abatement or adjustment,
if the ADC Program is discontinued as a result of a Change in Law or action imposed by a non-
City Governmental Body. These benefits may be discontinued by Otay at any time during the
Term, if City requests, urges or petitions the State, the County, or other Governmental Body to
discontinue or limit the use of ADC at the Otay Landfill, or adopts itself a local law prohibiting
or limiting the use of ADC.
a.Tree Trimming Exemption. Otay will cause the acceptance at the Otay Landfill
of Green Waste, including, without limitation, palm fronds and clean lumber,
delivered by City crews and City contractors working on City projects, free of
8
tonnage at the Otay Landfill under section 4.3 Collection Franchise
Agreement.
b.Clean Dirt/Fill Exemption. Otay will cause the acceptance at the Otay Landfill of
clean dirt and fill delivered by City crews generated as a result of maintenance of
City property or installation of City infrastructure, free of charge. This clean dirt
and fill will not be coun
Landfill under section 4.3 Collection Franchise Agreement. For
asphalt, concrete, trash, pipe, petroleum and chemicals that are typically not found
in excavation of undisturbed ground; provided, however that processed rock
products such as aggregate base, aggregate sub-base, decomposed granite, and
similar materials, shall be allowed.
c.Free Compost Material For Chula Vista Residents. In the first calendar year of
the Franchise, Otay will arrange for three (3) compost events per calendar year
whereby Otay will deliver up to 150 cubic yards of compost per event as directed
by the City, to be made available for free to Chula Vista resident and (non-
landscaping) business Ratepayers. The parties shall meet and confer to discuss
changes in this initial quantity of 150 cubic yards of compost per event due to
lack of or increased demand, and shall reasonably agree on such adjustments.
Thereafter, based upon factors such as consumer demand, event costs, materials
availability, and other reasonable factors, the parties will meet and confer to
determine appropriate adjustments to the program, for each calendar year of the
d.Cooperation with Green Waste ADC Program Alternatives. Otay agrees to meet
and confer with the City from time to time, as the City may reasonably request, to
explore alternatives to the Green Waste ADC program that would maximize
Green Waste diversion during and beyond the operation of the Otay Landfill and
would result in the creation of a value added product (e.g., compost).
e. Resource Recovery Park at Otay Landfill. Otay shall develop a Resource
at the Otay Landfill on the terms set forth in this
Section. An RRP is a facility that, among other things co-locates reuse, recycling,
compost processing, and related businesses in a central location. The purpose of
an RRP is to provide a place for reducing the amount of waste that is disposed of
through recovery of some materials for reuse, recycling and composting. The
RRP shall be located on at least 20, and up to 30 acres, on an area of the Landfill
property to be designated by Otay The Parties agree to
work together in good faith to negotiate terms and condition for the development
of the RRP on the RRP Property. In order to implement its obligations hereunder,
Otay, at a minimum, agrees to (1) fully investigate, and exercise their best efforts
to implement an RRP including the post-closure uses identified in Sections 4.1.1
through 4.1.5 of -Closure Uses
by A-Mehr, Inc., dated April 2014, or such other similar
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uses as the City may reasonably approve; (2) meet and confer quarterly with the
City regarding RRP design and implementation status; (3) by no later than June
30, 2020, develop and implement components of RRP operations as necessary to
comply with Applicable Law, including, without limitation, pending laws
expected to limit or ban the Disposal of organics at the Landfill; and (4) by no
later than June 30, 2020, designate the RRP Property and develop and obtain City
approval of a final plan for post-closure RRP operations thereon, which approval
shall not be unreasonably withheld. Otay ultimately reserves the right to
reasonably determine the practical feasibility and economic viability of each of
the proposed components of the RRP. Otay Affiliates acknowledge and agree
that Otay good faith negotiation and/or agreement with the City on the terms
and conditions for a future RRP, at the discretion of the City, may also be a
consideration to any future extension of the Collection Franchise Agreement. If
Otay fails to fulfill its obligations under this Section, in addition to any and all
other remedies available to City at law or in equity, Otay agrees that it shall be
obligated to make available to the City, in perpetuity, the RRP Property, at a
location reasonably approved by City, for use as an RRP. The parties shall meet
and confer to determine the
the type of RRP operations to be allowed, and the RRP operator, all of which
f. Green Waste Landfill Passes. Republic shall give Small Quantity Generators
within the City two (2) free Green Waste disposal passes per calendar year for use
at the Otay Landfill for a single vehicle no greater than one ton in capacity each.
Each vehicle load of Green Waste brought to the Otay landfill by a Small
Quantity Generator shall be used as part of the ADC, composting or other
program eligible for diversion credit under then applicable Diversion Laws.
g. Construction and Demolition Recycling. Otay agrees to take any and all actions
reasonably necessary to timely obtain all permits necessary to expand its existing
Construction and demolition recycling operation at the Landfill to keep up with
current and projected demand therefor, and to comply with Applicable Laws.
3.0 General Provisions.
3.1 Term; Covenants Running with the Land. This Agreement shall be effective for
so long as the Landfill is being operated as a landfill, a transfer station, an RRP, or an equivalent
land. City is deemed the beneficiary of such covenants for and in its own right and for the
purposes of protecting the interest of the community and other parties public or private, in whose
favor and for whose benefit of such covenants running with the land have been provided without
regard to whether City has been, remained or are owners of any particular land or interest
therein. In order to implement this Section, City reserves the right to prepare a memorandum of
this agreement in recordable format and to record same with respect to the Landfill property.
The Otay Affiliates agree to execute same in a form reasonably approved thereby.
Notwithstanding the foregoing, the Otay Affiliates obligations under Section 3.14 hereof shall
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survive the termination of this Agreement.
3.2 Administrative Review of Disputes. Prior to commencing litigation, a party
shall first give the other party written notice of any dispute with respect to this Agreement. Such
notice shall specify a date and location for a meeting of the parties hereto at which such parties
shall attempt to resolve such dispute, and the name of a mediator selected by such party to
mediate the meeting. City shall keep a record of the proceedings conducted and information
presented during such meeting. The cost of such resolution shall be divided and paid equally by
the parties. In the event that such dispute cannot be resolved by the parties hereto within thirty
(30) days, the matter may be referred by mutual agreement of the parties to non-binding
arbitration, or by either party to legal proceedings. Neither party may act to terminate this
Agreement for cause except at the conclusion of the meeting of the parties held pursuant to this
Section 3.2, or in the event the parties have referred the dispute to arbitration, at the conclusion
of the arbitration.
3.3 Authority. Each party represents that it has fullright, power and authority to
execute this Agreement and to perform its obligations hereunder, without the need for any
further action under its governing instruments, and that the parties executing this Agreement on
behalf of such party are duly authorized agents with authority to do so.
3.4 Assignment. Except as expressly provided herein, neither this Agreement, nor
any rights or interest herein, shall be assigned by either party without the prior written consent of
the other party, which consent shall not be unreasonably withheld, conditioned or delayed,
except that City is deemed to have consented to any transfer this Agreement by Otay to any
Affiliate, provided such Affiliate covenants and agrees in writing to perform and be bound by
each and all of the terms and conditions hereunder. Any attempted assignment in violation of this
section shall be void and shall constitute a material default entitling the other party to terminate
this Agreement. In addition, both parties agree to comply with any and all provision contained in
the Municipal Code governing the change of ownership of Otay or the transfer of this
Agreement.
3.5 Counterparts. This Agreement may be executed in multiple copies, each of
which shall be deemed an original, but all of which shall constitute one agreement after each
party has signed such a counterpart.
3.6 Entire Agreement. This Agreement, together with all exhibits attached hereto
and other agreements expressly referred to herein, constitutes the entire agreement between the
parties with respect to the subject matter contained herein. All prior or contemporaneous
agreements, understandings, representations, warranties and statements, oral or written, between
the Parties are superseded, except for the Collection Franchise Agreement entered into by the
City and Republic contemporaneously herewith.
3.7 Other Governmental Bodies. In the event any value paid to City under this
Agreement is required by law to be shared with or otherwise paid over to any other
Governmental Body, City shall be solely responsible for transferring such value to such
Governmental Body, without any indemnification or any other reimbursement from the Otay,
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Affiliate under this Agreement. Notwithstanding the foregoing, any such requirement shall be
considered a Change in Law pursuant to the terms of this Agreement and this Section shall not
relieve the Otay Affiliates of their obligations under Section 3.12 hereof.
3.8 Exhibits. All exhibits referred to herein are attached hereto and incorporated
herein by this reference.
3.9 Governing Law. This Agreement shall be governed, interpreted, construed and
enforced in accordance with the laws of the State of California.
3.10 Notice. Any notice that may be given to either party under or with respect to
this Agreement shall be deemed to have been given when delivered personally or when sent by
registered or certified mail, postage prepaid, addressed as follows:
Otay Affiliates:
Otay Landfill, Inc.
8364 Clairemont Mesa Boulevard
San Diego, CA 92111
Attn. Neil Mohr, General Manager
with a copy to:
Attn. Tim Benter, Deputy General Counsel
Republic Services, Inc.
8500 North Allied Way
Phoenix, Arizona 85054
CITY:
City of Chula Vista
276 Fourth Avenue
Chula Vista, CA 91910
Attn: City Manager
with a copy to:
City Attorney
3.11 Successors. Subject to the restrictions on assignment and change of ownership
contained herein, all terms of this Agreement shall be binding upon, inure to the benefit of, and
be enforceable by the parties hereto and their respective heirs, legal representatives, successors,
and assigns.
3.12 Uncontrollable Circumstances. Except as otherwise specifically provided in
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this Agreement, neither the Otay Affiliates, on the one hand, or City, on the other hand, shall be
in breach of this Agreement for any temporary failure or delay in the performance of any
obligation under this Agreement (other than any payment at the time due and owing) to the
extent such failure or delay is due to the occurrence of an Uncontrollable Circumstance;
provided, however, the party experiencing an Uncontrollable Circumstance shall not be in breach
only if such party complies with the requirements in this Section 3.12. The party experiencing an
Uncontrollable Circumstance shall notify the other party by telecommunication or telephone and
in writing ("Notice"), immediately after the party experiencing such Uncontrollable
Circumstance first learns of the commencement thereof, followed within forty-eight hours by a
written description of (1) the Uncontrollable Circumstance and the cause thereof (to the extent
known) and (2) the date the Uncontrollable Circumstance began and the cause thereof, its
estimated duration, the estimated time during which the performance of such party's obligations
hereunder will be delayed. Each party shall provide prompt written notice of the cessation of
such Uncontrollable Circumstance. A party's obligations hereunder shall be delayed commencing
at the date of Notice time for only so long as the Uncontrollable Circumstance continues and
prevents full compliance with the obligations under this Agreement. Whenever such act, event or
condition shall occur, the party claiming to be adversely affected thereby (a) shall use its best
efforts to eliminate the cause therefor, (b) minimize the adverse impacts caused thereby, and (c)
shall take all necessary and appropriate actions, including, if necessary, bringing in labor and
equipment from unaffected areas to resume full performance under this Agreement as quickly as
possible.
3.13 Compliance with Laws and Directives. Each of the Otay Affiliates shall
comply with all Applicable Law (or such higher standards as may be required under this
Agreement) regarding the manner in which it conducts its trade and business. The Parties agree
to cooperate with each other in reaching a modification to this Agreement to the extent required
by law at any time it should be deemed necessary in the future. In the event of any Change in
Law, or a successful third-party challenge to all or any material provision of this Agreement that
in either case materially affects City's consideration or the Otay Affiliates obligations hereunder,
the parties agree to meet and confer in order to develop reasonable modifications to this
Agreement, if any can be developed, which would allow this Agreement to continue in
substantial conformance with its terms as they existed prior to such Change in Law.
3.14 Hold Harmless.
(a) In General. To the maximum extent allowed by law, the Otay Affiliates, shall
indemnify, protect, save and hold harmless, City and any elected representatives, officers,
employees, agents and volunteers thereof (
"City Indemnified Parties") against and from all damages, including bodily injury and property
damages, losses, liabilities, demands, claims, remediation or investigation obligations related to
government regulated materials, judgments, decrees, costs (including court costs and reasonable
attorneys' fees) and expenditures (collectively, "Losses") which such City Indemnified Party may
suffer, or which may be sought or recovered from, or obtainable against such City Indemnified
Party for, or by reason of, or growing out of or resulting from, directly or indirectly, City's grant
or the exercising by the Otay Affiliates of any or all of the rights or privileges granted hereby, or
by reason of any act(s) or omissions of the Otay Affiliates, or of any of their respective officers,
13
employees, agents or contractors, in operating the Landfill, or exercising any or all of the rights
or privileges granted hereby
(b) Duty of Defense. Otay Affiliates obligations under this Section 13.14 shall
include the duty of defense with counsel chosen by the Otay Affiliates and reasonably acceptable
to City with respect to any suit or claim that may be instituted against any City Indemnified Party
by reason of or growing out of or resulting from any Losses Causing Activity.
(c) Hazardous Materials. Without limiting the generality of the foregoing, the Otay
Affiliates shall protect, defend, indemnify, save and hold harmless any City Indemnified Parties
from and against all Losses which such City Indemnified Parties may suffer, including Losses
which may be recovered from, or obtainable against such City Indemnified Parties, resulting
from any investigation, repair, cleanup or detoxification, or preparation and implementation of
any removal, remedial, response, closure or other plan or replacement or restoration of natural
resources (regardless of whether undertaken due to governmental action) for, or by reason of, or
growing out of or resulting from, directly or indirectly , the disposed of Solid Waste collected
from City generators, or activities of the Otay Affiliates (including predecessors interest and
successors in interest), or other activities thereof with respect to Lanfill operations which result
in a release or threatened release of hazardous materials into the environment in or around the
City or at any landfill. The foregoing obligation is intended to be an agreement allowed by
Section 107(e) of the Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA), 42 USC, Section 9607(e), and California Health and Safety Code 25364 for the
allocation of liability thereunder as between the City, Otay and its Affiliates ,
(d) Miscellaneous. The Otay obligations under this Section 13.14 shall not be
restricted to insurance proceeds, if any, received by City Indemnified Parties. The Otay
obligations under this Section 13.14 shall not be limited by any prior or subsequent
declaration thereby. The Otay Affiliates further agree to pay any and all costs City incurs
enforcing its rights under this Section 13.14. Nothing in this Section is intended to supersede
any other of the parties obligations under this Agreement, including, without limitation, the
obligation to meet and confer in the event of a Change in Law as provided in Section 3.13
hereof. In the event City seeks indemnification after an assignment of this Agreement by Otay
Affiliates, City must first seek indemnification from Otay's successor-in-interest prior to seeking
indemnification from the Otay Affiliates.
(e) Survival. The provisions of this Section 13.14 shall survive the end of the term or
termination of this Agreement.
3.15 Guaranty of Performance. Allied and Republic unconditionally guaranty the
obligations under this Agreement.
3.16 Remedies Upon Default. Upon the occurrence of any event of default by any
party, the non-defaulting party shall have any and all remedies available to such party at law or
in equity. No provision herein made for the purpose of securing the enforcement of the terms and
conditions of this Agreement shall be deemed an exclusive remedy or to afford the exclusive
procedure for the enforcement of said terms and conditions, but the remedies and procedure
14
outlined herein or provided, including forfeiture, shall be deemed to be cumulative.
3.17 No Waiver. The failure of either party at any time to require performance by
the other of a provision hereof, shall in no way affect the right of such party entitled to
performance to enforce the same thereafter. Nor shall the waiver of either party of any breach of
any provisions hereof be construed to be a waiver of such provisions or of any succeeding breach
thereof.
\[Next Page Is Signature Page\]
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\[SIGNATURE PAGE TO OTAY LANDFILL EXPANSION AGREEMENT BETWEEN CITY
OF CHULA VISTA AND OTAY LANDFILL, INC.\]
IN WITNESS WHEREOF, Otay and City have entered into this Otay Landfill Expansion
Agreement effective as of the date first written above.
CITY: OTAY:
City of Chula Vista, Otay Landfill, Inc.,
a municipal corporation a California Corporation
By: _________________ By: _______________
Attest: _______________ By: _________________
Approved as to form by
_______ _______________
REPUBLIC: ALLIED:
Allied Waste Systems, Inc., Allied Waste North America, Inc.,
aDelaware corporation a Delaware corporation
By: _______________ By: _____________________
By: ________________ By: _____________________
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